Popular Law-making Part 18

There are three great questions before us in the immediate future--the negro, local or self government, and taxation, which last is the chief problem of city and town government.

The world has never before tried the experiment of munic.i.p.al government, where those who have the local vote do not generally pay the local taxes.

XX

FINAL

One would suppose that a democracy which believes in the absolute panacea of law-making would take particular pains with the forms of its legislation, to have its statutes clear, in good English, not contradictory, properly expressed and properly authenticated. You would certainly suppose that the people who believe that everything should be done under a written law would take the greatest pains to see that law was _official_; also, that it was clear, so as to be "understanded of the people"; also, that it did not contain a thousand contradictions and uncertainties. When our--I will not say wiser, but certainly better educated--forefathers met in national convention to adopt a const.i.tution, one of the first things they did was to appoint a "Committee on Style." It is needless to say that no such committee exists in any American legislature. You would suppose they would take pains to see that all the laws were printed in one or more books where the people could find them. This is not the case in New York or in many of our greater States. You would also suppose that when they pa.s.sed another law on the same subject they would say how much of the former law they meant to repeal, but in many States that also is not done. It would probably be too much to hope that they should not confuse the subject with a new law on a matter already completely covered; but the form of their legislation should be improved at least in the first three particulars I have mentioned.

What is the fact? The secretary of one new State reports that the laws, as served up to him by the legislature, are "so full of contradictions, omissions, repet.i.tions, bad grammar, and bad spelling"

that it has been impossible for him to print them and make any sense; the bad grammar and the bad spelling, at least, he has, therefore, presumed to correct. But what should surprise us still more is, that in very few of our States is there any authentic edition of the laws whatever, and quite a number do not publish their const.i.tutions!

The worst condition of all is found in the national legislation of Congress, until very recently in the great State of New York, and in those States which have adopted the code system generally. I do not say this as an opponent of general codes, but I am constrained to note as a fact that those States are the ones which have their legislation in the worst shape of any. The charm of the statute theory is that the half-educated lawyer or layman supposes he can find all the laws written in one book. Abraham Lincoln even is said to have had the major part of his "shelf of best books" composed of an old copy of the statutes of Indiana, though I can find no traces of such reading in the style of his Gettysburg address. But how far is this democratic claim that the laws of a State are all contained in one book borne out by the facts?

Of our fifty States and Territories only Alabama, Arizona, the District of Columbia, Connecticut, Delaware, Maine, Maryland, Ma.s.sachusetts, Montana, New Hampshire, New York (partially), North Carolina, Rhode Island, South Carolina, Vermont, and Wisconsin (sixteen States) have any official revision or "General Laws"; that is to say, one or more volumes containing the complete ma.s.s of legislation, up to the time of their issue, formally enacted by the legislature. A number of other States have what are called "authorized revisions" or authorized editions of the law. This phrase I use to mean a codification by one or more men (usually a commission of three) who are duly appointed for the purpose, under a valid act of the State legislature, but whose compilation, when made, is never in form adopted by the legislature itself. Leaving out the const.i.tutional question whether such a book is in any sense law at all--for in all probability no legislature can delegate to any three gentlemen the power to make laws, even one law, much more all the laws of the State--leaving out the const.i.tutional question. It is very doubtful how far such compilations are reliable, although printed in a book said to be authorized and official, and held out to the public as such. That is to say, if the real law, as originally enacted, differs in any sense or meaning from the law as set forth in this so-called "authorized publication," the latter will have no validity. Indeed, some States say this expressly. They provide that these compilations, although authorized, are only admissible _in evidence_ of what the statutes of the State really are--that is to say, only valid if uncontradicted. It was impossible to correspond with all the States upon this point--if, indeed, I could have got opinions from their respective supreme courts, for no other opinion would be of any value.

The compilation of the State of Arkansas says, somewhere near its t.i.tle-page, that it is "approved by Sam W. Williams." It does not appear who Sam W. Williams is, what authority he had to approve it, or whether his approval gave to the laws contained in that bulky volume any increased validity. This is a typical example of the "authorized"

revision, and this is the state of things that exists in such important States as Arkansas, California, Colorado, Florida, Hawaii, Idaho, Iowa, Kansas, Missouri, Nebraska, Nevada, New Jersey, New Mexico, North Dakota, Oregon, South Dakota, Tennessee, Utah, Virginia, and Wyoming (twenty in all).

