Local

option

Direct

and indirect control

voting which makes no attempt to provide for minority or proportional representation.

These possible results are pointed out not with a view to asserting that schemes for minority representation are in all cases unwise: the purpose has been merely to show that these plans, attractive upon their face, involve ultimate consequences which need to be considered.1

It not infrequently happens that a question arises whether or not a political policy shall be adopted which is without considerable importance to the whole State, but is of peculiar importance to the people of a given locality. In such cases there would seem to be no objection to submitting this question to a vote of the people especially concerned. Thus, in the United States, it was not unusual to permit the voters of each city or county or other administrative area to determine whether or not the sale of intoxicating liquors within their respective areas should be legalized; whether certain laws should be passed or taxes levied in order to make certain public improvements, etc. This is a procedure which cannot be criticized so long as local electorates are not permitted to pass upon questions which are of real significance to the entire State.

It has been pointed out that the distinction between a democracy and a republic is that, in the former, the people attempt to exercise a direct and immediate control in the formulation and administration of the policies of the State, whereas, in the latter, this control is exercised (except in so far as provision is made for the initiative and referendum) indirectly through representatives which they have chosen.

It is clear then that, in so far as an attempt is made by the electorate to issue mandatory instructions which will

'The question of proportional representation will be considered more in detail later but it may be said here that it would have a tendency to break up the twoparty system and on this ground is objected to by some critics. (W. F. Willoughby, The Government of Modern States, p. 329). On the other hand, advocates of proportional representation think that this is a small price to pay for the benefits which would result.

and uninstructed

representatives

prevent their representatives from freely exercising their Instructed own judgment as to what the general welfare demands, the theory of representative government is departed from; the members of the legislature cease to be representatives and become mere delegates or agents automatically registering the decisions which the people have reached. And this, of course, means that, as to these instructed matters, discussion and debate in the legislative chambers is without meaning or result.1

of the

With reference to the wisdom of the attempt upon the part of the electorate to bind the judgment of their representatives, it is to be said that the utilitarian justification of representative government is not based simply upon the ground that in a State of any considerable size it is not practicable for the people directly to exercise political Competence powers, but the furhter ground that there are many upon matters upon which no people are qualified to give an intelligent decision, although they may be qualified to select persons of superior intelligence, knowledge, and technical training who can appreciate what are the true interests of their constituents and devise the administrative means by which they may best be promoted. This does not

1 There is an adequate discussion of instructed versus uninstructed representation in Garner, Introduction to Political Science, p. 478 ff. The classic statement is that of Burke to the electors at Bristol:

"Parliament is not a congress of ambassadors from different and hostile interests; which interests each must maintain, as an agent and advocate, against other agents and advocates; but parliament is a deliberative assembly of one nation, with one interest, that of the whole; where, not local purposes, not local prejudices ought to guide, but the general good resulting from the general reason of the whole. You choose a member indeed; but when you have chosen him, he is not a member of Bristol, but he is a member of parliament." [1774).

"I was not only your representative as a body; I was an agent, the solicitor of individuals; I ran about wherever your affairs could call me; and in acting for you I often appeared rather as a ship-broker, than as a member of parliament. There was nothing too laborious or too low for me to undertake. The meanness of the business was raised by the dignity of the object." [1780].

"If we do not give confidence to their minds, and a liberal scope to their understandings; if we do not permit our members to act upon a very enlarged view of things; we shall at length infallibly degrade our national representation into a confused and scuffling bustle of local agency." [1780].

The nature of the mandate of a representative involves two distinct questions: (1) Whose interests should he work for? and (2) Whose judgment should he follow?

people

The Referendum

mean that the people may not be able to express an intelligent opinion, through their political parties and otherwise, upon certain broad lines of public policy, but that they are not competent to decide upon matters an understanding of which requires specialized and technical training. And as to many of these matters it would appear that the representatives themselves are wise if they leave the decision to their leaders or to the executive, reserving to themselves only rights of supervision, criticism, and ultimate control. This is a topic which is more particularly discussed in the chapter dealing with the proper functions of representative legislative chambers.

