Page images

pugnant to the same, the stately preamble to the statute for the restraint of appeals, or the Act concerning Peter's pence and dispensations. They are in harmony with the best prose of the best time-with the language of the Prayer-book and of the translators of the Bible, for example. Every student of constitutional history knows that at first the judges drafted the Acts of Parliament, following the words of the petition and the King's answer, both of which were, as a rule, concise.13 Eventually came a change for the worse. With the development of conveyancing, statutes began to take the form of the conveyance of the time. In the eighteenth century the language of statutes became cumbrous and swollen; the legislature made use of long strings of operative words, even as did those who then drew deeds or wills.

At present one is struck by the fact that legislation is wonderfully imitative. Men make laws, as bees make cells, of one pattern. The philanthropic legislation of Dakota is a little less finished, with more gaps for the judge to fill in, than our own. A French Act is generally shorter than an English one, the language simpler and more direct." We can understand why Stendhal said that he read the Code Napoléon to improve his style. Generally the statutes of an American legislature differ from others; they are drawn by amateur draftsmen. But the type is much the same. Legislation is, to use an engineering expression, being standardized. It is the Westminster pattern which is preferred and copied. In truth, wherever legislation is the product of a popular assembly, there is a probability that it will take much the same form. The Parliamentary type will most likely be based upon compromises; it will recognize ex

13 Clifford's "Private Bill Legislation," i. 322. 14 See "Sir Courtney Ilbert's Legislative Methods and Forms," p. 224.

ceptions and qualification to a much greater degree than the laws of a sovereign who is responsible to none but himself. It will generally be evident that the passing of the statute has been preceded by negotiation, and that it is the resultant of conflicting forces. It is not fanciful to say that a student of comparative legislation finds at least three types; the clear-cut type of the ruler, be he Emperor or Pope, or a group of oligarchs, who need give no reason other than sic volo sic jubeo, the language of Moses, Hammurabi, and the Twelve Tables; that of the legislation of rulers who desire to conciliate their subjects and who justify their actions; and lastly, the Parliamentary type, the outcome of compromise.

So far singularly few and imperfect attempts have been made to master, to reduce to order, to classify, to make reasonably accessible this ever-growing mass. The lawyer has here done little to help the sociologist, and the latter has done less to help himself. To begin with, there is a lamentable want of a useful terminology. Even for legal purposes the recognized distinctions are limited and imperfect. Some of these

are, in all but a legal point of view, useless. Jurisprudence distinguishes statutes as civil and criminal, as declaratory and enactive, or as federal state legislation. Bentham introduced the terms coercive and discoercive laws, the latter being the revocation in whole or in part of a coercive law. Some of these terms have not taken root, and they do not help us much to an idea of the contents of this ever-growing mass of legislation, or indicate its social tendencies, or classify it according to the functions which it performs, the objects which it has in view. At present it is impossible to compare with exactness the legislation of different countries. A classification corresponding to the great objects of legislation is urgently wanted. There have been, I

admit, a few very imperfect attempts to arrive at such a classification as is desired. Some of these are mentioned below.15 A system of classification which would enable comparisons to be made with intelligence or safety is a pressing task for jurists and sociologists.

I may point out certain marked tendencies in our own legislation and in that of other countries. Foremost among them here and elsewhere is the tendency, sometimes open and direct, especially of late, to restrict the operation of contract or, as it is sometimes phrased, to limit the autonomy of the parties. It takes many forms. It creates whole classes of persons who are regarded as abnormally weak, if not irresponsible. The idea of equality before the law-once a dominant idea in the legislation in Western countriesbecomes fainter. The exceptions were once few. Lunatics were, for most matters, at all events, regarded as incapable of contracting; minors were so for some; and expectant heirs were in certain circumstances unfettered. Now the list of such classes is much enlarged. The borrower cannot bind himself against the money-lender; the Court enables him to break his word.

15 Here is one proposed classification: (1) Legislation creative or constructive: (2) Legislation preservative or conservative; (3) Legislation as to the machinery or administration for carrying out the objections. See also Holland's "Jurisprudence," p. 326. Here is another suggested basis of classification: "In the progress of legislative control, three general stages may usually be recognized. In the first, the main idea is to overcome, dissipate, or destroy inimical forces; in the second, so to control and direct them that they may become beneficent instead of harmful; and in the third, SO to concentrate and organize beneficial forces that their effect is enormously increased. The first is protective and repressive, the second reformative and preventive, the third positively productive; the policeman and the prison are typical of the first; the reformatory and the asylum of the second, and the school and the library of the third. The extent to which the first has been supplanted by the second and third is the best index of political intelligence, and of the degree to which legislation has become

