The Conditions And Methods Of Legislation

( Originally Published 1913 )

ADDRESS DELIVERED TO THE NEW YORK STATE BAR ASSOCIATION, JANUARY, 1908.

THE subject on which I have to address you is far re-moved from any of those thoughts with which the political and financial excitement of the moment fills the thoughts of the legal practitioner either in the rural parts of the State, or here in New York City, where the financial barometer rises and falls so quickly, and where the lawyer is often summoned to administer spiritual consolation to some of his clients in the part of the city where that barometer can best be watched. But it may have some interest for an audience which is not wholly absorbed in its professional practice, but has also to watch and study the machinery of legislation as it is at work from year to year.

The immense increase in the volume of legislation during the last half century is one of the salient features of our time. Mr. Choate has told you that more than five thousand statutes were passed in this country during the last two years. But the phenomenon is not confined to this country. Various causes may be assigned for it. It may be due to the swift changes in economic and social conditions which have called forth new laws to deal with those facts. Pessimists may perhaps ascribe it to the spread of new evils or the increase of old evils which the State is always attempting by one expedient after another to repress. I suppose this is what Tacitus meant when he wrote "Corruptissima republica plurimæ leges." Or the optimist may tell us that it is an evidence of that reforming zeal which is resolved to use the power of the State and the law for extirpating ancient faults and trying to make every-one happier. Which of these or of other possible explanations is the true one, I will not stop to consider. But the fact that the output of legislation has of late been incomparably greater than in any previous age --greater not only absolutely, but in proportion to the population of the civilized nations —suggests a consideration of the forms and methods of law-making as a timely topic.

In no country, moreover, is the output of statutes so large as in the United States, where, besides Congress, forty-six' State legislatures are busily at work turning out laws on all imaginable subjects, with a faith in the power of law to bless mankind which few historians or philosophers, and still fewer experienced lawyers, will be found to share. Nevertheless, such faith is a testimony to the hopefulness of your people, and no one can wish that any people should ever be less hopeful.

In modern free countries, where laws are enacted by representative assemblies, where the economic and social questions to be dealt with are generally similar, and where the masses of the people are moved, broadly speaking, by the same impulses, the problem of how to make legislation satisfactory in substance and in form is virtually the same problem everywhere. Accordingly, the light which the experience of one country affords is pretty sure to be useful to other countries. These we call private acts. I will try to indicate some points in which the experience of methods tried in Britain may deserve to be studied by you.

In the United States your enactments are all of one kind, be they Federal laws or State laws : all emanate directly from the legislature, and all are discussed and passed in the same way. In Great Britain we have found it desirable to divide enactments into three classes: First we have public general statutes passed by Parliament. Secondly, we have enactments of local or personal application affecting the rights of particular areas or men, or particular business undertakings. Thirdly, we have enactments intended to be of temporary application, or at any rate such as to require amendment from time to time in order to adjust them to changing conditions, so that they are really rather in the nature of executive orders than to be classified among permanent laws. Orders of this executive kind are now made not directly by Parliament, but either by the Crown in the Privy Council, upon some few matters that are still left within the ancient prerogative of the Crown, or else under statutory powers entrusted by Parliament either to the Crown in Council or to some administrative department. (I believe that in France, and in Germany also, such orders are not made by the supreme legislature.) There is also a larger class of rules or ordinances of a somewhat wider, though not universal, application, which being of an administrative nature require from time to time to be varied. Such rules or ordinances are, in England, now usually made by authorities to whom power in that behalf has been specially delegated by Parliament. Some, including those which affect the Crown colonies, are made by the Crown in Council. These we call Orders in Council, and they include a large number of ordinances made for the government of the Crown Colonies which do not possess self-government, being nearly all inhabited by native populations not deemed qualified for its exercise. Similar to these are the Rules or Regulations dealing with administrative matters which are issued by some of the administrative departments for the guidance of officials and of local authorities, under a power conferred in that behalf by Parliament. These also require to be varied from time to time, and are therefore not fitted to be dealt with by Parliament. With these one may class the rules relating to legal procedure in the Courts, which are made by the Rules Committee, consisting of Judges of the Supreme Court of Judicature, and other representatives of the legal profession, chosen for the purpose and acting under a power given by statute. The advantage of this plan is that it enables us from time to time to modify our legal procedure without the necessity of referring the matter to Parliament.

