Cyclopædia of Political Science, Political Economy, and the Political History of the United States
LEGISLATION is the exercise of that part of the sovereign power which promulgates new laws; modifies and repeals old laws; gives to ethical convictions their crystallized form by expressing in apt language the conception of society as to what constitutes offenses, and prescribes their punishment; formulates how contracts should be made and observed; and regulates the affairs of men in their relations with the state and with each other. In this concrete form it is the expression of the will of the law-making power of the community, behind which stands its administrative machinery to enforce that expression of will by punishment for its infraction, or by changing relative rights and duties, if the law applies to matters of contract instead of matters of penal law. The legislation need not necessarily emanate from a legislative body. A convention of the people, either directly or through representative bodies other than legislatures, formulates and establishes the highest laws in any given community by the organic distribution of powers in a nation or community in the shape of a constitution. This is fundamental legislation. All other legislation of the community is subsidiary to it. There is a considerable amount of legislation done by judges in their interpretation of statutes, or in the application of general principles to new cases, which we may for the present leave out of sight, because while judge-made law is law, it does not, in ordinary parlance, come under the head of legislation. It is referred to here for the purpose of drawing attention to the fact that the legislature is not the only source of law. In European countries a large proportion of what occupies what is ordinarily termed legislation in the United States falls under the head of administrative rescripts, which have the force of law. Each particular minister in the constitutional governments of Germany, France and Italy has the power to make administrative regulations for the departments under his control, which have the same character as, and indeed are not distinguishable from, a great part of the laws which encumber the statute books of the United States. For instance, all that class of legislation which grants charters of cities and governments for counties, and changes their nature from time to time, would all come under some ministerial department and be regulated and changed or modified, as the case might be, without any appeal to the general legislative body. By reason of this and kindred large bodies of regulations emanating from executive officers, the legislatures of those countries are but little encumbered with the questions that vex and worry us, which come under the head of local and special laws that form the bulk of the statutes annually enacted in the United States; but, on the contrary, the legislative bodies of those countries are freer to devote their attention to the general legislation of the community, because it is not properly deemed legislative work to regulate the administrative machinery of the minor administrative organizations of the community.
—The legislative bodies of the United States have been modeled upon those of England. In every state of the Union there are two legislative houses corresponding to the senate and house of representatives of the national legislative body, and to the house of lords and house of commons of the English parliament. The senate is the house of greater dignity and smaller numbers, the dignity arising from the longer term of office and the greater comparative power of each individual legislator because of the larger district which elects him.
—The theory upon which legislation proceeds from a law-making body is, that that body is placed in a situation of such altitude above the surrounding individual and personal interests of the community, that its members can see general interests as contradistinguished from personal interests, and by general regulations denominated laws hold the special and personal interests in check and compel them to work harmoniously for the public weal. In so far as that theory is carried into practice the laws that emanate from such bodies are, unless proceeding from a wrong point of view, generally wholesome and beneficial. If the organization of the legislative body, or the practice which has in time grown up in its procedure, results in the domination of individual or personal interests instead of the general public weal, the laws of that community, received from such a body, are sure to be inharmonious and mischievous.
—Laws divide themselves naturally into organic laws, into general legislation, special legislation, public legislation, and local legislation.
—The subject of legislation is the whole domain of human activity. Whether it shall extend its field into any particular branch of human activity, or leave it free to the natural law which would in the absence of such legislation regulate it, is a question of expediency, the consideration of which belongs to a different branch of the science of government from that which we are called upon to treat of herein.
—Organic laws are the laws made by the sovereign, by which governmental powers are distributed and prerogatives which belong to the sovereign are delegated to agents, either for a definite period or for all time. These organic laws may emanate, like magna charta, from the king; they may be the result of a determination of the sovereign, as represented by the imperial crown, to associate with itself in the exercise of legislative and judicial powers, a larger number of subjects than had theretofore been consulted with reference to matters of government, (in such manner have European governments gradually developed into constitutional monarchies); they may be the result of revolution and civil strife, which throws the sovereign power back into the hands of the people; or they may, be constitutional conventions as in America or constituent assemblies as in France, exercising that sovereign power, represent the sovereign for the time being, and in such representative body formulate and promulge a constitution, placing sovereign power, in their subdivisions of executive, judicial and legislative authority, in individual hands, and prescribe the limits within which such authority is to be exercised. These organic laws are generally declared to be for all time, but subject to amendment in a manner prescribed by the organic law itself—The ultimate sovereignty of the community rests in its people. Whether they are to exercise that ultimate sovereignty in the form of a constitutional convention or in some more constantly acting form, is a question with reference to which it is not needful to lay down rules, as the exercise of that power comes into life, as a general rule, as the result of some great civil strife, or some great crisis, and the necessities that have called it into being prescribe the limitations and form within which the sovereign exercises its power. To these organic laws constant reference must be made for the purpose of ascertaining the powers of the legislature that it calls into being, and it is almost needless to say that whatever contravenes the organic law is void, as being beyond the scope of the authority deputed to the legislative body, and therefore of no effect; in other words, is unconstitutional legislation.