Before leaving these States, which do have some form of "revised statutes" or complete code--and be it remembered that I am never here speaking of annual laws, for however bad their form and the form of their publication, they are usually, at least, _official_--it will be interesting, and, I think, throw further light on the subject, to cull some pa.s.sages from the laws of States having such "authorized revisions," to show how far their real authority extends. The general statutes of 1897 of the State of Kentucky say on their t.i.tle-page that they are an authorized compilation approved by the Supreme Court, but the form of approval of the Supreme Court of Kentucky runs as follows: "Although we consider this duty not lawfully imposed upon us," they say that, so far as they have observed, they "detect no errors in the compilation and it seems to have been properly done." Of how much value such approval would be in case there turned out to be a discrepancy between the compilation and the original statute, I leave to the lawyers to judge. The compiled laws of New Mexico of the same year, made by the solicitor-general, contain an amusing statement under his own signature, that he believes "a large part of the laws he there prints are either obsolete or have actually been repealed by certain later statutes," but he, as it were, shovels them in, in the hope that some of them may be good!

The commissioners of the State of North Dakota go still farther.

Their code of 1895 bears a statement that it is, by authority of law, "brought to date" by the commissioners, who go on to say that they have compared the codes of other States and have added and incorporated many other laws taken from such codes of other States, apparently because the commissioners thought them of value! One must really ask any first-year student of const.i.tutional legislation what he thinks of that statement, not only of its const.i.tutionality, but of its audacity. Finally, the State of South Dakota says, in its statutes of 1899, what I quoted at the beginning--that "all the laws contained in the book are to be considered as admissible in evidence," but not conclusive of their own authenticity or correct statement.

We now come to the third, and, from the point of view of the believer in statutes, probably the worst cla.s.s of all. That is to say, States which have no official or authorized compilation whatever and which rely entirely upon the enterprise of money-making publishers to make a book which correctly prints the laws, and all the laws, of the State in question. For one State, at least, such a compilation was made by a few industrious newspaper correspondents at Washington! The States and Territories that are in this cheerful condition are, as I have said: New York (in part) the Territory of Alaska, California, Colorado, Illinois, Indiana--that is to say, there has been no official revision since 1881 and everybody, in fact, uses a privately prepared digest--Louisiana, Michigan, Minnesota, Mississippi, Ohio, Pennsylvania, Washington, and West Virginia (fourteen in all). Besides this, there are other States such as Wisconsin and Indiana, already mentioned, where there is no official _recent_ revision, so that everybody depends upon a private compilation, which is the only one procurable.

So much for the authenticity of the books themselves which contain the laws upon which we all have to depend. Now, coming to the form of the laws. As I have already remarked, there is no committee on style.

There is no attempt whatever made at scientific drafting. To give an example of what difference this may make in mere convenience, it is only a few weeks since, in Ma.s.sachusetts, a chapter of law to protect the public against personal injuries caused by insolvent railway and street railway companies was drawn up by a good lawyer, and contained between twenty and thirty sections, or about three pages of print.

It was brought to another lawyer, certainly no better lawyer, but a legislative expert, who got all that was desired into one section of five lines. There is no committee on style, there is no expert drafting. The case of the recent Ma.s.sachusetts statute declaring the common law to be the common law, and therefore jeopardizing the very object of the statute, will not be forgotten (see p. 188 above). There are certain definite recommendations I should like to make.

First, adopt the provision that "no statute shall be regarded as repealed unless mentioned as repealed, and when a law is amended, the whole law shall be printed as amended in full." This would acquaint the legislature with the law already existing, before they proceed to change it. Next provide that all laws shall be printed and published by a _State_ publisher and the authenticity of all revisions be duly guaranteed by their being submitted to the legislature and re-enacted _en bloc_, as is our practice with revisions in Ma.s.sachusetts and some as other States. Third, the local or private acts should be separated from the public laws, and they might advantageously even be printed in a separate volume, as is done in some States already. But who shall determine whether it is a private, local or special act, or a general law? I can only answer that that must be left to the legislature until we adopt the system strongly to be recommended of a permanent, preliminary, expert draftsman. Finally, no legislation must ever be _absolutely_ delegated. That is to say, even if a revision is drawn up by an authorized commission, their work should be afterward ratified by the legislature. It is said, I think, that the const.i.tution of Virginia, drawn up by a const.i.tutional convention, was never ratified by the people. If so, there is a grave const.i.tutional doubt whether it or any part of it may not be repealed at any time by a simple statute.