In this way there has been built up a large body of what may be called subsidiary law. It has statutory effectiveness, because all of it has been made under the powers of some statute, although made not directly by Parliament itself, but under delegated parliamentary authority. These subsidiary enactments are published in volumes called " Statutory Rules and Orders." They form a large collection quite distinct from that of the statutes. Thus the dimensions of our statute book have been kept down while the delegation of legislative power has materially reduced the labour of Parliament.

Let me now return to the second class, viz., acts passed directly by Parliament but not of general application. This class includes enactments which, though they apply only to particular places or persons, and are thus not parts of the general law, such as railway acts, canal, gas and water, and electric lighting acts, acts giving specific powers to municipalities, and so forth. They are sharply distinguished from General Public acts in the method by which they are passed. They are brought in and read a first time by motion of a member in the House (either Lords or Commons) and upon a petition by private persons. Notices have to be publicly given of them some two months before the usual beginning of a parliamentary session in order to call the attention of all persons possibly interested. They are advertised in the newspapers of such parts of the country as they affect in order that every person who desires to oppose them may have an opportunity of entering a notice of opposition and being heard upon it. When they are brought in they are examined by officials called the Examiners of Standing Orders, who see that they comply with the general rules which Parliament has prescribed, and in particular that all the regulations with regard to notices have been duly observed. When they have passed the Examiners of Standing Orders, being shown to have complied with all the rules prescribed in that behalf, they are brought up for second reading and usually pass that stage without discussion or division.

If, however, a private bill raises some large question of public interest, it may be opposed upon second reading. For instance, if it proposes to take, for the purpose of building a railroad, common land over which a number of commoners have rights of pasture, and to close paths which the public are entitled to use, it is open to any member to give notice of opposition and to propose its rejection on grounds of general policy. So again if it relates to electric power or light and raises the question whether electricity shall be supplied to a large area by a municipality or by a private company, as happened recently when a large industrial corporation sought power from Parliament to create an enormous power establishment to supply electricity to every part of London, then again that question would be fully debated on second reading as being a question of public policy on which Parliament ought to pronounce, laying down a precedent for similar cases likely to arise thereafter. Such cases are, however, uncommon, and most private bills are sent as a matter of course to what we call a private bill committee.

This body usually consists of four members, but may be and, in the case of very important bills, often is larger. The Chairman is always a man of some parliamentary experience and business capacity. We have a panel of senior members, from which the Chairmen are taken, and they become by practice expert and skilful in dealing with these matters. All the members of such a committee make a declaration that they have no private interest in the matter dealt with by the bill, and they are required to deal with it in a purely judicial spirit, on the basis of the evidence presented and the arguments used by the lawyers who represent each side, just as in a Court of Justice. Party politics never comes into the matter.

No one is permitted to address private solicitations to the members of the committee with a view to influence their decision. Even a member of the House privately approaching or trying to induce any member of the committee to vote in a particular way on the bill, would be considered to have transgressed the rules, and be severely condemned by his fellow-members. In point of fact, the thing does not happen. These private bill commit-tees, whether they decide right or wrong, because they sometimes err like other people, are always understood to be impartial and honest. In that way the procedure gives general satisfaction. Neither is there any class of persons whose business it is to " lobby" and endeavour to persuade members to vote for or against a measure. The conduct of private bills is in the hands of a body of regular practitioners who are called parliamentary agents. They are often, but not always, attorneys at law. They are an organized body who are subject to discipline, bound by a code of rules, and obliged to observe those rules just as strictly as any other kind of legal practitioner.

