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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Online LibraryJames Bryce BryceUniversity and historical addresses, delivered during a residence in the United States as ambassador of Great Britain → online text (page 6 of 24)
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or who does them well, there will be nobody respon-
sible to the people for a failure to give them what
they need.

We, in England, have been led by degrees to an
opposite principle. The executive is with us primarily
responsible for legislation and, to use a colloquial ex-
pression, "runs the whole show," the selection of topics,
the gathering of information, the preparation of bills
and their piloting through Parliament.

I. The requisite information is collected by the de-


partment of government to which the subject belongs,
and frequently the way is paved for legislation by
means of Royal Commissions or Departmental Com-
mittees appointed to take evidence and report upon
topics of importance which need legislation.

II. When it comes to the actual introduction of a
measure, the work of determining its substance is done
by an administrative department of the government
and the drafting by the government draftsman already
referred to. The department supplies the matter of
the bill, the latter puts it into shape. Thus both prac-
tical knowledge of the subject and professional skill
for giving legal form to the measure to be enacted, are
secured. All the more important measures of each
session are brought in by the Ministry on their re-
sponsibility as leaders of the majority in the House
of Commons. The most important, including those
likely to raise party controversy, are considered by
the Cabinet, sometimes also by a Cabinet committee,
and sometimes at great length. I remember one case
in which an important bill was altered and reprinted
in twenty-two successive drafts, and another case in
which a large and controversial bill occupied prac-
tically the whole time of the Cabinet during six long

Bills brought in by private members are drafted
by themselves, or by some lawyer whom they employ
for the purpose. Should a private member ask a Minis-
ter or a department for assistance, it would usually be


given him, assuming that the department approved the
end in view.

III. Once the bill is launched, its fate depends on the
amount of intelligent care the Legislature is disposed to
give it and the amount of skill the Minister in charge
shows in steering the boat which carries its fortunes.
He has, of course, the assistance of the official drafts-
man and sometimes of one or more colleagues in pre-
paring his own amendments and considering those
proposed by others. He must try to get time enough
reserved for its passage, the disposal of time resting
with the government.

The practical result of our English system may be
summed up by saying that it secures four things :

(1) A careful study of the subject before a bill is

(2) A decision by men of long political experience
which out of many subjects most need to be dealt with
by legislation.

(3) A careful preparation of measures, putting them
into the form in which they are most likely to pass.
That may not be always the best form, but there is no
use in offering to Parliament something too good for such
a world as the world of practical politics everywhere is.

(4) The fixing upon someone of responsibility for
dealing with every urgent question. Whenever an
evil has to be dealt with or a want supplied by the
action of the Legislature, there is never any doubt who
shall do it. The government has got not only to pro-


pose something, but to put something through, the
Minister to whom it belongs having it in charge through
all its stages. A government which neglects to bring
in the measures urgently required, or fails through
weakness to pass them, suffers in credit ; and if the
matter excites exceptional popular interest possibly
may be turned out either by an adverse vote in the
House of Commons, or by the people at the next
general election.

There are some defects in the English system of
Parliamentary legislation, but I need not here refer to
them, for they do not affect the points I have been
stating, but arise from other features of our govern-
ment. The points to be specially emphasized for your
consideration are that we provide adequate machinery
for the preparation of measures, and that we make a
small group of persons, the Cabinet, responsible for
bringing them in and pushing them. This fixing of
definite responsibility is perhaps the chief merit of the

The Cabinet is responsible because it is really a
working committee of the majority of the House of
Commons, which is itself directly chosen by the
people. The business of the majority is to support
the Administration, because it leads them, and enjoy-
ing their confidence, presumably enjoys that of the
majority of the nation. If the majority withdraw their
confidence, the Administration falls.

In France the method of legislation stands half-


way between the American and the English methods.
The Ministry studies a subject, prepares a bill dealing
with it, and launches the bill into the Chamber.
There, the bill passes into the hands of a committee
which amends and perhaps quite remoulds it, then
returning it to the Chamber with an elaborate report.
In the Chamber it is in charge, not of the Minister
who proposed it, but of the committee reporter, the
Ministry having no more power over its fortunes than
flows from the fact that they are the leaders of the
majority and can speak in its support. There are
also many bills brought in by private members ; and
these also go to the committees and have apparently
a better chance than the bills of private members
have in England.

Switzerland, like the United States, but unlike France,
has no Ministers as voting members of either Cham-
ber, but the members of the Administration, which con-
sists of seven persons elected by the Legislature, are
allowed to speak and defend their policy or to advo-
cate a measure in either the National Council or
the Senate.

