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James Bryce Bryce.

University and historical addresses, delivered during a residence in the United States as ambassador of Great Britain online

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than five thousand statutes were passed in this country
during the last two years. But the phenomenon is
not confined to this country. Various causes may be
assigned for it. It may be due to the swift changes in
economic and social conditions which have called forth

75



76 UNIVERSITY AND HISTORICAL ADDRESSES

new laws to deal with those facts. Pessimists may per-
haps ascribe it to the spread of new evils or the increase
of old evils which the State is always attempting by
one expedient after another to repress. I suppose this
is what Tacitus meant when he wrote " Corruptissima
republica plurimce. leges" Or the optimist may tell
us that it is an evidence of that reforming zeal which is
resolved to use the power of the State and the law for
extirpating ancient faults and trying to make every-
one happier. Which of these or of other possible ex-
planations is the true one, I will not stop to consider.
But the fact that the output of legislation has of late
been incomparably greater than in any previous age
greater not only absolutely, but in proportion to the
population of the civilized nations suggests a con-
sideration of the forms and methods of law-making as
a timely topic.

In no country, moreover, is the output of statutes
so large as in the United States, where, besides Congress,
forty-six 1 State legislatures are busily at work turning
out laws on all imaginable subjects, with a faith in the
power of law to bless mankind which few historians
or philosophers, and still fewer experienced lawyers,
will be found to share. Nevertheless, such faith is a
testimony to the hopefulness of your people, and no
one can wish that any people should ever be less hopeful.

In modern free countries, where laws are enacted
by representative assemblies, where the economic and
J Now (1913) forty-eight.



CONDITIONS AND METHODS OF LEGISLATION 77

social questions to be dealt with are generally similar,
and where the masses of the people are moved, broadly
speaking, by the same impulses, the problem of how
to make legislation satisfactory in substance and in
form is virtually the same problem everywhere. Ac-
cordingly, the light which the experience of one country
affords is pretty sure to be useful to other countries.
These we call private acts. I will try to indicate
some points in which the experience of methods tried
in Britain may deserve to be studied by you.

In the United States your enactments are all of one
kind, be they Federal laws or State laws : all emanate
directly from the legislature, and all are discussed and
passed in the same way. In Great Britain we have
found it desirable to divide enactments into three
classes: First we have public general statutes passed
by Parliament. Secondly, we have enactments of
local or personal application affecting the rights of par-
ticular areas or men, or particular business undertak-
ings. Thirdly, we have enactments intended to be of
temporary application, or at any rate such as to require
amendment from time to time in order to adjust them
to changing conditions, so that they are really rather
in the nature of executive orders than to be classified
among permanent laws. Orders of this executive kind
are now made not directly by Parliament, but either by
the Crown in the Privy Council, upon some few mat-
ters that are still left within the ancient prerogative
of the Crown, or else under statutory powers entrusted



78 UNIVERSITY AND HISTORICAL ADDRESSES

by Parliament either to the Crown in Council or to some
administrative department. (I believe that in France,
and in Germany also, such orders are not made by the
supreme legislature.) There is also a larger class of
rules or ordinances of a somewhat wider, though not
universal, application, which being of an administrative
nature require from time to time to be varied. Such
rules or ordinances are, in England, now usually made
by authorities to whom power in that behalf has been
specially delegated by Parliament. Some, including
those which affect the Crown colonies, are made by
the Crown in Council. These we call Orders in Council,
and they include a large number of ordinances made
for the government of the Crown Colonies which do
not possess self-government, being nearly all inhabited
by native populations not deemed qualified for its
exercise. Similar to these are the Rules or Regula-
tions dealing with administrative matters which are
issued by some of the administrative departments
for the guidance of officials and of local authorities,
under a power conferred in that behalf by Parliament.
These also require to be varied from time to time,
and are therefore not fitted to be dealt with by Par-
liament. With these one may class the rules relating to
legal procedure in the Courts, which are made by the
Rules Committee, consisting of Judges of the Supreme
Court of Judicature, and other representatives of the
legal profession, chosen for the purpose and acting
under a power given by statute. The advantage of



CONDITIONS AND METHODS OF LEGISLATION 79

this plan is that it enables us from time to time to
modify our legal procedure without the necessity of re-
ferring the matter to Parliament.

