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.