But can a const.i.tuent body of the ma.s.s of the people, the fundamental and original political ent.i.ty of the Anglo-Saxon world, be forbidden from delegating its legislative power, as its representatives themselves are forbidden?

The last matter, that of arrangement, order of printing, and form of t.i.tle, is so directly connected with that of indexing that I shall treat the two things together. Now, there are three different methods of arrangement, or lack of arrangement, to be found in printing the laws of our forty-six States and four Territories, both in the revisions and in the annual laws. The revisions, however, are more apt to have a _topical_ arrangement, and to be divided into chapters, with t.i.tles, each containing a special subject and arranged, either topically, or, in some States, even so intelligent otherwise as are Pennsylvania and New Jersey, arranged with the elementary stupidity of the alphabetical system. I say, stupid; when, for instance, you have a chapter on "Corporations," no one can tell whether the legislature or compilers are going to put it under "C" for corporations, under "I"

for incorporations, or under "J" for joint-stock companies. The alphabetical system of arrangement is the most contemptible of all, and should be relegated to a limbo at once. The annual laws, of course, are much less likely to have any arrangement whatever. Pa.s.sed chronologically, they are more apt to follow in the order of their pa.s.sage.

Now these systems as we find them are as follows: in nearly all States public and private laws are lumped together, although in a few they are indexed separately. Most of the States to-day, including all the "code" States, adopt the topical system of arrangement, as, indeed, must be the case in anything that might, by any possibility, be called a code, and even a general "revision" of the statutes will naturally fall into chapters covering certain subjects. A few States, as I have said, cling to the crude alphabetical system, and quite a number have no discernible system whatever. In some States the annual laws are arranged by number, in some by date of pa.s.sage, and in some apparently according to the sweet will of the printer. In those States which do not arrange them or ent.i.tle them by date of pa.s.sage we have to depend on the crude and dangerous system of citation by page. Acts of Congress are sometimes cited by date of pa.s.sage, sometimes more formally by volume and number of the Statutes at Large, and more often than either, probably, by the popular name of the statute, such as the "Sherman Act," the "Hepburn Act," or the "Interstate Commerce Law."

It seems to me we should recommend one system. That for the codes or general revisions should certainly be topical. That of the annual laws may either be topical or chronological, but the statutes, in whatever order they are printed, should be _numbered_ and cited by number. No alphabetical arrangement ever should be permitted.

As to indexing we should urge upon State legislatures, secretaries of State, and official draftsmen (when we get any) that the very excellent system contained in the New York Year Book of Legislation should be adopted for all volumes of State laws. It is as bad for the index to be too big as to be too little, and it does not follow that the good draftsman is a good indexer. The index to our Revised Laws of Ma.s.sachusetts is contained in one large separate volume of 570 double-column pages. To look for a statute in the index is just about as bad as to look for it in the revision itself. The most important point of all is the proper choice of subject t.i.tles. Laws should be indexed under the general subject or branch of the science of jurisprudence, or the subject-matter to which they belong, not too technically and not too much according to mere logic. For example, any lawyer or any student of civics who wished to learn about the labor laws of a State, whether, for instance, it had a nine-hour law or not, would look in the index under the head of "Labor." _Labor_ has become, for all our minds, the general head under which that great and important ma.s.s of legislation concerning the relation of all employers and employees, and the condition and treatment of mechanical or other labor, naturally falls. But if you search in our elaborate index of Ma.s.sachusetts for the head of "_Labor_" you will not find it. If you look under "_Employment of Labor_" you will find it, but you cannot be certain that you will find all of it, and you will find it under so many heads that it would take you quite ten or fifteen minutes to read through and find out whether there is an "hours-of-labor" law or not.

On the other hand, purely technical matters, such as "_Abatement_" are usually well indexed, because their names are what we call "terms of art," under which any lawyer would look.