—The laws which are not organic emanate from the legislative body, which is itself created by the organic law. The distinguishing feature between organic laws and legislative laws is, that one legislature can not bind the hands of another upon general public questions. In the United States it has been, however, held that a legislative measure may create a contract which it is not in the power of another legislature to break without the consent of the other contracting party, but this limitation upon the power of the legislature arises solely from the fact that the constitution of the United States puts a limitation in that particular upon the state legislative power in declaring that no state shall pass any law impairing the obligation of a contract, which also includes inviolability as to its own contracts.
—Public Legislation. It is the duty of the law-making power to see to it that the laws of a community shall be readily understood, shall be harmonious, and shall press as little as possible upon proper legitimate individual enterprise; that all remedial legislation shall be adapted to its ends, and shall be clear in expression; that all criminal legislation shall define crimes in conformity with existing facts; shall keep pace with the perverse ingenuity of mankind in the discovery of new methods of appropriating other people's property under the form of legitimate business; and shall prescribe punishments of a definite character. All legislation which irritates and does not punish is useless and mischievous legislation. All legislation is as to form subject to rules which can not safely be neglected by the legislator, and the disregard of which has resulted in infinite mischief to society. The elements of every legislative expression consist, 1, in the description of a legislative subject; 2, in the enunciation of the legal action; 3, in the description of the case to which the legal action is limited; and 4, the precedent conditions on the performance or doing of which the legal action operates.
—Legal Subject. The definition of the person, artificial or natural, who may or may not do a particular thing, who shall or shall not refrain from doing a particular thing; and this subject should be clearly defined. The legal action is a definition of the right, the privilege or the power, or the obligation or liability granted to or imposed upon the legal subject. The description of the case to which the legal action is limited, is a setting forth of the state of facts which shall create the conditions applicable to the legislative subject, and which shall call into being the right, privilege, obligation or duty. The conditions on which the legal action becomes operative are invariably conditions precedent, because a law, although universal as to its subjects and unrestricted as to cases, can nevertheless become operative only upon the performance or nonperformance of certain conditions. Example: Subject, all persons born in this state above the age of twenty-one; action, shall have the right to vote; description, at all elections to be held for judges of court of appeals; condition precedent, if they shall have registered twenty days before the date of such election. A law may embrace any number of subjects, actions, descriptions or conditions precedent, may fill a volume, and yet the law will be combinations, in one form or another, of these simple elements. The first duty, therefore, of the law-maker in relation to a law, after having determined upon its usefulness, is to see whether these various elements of the law into which it may be resolved are correctly described and follow each other in their natural order—Legislative Methods. The constitutions of the states of this Union enjoin upon the legislative body many conditions, upon the proper performance of which their legislation will depend as to its constitutionality. Tax laws are required to be passed by a certain majority; bills are required to be read a certain number of times, either by their titles or read through; journals are to be kept; ayes and noes are to be entered therein; a certain number of ayes are requisite for certain kinds of legislation; and in many other particulars the form of legislation is prescribed. The legislative body is required to organize committees; to sit a certain number of days; and to follow certain forms as to methods of enactment. A vast body of rules has been adopted by the legislative assemblies of this country by which their deliberations are governed. Forms are prescribed as to the manner in which bills are to be introduced; what committees are to be appointed; how the speaker is to be elected; what powers he is to exercise; how debate is to be regulated; how communications between the two branches of the legislative body, and between them, or either of them, and other bodies or the executive, are regulated and carried on; how witnesses are to be examined; petitions introduced and acted upon; and divisions determined. Committees are required to report in a particular manner, and the various stages through which a bill passes are carefully prescribed by such rules and are generally followed. The power of amendment is subject to rules; and even the debates, both as to the time which each individual speaker is to occupy and the license he is to have in debate, are subjected to regulation. It would be a mere repetition of any one of the numerous manuals of rules to set forth with greater particularity what these rules are. It may be conceded that they are necessary for the purpose of governing the presiding officer's action, so that his rulings shall not be arbitrary, and to give method and system to the conduct of the deliberative body. These rules are so numerous and so complex, that a leading member of congress stated that it takes at least one session of congress for an intelligent and diligent member to learn the rules so that he may take part in the debate with efficiency. A great part of the time of every deliberative body is taken up with questions arising under the rules, and perhaps necessarily so. This is all subtracted from the necessary work of the session. Freedom of debate has ever been regarded as one of the essential requisites of a deliberative body. In the United States this freedom of debate has, however, been for a considerable number of years subjected to the limitations of the rule known as the previous question, a motion which, if supported by a sufficient number of the majority, is made for the purpose of cutting short debate and to compel the presiding officer to put the main question at once with the view promptly to ascertain the will of the house. The French have in their deliberative bodies recognized the same rule by a motion for a clôture, or close of the debate. In the English parliament this rule has not until recently prevailed. It was only in consequence of the power exercised by the Irish members on questions affecting the Irish people to prevent legislation by obstructive motions and speeches, that compelled the adoption of a rule somewhat analogous to the previous question in the United States and the clôture of France, in a motion of urgency of public business, which the government may make and which upon the support of two-thirds of the house closes the debate.