In this way there has been built up a large body of
what may be called subsidiary law. It has statutory
effectiveness, because all of it has been made under
the powers of some statute, although made not
directly by Parliament itself, but under delegated par-
liamentary authority. These subsidiary enactments
are published in volumes called " Statutory Rules and
Orders." They form a large collection quite distinct
from that of the statutes. Thus the dimensions of
our statute book have been kept down while the dele-
gation of legislative power has materially reduced the
labour of Parliament.

Let me now return to the second class, viz., acts
passed directly by Parliament but not of general appli-
cation. This class includes enactments which, though
they apply only to particular places or persons, and
are thus not parts of the general law, such as railway
acts, canal, gas and water, and electric lighting acts,
acts giving specific powers to municipalities, and so
forth. They are sharply distinguished from General
Public acts in the method by which they are passed.
They are brought in and read a first time by motion of
a member in the House (either Lords or Commons) and
upon a petition by private persons. Notices have to
be publicly given of them some two months before the
usual beginning of a parliamentary session in order to



8o UNIVERSITY AND HISTORICAL ADDRESSES

call the attention of all persons possibly interested.
They are advertised in the newspapers of such parts
of the country as they affect in order that every person
who desires to oppose them may have an opportunity
of entering a notice of opposition and being heard upon
it. When they are brought in they are examined by
officials called the Examiners of Standing Orders, who
see that they comply with the general rules which
Parliament has prescribed, and in particular that all
the regulations with regard to notices have been duly
observed. When they have passed the Examiners of
Standing Orders, being shown to have complied with all
the rules prescribed in that behalf, they are brought
up for second reading and usually pass that stage
without discussion or division.

If, however, a private bill raises some large question
of public interest, it may be opposed upon second
reading. For instance, if it proposes to take, for the
purpose of building a railroad, common land over
which a number of commoners have rights of pasture,
and to close paths which the public are entitled to use,
it is open to any member to give notice of opposition
and to propose its rejection on grounds of general pol-
icy. So again if it relates to electric power or light
and raises the question whether electricity shall be
supplied to a large area by a municipality or by a pri-
vate company, as happened recently when a large in-
dustrial corporation sought power from Parliament to
create an enormous power establishment to supply



CONDITIONS AND METHODS OF LEGISLATION 81

electricity to every part of London, then again that
question would be fully debated on second reading as
being a question of public policy on which Parliament
ought to pronounce, laying down a precedent for simi-
lar cases likely to arise thereafter. Such cases are,
however, uncommon, and most private bills are sent
as a matter of course to what we call a private bill
committee.

This body usually consists of four members, but
may be and, in the case of very important bills,
often is larger. The Chairman is always a man of
some parliamentary experience and business capacity.
We have a panel of senior members, from which the
Chairmen are taken, and they become by practice
expert and skilful in dealing with these matters.
All the members of such a committee make a dec-
laration that they have no private interest in the
matter dealt with by the bill, and they are required
to deal with it in a purely judicial spirit, on the basis
of the evidence presented and the arguments used by
the lawyers who represent each side, just as in a
Court of Justice. Party politics never comes into the
matter.

No one is permitted to address private solicitations to
the members of the committee with a view to influence
their decision. Even a member of the House privately
approaching or trying to induce any member of the com-
mittee to vote in a particular way on the bill, would be
considered to have transgressed the rules, and be severely



82 UNIVERSITY AND HISTORICAL ADDRESSES

condemned by his fellow-members. In point of fact,
the thing does not happen. These private bill commit-
tees, whether they decide right or wrong, because they
sometimes err like other people, are always understood
to be impartial and honest. In that way the procedure
gives general satisfaction. Neither is there any class of
persons whose business it is to " lobby" and endeavour
to persuade members to vote for or against a measure.
The conduct of private bills is in the hands of a body
of regular practitioners who are called parliamentary
agents. They are often, but not always, attorneys
at law. They are an organized body who are subject
to discipline, bound by a code of rules, and obliged to
observe those rules just as strictly as any other kind
of legal practitioner.