Under this system all our railways, and such other public undertakings as require statutory sanction, have been constructed, and have had their legal powers from time to time increased or varied. It has worked well in every respect but one. It has been costly, for where a private bill is hotly contested, the fees paid to agents and counsel sometimes mount up to huge sums. But it has been administered not only with honesty, but with seldom even a suspicion ; and it has relieved the two Houses of a vast mass of troublesome detail by leaving this work to judicial committees acting in a judicial way. It has, moreover, the advantage of giving every private bill the certainty of being examined on its merits, and its merits only. Being outside the struggle for life which goes on among public bills, seldom encroaching on their time, and not having its time encroached on by them, and being treated in a different way, the pressure of public business does not prevent a private bill (except in the rare cases where a large public issue is raised) from being sent to and considered by a committee, and, if it pass the committee, being reported to the House and passed there in the course of one session. The committee may reject a bill, but cannot get rid of it quietly by omitting to report. Finally, it relieves members of Parliament from being obliged to spend time and toil in advocating or opposing bills affecting their constituencies, a process in which more enmities may be incurred than favour gained. Having, during twenty-seven years spent in the House of Commons, represented two great industrial communities, I can bear witness to the enormous gain to a member in being free from local interests and local pressure. I never had any solicitation whatever to trouble me from any colleague in regard to any private bill. It now and then, though very rarely, happened that some constituent or group of constituents wrote to me and said, " Such and such a bill is pending in the House of Commons, or House of Lords; we are very much interested in it and should be glad if you could help." I had always an answer which was easy, and which had the further merit of being entirely correct and true; namely, that I was not permitted by the rules of the House of Commons to endeavour to use any influence upon any member of the committee which was considering that bill. The most I could have done would have been to tell the Chairman publicly, without any secrecy, that this was a bill of great importance, in which some of my constituents were interested, and to beg that it should have the fullest and most careful attention from the committee. But as for trying to exert any influence either for or against its passing, I should have broken our rules had I tried to do so.

No one who has not been a member of a legislative body can know what a relief it is to be able to free one's self from any solicitations of this kind.

I dwell upon this point in order to explain to you how it is the British Parliament has been able to deal with the great mass of local legislation imposed on it by the principle that special statutory authority is required for undertakings which involve the compulsory taking of land or the creation of what is practically a monopoly. But the relief given to Parliament, important as it is, has been the least among the merits of the system used. Its great service has been to provide a method in which matters involving immense pecuniary interests have been for many years past so dealt with as to raise no suspicions of corruption or unfair personal favour. And now, leaving unnoticed other details regarding these private bills, let me pass on to the larger question of public general legislation, which has most interest for you as lawyers though it suffers from the great amount of time absorbed by local and personal bills.

The quality of statute law may be considered in respect : first, of its Form ; secondly, of its Substance.

As respects Form, you, as lawyers, know that a statute ought to be clear, concise, consistent. Its meaning should be evident, should be expressed in the fewest possible words, should contain no clause contradicting another or anything repugnant to any other provision of the statute law, except of course to such provisions as it is expressly intended to repeal.

To secure these merits three things are needed ; viz.,

(a) that a bill as introduced should be skilfully drafted,

(b) that pains should be taken to see that all amendments made during its passage are also properly drafted, and (c) that the wording is carefully revised at the last stage and before the bill is enacted. Of these objects the first is in Britain pretty well secured by the modern practice of having all government bills prepared by the official draftsman, who is called the Parliamentary Counsel. Nearly all our important bills, and indeed nearly all the bills of a controversial character that pass, are bills brought in by the government of the day. A private member has now, owing to the pressure of time, hardly any chance of passing legislation. Therefore, you may take it that all important legislation is prepared, and pushed through, by the government. The government has an official permanent drafting staff, consisting of two or three able and highly trained lawyers, whose business it is to put its bills into the best shape. If they are not always perfect in form, that may not be the fault of the draftsman, be-cause the best scientific shape is not necessarily the shape in which it is most easy to pass a bill through Parliament. The form which is given to a bill may make some difference to the amount of opposition it will excite, and a better drafted measure may either rouse more antagonism or give greater opportunities for attack than a less neatly or elegantly drafted one would encounter, and also to afford the fewest opportunities for taking divisions in committees. It is one of the rules of our Parliament that every clause has to be separately put to the vote in committee; therefore, the more clauses, the more divisions, and the more divisions, the more expenditure of time. Hence, if you put a great deal of matter into one clause, subdividing it into subsections, and parts of subsections, instead of letting each part of the matter to be enacted have a clause to itself, you have fewer debates on each clause as a whole and fewer divisions. That may explain peculiarities in the structure of recent British acts which would otherwise excite surprise. It is hardly possible that legislation, passed by a popular assembly, should attain to that high standard of scientific perfection which could be obtained at Rome, where a consul or a tribune put to the vote of the Assembly a carefully prepared measure which could not be amended, but had to be accepted or rejected as a whole. Neither could the work be so neatly done as it was under an absolute monarch like the Roman Emperor.