He who gets a bill of sale finds it inoperative unless it satisfies certain conditions. Farmers are protected against themselves. The Irish tenant is encased in legislative armor against his weaknesses. The expanding field of labor legislation contains many such provisions. Workmen and seamen, factory operators and miners, cannot contract themselves out of many provisions established for their benefit. In several European countries the working day of grown-up men is limited by statute. Railways and many corporations are subject to restrictions from which they cannot be released by contracts. It would seem as if, instead of the age of status being over, we were rapidly returning to it. Hegel said that in legal restriction lay true freedom. It is the present working creed of most legislatures. The demand for democracy was once all for equality. De Tocqueville could write: "Democratic nations are at all times fond of equality, but there are certain epochs at which the passion they entertain for it swells to the height of fury," as in the America which he described. That is not the universal opinion there today. The opposite is nearer the truth. Let me cite the words of an eminent

[ocr errors]

scientific." Here is further attempt of a similar kind: "Dans les lois, comme dans les faits, et comme dans les idées, on s'attache d'abord à démolir l'ordre ancien de la société, puis lentement, peu à peu, et de plus en plus, on s'efforce à fonder sur les lois l'ordre nouveau concu dans les idées, et déterminé, ou commandé ou conditionné par les faits" (Rapport) by M. Charles Benoist, "Sur le Code du Travail,' p. 71). See also "American Bar Association Report," 1897, p. 312. These are obviously imperfect divisions. They tell little as to the great objects of legislation. In this country something has been done by the Society of Comparative Legislation to master the mass of legislation. The Société de Législation Comparée has for many years been engaged upon this work. So also has the Internationale Vereinigung für Vergleichende Rechtswissenschaft in Berlin. It has been suggested that there should be an International Bureau of Comparative Legislation which Would collect the materials."Rivista di Legislazione Comparata,"

September, 1903.


American lawyer speaking with the conservatism natural to his profession: "It cannot be denied that, in the end, the equalities of right and opportunity work out, in some instances, the widest inequalities and the rankest injustice, and that good men are sick at the sight of them." That love of equality, once a veritable passion, is pronounced deceptive, and privilegia in the interest of particular classes abound. Perhaps in much of this is a groping after a new conception of freedom, not merely nominal liberty of choice, but emancipation from the domination of circumstances which make that liberty inoperative.


Akin to this curtailment of the region left entirely to contract is the rapid multiplication of statutory regulations as to admissions into professions. The door into them is no longer open. Everywhere legislatures yielding to the demand for restrictions upon the free entrance into professions requiring skill and calling for trust on the part of patients and others. Doctors, lawyers, nurses, teachers, and scores of others are more and more required to prove their fitness. Such restrictions do not apply merely to the so-called learned professions. Pennsylvania no one may carry on the business of plumber or house draining without having passed an examination.



So as to dentists in Louisiana accountants in Maryland. In Connecticut, Maine, Michigan, and Texas embalmers must be certificated. In Connecticut it is not lawful to carry on the trade of a barber unless the applicant has obtained a certificate of registration, passed an examination before a board of examiners, established to their satisfaction that he is of good moral character, and that he has served his trade for three years, is possessed of competent skill, and has a competent

16 Mr. Woolworth, "American Bar Association Report," 1897, p. 246.

degree of knowledge of the common diseases of face and skin; and similar laws have been passed in several other states." The State of Colorado requires commission merchants to procure a license before engaging in their business. While unions are closing manual employment to the non-unionists, the open door tends to close not only in the liberal professions, but many others. The justification of these restrictions is sometimes (to quote an eminent American lawyer) put thus:

Government is confused with the social state, while in reality it is but one of many organs for the attainment of the ends of the social state. Government employments are public because they intimately affect the general welfare, but many so-called private employments affect the general welfare in equal measure. This is practically recognized in the numerous laws rapidly being adopted for regulating admission to the practice of law, medicine, dentistry, pharmacy, and veterinary medicine, and providing for the examination and licensing of embalmers, barbers, horse-shoers, engineers, electricians, and public accountants.

I experience a difficulty in describing a third tendency. I might call it, without seeking to disparage it, emotional legislation, because it is generally prompted by strong feeling; the spectacle of some wrong, the discovery of some hardship, the murmurs of importunate petitioners. I might also term it occasional or fragmentary legislation, because it takes short views, deals only with parts of a subject and does not study it all round. I might illustrate this from our own statute book. It is more evident, however, in the legislation of young communities. This characteristic may be due in part to an indisposition to take trouble. But it is, I am satisfied, connected with another tendency. Legislatures are feeling their way; there is a disposition to