—The rules adopted in the United States as to methods of enactment are quite inadequate to meet the necessities of modern legislation; and there is not a state in the Union in which the complaint is not well grounded that the laws passed by the legislative bodies are slipshod in expression, are inharmonious in their nature, are not subjected to proper revision before their passage, are hurriedly passed, and impose upon the governors of the states a duty not intended originally to be exercised by them, that of using the veto power in lieu of a board of revision for the legislative body; and so badly is the gubernatorial office organized for any such purpose that the best intentioned governor is compelled to permit annually a vast body of legislation to be put upon the statute book, which is either unnecessary, in conflict with laws not intended to be interfered with, or passed for some sinister and personal ends.
—In the United States there is no such thing as real responsibility for the legislation of the session lodged anywhere. Neither in congress nor in the various states is the duty imposed upon any individual or body of men to formulate and to propose public legislative measures. The party in power is supposed to be responsible in some degree for the legislation of a session, but in no state in the Union nor in congress does the political party in the ascendency consider itself charged with the public legislation of a session except in so far as it may have made specific pledges in party platforms as to the redress of some grievance. Under our system of government it frequently happens that one party has a majority in one legislative body while the other party has a majority in the other legislative body, or that the party having control of both chambers of the legislature has no control of the executive, and as both houses and the governor must combine to create a law, all responsibility for legislation is, in such cases, lost by being thus divided. In constitutional monarchies, such as England, the ministry are charged with the duty of initiating public legislation. The absence of any ministry in the states of the Union having relation to the legislature, imposes the task of proposing and formulating laws, either upon private individuals imbued with public spirit, upon others seeking to use the law for their personal ends, or upon the individual members of the legislature seeking to obtain some benefit for their constituencies, possibly for the state, or for some private interests that move them. As there is no consultation between the members of the legislature before they meet in session, by which they might as a body become animated by an esprit de corps for the promotion of certain legislative measures during the course of the legislative year, the consequence is, that from the opening of the legislature until its close each individual member proposes whatever law he pleases; it is put into the legislative hopper to be sent to its respective committee, and each important committee has, during the course of a legislative session, many times the measures, thrust upon it for examination and report, that it can with anything like care or deliberation consider, even if it were, as is not generally the case, thoroughly competent to perform legislative work. This absence of responsibility as to public legislation, and the promotion of such legislation exclusively by individual action, have created a degree of mischief quite beyond computation. And when the resources of the country shall have been more thoroughly exploited, and by the growth of wealth and the intricacy of social organization changes in the law become more mischievous and far reaching than now, we shall be forced to adopt in all our methods of legislation a change so great that it will be well high revolutionary in character, by creating in every state in the Union either a council of revision or a ministerial body charged with the duty of formulating and proposing the public laws of the session, and made responsible also for their proper enactment.