Our statute law has been greatly improved in form since the office of Parliamentary draftsman was created. He has sometimes functions to discharge that require high skill and judgment. It often happens that the minister who is preparing a measure has not completely thought out all its provisions, and may not, even if he be himself a lawyer, have in his mind all the relations which the bill he de-sires to enact will bear to various branches of a vast and complicated system of law. The business of the Parliamentary draftsman is not only to take the ideas and plans of the minister and put them into the clearest and most concise form, but also to warn the minister of all the consequences his proposals will have upon every part of the system, and to help him to consider what is the best way in which the amendment in the law it is sought to effect can be secured and expressed. The Parliamentary draftsman has, of course, nothing to do with questions of governmental policy and stands entirely apart from party politics. He must serve every administration with equal zeal and loyalty. But if he personally is a man of real ability, who understands public questions, has mastered the particular subject he is asked to deal with, perceives its difficulties and sees how they can be met, he may give the most valuable assistance to the minister. All our ministers gladly acknowledged what they owed to the late Sir Henry Jenkyns, who long filled the post with consummate ability, though few persons outside the narrow circle of the higher civil service had ever heard his name.

As respects amendments in committee and final revision, our English procedure is not satisfactory. There ought to be some means of correcting, before a measure finally passes, those inelegancies, redundancies, and ambiguities which the process of amending in committee usually causes. But as Parliament has, so far, refused to allow any authority outside itself to alter the wording in the smallest point, all that can be done is to use the last stage of the bill to cure such blemishes as can be discovered. Doubtless the same difficulties arise here. I am not fully informed as to how they are dealt with, but have learnt with great interest of the efforts recently made in Wisconsin, under the zealous initiative of Mr. McCarthy, and in New York State also, to supply by a bureau of legislation assistance to members of the legislature in the preparation of their bills. The value of this plan seems to have been fully recognized in both States, and the example has told upon five other States, where similar arrangements are now made by State authority for such help. I venture hope that Congress will see its way to the creation of some such office for drafting bills, so as to provide ampler data for members and render to them such legal help as they may require.

Now let us come to the Substance of legislation, and start from two propositions which everyone will admit.

1. There is in all free countries a great demand for legislation on all sorts of subjects, mainly due to the changes in economic conditions and to the impatience of reformers to have all sorts of evils dealt with by law.

2. The difficulty of framing good laws is enormous, because most countries are now occupied not merely in the comparatively easy task of repealing old laws which hampered the action of the citizens, — destruction is simple work, — but in the far harder task of creating a new set of laws which shall use the power of the community to regulate society and secure the ends which reformers and philanthropists desire. Eighty years ago Europeans thought that the great thing was to get freedom and abolish bad laws. When they had got it they were dissatisfied, and instead of simply letting everybody alone to work out his own weal or woe, on individualist principles, they presently set to work to forbid many things which had been previously tolerated and to throw upon government all sorts of new functions, more difficult and delicate than those of which they had stripped it.

Whether the disposition to increase the range of governmental action is right or wrong, I am not here to discuss. The current is, at least for the moment, irresistible, as appears from the fact that it prevails alike in Continental Europe, in England, in the British colonies and in the United States. The demand for a profusion of legislation is inevitable ; and the difficulty of having it good is undeniable. In what does the difficulty consist ? In three things. First, of those who demand legislation, many do not under-stand what is the precise evil they desire to cure, the precise good they seek to attain. They suffer from discontent but cannot diagnose its cause. Secondly, when they can trace the evil to its source they seldom know what is the proper remedy ; those who agree as to the end differ as to the means. Thirdly, the number of measures, remedial and constructive, called for is so large that it is hard to select those most urgently needed. No legislature can deal with all at once. Where many are being urged at the same time by different persons, they jostle one another, and like people jammed together in the narrow exits of a theatre, they move more slowly than if they were made to pass along in some regular order.