Both these intermediate systems lose something of
the momentum which the responsibility of government
for legislation gives in England, but they also reduce
the merely party opposition which it has to encounter,
while they give to the preparation and passing of meas-
ures the advantage of the cooperation of those whose
administrative experience enables them to perceive


what is really wanted and to judge how it had best be

Whether it is possible to establish in this country,
consistently with the provisions of the Federal and the
State Constitutions, any scheme by which the Execu-
tive can be rendered more helpful to the Legislature or
by which Legislatures can be organized with a more
authoritative leadership, and can more completely
supervise the Administration, this is a question which
well deserves your consideration. Scientific method,
which has been applied to everything else, needs
in our time to be applied more fully and sedulously
to the details of constitutional and political organi-
zation than has been anywhere yet done. How-
ever, if one may judge from the recent action of
your States, there are certain changes already in
progress. The sittings of Legislatures have been made
less frequent and shorter ; and as sessions grow shorter
State Constitutions grow longer. Not only many
subjects, but even many minor details of legislation,
have been withdrawn from the Legislature by being
placed in the State Constitution, which the Legislature
cannot change. Direct legislation by the people finds
increasing favour. Some reformers demand power for
Congress to deal with topics which formerly were left
entirely to the State. There is talk of amending the
Federal Constitution.

Now let me try to illustrate how scientific method
may be applied to the constructive part of legislation


and the arrangements of Legislatures. It may be
applied to the collection of data. The facts on which
laws ought to be based need to be gathered, sifted,
critically examined. When studying the experiments
made in other countries, not merely the text of the laws
but their practical working also needs to be studied.

Take such subjects as the tariff and the law of cor-
porations. Although in no other country have cor-
porations raised such large and difficult problems as
their growth has created here, other countries have,
like you, been obliged to keep them under some con-
trol, and to prevent them from establishing oppressive
monopolies. Everyone, except the monopolist, wishes
to check or expunge monopolies, but nobody wants to
substitute a meddling officialism. How to steer be-
tween these two evils is no easy problem, and needs
careful enquiry, with an examination of the laws of
other countries.

Wherever there exists a system of customs duties
meant to protect domestic industries, it becomes neces-
sary to ascertain how each duty, whether on raw
materials or on the manufactured article, operates
upon the manufacturer, the dealer, the consumer ; and
the more complex and all-embracing a tariff is, so
much the greater is this need. Both these subjects
are beyond the knowledge and the skill of the ordinary
legislator in any country. They need special study by
persons of exceptional knowledge. The same thing
holds true of railroads, of mines, of factories, of sanita-


tion, of irrigation, of forest conservation, and many
other topics of current interest. All must be ap-
proached in a scientific way, using the results of the
experience of other countries.

Methods, too, have to be studied as well as facts.
To devise and apply sound methods of legislation is
equally a matter requiring careful study and a knowl-
edge of the systems which have succeeded elsewhere.
I have ventured to suggest to you that the British
system deserves your study in two points. One
touches the distinction to be drawn between the work
proper to a supreme legislative body, and that which
is better left to some administrative or judicial author-
ity, making rules under a power delegated by the Legis-
lature. Another relates to the still more important
distinction between bills relating to local and personal
matters and those which designed to affect the general
law of the land. The more these local matters in
which the pecuniary interests of persons or corpora-
tions are involved can be kept apart from politics, the
better. They are usually fitter for a sort of investiga-
tion, judicial in its form, though not necessarily con-
ducted by lawyers. To take them out of the ordinary
business of a legislature saves legislative time, while it
removes temptation. It sets the members of a legisla-
tive body free to deal with the really important general
issues affecting the welfare of the people which are
now crowding upon them. It helps them to appeal to
the people upon those general issues rather than in


respect of what each member may have done for the
locality he represents. Many of your statesmen have
told me that in those States where dissatisfaction with
the conduct of legislatures is expressed, that disap-
proval is chiefly due to their handling of local and
personal bills.

Let me sum up hi a few propositions, generally appli-
cable to modern free nations, the views which I have
sought to bring before you. .

I. The demand for legislation has increased and is
increasing both here and in all civilized countries.

II. The task of legislation becomes more and more
difficult, owing to the complexity of modern civiliza-
tion, the vast scale of modern industry and commerce,
the growth of new modes of production and distribution
that need to be regulated, yet so regulated as not to
interfere with the free play of individual enterprise.