—The influence of the lobby in pressing private and local bills for personal ends has proved so formidable an evil in the United States that many of the states of the Union, within a decade, have, by acts of constitutional conventions or regular amendments to their organic laws directly acted upon by the people, prohibited their legislative bodies from enacting special laws in a variety of cases. The restriction in the state of New York is as follows: "The legislature shall not pass a private or local bill in any of the following cases changing the names of persons; laying out, opening, altering, working or discontinuing roads, highways or alleys, or for draining swamps or other low lands; locating or changing county seats; providing for changes of venue in civil or criminal cases; incorporating villages; providing for the election of members of boards of supervisors; selecting, drawing, summoning or impaneling grand or petit jurors; regulating the rate of interest on money; the opening and conducting of elections or designating places of voting; creating, increasing or decreasing fees, percentage or allowances of public officers, during the term for which said officers are elected or appointed; granting to any corporation, association or individual the right to lay down railroad tracks; granting to any private corporation, association or individual any exclusive privilege, immunity or franchise whatever; providing for building, and chartering companies for such purposes, except on the Hudson river below Waterford, and on the East river, or over the waters forming a part of the boundaries of the state. The legislature shall pass general laws providing for the cases enumerated in this section, and for all other cases which in its judgment may be provided for by general laws. But no law shall authorize the construction or operation of a street railroad except upon the condition that the consent of the owners of one-half in value of the property bounded on, and the consent also of the local authorities having the control of that portion of a street or highway upon which it is proposed to construct or operate such railroad be first obtained; or, in case the consent of such property owners can not be obtained, the general term of the supreme court, in the district in which it is proposed to be constructed, may, upon application, appoint three commissioners, who shall determine, after a hearing of all parties interested, whether such railroad ought to be constructed or operated, and their determination, confirmed by the court, may be taken in lieu of the consent of the property owners."
—This limitation of the power of the legislature to enact private and special laws creates in its turn an evil far greater than that which it was intended to remedy. Private and local legislation is in itself not a bad thing. One of the advantages of the common law is its adaptation to individual cases. It has infinite power of combining and applying itself to changes of circumstances and of cases. Any unbending, unyielding general rule becomes in time oppressive and mischievous. Equity jurisprudence has arisen simply for the purpose of making even judge-made common law subservient to the necessities of society and to the requirements of justice, which is the object of all law.
—It is no demerit of modern legislation that it applies itself minutely to special cases. It would in fact be the greatest merit of any system of laws that they varied exactly as every case varied in its elements. It is general and indiscriminating rules that constitute the harshness of any system of law—rules which, subjecting special classes of persons to unintended and unforeseen oppression, require for their mitigation the arbitrary modifications of the judicial construction of courts of equity. The more a legislature is civilized, the mote it measures and considers differences in each class of cases and adjusts the law to their varieties. In this process of modifying and adjusting the law to special cases, Conde, in his essay on legislative expression, says that "The constant action of the legislature and of the judiciary of England has undeniably made a greater and better progress than the institutions of any other country; and to desire a codification or simplification which should destroy these nice adjustments or diminish in any way the specialization of the law; or to propose arrangements to cripple or obstruct its future further extension of specific legislation, would be to sacrifice aptness and certainty in the law to verbal generality, and to supplant the beneficent officiousness of the legislature by the despotic formalities of the methodizer" This criticism upon resorting to the exercise of the power of general legislation instead of meeting the exception by special legislation, is fraught with special meaning to the people of the United States because their general legislation is not watched over by a body of hereditary legislators, as is that of England by the house of lords, or that powerful committee of the house of commons known as the ministry, charged with the duty of promoting the general legislation of a session. The general legislation of this country is in the hands of individual legislators, and by forbidding special legislation in a great number of cases by the recent constitutional changes, the whole body of general law is thrown into the arena of special interests, to be changed, modified or destroyed as special interests may dictate; so that the object which was heretofore sought in the state of New York and in other states by a special law is and will hereafter be sought to be attained in large measure by a change in the general law to meet special cases, thereby creating special legislation in its worst form, to wit, general laws repealed, altered or modified to meet a special case or a special interest. Far better would it have been to have followed in that particular the example of England in methodizing legislation. English legislation was not free from corruption and the lobby until methods were discovered and applied by which both the one and the other could be extirpated. As late as 1844 Mr. Herapath, M. P., felt himself at liberty positively to assert that members had not been merely canvassed to support a bill, but that large sums had been spent upon them to secure their support. The "Athenæum" said, about that time, "It is the fashion to assume that our legislators are not now open to pecuniary bribes; it may be so, but we must leave that question to be decided by our children's children. If public rumor be not more than usually scandalous and false, there are some curious revelations yet in store for these youngsters, relating to railway bills." One company was able to boast that it had command of one hundred suffrages in the house of commons; and Francis, in his "History of the Railway," says, "that members were personally canvassed, solicitations were made to peers, influences of the most delicate nature were used, promises were given to vote for special lines before the arguments were heard, advantages in all forms and phases were proposed, to suit the circumstances of some and the temper of others. Letters of allotment were tempting; human nature was frail; and the premium on five hundred shares irresistible." This pressure of private legislation upon parliament began, in time, seriously to interfere with the performance of its public duties, with the passage of general laws, and with the administration of the empire; and in 1847 a code of standing orders was adopted, which, together with certain statutes as to costs and the establishment of the "Gazettes" and the notices for publication therein, now regulate practice in relation to private bills with the same completeness and detail, with the same careful regard as to the rights of parties, as the practice in courts of law is regulated by the supreme court judicature act, or by our own codes of procedure. Fully to realize this very complete system, it is well to follow the course of a private bill through the palace of St. Stephen's. Every bill conferring any power on a special borough, city or town, or upon any corporation or individual or set of individuals, or amending any powers already conferred, is regarded as a private bill; and even bills conferring powers on the metropolitan board of works are regarded as private bills; the bills in relation to the corporation of London are classified as private bills, and indeed all bills which in the United States come under the designation of special and local bills, are denominated private bills, and must pass through the course prescribed by the standing rules.
