The brief period covered by our history as an independent nation has been, for the student of political institutions, an interesting and eventful one. Within it have been crowded changes in political thought that have excited the apprehensions of those who fear, and inspired hope in those who wish for the ultimate triumph of truly popular government. Rightly viewed our entire history as a nation has been a record of active and unceasing conflict between opposing views of government. The real struggle, the one which is fundamental, the one which in importance has overshadowed all others, the one which in this as in other countries has had a determining influence upon the course of political evolution, has been and still is over the question in whose hands shall the power of ultimate control over the State be lodged. This question, though often kept in the background of political discussion and for that reason not sufficiently appreciated by many who have given their attention mainly to the outward and visible phenomena of our political life, is nevertheless the one which, consciously or unconsciously, has been the cause of all important changes made in our governmental institutions.

Notwithstanding the more or less prevalent belief that the one distinguishing feature of the American constitutional system is its recognition of and adaptation to the idea of government by the people, it is nevertheless true that the fear of too much democracy, rather than too little, largely determined the form in which our general government was cast in the beginning. The subsequent development of our political institutions has been due in large measure to the effort to make the constitutional arrangements inherited from our Federalist fathers a more effective means of popular rule. The whole course of later political development in this country may be viewed as the outcome of a movement to evade or break down the checks intended to guard against what the founders regarded as an undue and dangerous extension of the power of the people.

Direct legislation has found in Massachusetts a soil less congenial for speedy growth than in most of the other States. This has been due in part to the commonwealth's deep-rooted conservatism. To be sure her population has undergone most radical changes. Massachusetts has become the city State. More than two-thirds of her people—a proportion higher than in any other State—are living under municipal government, in cities of 12,000 and over. Thirty per cent of the inhabitants of the State are of foreign birth, while at least 25 per cent more are of foreign parentage. Yet, in spite of the fact that in hardly any other American State have the transforming influences of city life and immigration become so powerful, they have not succeeded in sweeping the commonwealth far from its ancient moorings: the Constitution of 1780 remains its fundamental law, and the traditions of a century and more ago control the voter of today.

The slowness of the growth of the direct legislation movement in Massachusetts has been due also, in part, to the relative excellence of her system of representation, from which it results that defects and abuses which have proved a serious menace in connection with legislation elsewhere have not caused equal alarm in the Bay State. In the first place, both houses of her legislature have a membership large enough to make possible pretty thorough-going representation. Moreover, to a greater extent than any other New England State, Massachusetts approaches genuine equality of representation. Her legislators are elected by districts. Charges of gerrymandering are not very common, and there is here no representation of rotten boroughs which is for a moment to be compared with what is to be found in Rhode Island and Connecticut, and to a less flagrant extent in several other States.

The newer institutional formsof democracy—the referendum in its various forms, the initiative, proportional representation, the recall, popular election of United States senators, direct primaries for the nomination of candidates—all indicate the growing self-consciousness of the masses and the demand for a more direct participation in government than the pure representative system allows. Secretary Root's recent declaration that the

whole civilized world is swinging away from its old governmental moorings and entrusting the fate of its civilization to the capacity of the popular mass to govern

is a statement the truth of which needs no proof for its establishment. Still others whose opinions are entitled to consideration are telling us that

the representative system after a century of existence under a very extended suffrage has failed to satisfy the expectations of its early promoters and is likely to make way in its turn for the more direct action of the people on the most important questions of government.

Certain it is that the character of representative government is undergoing fundamental changes not only through the operation of the forms of democracy mentioned above, but also through the new conception of the relation of the representative to his constituency. The earlier conception attributed to the representative full independence of judgment and action, the right to interpret the common need and the common consciousness free from duress either upon his intellect or his conscience. Edmund Burke expressed the old view when he declared that the representative owed his constituent both industry and judgment and when he sacrified those to the opinion of the constituent, he betrayed rather than served him. But the new view regards the representative in a very different light. He is no longer free to interpret and register the popular will as his conscience and better judgment dictate, but the general consciousness is interpreted for him and he is expected to obey the popular mandate.

We are now in the midst of the third period of radical party readjustment to new governmental conditions, and I am requested to forecast the probable effects upon party organization. The readjustment which we are now experiencing is clearly in response to a popular demand. In the two earlier instances there were likewise elements which were adapted to popular needs.

