DIRECT LEGISLATION BY THE PEOPLE.
AQUARTER of a century ago, Representative Government, as the normal expression and organ of the national will, was accepted in one shape or other throughout the world as a first principle in politics by Liberals of every shade, and by the great bulk of Conservatives. The most extreme among European Democrats would hardly have questioned it ; and the main question at issue, amongst every class of Liberals, was as to the form of that government, whether to be monar- chical or republican.
But the destructive criticism of the nineteenth century,— of this its later half especially,—leaves no first principle alone. It is always tearing nervously at the roots of things, regardless of the purpose for which they exist, and would pull up an oak with as little sense of responsibility as it might a potato. Representative Government found no grace with it ; and it must, indeed, be admitted that its extraordinary collapse in France, not before the hero of a hundred victories, but before a melodramatic personage with nothing to dis- tinguish him but a whole series of fiascos, gave a rough shake to Parliamentarianism throughout the world. Hence on the one side we have seen the growth, not only of practical, but of theoretical Owsarism ; men claiming, believing themselves to be—nay, being actually, in many cases—friends of the people, who yet are ready to exalt the swift, despotic enforcement of a single will against the meeting in council, often, no doubt, leading to conclusions lame and impotent, of the wills of many. In direct opposition to this, on the other hand (though its means, indeed, may be used with success, as French example has shown, for the very ends of Cmsarism) stands that which appears an equal portent to the ordinary Liberal, the theory of direct legislation by the people itself, a theory, indeed, which, on a small scale, has entered already into practice within several of the cantons of Switzerland,—Berne, Thur- govia, the Grisons,—and latterly, as we are told by its advocates, "in the most complete and purest form" in Zurich. A pamphlet or pamphlets, by Karl Biirkli, recently rendered into English by M. Eugene Oswald,*—who indeed expressly guards himself from responsibility for the views expressed by the author,—lays before us the text of this remarkable State document.
Before considering it, however, a few words must be said on the considerations by which it is supported. " The bour- geois republic, or representative democracy," we are told, "is " Direct Legislation by the People, versus Representative Government. Translated from the original Swiss pamphlets, by Eugbne Oswald. London: Cherry and Fletcher. 1869.
on the point of dying out in Switzerland Represen- tative government is everywhere the same So long
as the workmen allow the laws of the state to be manufactured and forced upon them by those who live by using up the workman, so long will the laws be unfavourable to the toiling
masses, and favourable to the masters only The legislators of the representative state, although elected by the people, are not capable of making good laws for the working-
classes A people can be far more easily misled when there is a question of persons (such as elections for national or municipal councils) than where there is a question of things
(for instance, voting on laws) The history of the world abundantly proves that the law is only a written expression of the interest of the law-giver The spirit of the law lies in the stomach of the law- giver ; the quintessence of laws is determined by the legislator's money-bag Never yet has the misusing class emancipated the misused one, or spontaneously issued laws favourable to the latter. Only when the misused class have become masters in the State, aad have taken legislation into their own hands, have the laws been made in their in- terest, that is, in the general interest, and then only could that class develop itself according to its social needs."
Coarse, hard, Lassallianism is this of Karl Biirkli's, to say nothing of its misstatements. Very far are we from old heathen- dom,—from its strong sense of the sacredness of law, from the noble definition of a Celsus or an Ulpian :—" Law is the art of that which is good and just." Fancy the un- speakable scorn with which those pagans of the first and second centuries would have turned from these pagans of the nineteenth, telling them that " the spirit of the law lies in the stomach of the law-giver "! But it would be wrong to judge of the Zurich Constitution by the comments of its eulogist. In many respects it must be pronounced extremely fair and liberal. The legal and political equality of all, freedom of opinion, the right of meeting and association, the protection of private rights, com- pensation for all expropriations demanded by the public interest, and for illegal arrests, as well as for the removal of functionaries without fault during their term of office, personal freedom, the sanctity of private dwellings, the equal validity of civil and ecclesiastical marriage, obligatory and gratuitous primary instruction, an organized national church, the main- tenance " in general " of " the contributions hitherto furnished by the State for ecclesiastical wants,"—to which must be added the abolition of capital punishments and a progressive income and property tax, the progressive ratio being however limited, as to income, to the fifth part of the simple ratio, and as to property, to double the simple ratio—such are its main features, apart from that which we are about to examine. As respects direct popular legislation, the keynote is struck in the first article of a set of "political principles " prefixed to it. " The political power resides in the totality of the people. It is exercised directly by the r active' citizens, and indirectly by the constituted authorities and public functionaries." Active citizenship appears to belong to all males of twenty-one and upwards, except those who (1) by lunacy or otherwise have lost the faculty of entering on valid commercial transactions ; (2) have been adjudged guilty by a court of law of degrading crimes or misdemeanours ; (3) being bankrupt, have been adjudged to be suspended from active citizenship, which suspension may be for from one year to ten ; (4) are in receipt of public alms (arts. 16, 18). " The people, with the co-operation of the Cantonal Council, exercise the powers of legislation" (art. 28). A single indi- vidual may demand " the passing, repeal, or alteration of a law," and if such demand be supported by one-third of the members of the Cantonal Council, " the question must be laid before the people for decision," and the individual making such demand, if his request be supported by twenty-five members of the Cantonal Council, may personally advocate in the Cantonal Council the alteration proposed. If 5,000 persons pronounce in favour of any demand, the decision of the people must be taken. Before the vote, howevef, the Cantonal Council is always "to give an opinion in the form of a resolution " on any demand made, and in case of any bill proceeding from the popular initiative may submit a modified measure to the people (art. 29). " Twice every year, in spring and in autumn," the people vote on the legislative acts of the Cantonal Council, which in urgent cases can order an extraordinary vote. The condition of the popular vote applies (1) to " all alterations of the constitution, laws, and concordats ; (2) to those resolu-
tions of the. Cantonal Ocnincil which that Council is not com- petent to pass definitively ; (3) to any resolutions which the Council may wish to put to the popular vote," including, if the Council think fit, a vote on single points of a law or resolution, besides the vote op its totality. The vote is by ballot, by yea or nay, by an absolute majority. "Participation in it is a citizen's duty, binding on all." All proposals to be submitted to the public vote must be in the hands of the voters at least thirty days beforehand (art. 30).