It would be easy to suggest, if we were drawing a new constitution for a new community, an ideal method of securing good legislation and securing it promptly. But we have actual concrete constitutions and governments to deal with, so, instead of sketching ideals, let me briefly describe the actual machinery provided in the United States and in Britain for passing statutes. This machinery differs materially in the two countries.

The American plan starts from the principle that the Legislative Department must be kept apart from the Executive. Accordingly, the administration in the National and in the State governments has neither the responsibility for preparing and proposing measures nor any legally provided means at its disposal for carrying them through Congress, though the President and the State governors can recommend them, and may sometimes by an adroit use of their influence, or by a forcible appeal to the people, secure the passing of a bill. You rely on the zeal and wisdom of the members of Congress to think out, devise, and prepare such measures as the country needs ; on the committees of your assemblies to revise and amend these measures ; on the general sense of the assemblies and the judgment of their presiding officers, or of a so-called "steering committee," to advance and pass those of most consequence. But should there not happen to be any member or group of members who does these things, or who does them well, there will be nobody responsible to the people for a failure to give them what they need.

We, in England, have been led by degrees to an opposite principle. The executive is with us primarily responsible for legislation and, to use a colloquial expression, "runs the whole show," the selection of topics, the gathering of information, the preparation of bills and their piloting through Parliament.

I. The requisite information is collected by the department of government to which the-subject belongs, and frequently the way is paved for legislation by means of Royal Commissions or Departmental Committees appointed to take evidence and report upon topics of importance which need legislation.

II. When it comes to the actual introduction of a measure, the work of determining its substance is done by an administrative department of the government and the drafting by the government draftsman already referred to. The department supplies the matter of the bill, the latter puts it into shape. Thus both practical knowledge of the subject and professional skill for giving legal form to the measure to be enacted, are secured. All the more important measures of each session are brought in by the Ministry on their responsibility as leaders of the majority in the House of Commons. The most important, including those likely to raise party controversy, are considered by the Cabinet, sometimes also by a Cabinet committee, and sometimes at great length. I remember one case in which an important bill was altered and reprinted in twenty-two successive drafts, and another case in which a large and controversial bill occupied practically the whole time of the Cabinet during six long sittings.

Bills brought in by private members are drafted by themselves, or by some lawyer whom they employ for the purpose. Should a private member ask a Minis-ter or a department for assistance, it would usually be given him, assuming that the department approved the end in view.

III. Once the bill is launched, its fate depends on the amount of intelligent care the Legislature is disposed to give it and the amount of skill the Minister in charge shows in steering the boat which carries its fortunes. He has, of course, the assistance of the official drafts-man and sometimes of one or more colleagues in pre-paring his own amendments and considering those proposed by others. He must try to get time enough reserved for its passage, the disposal of time resting with the government.

The practical result of our English system may be summed up by saying that it secures four things :

(I) A careful study of the subject before a bill is introduced.

(2) A decision by men of long political experience which out of many subjects most need to be dealt with by legislation.

(3) A careful preparation of measures, putting them into the form in which they are most likely to pass. That may not be always the best form, but there is no use in offering to Parliament something too good for such a world as the world of practical politics everywhere is.

(4) The fixing upon someone of responsibility for dealing with every urgent question. Whenever an evil has to be dealt with or a want supplied by the action of the Legislature, there is never any doubt who shall do it. The government has got not only to propose something, but to put something through, the Minister to whom it belongs having it in charge through all its stages. A government which neglects to bring in the measures urgently required, or fails through weakness to pass them, suffers in credit ; and if the matter excites exceptional popular interest possibly may be turned out either by an adverse vote in the House of Commons, or by the people at the next general election.

There are some defects in the English system of Parliamentary legislation, but I need not here refer to them, for they do not affect the points I have been stating, but arise from other features of our government. The points to be specially emphasized for your consideration are that we provide adequate machinery for the preparation of measures, and that we make a small group of persons, the Cabinet, responsible for bringing them in and pushing them. This fixing of definite responsibility is perhaps the chief merit of the system.

The Cabinet is responsible because it is really a working committee of the majority of the House of Commons, which is itself directly chosen by the people. The business of the majority is to support the Administration, because it leads them, and enjoying their confidence, presumably enjoys that of the majority of the nation. If the majority withdraw their confidence, the Administration falls.

