It is not too much to say that this marvelous achievement in human government is the gift to mankind from the American bar. On that bar rests a peculiar responsibility to see that it remains inviolate, that the fundamentals on which it rests shall never be successfully assailed; that its representative principle shall be preserved and that the division of its powers and the equality and independence of its three great departments, so essential to stability, justice, and liberty, shall be maintained unweakened and unimpaired. Whatever differences may arise in respect to measures or policies, let them be fought out and determined within the board and imperishable lines of the institutional provisions of our Constitution. The sacred temple of our Constitution must neither be profaned nor destroyed. However much we may change its decorations, no man must assail its foundations or weaken its pillars. The American system must remain republican. It must remain representative. The separation, equality, and independence of its three great departments must be preserved. 62D CONGRESS } SENATE DOCUMENT THE INDUSTRIAL DEVELOP MENT OF NATIONS PREFACE TO A HISTORY OF THE TARIFF POLICIES OF THE UNITED STATES AND OF GREAT BRITAIN, GERMANY, FRANCE, RUSSIA, AND OTHER EUROPEAN COUNTRIES of the others. But it may be interesting and useful to revert to the causes which produced, and which have so far maintained, this governmental conception among our people. Our forefathers loved liberty and sought these shores as a refuge from oppression. They established this Government as a Republic because they sought to escape from the oppression and the power of a monarchy. They framed their Constitution at the time and in the era of the French Revolution. They saw in France an oppressed, unhappy, and enraged people, struggling with a king who claimed both the legislative power to make laws and the executive power to administer and enforce them-in whom, in other words, were united both the legislative and executive functions. They saw the historic authority of the French Parliaments (which were the French courts) to limit the legislative enactments or decrees of the king denied by him, their independence destroyed, and their members imprisoned or sent into exile. The result in France at the time of the revolution was, as described by Lecky A despotism so absolute that Blackstone had a few years before classed France and Turkey together, as examples of countries in which the personal liberty of the subject was most completely at the mercy of the crown. The system of arbitrary exile and arbitrary imprisonment was in full force. There was nothing analogous to the English habeas corpus act; no liberty of the press; no legalized religious liberty; no trial by jury; no national representation. The States General had not met since 1614. The people had absolutely no voice in making the laws they obeyed, and, except in a very few Provinces, with the destruction of the Parliament (which was as stated the French court) the last semblance of control on the taxing powers of the crown had been lost. That was what the American people, at the time they were creating their own governmental system, saw had happened when the legislative, executive, and judicial powers were united in a single authority. This condition of unhappiness and oppression bred revolution and gave birth to the apostles of freedom. No one arose in that "seething and breeding time" with greater influence upon the thought of the nation and of his times than Jean Jacques Rousseau. In the language of an eminent author, "the French found in Rousseau one of the most eloquent and seductive political writers who has ever lived, and he furnished the archetype or pattern on which the revolutionary school endeavored to build." As will be readily appreciated, he became, under the influence of such conditions, an extremist. He found the dominant principle of the French monarchy to be that the whole supreme power rests in the king. In extreme reaction against this doctrine, he taught, not only that the "entire right of sovereignty was in the people, but that they could not be represented; that the deputies of the people are not, and can not be, their representatives, but only their agents, who could conclude nothing definitely; that every law was null which the people have not directly ratified and that the idea of a representative government had come down to us from feudal systems, in themselves iniquitous and absurd, which had degraded the human species." It was in the full light of these political teachings, received from ancient philosophies and from exhausted and unsuccessful experiments in government, on which the world in the garish light of the opening French Revolution was looking with riveted and startled gaze, that American statesmanship established the American system of representative government, with its divisions of powers and its checks and balances. Of this Lecky says: In 1787 and the two following years, when the philosophy of Rousseau was reigning without a rival in France, John Adams published his "Defence of the American Constitution" for the purpose of showing the necessity of establishing in every form of government a balance of powers, and Alexander Hamilton, Madison, and Jay supported the same position in the Federalist which contains some of the strongest arguments in defense of those limitations of the popular power, which Rousseau so emphatically repudiated. In a few—in a very few-more years, these great American patriots and statesmen saw the philosophy of Rousseau seized upon by Robespierre and Marat to plunge France into the blood and horrors of the French Revolution; "the despotism of the king succeeded by the despotism of the convention;" the reign of the guillotine supreme; and the rule of the sovereign people displaced by the dictatorship of the Sovereign Napoleon. It will be noted that Napoleon founded and maintained his dictatorship on the consent and approval of the