The most conspicuous fact to be noted as to modern legislation is the volume, the variety, the rapidity of the output. It is immense, and it is steadily growing in most parts of the world. Of the making of laws there is no end. In spite of admirable digests and handbooks, and all the modern machinery for rendering knowledge accessible, there is, and must be, great difficulty in making oneself acquainted with the statute law; a difficulty to be met only imperfectly by increased specialization. This is true of the enactments of one's own country. How can one hope to have, I will not say acquaintance with the details, but a conception of the character and tendencies, of the prodigious mass of legislation which is being turned out almost everywhere with a rapidity unknown in other times? It has been computed that "there are some three hundred law-making bodies in the world having a jurisdiction approximating that of our State legislatures"1-a statement perhaps a little exaggerated but not very wide of the mark. In the British Empire are, according to a low computation, some sixty-five legislative bodies (some computations would put the number very much higher), while in the United States there are about fifty. There are the Parliaments of Italy, France, Germany, Austria, Hungary, not, to be sure, so productive as ours, but all of them active, and pressed by demands for greater activity, to which they must sooner or later respond. I note that the Acts of the Reichstag are being published in forty volumes. The Eastern world, which until lately lived by custom, is in this respect no longer

1 Dr. Whitten, "Bulletin of New York State Library," 1902, p. 8.

idle. Under our rule India produces legislation with copiousness which at least equals that of most Western countries. Japan has, since she adopted Western habits, been legislating with much activity, and on a large scale; and China seems likely to have before long a Parliament which will no doubt do in this respect as other Parliaments have done. It is not easy to draw a distinction between sovereign and semisovereign legislative bodies and others with limited powers. But, thinking of assemblies with powers akin to those of the legislative assemblies in British possessions and colonies, we shall not be far wrong in saying that there are throughout the world more than 200 to 300 legislative bodies hard at work. The prospect is menacing. If Tacitus's saying still holds good-republica corruptissima plurimæ leges-we seem to be in a bad way.

First as to legislation by our own Parliament. The Session of 1905 was unusually barren, and yet there were thirty-six public Acts, extending to about 100 octavo pages. As to the whole British Empire, the review of legislation which appears in the Journal of the Society of Comparative Legislation mentions for 1903 about 1900 Acts and ordinances. Next as to the United States, with some fifty State legislatures, let me cite what Mr. Gilbert says as to the legislation of 1903:

The legislatures of Iowa, Kentucky, Louisiana, Maryland, Mississippi, Ohio, Vermont and Virginia meet biennially in even numbered years, and did not therefore convene in regular sessions, but the legislatures of Ohio and Virginia met in extra-session. The net result of the labors of the legislatures during the year was the enactment of

more than 14,000 laws and resolutions, of which more than 5400 were general and the remainder were local or private.2

In 1900-1901 the number of laws passed was 14,190, of which 5480 were general. "North Carolina leads in the number of laws passed during 1903 with 1203 enactments. The legislature was in Session sixty-three days, turning out an average of twenty laws a day." "There were enacted in 1899 4834 general and 9325 local, special, or private Acts, making a total (hardly to be entitled to be called a grand total) of 14,159 laws in the States alone." the review of legislation for 1903, Mr. Rawle, the President of the Bar Association, stated that forty-four legislatures had been in Session, and that 9293 Acts, covering 17,734 pages were enacted.'

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I quote the words of Mr. Manderson in his address as President of the American Bar Association:

The law-making mania is in evidence from the fact that there were introduced in the Senate 4961 bills and in the House 12,226. Of these were enacted 197 public and 729 private bills. ... (As to the State legislatures), the evils of over-legislation, the passion for law-making continued with unabated force, bringing in its train the ills of paternalism, dead-letter statutes, with disregard, dislike, and even contempt for law.

It is sometimes said that there is in this country a decline in the volume of legislation; and at first blush this statement might seem to be true of

2 Bulletin of New York State Library," p. 35. 3 "Address by Mr. Manderson," President of American Bar Association, 1900, p. 215. 4"American Bar Association Report," 1903, p. 265.

5 American Bar Association Report," pp. 201, 212. The late Mr. Godkin, computing that the States of the Union had in one year turned out 15,730 Acts and Resolutions, remarked: "Nothing like it has been known in the history of the world." Atlantic Monthly, viii. p. 45.