—These bills are divided into two classes. The first class embraces all subjects of enlarging or altering the powers of corporations; or which may relate to a church or a chapel building, burial ground, to cities or towns, to paving and lighting, to county rates, to ferries, to fisheries, to gas works, to lands, to letters patent, to local courts, to markets, to police, to poor rates. The second class includes the making or maintenance of any aqueduct, archway, bridge, canal, cut, dock, drainage, embankment, ferry, harbor, navigation, pier, court, railway, reservoir, sewer, street, tramway, turnpike, tunnel or waterworks; in fewer words, the second class embraces all such bills as involve the exercise of the right of eminent domain. Bills of both these classes must, before parliament meets, be preceded by a notice of intention to apply for the powers they contain, together with the time when copies of the bill will be deposited in the private bills office in the house of commons. If it is a bill of the second class, this deposit must be accompanied by the submission of an accurate engineering and topographical survey of the lands intended to be taken, together with the names of the owners, the value of the lands, and an estimate of cost. A notice long in advance of the session must be published in the London, Dublin or Edinburgh "Gazette," if it affect an English, Irish or Scottish interest, for six weeks prior to the deposit of the bill. If the bill is one of the second class it must also be published in a newspaper having the largest circulation at the nearest point where such land is to be affected or taken. A list must also be deposited of the names of the owners, lessees and occupiers of any property which is to be taken or affected by the powers intended to be granted by the bill. These notices of the intention to apply are published in the month of November. It will be remembered that parliament generally meets in the early part of February, unless specially convened. Two copies of the bill, and in the case of a bill belonging to the second class, two copies of the plan, a book of reference in relation to the plan, and a list of owners, a copy of the list of owners, and copy of the "Gazette" notice, must be deposited in the office of the clerk of the peace in every county or district wherein the improvement is to be made or the powers to be exercised; one copy of each of the same documents at the office of the board of trade; one copy in the parliament office; one copy in the private bills office of the house of commons; a copy of the plans and sections at the parish clerk's office; and in the event of its being any churchyard or burial ground bill, or if any commonable land is proposed to be interfered with, a copy must likewise be deposited in the office of the secretary of state for the home department. On or before Dec. 15 notice must be personally served on the owners, lessees and occupiers of all lands, houses and premises which are to be affected by the provisions of the bill; on or before Dec. 17 a printed copy of the bill must be deposited at the parliament office of the house of lords; and on or before Dec. 21 a printed copy of the bill, with the petition annexed, at the private bills office of the house of commons, and the private bills office of the board of trade. And, in addition to all this, in the case of any canal, railway or tramway bill, or one relating to any public work, requiring the exercise of the right of eminent domain, there must be deposited, on or before Dec. 31, an estimate of expenses signed in duplicate, one for the lords and the other for the commons, at the private bills office, and at the parliament office. An entire list of owners and occupiers must be deposited in the house of lords in the same form as that in the house of commons on or before Jan. 14, a deposit of a sum of money equal to 5 per cent. of the estimates must be made in the high court of justice, and a deposit must be made at the time of the filing of the papers to pay the expenses of the bills in the two houses of parliament.