Even the legislative caucus, in State and nation, which was the first form of organization for the two great national parties, met an obvious need. The voters were already divided into two main groups of opposing opinions and party names had been assumed. Some means were required to give effect to party opinion. The voters were widely distributed. Communication was slow and difficult. At each State capital, and at the national capital, there were already gathered law makers chosen by the people of each locality. It was in entire harmony with the needs of the period that these representatives should assume and exercise the added function of making party nominations. It was, however, only for federal, State, and district offices that the legislative caucus made nominations. For the smaller areas—towns, cities, and counties—other methods were employed.

The legislative caucus was always subject to criticism. Its action was viewed by many as an unauthorized assumption of power. Only in the absence of other more direct organs for giving effect to party opinion was it acceptable. Out of the experience of towns, cities and counties a more direct nominating process was gradually developed for the wider areas. It was customary to choose delegates in local party caucus to meet in party convention, to formulate party policy, and to nominate candidates. In time, and in accordance with the popular wish, the delegate convention system was so extended as to wholly displace the legislative caucus. With the advent of the convention there has come into existence a vast array of party machinery, in the form of permanent party committees.

The widespread interest in nominating systems, particularly during the last ten years, has given rise to a great number of problems new to American politics. These questions are puzzling the reformer, the practical politician, the lawmaker and the judge. They are of absorbing interest to the student of political institutions and tendencies. It is the purpose of this paper to discuss only three of these problems, namely: the test of party allegiance, the formation of the platform under the direct primary system, and the majority required for nomination.

As the party primary becomes more and more like an election, the more important does the question of party membership become. What constitutes a republican or a democrat? and how shall a satisfactory legal test be made? Originally this was a matter over which the party authorities possessed exclusive jurisdiction, and which they might regulate and control in their discretion. The republican committee decided what evidence was necessary to establish a right to participate in republican primaries, and the democratic committee denned and determined the essentials of democracy. The abuse of this power in many cases led to legal regulation of the party test. The most frequent test required is an expression of intention to support the party candidates in the ensuing election, coupled with a statement of past support of or affiliation with the party. In Michigan the test includes a declaration of sympathy with the objects of the party. In New Jersey, the voter must state that he supported a majority of the party's candidates at the last election, and intends to support the candidates named in the primary. South Dakota requires previous support of the party, belief in a “substantial part” of principles of the party, and intention to support the candidates nominated. Pennsylvania requires a declaration that the intending voter supported a majority of the party's candidates at the last election. The Missouri law of 1901 merely required that the voter answer affirmatively the question

Are you a——?

Since the discussion this afternoon centers about the newer institutional forms of democracy, I shall not in this paper attempt to exploit the Des Moines plan of city government as a method of municipal reform or as a solution of the problems of city administration. My purpose will be simply to point out such of the newer institutional forms of democracy as are expressed in “An act to provide for the government of certain cities,” recently passed by the general assembly of Iowa and applicable to all cities of the first-class in that State, having a population of 25,000 or over.

Having been originally brought forward and urged by the people of the city of Des Moines, the system of government outlined in the act of the general assembly has come to be known generally as “The Des Moines Plan of City Government.” It has already been adopted by two of the leading cities of the State, namely; Des Moines and Cedar Rapids—but organization under the new system has not yet been effected in either place.

The Des Moines plan is of course not an altogether unique system of municipal government. It is simply a new edition of the more familiar commission plan; or, it is the Galveston plan revised. Briefly it provides for the government of the city by a council consisting of a mayor and four councilmen who are vested with

all executive, legislative and judicial powers and duties now had possessed and exercised by the mayor, city council, board of public works, park commissioners, board of police and fire commissioners, board of water-works trustees, board of library trustees, solicitor, assessor, treasurer, auditor, city engineer, and other executive and administrative officers in cities of the first-class.

In writing this paper for The American Political Science Association, I beg first to correct the statement that I am speaker of the Oregon assembly. I never held that office and it is more than ten years since I was a member.

The every day use of a new piece of machinery under working conditions is the best test of its value. Therefore I shall mention briefly some results of five years use of the initiative and referendum, in Oregon.

The whole number of electors voting at general elections since 1902 varies from about 93,000 to 97,000. The number voting on measures is from 67 to 89 per cent of the highest number voting for officers. The smallest majority by which any measure has been approved was 3118 and the largest was 64,512. The smallest majority by which any measure has been rejected was 9747 and the largest was 13,000. Woman suffrage and the local option law received the highest percentages of votes, showing that men do not vote on questions they do not understand. Very few men confess ignorance on either of these questions.

The legislature of 1903 appropriated money to build a portage railroad on the Columbia River to extend the water transportation service. Railroad men circulated a referendum petition against the bill, whereupon the Portland chamber of commerce resolved that if the petition was filed it would propose a maximum railroad rate bill by initiative petition. The railroad's referendum petition was not filed.