French people, who had wrested sovereignty from the king. Nominally the power was the people's power. In fact, it was seized by their ruler, with no limitation on its exercise except his own will. He succeeded in establishing a direct relationship between himself and the people, in appealing to their imagination, and in establishing himself in their admiration and. affection. Realizing that, under the new order, the people were the seat of power, Napoleon, with his marvelous genius and boundless ambition, sought to control the people in order that he might exercise their power. He sought, by the assistance of the people, to reunite the legislative and executive powers in his own person. In the days of modern democracy, when the fundamental truth is universally recognized that the ultimate sovereignty resides in the people, no course other than that pursued by Napoleon in and after the French Revolution is open to the usurping ambition of men who seek dictatorial power. To prevent this concentration of power in a single man or a single authority, the American Constitution has made a fundamental separation between the legislative, executive, and judicial powers of government. It has made them independent, and it has made them coequal. As long as this independence and equality is maintained, each will be a check upon the others and there will be no danger of a hurtful or destructive concentration of power in single hands. As soon as it disappears, a concentration of power will become possible, which will mean the opportunity for the removal of all checks and limitations and the establishment of the capacity for absolutism. In the language of Montesquieu: When the legislative and executive powers are united in the same person, or the same body of magistrates, there can be no liberty, because apprehensions may arise least the same monarch or senate should enact tyrannical laws, to execute them in a tyrannical manner. Again, there is no liberty of the judiciary power if it be not separated from the legislative and executive. Were it joined with the legislative, the life and liberty of the subject would be exposed to arbitrary control, for the judge would be the legislator. Were it joined to the executive power, the judge might behave with violence and oppression. There would be an end of everything were the same men or the same body, whether of nobles or of the people, to exercise these three powers that of enacting laws, that of executing the public resolutions, and of trying the causes of individuals. Manifestly the first step in the direction of this result must be the impairment or the destruction of the dignity and responsibility of representative government. It is only through the conception of representative government that the principle of separation between the three departments of governmental power-executive, legislative, and judicial can be worked out and their equality and independence can be preserved. If power be taken away from representatives and be resumed by the people in their primary capacity, thus placing it in single hands, namely, the people themselves, there is manifestly no way of keeping up a separation of those powers, of preserving their equality and independence, and of having one a check upon the improper or arbitrary use of another. When this truth in the philosophy of government is appreciated, any proposition to destroy or to seriously impair the representative principle now pervading the American Constitution must be contemplated by those who love liberty and social order and are attached to the principles of republican government with feelings of profound misgivings and alarm. It becomes necessary, therefore, for the American people to examine with scrupulous care the novel propositions in government which are now being so industriously urged upon their attention. These are, first, the initiative and referendum, and, second, the recall, by popular vote, of judges, or of judicial decisions on constitutional questions. In respect to the initiative and referendum, it will be noted that these as proposed have no reference to the direct power of the people over their constitutions. As to the making and unmaking of constitutions, and as to their amendment, the people have never imposed upon themselves any limitations except in respect to certain methods of orderly procedure, and thier direct power to deal with all the fundamental questions relating to the organization, form, and scope of their government has always prevailed in our constitutional system and is unquestioned. The reason of this is that constitutions deal with certain fundamental principles of human society relating to life, liberty, and property which are universal in their application and in respect to which the great mass of the people have matured convictions and can act wisely. The doctrine of the initiative and referendum, as now proposed, relates to the making and amending of statutory laws and to the exercise by the people, in their primary capacity, of the regislative power in respect to any question of transient policy or contemporaneous government. It is a substantial revolution toward the philosophy of Rousseau, which created the conditions which first produced the French Revolution and afterwards culminated in the dictatorship of Napoleon. The obvious effect of the doctrine is to lessen the responsibility and to diminish the scope for the exercise of independent judgment by the legislative representatives of the people. When this independence is destroyed or seriously impaired and the people exercise, in their primary capacity, the power of making or unmaking laws relating to matters of passing popular interest, not only will the opportunity for careful consideration and deliberation as to what is wise policy be gone, but the way will be made easy for any capable, ambitious, and conscienceless executive to add the legislative to the executive power by establishing a supremacy over the popular imagination, just as |