In France the method of legislation stands halfway between the American and the English methods. The Ministry studies a subject, prepares a bill dealing with it, and launches the bill into the Chamber. There, the bill passes into the hands of a committee which amends and perhaps quite remoulds it, then returning it to the Chamber with an elaborate report. In the Chamber it is in charge, not of the Minister who proposed it, but of the committee reporter, the Ministry having no more power over its fortunes than flows from the fact that they are the leaders of the majority and can speak in its support. There are also many bills brought in by private members ; and these also go to the committees and have apparently a better chance than the bills of private members have in England.

Switzerland, like the United States, but unlike France, has no Ministers as voting members of either Chamber, but the members of the Administration, which consists of seven persons elected by the Legislature, are allowed to speak and defend their policy or to advocate a measure in either the National Council or the Senate.

Both these intermediate systems lose something of the momentum which the responsibility of government for legislation gives in England, but they also reduce the merely party opposition which it has to encounter, while they give to the preparation and passing of measures the advantage of the cooperation of those whose administrative experience enables them to perceive what is really wanted and to judge how it had best be attained.

Whether it is possible to establish in this country, consistently with the provisions of the Federal and the State Constitutions, any scheme by which the Executive can be rendered more helpful to the Legislature or by which Legislatures can be organized with a more authoritative leadership, and can more completely supervise the Administration, — this is a question which well deserves your consideration. Scientific method, which has been applied to everything else, needs in our time to be applied more fully and sedulously to the details of constitutional and political organization than has been anywhere yet done. How-ever, if one may judge from the recent action of your States, there are certain changes already in progress. The sittings of Legislatures have been made less frequent and shorter; and as sessions grow shorter State Constitutions grow longer. Not only many subjects, but even many minor details of legislation, have been withdrawn from the Legislature by being placed in the State Constitution, which the Legislature cannot change. Direct legislation by the people finds increasing favour. Some reformers demand power for Congress to deal with topics which formerly were left entirely to the State. There is talk of amending the Federal Constitution.

Now let me try to illustrate how scientific method may be applied to the constructive part of legislation and the arrangements of Legislatures. It may be applied to the collection of data. The facts on which laws ought to be based need to be gathered, sifted, critically examined. When studying the experiments made in other countries, not merely the text of the laws but their practical working also needs to be studied.

Take such subjects as the tariff and the law of corporations. Although in no other country have corporations raised such large and difficult problems as their growth has created here, other countries have, like you, been obliged to keep them under some control, and to prevent them from establishing oppressive monopolies. Everyone, except the monopolist, wishes to check or expunge monopolies, but nobody wants to substitute a meddling officialism. How to steer between these two evils is no easy problem, and needs careful enquiry, with an examination of the laws of other countries.

Wherever there exists a system of customs duties meant to protect domestic industries, it becomes necessary to ascertain how each duty, whether on raw materials or on the manufactured article, operates upon the manufacturer, the dealer, the consumer; and the more complex and all-embracing a tariff is, so much the greater is this need. Both these subjects are beyond the knowledge and the skill of the ordinary legislator in any country. They need special study by persons of exceptional knowledge. The same thing holds true of railroads, of mines, of factories, of sanitation, of irrigation, of forest conservation, and many other topics of current interest. All must be approached in a scientific way, using the results of the experience of other countries.

Methods, too, have to be studied as well as facts. To devise and apply sound methods of legislation is equally a matter requiring careful study and a knowledge of the systems which have succeeded elsewhere. I have ventured to suggest to you that the British system deserves your study in two points. One touches the distinction to be drawn between the work proper to a supreme legislative body, and that which is better left to some administrative or judicial authority, making rules under a power delegated by the Legislature. Another relates to the still more important distinction between bills relating to local and personal matters and those which designed to affect the general law of the land. The more these local matters in which the pecuniary interests of persons or corporations are involved can be kept apart from politics, the better. They are usually fitter for a sort of investigation, judicial in its form, though not necessarily con-ducted by lawyers. To take them out of the ordinary business of a legislature saves legislative time, while it removes temptation. It sets the members of a legislative body free to deal with the really important general issues affecting the welfare of the people which are now crowding upon them. It helps them to appeal to the people upon those general issues rather than in respect of what each member may have done for the locality he represents. Many of your statesmen have told me that in those States where dissatisfaction with the conduct of legislatures is expressed, that disapproval is chiefly due to their handling of local and personal bills.