In responding to the invitation of the program committee of the American Political Science Association, to furnish a statement of my investigations and conclusions concerning the political institutions of Oregon, I propose to discuss the subject under three heads. Under the first I shall give the substance of the initiative and referendum amendment to the State constitution, and enumerate the laws enacted under its provisions. Under the second head I shall comment briefly on the way in which these political innovations came about, the attitude of the courts towards them, and the question of their advantages and disadvantages as shown by experience. Finally, I shall attempt to make some suggestions in the line of a forecast.

That there is a general and well-grounded dissatisfaction with the administration of punitive justice in America, I shall take for granted. It is, if I may say so, a condition, not a theory. The criminologist complains that whereas the fear of punishment does not restrain crime, it is none the less the chief reliance of law for protecting society; that whereas his science has shown the necessity of special institutions with expert management for many classes of delinquents, the legal theory of ideal equality before the law leads criminal law to consign all offenders to a common prison; that whereas he has “demonstrated positively that crime is a disease,” the law persistently deals with the criminal as a normal person. The sociologist complains that whereas the true purpose of punishment is protection of society, the basis of judicial punishment is revenge; that whereas the rights of society ought to be borne in mind continually, the law looks chiefly at individual rights; that whereas sociology has shown the necessity of study of the actual criminal, the law deals with him in the abstract and speculates over responsibility; that whereas the certainty, not the severity of punishment operates as a deterrent and protects society, the law provides for the latter and takes scant account of the former. The plain citizen who, without scientific investigation, knows only that he pays taxes to maintain prisons, courts, sheriffs, constables, police, and public prosecutors, complains that notwithstanding the enormous cost—said to amount the world over to $400,000,000 annually—society is not protected, crimes are not punished, and lawlessness is general.

No person can pass from the praise of trial by jury delivered by Sir William Blackstone, and recorded in the Federalist, Elliott's debates and the other discussions at the time of the adoption of the Constitution, to the criticism found in the discussion of the last ten or fifteen years, without a fixed impression that a most serious change has taken place in a vital function of government. (World's Work, vol. 13, 8221; Arena, vol. 33, 510; Harper's Weekly, vol. 49, 1005; Century, vol. 59, 802; 29, Munsey, 723; 77 Nation, 106; 5 International, 1; 87 Nation, 163; 62 Gentlemen's Magazine, n. s., 189;22 Arena, 312; 98 Spectator, 890; 3 Forum, 102; 9 Forum 309; vol. 1, Report of American Bar Association, 1906, 450; Report of American Bar Association 1905, 15 to 32; Report of Universal Congress of Lawyers and Jurists 1904; 96; 17 Law Quarterly Review, 171, Address of James Bryce, American Bar Association, 1907).

Intermingled with criticism are comments of a more favorable character from men of eminent qualifications, both of equipment and experience. (Report of Universal Congress of Lawyers and Jurists, 1904, p. 105; Address of Joseph Choate before the American Bar Association in 1898).

Reading the criticisms that have been made creates a firm conviction that there has been much of error and wrong in trial by jury.

So great has this been that some, among them even a distinguished ex-attorney-general of the United States have called for its abolition.

These criticisms most generally pertain to trials in civil cases though some of the most serious instances given of miscarriage of justice were in criminal cases.

Love of abstract justice is common to mankind in general and to all systems of law. But there are certain characteristics of what is known as the common law which differentiate it from all other systems. In its certainty, its fixity, its conservatism, which distrusts change and values precedent, it possesses qualities unknown even to the Mussulman with his interpretations of the Koran. There are two old maxims which clearly illustrate this thought. One reads “It is better that the law be certain, than that the law should be just.” And another: “An ounce of precedent is worth a pound of principle.” The legal ideas, methods and practices which prevail upon the European continent and in Spanish America are entirely different from those which obtain in England, the United States, and wherever the common law system is in force. It would be interesting to note the causes which led to the establishment of the two systems which may rightly be called the common law and the civil law; but even if time permitted this would be beside my purpose and I need only say that primarily perhaps it may be truthfully asserted that they are racial or temperamental. Much, of course, is due to environment in the formation of any social institution; but more doubtless to type of mind and the development of ideals. The chief feature of our common law system is, I think, its regard for the individual rights of man. It is nowhere denied that ideal liberty prevails only in those countries where the common law system obtains; and it is even more significant that this freedom has never consciously stood for license, but for liberty in its true sense. Under this system a man may do as he will save as his conduct interferes with the rights, and privileges of others. When this occurs he must subordinate his. will to the public good. He is not only to obey, but also to prevent others from disobeying. This is the “liberty under law,” which safeguards our system; liberty, the child of the common law which today holds together the most advanced civilization of our times.