Before leaving this subject it may be mentioned that the same considerations which make it unwise for an electorate to attempt to control the judgment of its representatives make it also unwise for them, by the referendum, to attempt to determine matters regarding which it is practically impossible for them to form an intelligent opinion.1

TOPICS FOR FURTHER INVESTIGATION

Critics of Democracy.-Lecky, Democracy and Liberty; Maine, Popular Government; Inge, Outspoken Essays; Mallock, The Limits of Pure Democracy; Hearnshaw, Democracy at the Crossways; Dicey, Law and Opinion in England (rev. ed.). Cf. also Bryce, Modern Democracies, and the two essays in the fourth series of Lord Morley's Miscellanies.

The Merits and Defects of Direct Legislation.-Barnett, The Initiative, Referendum, and Recall in Oregon; Bonjour, Real Democracy in Operation; Garner, Introduction to Political Science:

1 The chief difficulties with respect to the referendum are, of course, that a popular vote on most questions is likely to be vague. If the referendum is on a general principle (for example, an elected House of Lords), it is of little avail for the crux of the matter is the manner of election. On the other hand, if some detailed scheme were proposed, voters, in favor of the general principle, might oppose on account of objectionable details. Furthermore, as has been said, frequent use of the referendum would weaken legislative responsibility. There is a very excellent discussion of the question in Bryce, Modern Democracies, Vol. II, Chap. LXV. See also Dicey, The Law of the Constitution (ed. 1915), p. xci ff.; Lowell, Public Opinion and Popular Government, p. 152 ff.

Bryce, Modern Democracies; Lowell, Public Opinion and Popular Government; Mallock, The Limits of Pure Democracy; Dicey, Law of the Constitution (8th ed.).

Second Chambers in the British Empire.-Curtis, The Problem of the Commonwealth; Keith, Responsible Government in the British Dominions; Bryce, Modern Democracies; Marriott, Second Chambers; Temperley, Senates and Upper Chambers; Jenks, The Government of the British Empire.

Instructed versus Uninstructed Representation.-Garner, Introduction to Political Science; Burke, Selected Works; Lowell, Public Opinion and Popular Government; Mill, Representative Government.

The Utility of the American Senate.-Bryce, The American Commonwealth and Modern Democracies; Wilson, Congressional Government; Haynes, The Election of Senators; McCall, "Again the Senate," Atlantic Monthly, September, 1920; Corwin, "Mr. McCall on the Senate," The Review, October 6, 1920.

The Value of Primaries.-Merriam, American Political Ideas (1920) and Primary Elections (1909); Taft, Popular Government; Goodnow, Politics and Administration; Ford, "The Direct Primary," North American Review, Vol. C X C, p. 1.

The Duties of the Executive

CHAPTER X

THE EXECUTIVE BRANCH OF

GOVERNMENT

SPEAKING generally, the executive branch of government has to do with the execution of the policies of the State.1 These policies may find embodiment in the written constitution, if there is one, or in acts of the legislature. With reference to the powers thus created or granted, the executive agents may have a broad discretion as to the manner in which their duties are to be performed, including the right to issue specific rules or ordinances which will be legally obligatory upon those to whom they are addressed; or they may have only the routine task of carrying into effect the commands specifically laid upon them without the exercise of any independent judgment.

In so far as executive powers owe their origin to the written constitution from which all the organs of government derive their powers, they may not be controlled by the legislature; nor are they subject to judicial review, except to determine the question whether or not the limits of the granted authority have been overstepped. And it

"At the present time, the executive in every State, with one exception, is organized on the single-headed principle. The exception is found in the constitution of the Swiss republic, which vests the executive power in a council of seven persons. One of the seven bears the title and dignity of President of the Confederation and performs the ceremonial duties of the executive office, but, in reality, he is merely chairman of the council and shares the executive power equally with his colleagues. He is in no sense the supreme head of the administration and carries no greater responsibility than his fellow councilors, The practical working of the institution in Switzerland had been attended with less difficulty than in the plural form elsewhere, mainly on account of certain habits and traditions of the Swiss people, and because the ground had already been prepared through local experience. For a long time the collegial form of executive had existed in the separate cantons, and hence, when it was introduced into the constitution of the confederation, in 1884, the institution had passed the experimental stage." Garner, Introduction to Political Science, p. 521.