England. For example, it is pointed out that there were, in 1803, 129 publie Acts and 119 local and personal Acts, while in 1905 there were only thirty-six and 245. Such figures are deceptive. The Session of 1905 was exceptionally barren. Compare the output in the early years of a modern Parliament with the production of a Parliament one hundred years ago, and the former would be found to be much the greater of the two. Besides, there is now much subordinate legislation to all intents and purposes equivalent to statutes. There is, for instance, a large body of delegated legislation; municipalities and corporations being invested with authority to make by-laws. There is also a system of provisional orderssubstitute of Acts of Parliamentwhich are employed on a great scale. Lastly, and this is a prodigious agency, there are many general Acts which dispense with the necessity of passing particular Acts-measures which economize Parliamentary energy and lighten its load. Among these are the Companies Acts, which render unnecessary private Acts once passed to incorporate companies. To this class belongs the Divorce Act. But for the improvements which have been made in the machinery of legislation, the Statute-book might be ten times the size which it is.

In this country are many murmurs against the exorbitant burthen of legislation. In the United States there have been not only murmurs but practical attempts to reduce the production.

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It

is interesting to watch the efforts being made to stay the hands of the legislator. One device much adopted in America is to cease to have annual Sessions. In the life of Mr. Simon Sterne, who, among his many other public services, did much to purify and reform legislation, it is said:

The profound distrust of the results

of legislative activity had become such that the most popular remedy for existing evils was that of biennial legislative sessions. The desire for these arose from the widely diffused conviction that the legislative session was on the whole an evil, and to diminish the activity of that evil by one-half would be to confer benefit upon the community."

Mr. Sterne, in a letter to Mr. Roosevelt, then Governor-elect of the State of New York, said: “A vast mass of undigested matter, unfortunately having the force of law, is every year dumped upon the community to work out its mission of evil." Mr. Sterne added:

One national, thirty-eight State and eight territorial law factories, in the more densely-populated and richer States of the Union, the annual coming together of the law-making power is regarded with apprehension, and its adjournment is followed by a feeling of relief on the part of those members of the community who do not actively engage in politics and who pay the taxes."

Here is another dictum to the same effect:

Whether we look at the constitutions which the people adopt and the rules of the House of Representatives, or listen to the common speech of men, we find that the faith in the representatives of the people on which our Gov

Pp. 146, 147.

7 P. 146. These are examples of the complaints: The writer of an article in the "Yale Review," with the title of "The Abolition of Legislative Assemblies," says: "Even with closure a legislature, as at present constituted. is almost as bad a means of getting laws made as could possibly be devised" (iv. p. 121). Here

is another testimony to the same effect: "The Congress of the United States and six States meet every year; the sessions of thirty-nine legislatures are biennial. The meeting of any of these legislative bodies is awaited by many sensible and intelligent citizens with uneasiness and with alarm, and final adjournment is generally welcomed as a relief from serious anxiety."Francis C. Lowell, "Atlantic Monthly," lxxix, p. 366. "A number of years since one of the foremost of American writers upon the political and economic history of the country called attention to the growing sentiment of fear with which business men regarded the convening of Congress

This dissatisfaction has led to the adoption of three measures: the abolition of annual sessions, the imposing of a time limit to the sitting of legislatures, and the use of referendum or initiative, or some other form of direct legislation. The first expedient has been freely adopted. Only some six States now have annual sessionsNew York, New Jersey, Massachusetts, Rhode Island, Georgia, and South Carolina. Alabama has gone further; among the first to adopt a biennial session, this State subsequently adopted a quadrennial session. The time limit is also much used.

as the longest period that the infliction may exist.10

There has been in some States resort to another expedient to check legislative activity-I mean direct legislation, the institution of the Referendum, which South Dakota adopted in 1898. Oregon adopted the Initiative and Referendum Amendment submitted in June, 1902.

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Business once left to State legislatures is largely done by State conventions, which sanction amendment of the State constitutions. While amendment of the Federal constitution is practically out of the question, amendments of State constitutions are tolerably easy. State conventions meet rarely, and are said to be effective. find strong expressions of approval of the former as compared with the State legislatures; praise of them as means of escaping "the pernicious influence of lobbyists," and admission of the "tendency towards taking over laws in bulk from a convention, instead of small lots from a legislature."

