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 constitution, 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 passed 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, repetitions, 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still more is, that in very few of our States is there any authentic edition of the laws whatever, and quite a number do not publish their constitutions!
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, Massachusetts, 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 mass 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 constitutional 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 constitutional 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 title-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 passages 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 title-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 constitutional legislation what he thinks of that statement, not only of its constitutionality, 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 class 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 Massachusetts, 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 Massachusetts 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 Massachusetts 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 constitution of Virginia, drawn up by a constitutional convention, was never ratified by the people. If so, there is a grave constitutional doubt whether it or any part of it may not be repealed at any time by a simple statute. But can a constituent body of the mass of the people, the fundamental and original political entity of the Anglo-Saxon world, be forbidden from delegating its legislative power, as its representatives themselves are forbidden?