Let me sum up in a few propositions, generally applicable to modern free nations, the views which I have sought to bring before you.

I. The demand for legislation has increased and is increasing both here and in all civilized countries.

II. The task of legislation becomes more and more difficult, owing to the complexity of modern civilization, the vast scale of modern industry and commerce, the growth of new modes of production and distribution that need to be regulated, yet so regulated as not to interfere with the free play of individual enterprise.

III. Many of the problems which legislation now presents are too hard for the average members of legislative bodies, however high their personal ability, be-cause they cannot be mastered without special knowledge. (It may be added that in the United States a further difficulty arises from the fact that legal skill is often required to avoid transgressing some provision of the Federal or a State Constitution.)

IV. The above conditions make it desirable to have some organized system for the gathering and examination of materials for legislation, and especially for collecting, digesting, and making available for easy reference the laws passed in other countries on subjects of current importance and an account of the results obtained thereby.

V. In order to secure the pushing forward of measures needed in the public interest, there should be in every Legislature arrangements by which some definite person or body of persons becomes responsible for the conduct of legislation.

VI. Every Legislature has in our days more work thrown on it than it can find time to handle properly. In order, therefore, to secure sufficient time for the consideration of measures of general and permanent applicability, such matters as those relating to the de-tails of administration or in the nature of executive orders should be left to be dealt with by the administrative department of government, under delegated powers, possibly with a right reserved to the Legislature to disapprove regulations or orders so made.

VII. Similarly, the more detailed rules of legal procedure ought to be left to the judicial department or some body commissioned by it, instead of being regulated by statute.

VIII. Bills of a local or personal nature ought to be separated from bills of general application and dealt with in a different and quasi-judicial way.

IX. Arrangements ought to be made, as, for in-stance, by the creation of a drafting department connected with a Legislature or its chief committees, for the putting into proper legal form of all bills introduced.

X. Similarly, a method should be provided for rectifying in bills at the latest stage before they pass into law such errors in drafting as may have crept into them during their passage.

XI. When any bill of an experimental kind has been passed, its workings should be carefully watched and periodically reported on as respects both the extent to which it is actually enforced (or found enforcible) and the practical results of the enforcement. A department charged with the enforcement of any act would naturally be the proper authority to report.

XII. In order to enable both the Legislature and the people to learn what the statute law in force actually is, and thereby to facilitate good legislation, the statute law ought to be periodically revised, and as far as possible so consolidated as to be brought into a compact, consistent, and intelligible shape.

I venture to submit these general observations because today there is everywhere an unusual ferment over economic and social questions and a loud demand for all sorts of remedies, some of them crude, some useless, some few possibly pernicious. Here, in the United States, this ferment takes a form conditioned by your constitutional arrangements and your political habits. There seems to be in many quarters a belief that the State governments cannot deal with some of the large questions that interest the whole country. Yet there is also a fear to disturb the existing balance of powers and functions between the State authorities and the National government. There is a feeling that evils exist which governments ought to deal with, and for dealing with which the existing powers of governments ought to be extended. Yet there is also a reluctance to multiply officials and a dread of anything approaching the bureaucratic paternalism of Continental Europe. We are hovering between discontent and doubt. The reforming spirit runs so strong that it would sweep off their feet any people which had not, as you have, become attached to their old, institutions. So, again, there is a disposition to criticize State governments and city governments, and to appeal to good citizens, as voicing the best public opinion, to step in and do by voluntary organizations whatever useful work those governments are failing to do. But how is public opinion to be organized, concentrated, focussed ? Who are the persons to give it that definite and authoritative expression, directed to concrete remedies, which will enable it to prevail ? These are some of the problems which appear to be occupying your minds, as, under different forms, they occupy us in Europe. They will, doubtless, like other problems in the past which were even harder, be all solved in good time, solved all the better because there is, here in America, little of that passion which has at other times or in other countries overborne the voice of reason.

Meantime, as there is evidently a good deal of legislation before you, every improvement in the machinery of legislation and the conditions of legislation that can be made is worth making, every light that the experience of other countries can suggest is worth receiving and using.