—If the bill is unopposed, it is taken up by officers called examiners, who begin their work on or about Jan. 18, according to such directions as shall have been made by the speaker. Seven days' notice of the proposed examination of the petition and bill is sent out; if the petitioners do not then appear before the examiners the bill is stricken out. If the petitioners appear, which appearance is generally made by the parliamentary agent or solicitor, a judicial inquiry is then made whether the provisions of the standing orders as to notice, publication, deposits of plans and moneys have all been duly complied with, and whether the necessary disbursements for the consideration of the bill have been deposited, which vary in the first instance from £20 to £80. If upon such examination it appears that the rules of procedure have not been complied with, the bill is thrown out, with the indorsement "standing orders not complied with," and nothing further can be done with the bill during that session. A qualified or conditional opposition may be made by the adversaries to it, upon the question of non-compliance with the standing orders, so as to avoid the necessity of a trial of the bill on its merits. If it can be shown before the examiners that either through negligence or fraud the promoters of the bill have failed to comply with the parliamentary requirements, the bill is thrown out in the same manner as though the examiners had discovered the defects by their unaided inquiry. Assuming that the examiners find that the promoters have fully complied with all these preliminary requirements, the private bill is then referred to the chairman of the committee of ways and means of the house, who, at a conference on private and local bills with the chairman of committees of the house of lords, determines in which house of parliament the bills shall respectively be first considered, and in what order they shall be considered; upon this determination neither parties nor counsel are heard. Thereupon the chairman of the committee of ways and means, with the assistance of the counsel to the speaker, examines all the private bills independently of the question whether opposed or unopposed, and calls the attention of the house and also that of the chairman of committees to all points which may appear to him to require it; and at any time after a private bill has been referred to a committee, the chairman of the committee of ways and means is at liberty to report to the house any special suggestions relative thereto which occur to him to require it, and to inform the house that in his opinion any unopposed private bill should be treated as though it had been opposed, and evidence should be taken to prove the petition and clauses affirmatively.
—Before the committee acts upon a private bill, whether opposed or unopposed, it is again submitted to the chairman of the lords committees and his counsel, who amends it, alters it, or recasts it as he may see fit; or if he finds that it is inexpedient, on the whole, that the bill should pass, he indorses it that "the lords will not concur in the passage of this bill," and all further progress thereon is arrested, because the commons, since the existence of the standing orders, have rarely seen fit to urge upon the lords the passage of any private bill when so high an authority as Lord Redesdale, who has been for many years the chairman of its committees, signifies the disinclination of his chamber to consider a special private bill. Hence the suggestions that come down from Lord Redesdale's committee to the promoters or to the house of commons are generally incorporated in the bill in the way of amendments almost without question, as the result of the scrutiny of an upright, careful and conscientious jurist. The bill is then referred to committee; the committee carefully consider its provisions, call in the aid of the parliamentary agent or counsel, who has indorsed the bill, to explain it, assist in its modification if modifications are suggested, and the bill is then reported to the house, favorably or adversely, as the committee may determine. If disapproved of by the committee, as a general rule there is an end to the bill. While the power really exists on the part of the house to disagree with the report of the committee, they recognize the fact that a disagreement is inexpedient as against a committee who have examined with judicial care and impartiality the provisions of the bill.
—The chairman of the ways and means committee, and three other members, are appointed by the speaker as referees, who constitute tribunals for the trial of opposed bills. They have power to suggest the increase of their number and to constitute subcommittees. Upon special bills committees those men are generally selected who are specially fitted as experts. They enter into an examination of the question whether the bill is to become a law, and if so, under what modifications, restrictions and safeguards. This committee, therefore, enters upon a real trial of the petitions for and the counter petitions against private bills, to aid the house in determining its course.
—The chairmen of these various committees of selection meet together and form a calendar of opposed bills. In the case of bills for which there are regular standing committees of the house, such as railway and canal bills, such committees try them, and do so acting under the suggestions, whether opposed or unopposed, of the board of trade. The standing committees who have in the first instance the power to try the bill, if they see fit so to do, can either do so or place it upon the general calendar of these courts thus constituted for the trial of opposed cases. The trial is, as already observed, upon issues joined upon the petition for the bill and its several clauses, by a counter petition against it, in which the counter petitioners deny the facts set forth in the petition and ask that they may be heard in opposition to the bill. The opposed bill is treated precisely as an unopposed bill as to all the preliminary stages; it passes through the hands of examiners as to compliance with standing orders, the scrutiny of the chairman of committees of the house of lords and the house of commons, etc. When once on the calendar of the general or special committee to which the same is referred, it takes its turn for hearing precisely as a cause which is put upon the calendar of the court awaits its time for trial.