Under this system all our railways, and such other
public undertakings as require statutory sanction, have
been constructed, and have had their legal powers from
time to time increased or varied. It has worked well
in every respect but one. It has been costly, for where
a private bill is hotly contested, the fees paid to agents
and counsel sometimes mount up to huge sums. But
it has been administered not only with honesty, but
with seldom even a suspicion ; and it has relieved the
two Houses of a vast mass of troublesome detail by
leaving this work to judicial committees acting in a
judicial way. It has, moreover, the advantage of giv-
ing every private bill the certainty of being examined
on its merits, and its merits only. Being outside the



CONDITIONS AND METHODS OF LEGISLATION 83

struggle for life which goes on among public bills, sel-
dom encroaching on their time, and not having its
time encroached on by them, and being treated in a
different way, the pressure of public business does not
prevent a private bill (except in the rare cases where
a large public issue is raised) from being sent to and
considered by a committee, and, if it pass the committee,
being reported to the House and passed there in the
course of one session. The committee may reject a
bill, but cannot get rid of it quietly by omitting to
report. Finally, it relieves members of Parliament
from being obliged to spend time and toil in advocat-
ing or opposing bills affecting their constituencies, a
process in which more enmities may be incurred than
favour gained. Having, during twenty-seven years
spent in the House of Commons, represented two
great industrial communities, I can bear witness to
the enormous gain to a member in being free from
local interests and local pressure. I never had any
solicitation whatever to trouble me from any colleague
in regard to any private bill. It now and then, though
very rarely, happened that some constituent or group
of constituents wrote to me and said, " Such and such
a bill is pending in the House of Commons, or House
of Lords; we are very much interested in it and should
be glad if you could help." I had always an answer
which was easy, and which had the further merit of
being entirely correct and true; namely, that I was not
permitted by the rules of the House of Commons to



84 UNIVERSITY AND HISTORICAL ADDRESSES

endeavour to use any influence upon any member of
the committee which was considering that bill. The
most I could have done would have been to tell the
Chairman publicly, without any secrecy, that this was
a bill of great importance, in which some of my con-
stituents were interested, and to beg that it should
have the fullest and most careful attention from the
committee. But as for trying to exert any influence
either for or against its passing, I should have broken
our rules had I tried to do so.

No one who has not been a member of a legislative
body can know what a relief it is to be able to free one's
self from any solicitations of this kind.

I dwell upon this point in order to explain to you
how it is the British Parliament has been able to deal
with the great mass of local legislation imposed on it
by the principle that special statutory authority is
required for undertakings which involve the compul-
sory taking of land or the creation of what is practi-
cally a monopoly. But the relief given to Parlia-
ment, important as it is, has been the least among the
merits of the system used. Its great service has been
to provide a method in which matters involving im-
mense pecuniary interests have been for many years
past so dealt with as to raise no suspicions of corrup-
tion or unfair personal favour. And now, leaving
unnoticed other details regarding these private bills,
let me pass on to the larger question of public gen-
eral legislation, which has most interest for you as



CONDITIONS AND METHODS OF LEGISLATION 85

lawyers though it suffers from the great amount of
time absorbed by local and personal bills.

The quality of statute law may be considered in
respect : first, of its Form ; secondly, of its Substance.

As respects Form, you, as lawyers, know that a
statute ought to be clear, concise, consistent. Its
meaning should be evident, should be expressed in the
fewest possible words, should contain no clause con-
tradicting another or anything repugnant to any other
provision of the statute law, except of course to such
provisions as it is expressly intended to repeal.