17 Mr. E. Wedmore, "American Bar Association Report," 1901, p. 226.

legislate, not in pursuance of any settled principles-in plain English, to make experiments, to put in force enactments with no clear certainty of confidence as to the consequences. There is the feeling that, if it is easy to enact a law, it is easy also to repeal it; and this facility encourages attempts of a kind hitherto unknown. This tendency is, of course, most marked in new communities. The statute book of Dakota, for example, swarms with laws which are new departures-what may be called frontier or pioneer legislation. But Dakota does not stand alone in this respect. A fool, Erasmus Darwin said, is a man who does not make experiments. There is not much of this kind of folly. I note a further tendency. There is a marked distrust of punishment in all its forms, a growing disbelief in its efficacy, and a steady growth in the humanizing of the criminal law. Punishments are everywhere milder than they were; the tendency is for the repressive part of law to decline. Even where the letter of penal enactments is unchanged, penalties are applied with less severity. Such laws as Loi Bérenger are being everywhere passed. There is, too, a freer exercise of the prerogative of mercy. Everywhere there is evident a perception that the criminal law is a rude, half barbarous, imperfect method of attaining its objects. What seems to be in conflict with this, is while one part of criminal law diminishes in importance, another expands. If punishments are milder, there are many more of them. The legislature creates every year new offences. Penalties are multiplied. Almost every new statute of any length prohibits conduct hitherto legal. A very large and a growing proportion of persons in gaol are there for the non-payment of fines imposed for offences morally not very reprehensible. The neutral ground of action, the field The Nineteenth Century and After.

of conduct over which the individual may range at will, is gradually contracted; political freedom in these days meaning very much the power of imposing restrictions all round.


I touch here a point not so obvious as some of those which I have mentioned -that is, the increase in legislation for the protection of interests of society hitherto neglected, or left to the care of the individual, and against evils once supposed to be inevitable or deeply rooted in human nature. so there is legislation for the promotion of health and education, culture and amenities of life, and of a more equitable division of wealth; measures in search of what has been called "organic justice." To some degree the many failures of modern legislation are due to the fact that it seeks to go deeper than did punishment; it would get behind the particular offence; it would touch the causes of crime, disease, pauperism, and inefficiency; it would reform-to speak the language of another age, it would convertinstead of punishing. The fact that no man lives or works alone, the interdependence of all in every community, is more and more recognized. While parts of the field once occupied by legislation are being abandoned, while there are no longer statutes against or in favor of particular creeds, minute attention is given to matters as to which the individual was once his own master. There are periods in which legislation is mainly restrictive or conservative; it seeks to maintain the existing order or practices. There are also. periods of creative or formative legislation; the object is to form a new order; to accomplish rapidly and by process of law what was once the work of time, revolution, turmoil, and civil war. And all the world over, wherever Parliaments exist, we are, for better or worse, in the full flood of such legislation. John Macdonnell.


Coleridge's one page of general criticism on "Antony and Cleopatra" contains some notable remarks.

Of all Shakespeare's historical plays (he writes), "Antony and Cleopatra" is by far the most wonderful. There is not one in which he has followed history so minutely, and yet there are few in which he impresses the notion of angelic strength so much-perhaps none in which he impresses it more strongly. This is greatly owing to the manner in which the fiery force is sustained throughout.

In a later sentence he refers to the play as "this astonishing drama." In another he describes the style: "feliciter audar is the motto for its style comparatively with that of Shakespeare's other works." And he translates this motto in the phrase "happy valiancy of style."

Coleridge's assertion that in "Antony and Cleopatra" Shakespeare followed history more minutely than in any other play might well be disputed; and his statement about the style of this drama requires some qualification in view of the results of later criticism as to the order of Shakespeare's works. The style is less individual than he imagined. On the whole it is the style of al the dramas subsequent to "Macbeth," though in "Antony and Cleopatra," which probably followed that tragedy, the development of this style is not yet quite complete. must add that this style has certain marked defects, unmentioned by Coleridge, as well as the quality which he points out in it. But it is true that here that quality is almost continuously present; and in the phrase by which he describes it, as in his other phrases, he has signalized once for all some of the most salient features of the drama.

And we

It is curious to notice, for example, alike in books and in conversation, how often the first epithets used in reference to "Antony and Cleopatra" are "wonderful" and "astonishing." And the main source of the feeling thus expressed seems to be the "angelic strength" or "fiery force" of which Coleridge wrote. The first of these two phrases is, I think, the more entirely happy. Except perhaps towards the close, one is not so conscious of fiery force as in certain other tragedies; but one is astonished at the apparent ease with which extraordinary effects are produced, the ease, if I may paraphrase Coleridge, of an angel moving with a wave of the hand that heavy matter which men find so intractable. We feel this sovereign ease in contemplating Shakespeare's picture of the world-a vast canvas crowded with figures, glowing with color and a superb animation, reminding one spectator of Paul Veronese and another of Rubens. We feel it again when we observe (as we can even without referring to Plutarch) the nature of the material; how bulky it was, and, in some respects, how undramatic; and how the artist, though he could not treat history like legend or fiction, seems to push whole masses aside, and to shift and refashion the remainder, almost with the air of an architect playing with a child's bricks.

Something similar is felt even in the portrait of Cleopatra. Wonderful as it is, the drawing of it suggests not so much passionate concentration or fiery force, as a sense of effortless and exultant mastery-what we feel, for example, in the portraits of Mercutio and Falstaff. And surely it is a total mistake to find in this portrait any trace of the distempered mood which disturbs our pleasure in "Troilus and

« PreviousContinue »