I once listened to an address on Improvements needed in Modern Education, delivered by an eminent man of science. He began by proving to us that those of his scientific brethren who assigned to our earth a life of only three or four million years were entirely mistaken, for there was every reason to believe it would last twice or thrice that length of time. From this he drew the conclusion that it really was worth while, with this long future before us, to attempt fundamental reforms in our educational system. We who heard him thought that even with only a few thousands of years to look forward to, reforms would be worth making. So to you I will say that without venturing to look even thousands of years ahead, there is before us such a prospect of an increasing demand for legislation that it is well worth while to secure by every possible device the efficiency of our legislative machinery.

The great profession to which you belong has a special call to exert in this direction its influence, which has often been exerted for the benefit of the nation. You know such weak points as there may be in the existing legislative machinery. You know them as practical men who can apply practical remedies. If you see a public benefit in separating different classes of bills and treating the special, or local and personal, bills in a different way from the public ones, you can best judge how this should be done. You have daily experience of the trouble which arises from obscurities or inconsistencies in the statutes passed, of the wasteful litigation due to the uncertainty of the law, with all the expense and vexation which follow. You are, I hear on all hands, not satisfied with the criminal procedure in many of your States. These are matters within your professional knowledge. You can, with the authority of experts, recommend measures you deem good, and remonstrate against those that threaten mischief ; and I understand that remonstrances proceeding from the Bar are frequently effective.

Some cynical critics have suggested that the legal profession regard with equanimity defects in the law which may increase the volume of law suits. The tiger, it is said, cannot be expected to join in clearing away the jungle. This unappreciative view finds little sup-port in facts. Allowing for the natural conservatism which the habit of using technical rules induces in lawyers, and which may sometimes make them over-cautious in judging proposals of change, they have, both here and in England, borne a creditable part in the amendment of the law. It is a mistake to think they profit by its defects. Where it is clear and definite, where legal procedure is prompt and not too costly, men are far more ready to resort to the Courts for the settlement of their disputes. It is the prospect of uncertainty, delay, and expense that leads them to pocket up their wrongs and endure their losses. Even, therefore, on the lower ground of self-interest, the Bar (except perhaps a few of its least desirable members) does not gain by a defective state of the law. But apart from this, every man who feels the dignity of his profession, who pursues it as a science, who realizes that those whose function it is thoroughly to under-stand and honestly to apply the law, are, if one may use the somewhat highflown phrase of a great Roman jurist, the Priests of justice, — every such man will wish to see the law made as perfect as it can be. So, too, whoever realizes, as in the practice of your profession you must daily do, how greatly the welfare of the people depends on the clearness, the precision, and the substantial justice of the law, will gladly contribute his knowledge and his influence to furthering so excel-lent a work. There is no nobler calling than ours, when it is pursued in a worthy spirit.

Your profession has had a great share in moulding the institutions of the United States. Many of the most famous Presidents and Ministers and leaders in Congress have been lawyers. It must always hold a leading place in such a government as yours. You possess opportunities beyond any other section of the community for forming and guiding and enlightening the community in all that appertains to legislation. Tocqueville said eighty years ago : " The profession of the law serves as a counterpoise to democracy." We should to-day be more inclined to say that after having given to democracy its legal framework, it keeps that framework in working order by elucidating the principles which the people have laid down in constitutions. To you, therefore, as an organized body of lawyers, one may fitly address these observations on legislative methods drawn from the experience of Europe. We live in critical times, when the best way of averting hasty or possibly even revolutionary changes is to be found in the speedy application of remedial measures. Both here and in Europe improvements in the methods of legislation will not only enable the will of the people to be more adequately expressed, but will help that will to express itself with temperance and wisdom.

What is legislation but an effort of the people to pro-mote their common welfare ? What is a Legislature but a body of men chosen to make and supervise the working of the rules framed for that purpose? No country has ever been able to fill its legislatures with its wisest men, but every country may at least enable them to apply the best methods, and provide them with the amplest materials.

The omens are favourable.

Never, I think, since the close of the Civil War, has there been among the best citizens of the United States so active a public spirit, so warm and pervasive a de-sire to make progress in removing all such evils as legislation can touch. Never were the best men, both in your legislatures and in the highest executive posts, more sure of sympathy and support in their labours for the common weal.