THE LAW THAT STANDS THE TEST
In an address before the New York Bar Association the Honorable Joseph E. Choate says that we in America are suffering seriously from plethora of legislation. He suggests that this whole mass of legislation pabulum that is made up and offered to the people from year to year, ought to be more thoroughly 'Fletcherized,' more completely masticated, before it is poured into the body politic for digestion. "If that were done, I am sure," he says, "that we could get along with half the quantity and it would do us just as much good." The volume of legislation now being considered is, in fact, appalling. The legislature of one Eastern state had before it at its last biennial session four thousand and eighty-one distinct bills. A Western state this year has asked its legislature to consider three thousand, seven hundred and thirty-eight measures. A Southern state actually passed at its latest session one thousand, four hundred and sixty different enactments.
Unlike the hookworm, however, this disease is neither new nor newly discovered, nor is it like the chills and fever, indigenous to our newly settled American continent. Over three hundred years ago Montaigne discovered a superabundance of legislation in France. "We have more laws in France," he says, "than in all the rest of the world." And going back still further to the first century A. D. we find Tacitus complaining that there are too many laws in Rome. "So that as formerly we suffered from wickedness," he says in his Annals, "so now we suffer from too many laws."
We may safely conclude then that the enactment of many laws which are not so fully "Fletcherized" as they should be, is a complaint which long ago became chronic among bodies politic generally and that it is high time that some cure be found for the ailment. How can the quantity of laws be diminished and the quality improved? How can our legislative acts be masticated so that one-half as many may do us as much good?
The problem of thus improving legislation and producing "the law that stands the test" is indeed a most serious one.
Requirements. Let us suggest the proposition that a law that stands the test must first be one which violates no provision of the constitution; second, it must be founded upon a sound economic basis; third, it should be capable of efficient administration: that is, it should be a practical, workable, usable thing; fourth, it must fit into its surroundings both legal and social. It must, as Blackstone has suggested, fit the situation as a suit of clothes fits the man. Some laws which are perfectly sound in good old occidental England have been found to be entirely impossible in oriental India. A measure which suits the Anglo-Saxon Yankee in Connecticut may be entirely out of place among the mixed peoples of the Philippines.
The law that stands the test must have all these qualities and this is the law which all the American states are striving to produce. Such a law may, of course, possess these characteristics and yet not be in every sense satisfactory. It may not accomplish all that was hoped for it; it may contain errors; it may need amendments, and still it may be a law which, in a proper sense, stands the test. To give a method by which a law may be created which will stand the test will not therefore be to suggest that a method has been discovered which will produce perfect legislation.
Nature of subjects considered. It should be remembered also that the difficulties of legislation arise not only from the multitude of subjects presented, but because many of the subjects are in themselves most difficult of comprehension. The Right Honorable James Bryce has said that the task of legislation becomes more and more difficult and that many of the problems which legislators now face are too hard not only for the ordinary members but even for the abler members of legislative bodies because they cannot be understood and mastered without special knowledge.
To illustrate: The legislature of a middle western state has had before it at a single session laws upon the following subjects: A comprehensive code of court procedure, initiative and referendum, recall of all officers except judges, home rule in cities, excess, condemnation, woman's suffrage, workmen's compensation, regulation of industrial accidents by commission, income tax, state aid to public highways, conservation and control of water power, forest reserve, system of industrial education, system of state life insurance, the formation of farmers' co-operative associations, limitation of the hours of labor for women, child labor, public school buildings as civic centers, and teachers' pension.
There does not exist in any learned society nor in any university in the land a single man who can do more than converse intelligently upon all of these subjects; yet this state expected its absolutely untrained legislators to understand these matters thoroughly, to express a wise judgment upon them, and to record their judgment in such form as to force it upon an entire state.