III. Many of the problems which legislation now
presents are too hard for the average members of legis-
lative bodies, however high their personal ability, be-
cause they cannot be mastered without special knowl-
edge. (It may be added that in the United States a
further difficulty arises from the fact that legal skill is
often required to avoid transgressing some provision
of the Federal or a State Constitution.)

IV. The above conditions make it desirable to have
some organized system for the gathering and examina-
tion of materials for legislation, and especially for
collecting, digesting, and making available for easy


reference the laws passed in other countries on subjects
of current importance and an account of the results
obtained thereby.

V. In order to secure the pushing forward of meas-
ures needed in the public interest, there should be in
every Legislature arrangements by which some definite
person or body of persons becomes responsible for the
conduct of legislation.

VI. Every Legislature has in our days more work
thrown on it than it can find time to handle properly.
In order, therefore, to secure sufficient time for the
consideration of measures of general and permanent
applicability, such matters as those relating to the de-
tails of administration or in the nature of executive
orders should be left to be dealt with by the adminis-
trative department of government, under delegated
powers, possibly with a right reserved to the Legisla-
ture to disapprove regulations or orders so made.

VII. Similarly, the more detailed rules of legal pro-
cedure ought to be left to the judicial department or
some body commissioned by it, instead of being regu-
lated by statute.

VIII. Bills of a local or personal nature ought to be
separated from bills of general application and dealt
with in a different and quasi-judicial way.

IX. Arrangements ought to be made, as, for in-
stance, by the creation of a drafting department con-
nected with a Legislature or its chief committees, for
the putting into proper legal form of all bills introduced.


X. Similarly, a method should be provided for recti-
fying in bills at the latest stage before they pass into
law such errors in drafting as may have crept into them
during their passage.

XI. When any bill of an experimental kind has been
passed, its workings should be carefully watched and
periodically reported on as respects both the extent
to which it is actually enforced (or found enforcible)
and the practical results of the enforcement. A de-
partment charged with the enforcement of any act
would naturally be the proper authority to report.

XII. In order to enable both the Legislature and
the people to learn what the statute law in force actually
is, and thereby to facilitate good legislation, the statute
law ought to be periodically revised, and as far as pos-
sible so consolidated as to be brought into a compact,
consistent, and intelligible shape.

I venture to submit these general observations be-
cause to-day there is everywhere an unusual ferment
over economic and social questions and a loud de-
mand for all sorts of remedies, some of them crude,
some useless, some few possibly pernicious. Here, in
the United States, this ferment takes a form conditioned
by your constitutional arrangements and your political
habits. There seems to be in many quarters a belief
that the State governments cannot deal with some of
the large questions that interest the whole country.
Yet there is also a fear to disturb the existing balance
of powers and functions between the State authorities




and the National government. There is a feeling that
evils exist which governments ought to deal with, and for
dealing with which the existing powers of governments
ought to be extended. Yet there is also a reluctance
to multiply officials and a dread of anything approach-
ing the bureaucratic paternalism of Continental Eu-
rope. We are hovering between discontent and doubt.
The reforming spirit runs so strong that it would sweep
off their feet any people which had not, as you have,
become attached to their old institutions. So, again,
there is a disposition to criticize State governments and
city governments, and to appeal to good citizens, as
voicing the best public opinion, to step in and do by
voluntary organizations whatever useful work those
governments are failing to do. But how is public opin-
ion to be organized, concentrated, focussed ? Who are
the persons to give it that definite and authoritative
expression, directed to concrete remedies, which will
enable it to prevail ? These are some of the problems
which appear to be occupying your minds, as, under
different forms, they occupy us in Europe. They will,
doubtless, like other problems in the past which were
even harder, be all solved in good time, solved all the
better because there is, here in America, little of that
passion which has at other times or in other countries
overborne the voice of reason.

Meantime, as there is evidently a good deal of legis-
lation before you, every improvement in the machinery
of legislation and the conditions of legislation that can


be made is worth making, every light that the ex-
perience of other countries can suggest is worth
receiving and using.

I once listened to an address on Improvements needed
in Modern Education, delivered by an eminent man of
science. He began by proving to us that those of his
scientific brethren who assigned to our earth a life of
only three or four million years were entirely mistaken,
for there was every reason to believe it would last
twice or thrice that length of time. From this he
drew the conclusion that it really was worth while,
with this long future before us, to attempt fundamental
reforms in our educational system. We who heard him
thought that even with only a few thousands of years to
look forward to, reforms would be worth making. So
to you I will say that without venturing to look even
thousands of years ahead, there is before us such a
prospect of an increasing demand for legislation that it
is well worth while to secure by every possible device
the efficiency of our legislative machinery.

