Page:The Green Bag (1889–1914), Volume 23.pdf/283

 Index to Periodicals Deceit.

See Tort.

Direct Government. "The Referendum vs. Representative Government." By Sir John Macdonell, C.B. Contemporary Review, v. 99, p. 303 (Mar.).

This eminent jurist shows that the roposal for the referendum signiﬁes an utterly di erent thing in England, where there is no written Con stitution, from what it would signify in a country like the United States, where it does not neces sarily mean giving the electorate any power to change the fundamental law. "The essence of the representative system, stated in simple words accordin

with facts,

is trust by the many in the worthfest available. It is this trust which gives to representative government what is best in aristocracy without

its drawbacks. It is this trust, used on the whole honestly and wisely, which has so far confuted the oldest and most common accusa

tions against democracy;

255

War was the practical approximation of the police power of the states to the sovereignty of the state legislatures within their respective constitutions, the purpose of which constitutions was universally held to be not to grant power, but to organize and limit powers which were otherwise plenary. But while this was the general rule, due in part to the temporary eclipse of the judiciary and in part to the dominance of the notion of States Rights, yet there survived a number of restrictive principles now in a state of suspended animation, so to speak, but easily susceptible of resuscitation. And one of these was the doctrine of ‘due process of law,’ whose title to continued vitality may be ut upon the following grounds: First, the avai ability imparted to the Due Process of Law clause by the decision in Murray v. Hobo ken Land and Improvement Co., as a constitu tional buffer in connection with summary and administrative proceedings, a function hitherto subserved almost entirely by the Trial by Jury

and such hope as clause;

exists that the evils incident to democracy may

be more and more avoided depends upon the continuance of a system under which the many repose conﬁdence in a select few.

And this

element the Referendum and Initiative would weaken." "People's Rule in Oregon, 1910." By George H. Haynes. 26 Political Science Quarterly, 32 (Mar.). A review of the recent workings of the initia tive and referendum in Oregon. The treatment

secondly, the steady extension, even

among courts the most attached to the doctrine of legislative sovereignty, of the notion of ‘law of the land’ and ‘due process of law’ as equiva lent to ‘general law’ and as therefore inhibiting ‘special legislation’; thirdly, the equivalence established in Taylor v. Porter between ‘due process of law' and ‘due compensation’ in questions of eminent domain;

fourthly, the

growing practice, for example, on the part of critics of the Dred Scott decision, to shift

construction from the phrase ‘due process of law,’ to the terms ‘liberty’ and ‘ roperty' of the

is sympathetic, yet fair-minded. "As one of the constitutional clause;

writer's corres ondents puts it: ‘It is quite clear that popular egislation can be worked only by "simplifying" issues; and the further this goes, the more important becomes the real initiative of the irresponsible persons, whether patriots or schemers, who formulate the "simpliﬁed" issues.’ On the whole, considering the immense

complexity of the task which was set before them, it must be acknowledged that the Oregon voters stood the test remarkably well." "Oregon, the Most Complete Democracy in the World." By Frederic C. Howe. Hampton's, v. 26, p. 459 (Apr.).

A sympathetic account of the initiative and referendum and other popular measures in Oregon. "Arizona's Constitution — The Initiative, The Referendum, The Recall — Is the Constitution Republican in Form?" By D. C. Lewis. 72 CentralLaw Journal 169 (Mar.). Discussing the question whether these features of the constitution answer to the requirements of a republican form of government, a negative solution being reached after examination of many authorities. Due Process of Law. "The Doctrine of Due Process of Law before the Civil War." By Edward S. Corwin. 24 Harvard Law Review 366, 460 (Mar., Apr.).

"The most conspicuous fact about our consti tutional law as it stood on the eve of the Civil

ﬁfthly, t e tendency of

these terms, as shown in Ormond, J.'s opinion in the Dorsey case and in Hubbard, L's opinion in the Wynehamer case, to take on a

rogres

sively broadersigniﬁcation; sixthly,the act that the Massachusetts Supreme Court, owin to the formula by which power is vested by the assa chusetts constitution in the legislature to pass ‘all manner of wholesome and reasonable’ laws, had never ceased to describe the police power, even when according it the broadest possible ﬁeld of operation, as a power of ‘reasonable’ legisla tion;

seventhly, the fact that the courts of

New York had never surrendered the notion of legislative power as inherently limited; eighthly, the fact that no court had eo nomine cast over board the doctrine of vested rights; ninthly, the fact that all courts generally described the police power, though without any apparent intention as yet of making such description a judicially enforcible limitation, in terms of its historical applications; tenthly, and lastly, the fact that similarly the police power was often grounded upon the common-law maxim sic utere tuo ut alienum non laedas, a deﬁnition which like the historical deﬁnition bore with it the possible im lication that the police power was a peculiar ind of power, exercisable con stitutionally only for peculiar ends. cluded “Butmany, now in if not thisall, enumeration of the essential we elements have in~ of the modern ﬂexible doctrine of due recess of law. -True, the proper admixture 0 these elements had not as yet in 1860 been suggested,

but that it would be in the course of time,