The question whether prisoners can be reformed is no longer an open one. It is as capable of scientific demonstration as that coal tar, the refuse of the gas works, can be made into saccharin or aniline dyes; that good white paper can be made from unclean rags, and that flowers can be raised from ungainly weeds. The question I have to consider is not the question “Can we reform offenders who come under legal restraint,” but why do we not reform more? One element in the answer may be the character of the prisoner, another the character of the men under whom he is placed, but a third and potential element lies in the defects of our whole legal system. The fact is that a vast number of men who come under the grasp of the law are not reformed because nothing is done to reform them. If you are going to turn rags into paper it is not merely a question of having a good machine at the paper mill and good operators; but you must see that the rags go to the mill and not to the dump.

An engineer was called upon to study the defective water supply of a large city. He found that for years an eight-inch pipe had been diverting water into the sewer which ought to have been filtered and gone into the reservoir. It is so under our legal system. There are streams of life which ought to be filtered and which might be converted, turbulent streams though they are, into light and heat, and power, but which go off into the sewage.

Of the entire field of crime involving political corruption only a remote corner, that of its legal repression, has been assigned to me for discussion here. For this reason, before entering upon the consideration of my theme, it will be serviceable, I believe, briefly to state the nature of the thing sought to be suppressed.

Political corruption is not simply dishonesty in the public service; neither is it merely a phase of crime in general, nor even of crime committed by those who hold public office. The dishonest and the criminally inclined, like the poor, we shall have with us always. Political corruption, however, is a transient phenomenon, especially characteristic, so far as this country is concerned, of the last ten years. Like financial crises and periods of business depression it has come and gone quite independently of the moral factors constituting common honesty or ordinary respect for law. Its advent in any community is marked by the commission of bribery, extortion and criminal conspiracies to defraud the .public, without a corresponding increase in other and unrelated crimes. Its going, likewise, is accompanied by no abatement in the usual grist of larcenies, burglaries and murder. It is, indeed, a unique and highly complex thing; an institution, if you please, rather than a condition of society or a temper or tendency of any class of individuals.

Prior to the establishment of the municipal court in the fall of 1906, criminal justice was administered in the city of Chicago by the courts of the justices of the peace and by the criminal court of Cook county.

The courts of the justices of the peace were a remnant of the town system of New England, which was adopted and established throughout the State by the early settlers of Illinois. Satisfactory in rural districts, where the sparsely populated community is composed of generally honest and law-abiding citizens, in a crowded city it soon became an engine of graft, dishonesty and corruption dominated by unscrupulous politicians.

The justices of the peace in the city of Chicago were appointed by the governor of the State of Illinois on the recommendation of the judges of the circuit and superior courts of Cook county. Those justices who tried criminal cases were known as police magistrates and sat in courts attached to the various police stations of the city. They were appointed to their posts by the mayor and their appointments were confirmed by the city council. The mayor usually recommended for appointment to the various courts such candidates as were designated by the political leaders of his party in the wards in which such courts were located, and the clerks and bailiffs were appointed by the mayor on recommendation of their aldermen. When Chicago became a great city, this system outgrew its usefulness and bred evil practices under which judges in some cases became the servile creatures of politicians. The guilty friend of an alderman might go his evil way, while an enemy, no matter how upright, was liable to false arrest and continuous persecution, if he refused to comply with the bidding of the reigning politician of his ward. In other cases, the court bailiff would be the boss' lieutenant, and receive his orders direct, and be ready with professional bailsmen either to rescue the guilty or abuse the innocent. Were his patrons' plans likely to be frustrated by a jury trial, the bailiff was prepared to secure the desired verdict by calling jurors whom he had instructed beforehand. The clerk on his side would attend to the orders; if the bailiff made a slip, the clerk might be relied upon to correct it in the record. It was current rumor that every day a list of cases to be tried was submitted to the boss and that he checked up on this list results which he desired, returning it to some trusted attache of the court to be acted upon. The justice who was there to assess heavy fines or light, to find guilty or acquit, to have arrested or liberated, found his judgment too often swayed by political considerations. The justice court was a cancer gnawing at the heart of the community. A great wave of public opinion directed against such a condition of affairs led to the establishment of the municipal court in 1906.

