almost everywhere been substituted. Speaking of the origin of the delegate system in the country where it seems to have appeared first in the post-classical age,' John Fiske declared:2 "It was one of the greatest steps ever taken in the political history of mankind. In these four discreet men sent to speak for their township in the old county assembly, we have the germ of institutions that have ripened into the House of Commons and into the legislatures of modern kingdoms and republics." 3 A later eulogist is still more pronounced. "We believe," he says, "that a representative form is the best. Its theory is that as men in their private affairs usually, all things being equal, choose the best tailor, the best shoemaker, the best lawyer, and the best doctor they can get, having regard, not only to their knowledge and their skill, but also to their honesty, they will use like discretion in choosing their political agents." were then still recent, been powerful, but in these countries they had been, or were about to be, abolished, and in each case the triumph of the crown was due to the favor of the people." - Dicey, "Will the Form of Parliamentary Government be Permanent ?" Harvard Law Review, XIII, 72. In England the delegate parliament dates from the thirteenth century, but even its earliest appearance was after direct popular legislation had been in vogue for ages. 'Mr. Hannis Taylor in his "Origin and Growth of the English Constitution," 429, observes that "the representative principle . . . has been called 'a Teutonic invention."" But it may well be questioned if the principle was not applied by the classical nations. Besides the Amphyktionic Council (conceded by Fiske in connection with the passage quoted in the text to afford an Hellenic instance) and the Achaian League, which is even more in point, was not the primitive Roman tribune truly the representative of his plebeian constituency when, to voice its demands, he went before the patrician Senate? Or, when, in the exercise of his extraordinary power of intercession, he placed a check upon the entire legislative machinery of the republic? See Ihne, "History of Rome," I, 149, 151. Rousseau, however, would call the tribunes "deputies" rather than "representa tives." "It is very singular," he says, "that in Rome, where the tribunes were so sacred, it was not even imagined that they could usurp the functions of the people, and in the midst of so great a multitude they never attempted to pass, of their own accord, a single plebiscitum. . . . To explain, however, in what manner the tribunes sometimes represented it (the nation), it is sufficient to understand how the government represents the sovereign. The law being nothing but the declaration of the general will, it is clear that in their legislative capacity the people cannot be represented; but they can and should be represented in the executive power, which is only force applied to law. . . . It is certain that the tribunes, having no share in the executive power, could never represent the Roman people by right of their office, but only by encroaching on the rights of the Senate." "Contrat Social," Chap. XV. 2 "American Political Ideas," 70, 71. 3 President U. M. Rose in his annual address before the American Bar Association, 1902; American Bar Association Reports, XXV, 239. Nor is this merely the traditional note of Anglo-Saxon optimism. M. Laveleye was hardly less of a panegyrist when he wrote: 1 "The apex of free and democratic institutions is the parliamentary system. It is by this system that a country governs itself. Thanks to it all that a nation possesses of science and experience centred in the elective chambers makes the law." Nor M. Vacherot 2 when he declared: "Parliamentary government is more necessary to republican democracy than all the rest of the system." But keen observers of political tendencies have noticed of late years a reaction from the favorable opinion once entertained of delegate legislation.3 "At present, as far as one can see," says Godkin, "the democratic world is filled with distrust and dislike of its parliaments, and submits to them only under the pressure of stern necessity. . . . They [democracies] seem to be getting tired of the representative system. In no country is it receiving the praises it received forty years ago." Another has said: "The American people are fairly content with their executive and judicial departments of government, but they feel that their law-making bodies have painfully failed. This conviction pertains to all grades of legislatures, municipal, state, and federal. . . . This demoralization of legislative bodies, these tendencies to restrict legislation, must be viewed as a profoundly alarming feature of American politics." 995 Such expressions are not confined to the writers of one country. "I do not think," observes Mr. Lecky," "there is any single fact which is more evident to impartial observers than the declining efficiency and the lowered character of parliamentary government. The evil is certainly not restricted to England. All over Europe, and, it may be added, in a great measure in the United States, complaints of the same kind may be heard. A growing distrust and contempt for representative bodies has been one of the most characteristic 1 "Le Régime Parlementaire et la democratie," Revue des Deux-Mondes, 15 Dec., 1882, 826. 