Lack of training on the part of the legislators. Of the one hundred members of the lower house of the legislature which voted upon all these measures sixty-five had never had any previous legislative experience. Only thirty had had the advantage of any college education. While nineteen of the one hundred were lawyers, they were for the most part young, inexperienced men, whose contact with public questions had been limited. Thirty of the one hundred were farmers, thirty-one were in business, six were doctors or dentists, eight were mechanics, three were school teachers. Yet these men, without experience, or training, or special fitness were forced to vote upon all these difficult economic and industrial problems, and also upon about two thousand other more or less important measures.
Necessity for unbiased information. It is of course evident that what the legislator must have is a source from which he can obtain complete information upon all sides of a controverted question. A court which purports to administer justice after hearing the contention of only one party to a transaction would open itself to ridicule. Yet this is precisely the method pursued in legislation. The legislator begins without any independent knowledge of the subject. Such knowledge as he obtains is brought to him ordinarily by a lobbyist. He receives many private suggestions whose source he hardly knows. He attends a committee hearing on a bill seeking to increase the taxes levied upon railroad property, for example. Here the best data and legal arguments that money can buy is ably and forcibly presented by the railroad attorneys. They give figures to show that the railroads are already taxed more than other forms of property. They quote economists to the effect that the proposed taxation is unsound and unscientific. They cite court decisions demonstrating to a certainty that the proposed measure is unconstitutional. They argue, wheedle, misstate, and finally convince the legislator that the measure is absurd. No similarly exhaustive arguments in behalf of the bill can be presented, for no talent comparable to that of the railroad attorneys, and in fact no talent at all is retained by the people in behalf of public interests.
This is the legislative librarian's opportunity. As the Right Honorable James Bryce has said: "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 material."
Legislation elsewhere. It is to be remarked that the legislative questions before all civilized communities are essentially similar. Everywhere are problems growing out of crime and pauperism; problems relating to hours of labor, child labor, and wages; employer's liability; compulsory insurance; workman's compensation; problems arising out of inheritance, income taxation, and the regulation of public service corporations. Nothing is so new, however, but that some other legislature has worked upon the problem or is working upon it. Take, for example, such a question as employer's liability or workman's compensation. Fifty legislative bodies are working upon or have worked upon this single question. In at least three foreign countries and in one American state it has been adequately solved. The other forty-six have failed in part or altogether, either because of uneconomic and unscientific approach or because of constitutional limitations. Formerly and up to within the last ten years no effort had been made to profit by the experience of these fifty other legislative bodies. The typical American way is to let the legislators stumble along, ignorant of the results of similar experimentations elsewhere, trying out expensive, independent experiments, which inevitably end in ineffectual enactments.
What the legislator most needs to know, then, is what efforts other communities are making to solve the problem before him and how they are succeeding, to the end that good measures which have succeeded elsewhere may be adopted and their failures not repeated. Where successful legislative work is done the first effort is always to get copies of every law on every subject which is likely to be legislated upon at the current session. All data bearing upon the success or failure of this legislation in other states and countries must be collected, digested, tabulated and placed in such form as to be readily available to the legislator. If a measure has failed or been repealed the reasons for the failure or repeal are sought. If it has been successful its provisions are carefully studied and analyzed with a view to adaptability to local needs. Experience shows that in some cases it is necessary to prepare a translation of good foreign legislation which has never before been translated into English.
But no law from another jurisdiction can be safely transplanted without careful consideration. The local constitution must be studied. In such a case as the workman's compensation act referred to, it was necessary for a commission to make a close, scientific study of the causes and character of the industrial accidents within the state, to investigate the rates of the casualty insurance companies in the different industries, to discover what co-operation for the prevention of accidents could be secured from employers and employees. Hearings were held at various industrial centers within and without the state; scores of witnesses were examined; manufacturers, labor unions, engineering experts and economists were called upon. In short, the problem was treated in a thoroughly scientific manner. Contrary to the usual practice, the case was prepared and presented to the legislature with the same thoroughness and care as is usual when an important case is prepared and presented to the court. As a result the law, although not perfect, stands the test.