But, after all, it does not so much matter what system we adopt as long as it is the same system. At present I know of nothing better than the forty heads contained in the "Princ.i.p.al Headings" of the New York State Library Index, though I should like to change the names of a few. For instance, "Combinations or Monopolies" is not the head to which the lawyer would naturally look for statutes against Trusts. The word "trust" has become a term of art. If not put under "Trusts" it should be under "Restraint of trade" or "Monopolies," but the word "combination" is neither old nor new, legal nor popular. A combination is lawful. If unlawful, it is _not_ a combination, but a conspiracy.

The most important statute of the United States is perhaps the most horrible example of slovenliness, bad form, and contradiction of all.

The "Hepburn Act" is the amended Interstate Commerce Act, and is printed by Congress in a pamphlet incorporating with it quite a different act known as the Elkins Act, besides the Safety Appliance Act, the Arbitration Act, and several others. We all remember under what political stress this legislation was pa.s.sed, with Congress balking, the senators going one way, the attorney-general another, the radical congressmen in front, and the president pushing them all. It is easily intelligible that such a condition of things should not tend to lucid legislation, particularly when an opposing minority do not desire the legislation at all, and hope to leave it in such a shape as to be contradictory, or unconst.i.tutional--or both. (This has been intentionally done more than once.) All of it a ma.s.s of contradictions or overlaying amendments, the first important part of it which came under the scrutiny of the Supreme Court only escaped being held unconst.i.tutional by being emasculated. Its other clauses have yet to face that dreaded scrutiny. Its basic principle has yet to be declared const.i.tutional, while the only principle which has proved of any value was law already. This wonderful product of compromise starts off by saying "Be it enacted, etc., Section I as amended June 29, 1906." It begins with an amendment to itself. It does not tell you how much of the prior law was repealed, except upon a careful scrutiny which only paid lawyers were willing to give. Upon the old Interstate Commerce Act of 1887, after quoting it substantially in full, it adds a ma.s.s of other provisions, some of which are _in pari materia_, some not; some contradictory and some mere repet.i.tions. It amends acts by later acts and, before they have gone into effect, wipes them out by subst.i.tutions. It hitches on extraneous matters and it amends past legislation by mere inference. Like a hornet it stings in the end, where revolutionary changes are introduced by altering or adding a word or two in sections a page long, and it ends with the cheerful but too usual statement that "all laws and parts of laws in conflict with provisions of this act are hereby repealed." As a result no one can honestly say he is sure he understands it, any more than any serious lawyer can be certain that its important provisions are any one of them const.i.tutional. And that huge statute with sections numbered 1, 2, 5, 16, 16_a_, etc., with amendments added and subst.i.tuted, amended and unamended, is contained in twenty-seven closely printed pages. I venture to a.s.sert boldly that any competent lawyer who is also a good parliamentary draftsman could put those twenty-seven pages of obscurity into four pages, at most, of lucidity, with two days' honest work. By how little wisdom the world is governed! And how little the representatives of the people care for the litigation or trouble or expense that their own slovenliness causes the people! For the necessity of political compromise is no excuse for this.

I therefore urged before the National a.s.sociation of State Libraries, at their annual meeting of 1909, that they should use their influence with the various State governments at least--"1, that all revisions be authenticated, authorized, and published by the State; 2, that the annual laws be separated, public from private, and be printed by numbered chapters arranged either chronologically or topically; 3, that the indexes be arranged under the forty general heads used by the New York State Library in its annual digest, with such additional heads as may, perhaps, prove necessary in some States, such as, for instance, Louisiana, which has subjects and t.i.tles of jurisprudence not known to the ordinary common-law States; 4, that the const.i.tutions be printed with the laws; 5, that every State, under a law, employ a permanent, paid parliamentary or legislative draftsman whose duty it shall be to recast, at least in matters of style and arrangement, all acts before they are pa.s.sed to be engrossed."

Any private member introducing a bill can, of course, avail himself of the draftsman's services before the bill is originally drawn. His advice may be required by the legislature or by legislative committees on the question whether the proposed legislation is necessary, that is to say, whether it is not covered by laws previously existing. It shall be his duty then to edit the laws, arrange them for publication, and to authenticate by his signature the volumes of the annual laws.