2 "La Republique Constitutionelle et parlementaire,” Revue des Deux-Mondes, 15 Nov., 1879. 3 One sign of this is the almost universal change from annual to biennial sessions. (See Pavey, "Modern State Constitutions," Magazine of American History, XXIII, 158) and the recent experiments of Alabama and Mississippi in quadrennial sessions. "The Decline of Legislatures," Atlantic Monthly, LXXX, 51. 'Commons, "Proportional Representation," 1, 8. "Democracy and Liberty," I, 142, 143. features of the closing years of the nineteenth century. In most countries, as we have already seen, the parliamentary system means constantly shifting government, ruined finances, frequent military revolts, the systematic management of constituencies. In most countries it has proved singularly sterile in high talent. It seems to have fallen more under the control of men of an inferior stamp; of skilful talkers or intriguers, or sectional interests of small groups; and its hold upon the affection and respect of nations has visibly diminished." Mr. Dicey writes in a similar vein: "Faith in Parliaments," he declares,1 "has undergone an eclipse; in proportion as the area of representative government has extended, so the moral authority and prestige of representative government has diminished . . . The proposals for elaborate schemes of proportional representation, the denunciation of the party system by brilliant and weighty writers who express in language which few men can command sentiments which thousands of men entertain, all bear witness to the widespread distrust of representative systems under which it, occasionally at least, may happen that an elected Parliament represents only the worst side of a great nation." In this distrustful and reactionary mood, modern democracy is groping its way toward some system by which it may legislate for itself. As Mr. Godkin observes: "There are signs of a strong disposition, which the Swiss have done much to stimulate, to try the 'referendum' more frequently, on a larger scale, as a mode of enacting laws."'" Rousseau anticipated all these utterances; more than a century previous he had written: "The deputies of the people . . . are not and cannot be its representatives; they are only its commissioners and can conclude nothing definitely. Every law which the people in person have not ratified is invalid; it is not a law. . . . The idea of representatives is modern; it comes to us from feudal government, that absurd and iniquitous government, under which mankind is degraded and the name of man dishonoured." 3 We need not now pause to consider whether these criticisms of the delegate system are justified. If the summary attempted above is correct, that system is but a stage in the evolution of democracy, -perhaps a necessary stage for all nations travelling toward that goal and even a final stage for some, since advancement beyond it implies a capacity for self-government not hitherto demonstrated by 1 13 Harvard Law Review, 73, 74. "The Decline of Legislatures," Atlantic Monthly, LXXX, 51. all. But the complete evolution of legislative sovereignty thus appears to constitute a cycle. Beginning with a system more or less popular, we find this succeeded by a monarchical and then a delegate system which, in turn, are supplanted by one completely direct and popular. To show in detail how this cycle, so far as completed, has been accomplished, is the principal theme of this work. CHAPTER II SURVIVALS OF POPULAR LAW-MAKING A. Persistence of the Folkmoot Idea WHILE the folkmoot generally declined and disappeared, forms and survivals of it continued much longer and throughout much wider areas than is commonly supposed. Thus in Italy the tradition of the Roman popular assemblies appears to have lasted all through the Middle Ages and to have been sufficiently strong toward the close of that era to assist in reviving the original in the form of the Parlamento, or general assembly of the Italian communes.1 The Basque folkmoot of northern Spain, which met under the historic Guernica oak in Vizcaya, enacted fueros for more than five centuries and only lost its functions finally in 1876. Even in Visi 3 2 1 Wolfson, "The Ballot and Other Forms of Voting in the Italian Communes," American Historical Review, V, 3. 264 Stroke merciful and welcome would that be - WORDSWORTH, "The Oak of Guernica" (1810). 3 "The lawmakers of Vizcaya were duly chosen by their fellow-nobles for every Basque held the rank of hidalgo or son of somebody. The deputies met every two years in the village of Guernica, sitting on stone benches in the open air beneath the sacred oak and there elected the Señores de Vizcaya. Even the kings of Spain were allowed no grander title, but had to come to the Tree of Guernica, at first, in person, later by deputy, and there swear to observe the fueros. To this green shadow came the peasant from his lonely farmhouse, high on the mountain side, to answer before |