—If, as sometimes happens, the private bill is of considerable public importance, when the chairman of the ways and means committee of the house of commons seeks a conference with the chairman of the committee of the house of lords for the purpose of determining which bills should be considered first in the house of lords and which in the house of commons, then such a bill, if deemed of sufficient public importance, is by the chairman simultaneously introduced in the house of commons and lords and referred to a special joint committee of the houses, who thereupon proceed to try the petition for the bill as a joint court. Evidence is then taken precisely as in a court of justice, although somewhat greater latitude is allowed both to the counsel and to the court. The rule as to hearsay testimony is also somewhat relaxed, but documents are produced, maps examined, experts heard, elaborate arguments of counsel delivered, and every adverse interest allowed a hearing; suggestions are made with reference to amendment, and all proceedings are precisely in the same form as though these committee men were judges.
—No man can become a member of the committee to sit upon a special bill without making a declaration in writing that neither the borough that he represents nor he himself individually has an interest in the bill to be considered, and that he will hear all the evidence before voting upon the acceptance or rejection of the bill; thus again recognizing the judicial character of the determination of the committee, and applying to each special case that general rule which applies to the judiciary that they are not permitted to sit in cases in which they have a personal interest.
—To secure the full attendance of members of committees it is a standing rule that it can transact no business if two or more of its members are absent. And if a member absents himself more than twice from a committee, his name is taken off that committee, and that of some other member is substituted; and when any incorporated company presents itself before parliament to have any of its powers extended, altered or amended, any body of shareholders, although in the minority, may be heard in opposition to such bill.
—At any stage of the proceedings if the promoters of the bill abandon it, the bill is disregarded and thrown out, and the expense incurred down to the point of abandonment is lost to the parties who have promoted the bill. By the 28th and 29th Victoria a complete system of costs was established in relation to contests before committees, so as to make the proceedings still more analogous to those of a court of justice. This gives the power to the committee on a private bill to compel the petitioners to pay the costs where the committee find that the preamble of the petition is not proved, or if on the motion of the opposition any provision for the protection of such opposing petitioner is inserted, or whenever the committee strike out or alter any provision for the protection of the opposing petitioner, and report that the opposing petitioner has been unreasonably or vexatiously subjected to the necessity of defending his rights, by reason of the promoters of the bill not carefully guarding the same in the bill as filed. On the other hand, when the committee report that the opposition has been vexatious and that the promoters of the bill should not have been opposed, so much of the costs and expenses as relate to the trial of the bill may be thrown upon the opposing petitioners. This act, however, very wisely provides that no land owner, who at his own risk and charge in good faith opposes a bill which proposes to take any of his property, shall be mulcted in costs because of the non-success of his opposition.
—The expenses in the way of disbursements for filing, for examiner's fees, etc., attending the passage of an unopposed bill, are scarcely ever less than £200. The money is deposited and paid at the various stages of the bill as preliminary to its being further considered and carried through the house; and these disbursements pay the whole expense of parliament—its stationery for public purposes, its speaker's special counsel, its parliamentary draughtsman, etc., as well as the expenses incidental to the consideration of the bill by the committee.
—All bills are subjected to being redrafted by officers under the supervision of the speaker's counsel—the parliamentary draughtsman. This speaker's counsel is generally a lawyer of great dignity and attainments. Sir Henry Thring has for many years held this position, and if the bill in question is one to which public attention has been drawn, the probabilities are that it is submitted to his scrutiny and revision, in addition to the revision and scrutiny of Lord Redesdale, the chairman of committee of house of commons and the committee that tries the bill. England's course of procedure, by bringing method into its legislation, has completely done away with the lobby in the sense that it is known in the United States. There is a difference of the same character between such a system and the course of legislative action in the vast majority of the states of the Union that there is between the procedure before the supreme court of the United States and before some court in southern Russia or Turkey.
—When committees of parliament became courts, a heavy draft was made upon the Westminster bar to supply this new demand for special training for inquiry and debate, and numerous lawyers soon devoted themselves exclusively to the trial and argument of causes before the parliamentary bar. A new class of solicitors, known as parliamentary agents, came into existence, drawn from the same classes of the community as those which supply the practitioners at the chancery or common law bars. These agents prepare briefs for counsel, draw the bills and attend to all the practice part of private bills legislation. Honors and distinction are won as much at the parliamentary as at the law and equity bars, and the silk gown is at St. Stephen's, as at Westminster, the reward of merit. Parliamentary lawyers are not so readily transferred to the bench or the woolsack as are those who practice in the courts of justice; their emoluments are larger, however; hence the parliamentary practitioner acquires pecuniary fortune more readily than his brethren who practice in the courts of justice, and thereby feels himself somewhat compensated for not being able to look forward to the comfort, ease and social distinction which accompany English judicial positions.