To secure these merits three things are needed ; viz.,

(a) that a bill as introduced should be skilfully drafted,

(b) that pains should be taken to see that all
amendments made during its passage are also properly
drafted, and (c) that the wording is carefully revised
at the last stage and before the bill is enacted. Of
these objects the first is in Britain pretty well secured
by the modern practice of having all government bills
prepared by the official draftsman, who is called the
Parliamentary Counsel. Nearly all our important bills,
and indeed nearly all the bills of a controversial char-
acter that pass, are bills brought in by the government
of the day. A private member has now, owing to the
pressure of time, hardly any chance of passing legisla-
tion. Therefore, you may take it that all important
legislation is prepared, and pushed through, by the
government. The government has an official perma-
nent drafting staff, consisting of two or three able and



86 UNIVERSITY AND HISTORICAL ADDRESSES

highly trained lawyers, whose business it is to put its
bills into the best shape. If they are not always perfect
in form, that may not be the fault of the draftsman, be-
cause the best scientific shape is not necessarily the
shape in which it is most easy to pass a bill through
Parliament. The form which is given to a bill may
make some difference to the amount of opposition it
will excite, and a better drafted measure may either
rouse more antagonism or give greater opportunities for
attack than a less neatly or elegantly drafted one would
encounter, and also to afford the fewest opportunities for
taking divisions in committees. It is one of the rules
of our Parliament that every clause has to be separately
put to the vote in committee; therefore, the more
clauses, the more divisions, and the more divisions,
the more expenditure of time. Hence, if you put a
great deal of matter into one clause, subdividing it
into subsections, and parts of subsections, instead of
letting each part of the matter to be enacted have a
clause to itself, you have fewer debates on each clause
as a whole and fewer divisions. That may explain
peculiarities in the structure of recent British acts
which would otherwise excite surprise. It is hardly
possible that legislation, passed by a popular assembly,
should attain to that high standard of scientific per-
fection which could be obtained at Rome, where a
consul or a tribune put to the vote of the Assembly
a carefully prepared measure which could not be
amended, but had to be accepted or rejected as a



CONDITIONS AND METHODS OF LEGISLATION 87

whole. Neither could the work be so neatly done as
it was under an absolute monarch like the Roman
Emperor.

Our statute law has been greatly improved in
form since the office of Parliamentary draftsman was
created. He has sometimes functions to discharge that
require high skill and judgment. It often happens
that the minister who is preparing a measure has
not completely thought out all its provisions, and
may not, even if he be himself a lawyer, have in
his mind all the relations which the bill he de-
sires to enact will bear to various branches of a vast
and complicated system of law. The business of the
Parliamentary draftsman is not only to take the ideas
and plans of the minister and put them into the clearest
and most concise form, but also to warn the minister
of all the consequences his proposals will have upon
every part of the system, and to help him to consider
what is the best way in which the amendment in the
law it is sought to effect can be secured and expressed.
The Parliamentary draftsman has, of course, nothing
to do with questions of governmental policy and stands
entirely apart from party politics. He must serve every
administration with equal zeal and loyalty. But if he
personally is a man of real ability, who understands
public questions, has mastered the particular subject
he is asked to deal with, perceives its difficulties and
sees how they can be met, he may give the most valu-
able assistance to the minister. All our ministers



88 UNIVERSITY AND HISTORICAL ADDRESSES

gladly acknowledged what they owed to the late Sir
Henry Jenkyns, who long filled the post with consum-
mate ability, though few persons outside the narrow
circle of the higher civil service had ever heard his
name.