The great profession to which you belong has a
special call to exert in this direction its influence, which
has often been exerted for the benefit of the nation.
You know such weak points as there may be in the
existing legislative machinery. You know them as
practical men who can apply practical remedies. If
you see a public benefit in separating different classes
of bills and treating the special, or local and personal,
bills in a different way from the public ones, you can


best judge how this should be done. You have daily
experience of the trouble which arises from obscurities
or inconsistencies in the statutes passed, of the waste-
ful litigation due to the uncertainty of the law, with
all the expense and vexation which follow. You are,
I hear on all hands, not satisfied with the criminal pro-
cedure in many of your States. These are matters
within your professional knowledge. You can, with
the authority of experts, recommend measures you
deem good, and remonstrate against those that threaten
mischief; and I understand that remonstrances pro-
ceeding from the Bar are frequently effective.

Some cynical critics have suggested that the legal
profession regard with equanimity defects in the law
which may increase the volume of law suits. The tiger,
it is said, cannot be expected to join in clearing away
the jungle. This unappreciative view finds little sup-
port in facts. Allowing for the natural conservatism
which the habit of using technical rules induces in
lawyers, and which may sometimes make them over-
cautious in judging proposals of change, they have,
both here and in England, borne a creditable part in
the amendment of the law. It is a mistake to think
they profit by its defects. Where it is clear and definite,
where legal procedure is prompt and not too costly,
men are far more ready to resort to the Courts for the
settlement of their disputes. It is the prospect of un-
certainty, delay, and expense that leads them to pocket
up their wrongs and endure their losses. Even, there-


fore, on the lower ground of self-interest, the Bar
(except perhaps a few of its least desirable members)
does not gain by a defective state of the law. But
apart from this, every man who feels the dignity of his
profession, who pursues it as a science, who realizes
that those whose function it is thoroughly to under-
stand and honestly to apply the law, are, if one may
use the somewhat highflown phrase of a great Roman
jurist, the Priests of Justice, every such man will
wish to see the law made as perfect as it can be. So,
too, whoever realizes, as in the practice of your pro-
fession you must daily do, how greatly the welfare of
the people depends on the clearness, the precision, and
the substantial justice of the law, will gladly contribute
his knowledge and his influence to furthering so excel-
lent a work. There is no nobler calling than ours,
when it is pursued in a worthy spirit.

Your profession has had a great share in moulding
the institutions of the United States. Many of the
most famous Presidents and Ministers and leaders in
Congress have been lawyers. It must always hold a
leading place in such a government as yours. You
possess opportunities beyond any other section of the
community for forming and guiding and enlightening
the community in all that appertains to legislation.
Tocqueville said eighty years ago : " The profession of
the law serves as a counterpoise to democracy." We
should to-day be more inclined to say that after having
given to democracy its legal framework, it keeps that


framework in working order by elucidating the prin-
ciples which the people have laid down in constitutions.
To you, therefore, as an organized body of lawyers, one
may fitly address these observations on legislative
methods drawn from the experience of Europe. We live
in critical times, when the best way of averting hasty
or possibly even revolutionary changes is to be found
in the speedy application of remedial measures. Both
here and in Europe improvements in the methods of
legislation will not only enable the will of the people
to be more adequately expressed, but will help that
will to express itself with temperance and wisdom.

What is legislation but an effort of the people to pro-
mote their common welfare ? What is a Legislature but
a body of men chosen to make and supervise the work-
ing of the rules framed for that purpose ? 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 materials.

The omens are favourable.

Never, I think, since the close of the Civil War, has
there been among the best citizens of the United States
so active a public spirit, so warm and pervasive a de-
sire to make progress in removing all such evils as
legislation can touch. Never were the best men, both
in your legislatures and in the highest executive posts,
more sure of sympathy and support hi their labours
for the common weal.


APRIL 13, 1908.


APRIL 13, 1908.

No one can stand here without thinking much and
wishing to say much about Thomas Jefferson, the
founder of this famous University, and next to George
Washington one of the two or three most remarkable
men that Virginia has given to the United States and
to the world. Yet I must refrain from attempting
to describe his striking personality. Not that there is
anything to deter me personally or officially from
attempting the task. To-day nothing need prevent the
representative of the great grandson of King George the
Third from paying a tribute to the gifts and the achieve-
ments of the draftsman of the Declaration of Inde-
pendence. Nor ought I forget, in this connection, to
remind you that Jefferson was in his later days the dis-

Online LibraryJames Bryce BryceUniversity and historical addresses, delivered during a residence in the United States as ambassador of Great Britain → online text (page 6 of 24)