—England, therefore, has relieved itself from the pressure which the modern corporations and the growth of wealth have brought upon its legislative functions, by submitting their demands to so careful a scrutiny and trial, and surrounding property with such safeguards that it can dispense with written constitutional guarantees, too frequently inoperative in the United States, to prevent encroachment of accumulated and corporate wealth upon the rights of property not thus consolidated.
—A word upon the subject of Codification.
—There are two classes of codifications: one, codification of legislative enactments; the other, codification of common law. The codification of legislative enactments, when legislation has become so constantly active, varied and so complex, arising from so many different motives, and is so irresponsible as in the United States, is essential from time to time for the purpose of producing harmonious legislation. The question is not open to us as to whether there shall be codes, but simply who shall become codifiers of legislation of this description, and therefore every state must from time to time pass new laws which are in the nature of codifications of the pre-existing ones, simply for the purpose of enabling their courts of justice to determine what the law is. An illustration how mischievous such a state of things may become, is the fact that the court of appeals in the state of New York was compelled in 1875 to declare that it was impossible for it to determine what the condition of the law in relation to taxation and assessment, applicable to the cities of New York and Brooklyn, then was, in consequence of the number and the chaotic condition of the laws in that regard. Codification of the common law is a matter of more delicacy, requiring a higher order of intellect, and should be undertaken only if the codifier is intellectually the superior of the judge; otherwise greater mischief is done by codification of that character than by the general development of the law at the hands of judges.
—Legislation is a practical art, and not a science. The ordinary objection that is made to codes, that they are cast-iron systems, is only true if the minds which formulate the codes are of the cast-iron class. If, on the one hand, they have intelligence carefully to state the common law or equitable principle in well-chosen legal phraseology, to limit it and apply it to cases already decided, and to leave the courts free to apply the principle to whatever further cases may arise, codification is an unmixed good. If, on the other hand, narrow-minded or ignorant men undertake the codification of the people's laws, such codification will be mischievous. It is with formulating the laws of the people as it is with the administration of justice—as much depends upon the persons who are to administer or to codify as upon the subject matter of the administration or codification.
—An attempt has in recent years been made to deal with the mischief of constant and unwise changes in the law by the adoption of constitutional amendments, by virtue of which, legislative bodies meet biennially instead of annually. This is the merest refuge of imbecility against the evil of bad legislation. The only parallel for this treatment of political distempers is to be found in the treatment of physical ailments which prevailed in the good old days of Doctor Sangrado, who argued, "When man is sick, his blood is bad; tap him of half his blood, and he is about half as sick as he was." Bad legislation comes from the legislature. Have the legislature meet but half the number of days, and you have but half the amount of bad legislation! If the legislature were convened simply for the purpose of doing mischief instead of doing good, this argument would be true, but then it would be wiser not to have them meet at all. The legislative function is one of the most important and useful that can be administered by man. It is the inadequacy of the members of our legislative bodies for the work they have in hand, and the bad methods they have adopted for the performance of that work, which creates the mischief. Let us secure better qualified men and improve the methods, and we shall regard the meeting of our legislative bodies with expectations of benefit instead of with fear and dread. Had some one proposed at the time of the corruption of the judiciary in the city of New York (1870-72), that, for the purpose of remedying the evil of improper and corrupt judicial judgments, Judge Barnard should hold but four terms in the year instead of eight, such a reformer would have had his proposition laughed down. The proposition of biennial legislatures instead of annual legislatures, although it finds more favor with the community than the remedial measure of our imagined New York reformer, is not a whit more intelligent as a cure for our radically defective methods of legislation. The only route to reform as to this subject lies in improving the political methods of the United States so as to secure a better class of legislators; methodizing the work of the sessions by safeguards to interests affected by the proper trials of bills; and finally, fixing responsibility for legislation by the creation, for the nation and in each state, of proper supervisory bodies to which proposed laws shall be submitted and acted upon by men capable of being charged with so important a task as the preservation, amending and modifying the public laws of a commonwealth.
Return to top