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The most conspicuous fact to be idle. Under our rule India produces noted as to modern legislation is the legislation with copiousness which at volume, the variety, the rapidity of the least equals that of most Western counoutput. It is immense, and it is stead- tries. Japan has, since she adopted ily growing in most parts of the world. Western habits, been legislating with of the making of laws there is no end. much activity, and on a large scale; In spite of admirable digests and hand- and China seems likely to have before books, and all the modern machinery long a Parliament which will no doubt for rendering knowledge accessible, do in this respect as other Parliaments there is, and must be, great difficulty have done. It is not easy to draw a in making oneself acquainted with the distinction between sovereign and semistatute law; a difficulty to be met only sovereign legislative bodies and others imperfectly by increased specialization. with limited powers. But, thinking of This is true of the enactments of one's assemblies with powers akin to those own country. How can one hope to of the legislative assemblies in British have, I will not say acquaintance with possessions and colonies, we shall not the details, but a conception of the be far wrong in saying that there are character and tendencies, of the pro- throughout the world more than 200 to digious mass of legislation which is be- 300 legislative bodies hard at work. The ing turned out almost everywhere with prospect is menacing. If Tacitus's saya rapidity unknown in other times? It ing still holds good-republica corruptishas been computed that “there are sima plurimæ leges-we seem to be in some three hundred law-making bodies a bad way. in the world having a jurisdiction ap- First as to legislation by our own proximating that of our State legisla- Parliament. The Session of 1905 was tures"-a statement perhaps a little unusually barren, and yet there were exaggerated but not very wide of the thirty-six public Acts, extending to mark. In the British Empire are, ac

about 100 octavo pages. As to the cording to a low computation, some whole British Empire, the review of sixty-five legislative bodies (some com- legislation which appears in the Jourputations would put the number very nal of the Society of Comparative Legismuch higher), while in the United lation mentions for 1903 about 1900 States there are about fifty. There Acts and ordinances. Next as to the are the Parliaments of Italy, France, United States, with some fifty State Germany, Austria, Hungary, not, to be legislatures, let me cite what Mr. Gilsure, so productive as ours, but all of bert says as to the legislation of 1903: them active, and pressed by demands for greater activity, to which they

The legislatures of Iowa, Kentucky, must sooner or later respond. I note

Louisiana, Maryland, Mississippi, Ohio,

Vermont and Virginia meet biennially that the Acts of the Reichstag are be

in even numbered years, and did not ing published in forty volumes. The

therefore convene in regular sessions, Eastern world, which until lately lived but the legislatures of Ohio and Virby custom, is in this respect no longer ginia met in extra-session. The net re

sult of the labors of the legislatures 1 Dr. Whitten, "Bulletin of New York State Library," 1902, p. 8.

during the year was the enactment of





more than 14,000 laws and resolutions, England. For example, it is pointed of which more than 5400 were general out that there were, in 1803, 129 publie and the remainder were local

Acts and 119 local and personal Acts, private.

while in 1905 there were only thirty-sis

and 245. Such figures are deceptive. In 1900-1901 the number of laws

The Session of 1905 was exceptionally passed was 14,190, of which 5480 were

barren. Compare the output in the general. "North Carolina leads in the

early years of a modern Parliament number of laws passed during 1903

with the production of a Parliament with 1203 enactments. The legislature

one hundred years ago, and the former was in Session sixty-three days, turn

would be found to be much the greater ing out an average of twenty laws a

of the two. Besides, there is now much day." "There were enacted

in 1899

subordinate legislation to all intents 4834 general and 9325 local, special, or

and purposes equivalent to statutes. private Acts, making a total (hardly to

There is, for instance, a large body of be entitled to be called a grand total)

delegated legislation; municipalities of 14,159 laws in the States alone." In

and corporations being invested with the review of legislation for 1903, Mr.

authority to make by-laws. There is Rawle, the President of the Bar As

also a system of provisional orderssociation, stated that forty-four legis

substitute of Acts of Parliamentlatures had been in, Session, and that

which are employed on a great scale. 9293 Acts, covering 17,734 pages were Lastly, and this is prodigious enacted."

agency, there are many general Acts I quote the words of Mr. Manderson

which dispense with the necessity of in his address as President of the

passing particular Acts-measures American Bar Association:

which economize Parliamentary energy

and lighten its load. Among these are The law-making mania is in evidence

the Companies Acts, which render unfrom the fact that there were introduced in the Senate 4961 bills and in

necessary private Acts once passed to the House 12,226. Of these were en

incorporate companies. To this class acted 197 public and 729 private bills. belongs the Divorce Act. But for the

(As to the State legislatures), the improvements which have been made evils of over-legislation, the passion for in the machinery of legislation, the law-making continued with unabated

Statute-book might be ten times the force, bringing in its train the ills of

size which it is. paternalism, dead-letter statutes, with disregard, dislike, and even contempt

In this country are many murmurs for law.'

against the exorbitant burthen of legis

lation. In the United States there have It is sometimes said that there is in been not only murmurs but practical this country a decline in the volume of

attempts to reduce the production. It legislation; and at first blush this is interesting to watch the efforts bestatement might seem to be true of ing made to stay the hands of the legis

lator. One device much adopted in 2 "Bulletin of New York State Library," p. 35.

3 “Address by Mr. Manderson," President of America is to cease to have annual American Bar Association, 1900, p. 215.