Note furnished by Rudolf Leonhard, professor in the University of Breslau, and Kaiser Wilhelm professor in Columbia University, New York.

Gentlemen: You were so kind as to invite me to make some informal remarks about the reforms of criminal law.

I am a former judge of criminal trials and at present professor of Roman law, of which the criminal part has been restored in an admirable way by Theodor Mommsen. Therefore, I dare to utter my opinion also about criminal subjects.

Unfortunately my knowledge of the American criminal law is a very superficial one. But in spite of it I venture to make some general observations, although not based on a special study of your institutions.

There is a great difference between the criminal law of this country and the German law. Especially the national unity of German law is in striking contrast to your mutually exclusive jurisdictions of the single states on this subject. We have had a common written law for Germany from the sixteenth century. Our common law is only supplied by special statutes of the states.

This unity of law corresponds to the unity of social life and social connection between the parts of the empire in a high degree.

Secondly, we live in accordance with the rule: Nulla pcena sine lege, namely, sine scripto jure. This rule is not at all a matter of course, but a result of a historical development. It is not even perfectly satisfying, because the possibility of punishing offenders, whose crimes do not fall within the narrow frontiers of written texts, has some advantages. But we mean in our country, that these advantages must be sacrificed to a higher degree of civilization and especially to the sentiments of pity for the broad classes of people, who come into conflict with the criminal laws and who can expect and demand a specific definition of what is forbidden and what is permitted.

Not long ago, New York's public service commission of the second district held a session in the city of Rochester. A gentleman representing the chamber of commerce of that city opened the proceedings by a brief address, saying some pleasantly flattering things about the commission, and eulogizing the law which had formed it: adding in effect that the business men of Rochester had favored the law and welcomed the commission; that they welcomed it especially because they regarded it as a great barrier of safety for the business world against dangerous socialistic ideas, such as government ownership of railroads and the like.

Sitting as a member of that commission, I could not help smiling at an amusing coincidence. Exactly one hour before, on the train coming from Buffalo that morning, I had been greeted by a pleasant gentleman, who introduced himself saying that he had attended all our sessions in Buffalo; adding with much enthusiasm that he especially welcomed the public service commissions law as he regarded it as the first great step in the direction of government ownership.

It is surely not often that a law can thus receive the unqualified approval of those who are diametrically opposed in their theories; and I am inclined to think that it is an evidence of the real statesmanship underlying the law that it can be thus recognized by both sides as a step in the direction of ultimate truth—whatever the nature of that ultimate truth may turn out to be.

The subject under consideration is so large that it is not possible to do more within the time allowed than to call attention to a few points, and as it is desirable at a meeting of this kind to promote discussion, we will, after making a brief general statement, notwithstanding it presents the subject in a disconnected way, take up for consideration a few of the points relating to the details of public regulation about which students of the problem differ, viz: Valuation of public utility property, uniform accounting and publicity, franchises, State regulations and home rule, rates and classification, and court review.

One of the chief functions of the State is to provide such public utilities as are necessary for the economic and social welfare of the people.

The State has undertaken to furnish these by authorizing various corporations to engage in public service enterprises. Corporations having engaged in the work, cannot escape the responsibility attaching thereto. They are under obligations to furnish to all persons, without discrimination, adequate facilities and service at reasonable rates.

I am happy to say that we did not need the stimulus of a Jay Gould, a Vanderbilt or a Whitney to enact a public utility law in Wisconsin. There were, however, conditions existing in Wisconsin which justified the enactment of that law, and it may be interesting to notice briefly what those conditions were.

Prior to 1903, the railroads had been paying, in lieu of taxes, a percentage on their gross earnings. Through various political campaigns and before the legislature, there had been agitation for the taxation of railroads on an ad valorem basis. In 1903 such an act was passed. It was claimed at the time that the railroads intended shifting the added tax to the shipper, by increasing the freight rates. Governor LaFollette sent a special message to the legislature of 1903, in addition to his general message, strongly advocating the creation of a railroad commission for the purpose, among others, of preventing the shifting of this added burden of taxation from the railroads to the public. Such a bill was then pending in the assembly but was defeated.

In 1904 the republican party adopted a platform favoring a railroad commission with power to regulate freight and passenger rates. A campaign was made throughout the State—in every assembly and senatorial district—favoring the enactment of such a law, and every member of the legislature was elected upon the direct issue of whether we were or were not to have a railroad commission.

It is significant that one of the industries now under discussion was the subject of the first monograph published by the American Economic Association, and that the relation of the State to such industries was the topic that received most emphasis at the meeting called to effect the organization of that association.