I need scarcely say that the copious production, the yearly supply to which this country and others are accustomed,

a result of the spread of this Parliamentary system, is abnormal and exceptional. It has a recent origin. It prevails over a limited area. Even in Europe this agency has been at work for but a short period. To define its exact duration would necessitate entering into details as to the distinction in constitutional history between statute, loi règlement, ordonnance, "gesetz” and “verordnung."" It is sufficient to say that in this country there has been for three or four centuries-some would put the turning-point in Edward the Third's reign-Parliamentary government with

10 American Bar Association Report," 1900, p. 213.

11 Schröder's "Lehrbuch," p. 22; Stubbs, il. 407, 585; Gavet's "Source de l'Histoire des Institutions," 188.

all its facilities for legislation. For more than a century they have existed in Congress and in the State legislatures of America. But on the Continent this form of legislative activity has been of short duration. Until the French Revolution there existed in Europe no real legislatures, such as we know, except that of England. I have sought but failed to find exact information as to the volume of law-making in ancient Greek communities. There is no reason to believe that, measured by modern standards, it was large. Monarchies and aristocracies were for obvious reasons not called upon to enact, and rarely did enact, a multitude of laws; they had other ways of securing obedience. They certainly were under no obligation to enact laws at regular intervals. The world has until recently, even in civilized periods of history, made sparing use of legislation of any kind. That which is habitual to us, the daily bread of modern communities, was rare. Even the most active legislators, Charlemagnes or Alfreds, did not indite for their subjects as many words as modern sovereign assemblies indite pages. Written legislation of any kind has, until a comparatively recent period, been rarely used, and generally only in a crisis of the life of States. The bulk of men have lived and died, the world has moved on, without legislation and subject only to custom, slowly formed and slowly disintegrated, the custom of their village, family, city, tribe, the deposit left by ages of experience. Even when the custom was called law, its author was unknown. It was wisdom flowing from a nameless source.

There has been until recently no central authority imposing its will over a large territory as to the minutest affairs of life. The substitute for lawsat best only outside regulations-were customs and usages voluntarily adopted

by those who observed them. For gradual accretions, the usages of trades and guilds, particular groups, races, and localities, built up gradually, are substituted swift conscious operations. Sir Henry Main's famous contrast between the past, the age of status, and the present, the age of contract, is not quite true. The real contrast is between the age of custom and the age of legislation. It is matter for reflection, a fact fraught with immense consequences, that "the fabric of habit," the unconscious formation of customs and usages, are not what they once were in the lives of Western communities, in fact, count for infinitely less than they did. What is scarcely less important is that for the first time legislation works unchecked. In the past, in the Middle Ages, for example, there was something to look up to, something higher or more sacred than written law; there was the authority of the Church, or the vague power of the Emperor, or some fundamental constitution, or natural law supposed to be supreme over the legislature. Above the law-giver of to-day is nothing. Can the respect, nay, reverence, for law which once existed as something divine or half-divine survive unimpaired when it is a commodity manufactured with amazing rapidity, and often turned out crude and unrefined?

All these statutes and ordinances are in a comprehensive sense literature; mediocre literature, bad literature if you will, but still literature of a sort, the record of a nation's strongest desires, among the best evidence of its character; not the least valuable part of its history. They are also among the oldest parts of our literature. No other nation has a statute book comparable to ours-none so ancient, none so large, none so continuous and with so few gaps. There exists elsewhere nothing as a historical record like "the statutes at large." Their earlier pages are

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older than some of our cathedrals. its entirety the collection gives as strong a sense of a historic past as Windsor or Westminster Abbey. Conceive Parliament as an author. It has been more prolific than Dumas or Scott; an author whose literary life extends over centuries; one who made his first attempts before Chaucer, and his latest along with the novelist of the last publishing season.

It is the fashion, at present here and in America, to speak slightingly of the value of this mass of statutes, to regard them in the main as futile and inept, ambitious failures and excrescences on the national life. Herbert Spencer, in particular, has stated with cogency this view. But granted that many of these statutes were never applied or applied only imperfectly, and that some of them were no more than aspirations, failing to accomplish what their authors contemplated, they are at least the deliberate expressions of dominant opinions and aims.12 What is not unimportant in the life of the individual-the striving after better things, the making of resolutions -cannot be unimportant in that of the aggregate. That which is the necessary condition of moral growth, the sign of vitality in the former, may be such in the case of the latter. With perpetual movement in beliefs, habits, and ideals, it is hard to see how such legislation can be avoided.

It is in a sense true that each age has its own particular form of legislation. The prefaces to the Tudor Acts have the majestic cadences, the apt choice of words, common but never vulgar, of the Elizabethan writers. Read, for example, the preamble to the Act to restore to the Crown its ancient jurisdiction, ecclesiastical and spiritual, and abolishing all foreign powers re