Sessions. In the life of Mr. Simon 4 "American Bar Association Report," 1903,

Sterne, who, among his many other 5 "American Bar Association Report," pp. 201, public services, did much to purify and 212. The late Mr. Godkin, computing that the States of the Union had in one year turned out

reform legislation, it is said: 13,730 Acts and Resolutions, remarked: "Nothing like it has been known in the bistory of the World." – Atlantic Monthly, viii.

The profound distrust of the results

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p. 205.

p. 45.

founded is gradually

ernment was weakening.

One writer describes the outlook thus:

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.

A growing distrust of the legislature is evidenced in the constitutional history of almost every American State. What this will finally lead to, it is impossible to foretell. If it continues unchecked, the State Legislature will fall, like the City Council, to decay, impotence, and general uselessness."

Mr. Sterne, in a letter to Mr. Rooserelt, then Governor-elect of the State of Yew 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.”

This dissatisfaction has led to the adoption of three measures: the aboli. tion 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.

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 Gor

In the forty-five States and the three territories of Arizona, New Mexico, and Oklahoma, only eleven permit their legislatures to sit without limit of time. The remaining thirty-seven fix forty days as the shortest, and ninety days


€ Pp. 146, 147.

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 fore. most of American writers upon the political and economie history of the country called attention to the growing sentiment of fear with which business men regarded the convening of Congress

in legislative session. ... In the time which has intervened since this fact was first noted, it cannot be said that the business world has become any more reconciled to the recurring sessions of legislative bodies."-Hon. J. H. Echels on "The Menace of Legislation." The late Mr. Godkin wrote: "The democratic world is filled with distrust and dislike of its Parliaments and submits to them only under the pressure of stern necessity.

Nearly every State has taken a step towards meeting the danger by confining the meeting of Parliament to every second year. It has said, In other words, that there must be less legislation." "People are beginning to ask themselves why legislatures should meet

even every second year; why once in five years would not be enough."

8 "Xorth American Review," 1883, p. 158. See also "American Law Review," 1906, p. 216.

Reynolds in "Yale Law Reyiew," ir. p. 289.

9 Mr.



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as the longest period that the intliction all its facilities for legislation. For may exist. 10

more than a century they have ex

isted in Congress and in the State leg. There has been in some States resort islatures of America. But on the Conto another expedient to check legisla- tinent this form of legislative activity tive activity-I mean direct legislation, has been of short duration. Until the the institution of the Referendum, French Revolution there existed in Euwhich South Dakota adopted in 1898. rope no real legislatures, such as Oregon adopted the Initiative and Ref

know, except that of England. I have erendum Amendment submitted in sought but failed to find exact informaJune, 1902.

tion as to the volume of law-making Business once left to State legisla- in ancient Greek communities. There tures is largely done by State con- is no reason to believe that, measured ventions, which sanction amendment of by modern standards, it was large. the State constitutions. While amend- Monarchies and aristocracies were for ment of the Federal constitution is obvious reasons not called upon to enpractically out of the question, amend- act, and rarely did enact, a multitude ments of State constitutions are toler- of laws; they had other ways of securably easy. State conventions meet ing obedience. They certainly were uprarely, and are said to be effective. I der no obligation to enact laws at regfind strong expressions of approval of ular intervals. The world has until rethe former as compared with the State cently, even in civilized periods of hislegislatures; praise of them as means tory, made sparing use of legislation of escaping “the pernicious influence of of any kind. That which is habitual to lobbyists,” and admission of the "ten- us, the daily bread of modern comdency towards taking over laws in bulk munities, was rare. Even the most from a convention, instead of small active legislators, Charlemagnes or Allots from a legislature.”

freds, did not indite for'their subjects I need scarcely say that the copious as many words as modern sovereign production, the yearly supply to which assemblies indite pages. Written legisthis country and others are accustomed, lation of any kind has, until a comparaa result of the spread of this Parlia- tively recent period, been rarely used, mentary system, is abnormal and ex- and generally only in a crisis of the ceptional. It has a recent origin. It life of States. The bulk of men prevails over a limited area. Even have lived and died,


world in Europe this agency has been at work has moved on, without legislation for but a short period. To define its and subject only to custom, slowly exact duration would necessitate enter- formed and slowly disintegrated, the ing into details as to the distinction in custom of their village, family, city, constitutional history between statute, tribe, the deposit left by ages of experiloi règlement, ordonnance, "gesetz” and ence. Even when the custom was "rerordnung."11 It is sufficient to say called law, its author was unknown. that in this country there has been for It was wisdom flowing from a namethree or four centuries-some would put less source. the turning-point in Edward the Third's There has been until recently no cenreign-Parliamentary government with tral authority imposing its will over a 10 "American Bar Association Report," 1900,

large territory as to the minutest af

fairs of life. The substitute for laws11 Schröder's "Lehrbuch," p. 22; Stubbs, ii.

at best only, outside regulations-were 407, 585; Gavet's "Source de l'Histoire des Institutions," 188.

customs and usages voluntarily adopted

p. 213.



by those who observed them. For gradual accretions, the usa ges 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 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

older than some of our cathedrals. In 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 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, bas 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 o more than aspirations, failing to accomplish what their authors contemplated, they are at least the deliberate expressions of dominant opinions and aims. 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


12 See "Herbert Spencer et la Philosophie de la Vie, Revue des Deux Mondes," 1904, xxil.

P. 830.

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