Drafting. When the legislature has discovered what measures have proved successful elsewhere and what local conditions demand, it is still helpless because the members know nothing of legislative forms and cannot use with sufficient accuracy the language expressive of its conclusion. Assistance in bill drafting is necessary. Experience has shown that the man who does this must be either a trained lawyer who is also a practical political scientist or a practical political scientist who is something of a lawyer. It is often found too that in its original form a measure is unconstitutional and a lawyer's knowledge is necessary in order to devise some means of whipping the constitutional devil around the judicial stump. For example, the workman's compensation law of England, enacted too literally in its original form, is clearly unconstitutional in America and has been so declared by the courts of our state. In another state, however, the legislative lawyers who were engaged in drafting the bill, seeing clearly the judicial stump and the constitutional devil, by a simple but clever device passed what was in effect the English law, but in such form that when it came before the Supreme Court it was not only declared constitutional but was commended.
Fault not with legislators but with the system. If legislation be bad the fault is, then, not with the legislator. The average legislator is a keen, bright, honest man, who has been successful in at least a small way in his business or profession. He is ignorant of legislative subjects not because he is an ignorant man, but because his knowledge is of other things. The fault is not with him. It is inherent in our unscientific system of legislating.
We put a group of farmers, grocers, and mechanics at work upon some great sociological problem. They can have no adequate knowledge of the subject. We do not give them compensation enough to pay their living expenses while they work. We allot them only a few hours to consider a given question. We provide for them no information. We furnish them with no legal counsel. Assuming, however, as is often true, that these men are men of integrity and humanity and common sense and that their ideas are sound, they enact a good law that forbids, for example, the employment of children in hazardous and immoral surroundings. In this they have accomplished an important and intelligent constructive work.
Then we hire the best trained minds in the state and put them in our courts. We pay them higher salaries than any other public servants. We give them large libraries in which is found the accumulated legal lore of the past. We grant them, for the questions before them, all the time they can use,—weeks, months, often literally years. These talented, high-minded gentlemen, by dint of industrious delving and assisted by highly paid and highly trained attorneys, discover at last in the depths of their moth-eaten law books some mummified eighteenth century idea which has become petrified into a constitutional provision. They shake their heads and decide that the splendid, humane, up-to-date, common sense legislation is unconstitutional and void because of some minor constitutional objection. They cannot be, and should not be, criticised, for they are clearly performing a duty. Neither can these judges substitute anything in place of the law which they destroy, for the work for which we pay them so well in money and honor and position is only critical,—and their function is in this case destructive.
The law making function as important as the judicial. Now, creative work the world over has always been recognized as requiring greater intelligence, better training, keener initiative than the purely critical. Yet, in legal matters this principle has been entirely ignored. In every way we exalt the interpretive, critical, even destructive, judicial process. We neglect and belittle the constructive creative process of law making.
The conclusion of the whole matter is that the making of the law is in principle as important,—in fact, more important, than the interpretation of it.
The legislative function must be as carefully performed as is the judicial. Men should be prepared for law making as are men for the judicial bench. They must be men of the same calibre, of good ability, of high intelligence, of absolute integrity, of broad sympathies, and of big vision. Not until we have an agency of this type assisting in law making, not until the making of laws is recognized as a distinct and important governmental function, co-ordinate with, if not superior to the judicial function, not until each state has a bureau which will, as the Honorable James Bryce says, supply the legislators with the amplest material and enable them to apply the best methods, can we hope to have laws which in the highest sense "stand the test."
The PRESIDENT: We go now from the legislature to the business man, the man who makes the wheels turn around. Those of you who had the opportunity to hear the striking address, at a meeting of the Special Libraries Association the other day, from a business man of Boston need not be reminded of the tremendous possibilities that lie in this extension of the library service. Mr. S. H. RANCK, of the Grand Rapids public library, will discuss