It will be seen that this plan avoids all popular interference with the text of the law. It affords no greater facilities for bad Parliamentary drawing, no more loop-holes for the inser- tion at the last moment of " mad-bull amendments," making havoc of the whole scheme of a bill, than our own Constitution by King, Lords, and Commons. So far as respects the submitting of all legislation to the popular vote, it generalizes a practice which, of late years, we have frequently seen applied in exceptional cases in the United States, where the new State Constitutions arising out of the abolition of slavery have all to be ratified by the people before they can come into effect ; whilst, indeed, it would appear that in many of the States the practice is greatly extending, and is beginning to be resorted to in questions of emir- paratively trifling importance. Logically, indeed, from the republican point of view, the assent or dissent of the people in legislation corresponds exactly to the assent or dissent of the sovereign from the point of view of constitutional monarchy, and hence one of the worst puzzles in the Constitu- tion of the United States has grown to be the transference of this sanction to an individual not a sovereign, a mere temporary officer,—the President.
On the other hand, the provision of the Zurich Constitution making an appeal to the people imperative where a single individual makes a proposal which is supported by one-third of the members of the Cantonal Council, or where such pro- posal is made by a definite number (5,000) of electors, seems sure to prove a serious interference with the machinery of legislation. In the former case, if one-third of the members of the Cantonal Council plus oneindividual voter can enforce such an appeal, it is absurd that the one-third should not be able to do so without the one voter, who will become a mere man of straw, put forward to paralyze the whole action of the State at the bidding of a factious minority of the Council. The latter provision is scarcely less mischievous. Besides the short-sighted blunder of fixing the number, instead of the proportion to the whole electoral body, of the voters who have a right to claim a popular vote, it must act as an incitement to ambitious demagogues to use any temporary effervescence of popular feeling for the purpose of overawing the Cantonal Council, and tends, in fact, to control the regular action of public opinion by its irregular outbursts.
Still, on the whole, notwithstanding the mischievousness and seemingly certain failure of such provisions, and put- ting aside all precedents from classical times, as belonging to a social state based upon slavery, in other words, upon exclusive privilege, and therefore in entire opposition to the modern ideal, as well as those from ages of inferior civilization, when the tribe, sept, or clan had not developed into a nation,—it would appear rash to say to what extent the principle of direct legislation by the people may not be carried in polities of the republican stamp ; and the Zurich experiment deserves, therefore, to be watched with peculiar interest by all who feel the small amount of real vitality which still clings to most of the monarchical polities of the Con- tinent. Two things, however, are perfectly clear,—one, that the plan presupposes, at all events when applied to a com- munity of any magnitude, an amount of education to which no European community has yet reached, nor will reach, pro- bably, for generations,—the other, that in order not to become an unmitigated curse to mankind, it requires to be animated by a spirit exactly opposite to that of Karl Biirkli's pamphlet. If the law is to be only the expression of the lowest interests of a majority, there is not a social wrong which it may not perpetuate, enforce, create ; the normal fate of the minority is to be reduced to literal slavery, if not thrust out of existence, and the constitutional abolition of capital punishments will be found perfectly compatible with the maintenance of the guillotine or the halter, or whatever handier means may offer for getting rid for good of those whom the majority do not deem it their interest to keep alive. If ever direct legisla- tion by the people' becomes a reality, the awe of duty, the might of faith, the sense of a justice, a wisdom, and a love higher than those of man, must spread far and wide through
the masses, in order to prevent their showing themselves as unjust, as senseless, as ferocious, as the worst of individual tyrants.
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