One person is better than two or three for such work, but he should be paid a very large salary so that he can afford to make it his life work. He should be appointed for a very long term and should have ample clerical a.s.sistance. It should also be his duty to correspond and exchange information with similar officials in other States.

In other words, he with his a.s.sistants should be the legislative reference department. These recommendations were duly referred to the Committee on Uniformity in preparation of session laws.

At some risk of wearying the reader I have attempted superficially to cover a very extensive field. I started with quoting Blackstone's remark that there is no other science in which so little education is supposed to be necessary as that of legislation. These words were penned by him more than one hundred and fifty years ago and there is still no book upon this subject; the books on Government, Parliamentary Law, and Hermeneutics concerning respectively the source, the procedure, and the interpretation of legislation, not the content thereof. I can but hope to have called attention to the immense importance of this subject, particularly in our representative democracy, and I will beg my readers who have been patient with me to the end to reflect for more than a moment on the extraordinarily novel state of things that this modern notion of the legislative function brings about. It is a commonplace of historical writers to open their first chapter by calling attention to the difference made by steel and electricity, to the fact that it took longer to get from Boston to Washington in 1776 than it does to-day from Maine to California and back; that it took longer even for the rural legislator in the Connecticut Valley to get to his State Capitol than it does to-day to go from there to Washington. But no one, I think, has ever called attention to the enormous differences in living, in business, in political temper between the days (which practically lasted until the last century) when a citizen, a merchant, an employer of labor, or a laboring man, still more a corporation or a.s.sociation, and lastly, a man even in his most intimate relations, the husband and the father, well knew the law as _familiar_ law, a law with which he had grown up, and to which he had adapted his life, his marriage, the education of his children, his business career and his entrance into public life--and these days of to-day, when all those doing business under a corporate firm primarily, but also those doing business at all; all owners of property, all employers of labor, all bankers or manufacturers or consumers; all citizens, in their gravest and their least actions, also must look into their newspapers every morning to make sure that the whole law of life has not been changed for them by a statute pa.s.sed overnight; when not only no lawyer may maintain an office without the most recent day-by-day bulletins on legislation, but may not advise on the simplest proposition of marriage or divorce, of a wife's share in a husband's property, of her freedom of contract, without sending not only to his own State legislature, but for the most recent statute of any other State which may have a bearing on the situation. Moreover, these statutes, which at any moment may revolutionize a man's liberty or his property, are not as they were in old times--a mere codification, or attempt at the best expression of a law already existing and well "understanded of the people"; but may and probably will represent a complete reversal of experience, an absolute alteration of human relations, a paradox of all that has gone before; and even when they endeavor not to do so, as in the case of that Ma.s.sachusetts statute above referred to, their authors' lack of education in the science of legislation may unintentionally cause a revolution in the law. And even when a statute does not do this, no lawyer can be certain what it means until, years or decades afterward, it has received recognition from an authoritative court. That is why much complaint has been made of lawyers; they are said not to know their business, not to be able to tell what the law is. The head of a great railroad has recently complained that he was only anxious to obey the law, but had great difficulty in finding out what the law was. Any good lawyer with common sense knows the common law and usage of the people; but no one could tell at the time of its pa.s.sage what, for instance, the Sherman Act, enacted twenty-three years ago, meant; the twenty-three years have elapsed; the anti-trust law has been before the courts a thousand times, and the best lawyers in the country do not to-day know what it means; and the highest tribunal in the land is so uncertain on the subject that it has ordered the Standard Oil case reargued.

This is not to say that one must not recognize the meaning and the need of law-making by statute; of law made by the people themselves to suit present conditions. "There should be a law about it," is the popular phrase--commonly there _is_ a law about it, and the best of all law, because tested by time and experience; only, the people do not realize this, and their power and practice of immediate legislation is not only the great event in our modern science of government, but it is also the greatest change in the rules and conditions of our _living_, and our _doing_, and our _having_. Not only our office-holders, but we ourselves, are born, labor, inherit, possess, marry, devise, and combine, under a perpetual plebiscitum, referendum, and recall. I can only hope that I have made some suggestions to my readers which will awaken their interest to the importance of the subject.