As respects amendments in committee and final
revision, our English procedure is not satisfactory.
There ought to be some means of correcting, before a
measure finally passes, those inelegancies, redundancies,
and ambiguities which the process of amending in com-
mittee usually causes. But as Parliament has, so far,
refused to allow any authority outside itself to alter
the wording in the smallest point, all that can be
done is to use the last stage of the bill to cure such
blemishes as can be discovered. Doubtless the same
difficulties arise here. I am not fully informed as to
how they are dealt with, but have learnt with great
interest of the efforts recently made in Wisconsin, under
the zealous initiative of Mr. McCarthy, and in New
York State also, to supply by a bureau of legislation
assistance to members of the legislature in the prepara-
tion of their bills. The value of this plan seems to have
been fully recognized in both States, and the example
has told upon five other States, where similar arrange-
ments are now made by State authority for such help.
I venture hope that Congress will see its way to the
creation of some such office for drafting bills, so as to
provide ampler data for members and render to them
such legal help as they may require.



CONDITIONS AND METHODS OF LEGISLATION 89

Now let us come to the Substance of legislation, and
start from two propositions which everyone will
admit.

1. There is in all free countries a great demand for
legislation on all sorts of subjects, mainly due to the
changes in economic conditions and to the impatience
of reformers to have all sorts of evils dealt with
by law.

2. The difficulty of framing good laws is enormous,
because most countries are now occupied not merely
in the comparatively easy task of repealing old laws
which hampered the action of the citizens, destruc-
tion is simple work, but in the far harder task of
creating a new set of laws which shall use the power of
the community to regulate society and secure the ends
which reformers and philanthropists desire. Eighty
years ago Europeans thought that the great thing was
to get freedom and abolish bad laws. When they had
got it they were dissatisfied, and instead of simply let-
ting everybody alone to work out his own weal or woe,
on individualist principles, they presently set to work
to forbid many things which had been previously
tolerated and to throw upon government all sorts of
new functions, more difficult and delicate than those
of which they had stripped it.

Whether the disposition to increase the range of
governmental action is right or wrong, I am not here
to discuss. The current is, at least for the moment,
irresistible, as appears from the fact that it prevails



90 UNIVERSITY AND HISTORICAL ADDRESSES

alike in Continental Europe, in England, in the British
colonies and in the United States. The demand for
a profusion of legislation is inevitable; and the dif-
ficulty of having it good is undeniable. In what does
the difficulty consist ? In three things. First, of
those who demand legislation, many do not under-
stand what is the precise evil they desire to cure, the
precise good they seek to attain. They suffer from
discontent but cannot diagnose its cause. Secondly,
when they can trace the evil to its source they seldom
know what is the proper remedy ; those who agree as
to the end differ as to the means. Thirdly, the num-
ber of measures, remedial and constructive, called for
is so large that it is hard to select those most urgently
needed. No legislature can deal with all at once.
Where many are being urged at the same time by
different persons, they jostle one another, and like peo-
ple jammed together in the narrow exits of a theatre,
they move more slowly than if they were made to pass
along in some regular order.

It would be easy to suggest, if we were drawing a
new constitution for a new community, an ideal method
of securing good legislation and securing it promptly.
But we have actual concrete constitutions and govern-
ments to deal with, so, instead of sketching ideals,
let me briefly describe the actual machinery pro-
vided in the United States and in Britain for passing
statutes. This machinery differs materially in the
two countries.



CONDITIONS AND METHODS OF LEGISLATION 91

The American plan starts from the principle that
the Legislative Department must be kept apart from
the Executive. Accordingly, the administration in the
National and in the State governments has neither
the responsibility for preparing and proposing measures
nor any legally provided means at its disposal for carry-
ing them through Congress, though the President and
the State governors can recommend them, and may
sometimes by an adroit use of their influence, or by
a forcible appeal to the people, secure the passing of a
bill. You rely on the zeal and wisdom of the mem-
bers of Congress to think out, devise, and prepare such
measures as the country needs ; on the committees of
your assemblies to revise and amend these measures;
on the general sense of the assemblies and the judg-
ment of their presiding officers, or of a so-called "steer-
ing committee," to advance and pass those of most
consequence. But should there not happen to be any
member or group of members who does these things,



Online LibraryJames Bryce BryceUniversity and historical addresses, delivered during a residence in the United States as ambassador of Great Britain → online text (page 5 of 24)