an absolute sovereign are easily summed up. Autocratic power is the most
swift and efficient of all instruments for effecting reforms. Used with
skill, tact, and moderation, it can confer incalculable benefits on a
country. To be able at your pleasure to abolish obsolete institutions,
to curtail the offensive privileges of a class, to override vested
interests, to remove needless anomalies and antiquated forms of
procedure, to simplify the law by condensing a confused mass of
statutory provisions, or expressing the result of a long series of cases
in a single enactment, and to do all this without the trouble of
justifying your enlightened purposes to the dull and the ignorant, or of
mitigating hostility by concessions and compromises which ruin the
symmetry and reduce the effectiveness of your scheme—this is indeed a
delightful prospect for the law reformer. The power of trying
experiments is seductive to the philanthropist or the philosopher, for
there are many problems which ought to be attacked by experimental
methods, since nothing but an experiment can test the merit of a
promising plan. Yet experiments are just the things which in popularly
governed countries it is rarely possible to try, because the bulk of
mankind, being unscientific, will seldom permit a thing to be tried till
it has been proved to be not merely worth trying but absolutely
necessary, while when it has been tried, and has not worked well, it is
almost as hard to persuade them either to vary it or to drop it
altogether. To tell the multitude that the scheme you propose may fail,
though you think it worth trying, is to discredit it in their eyes. To
admit that it has failed is to destroy your own credit for the future.
So again, if it is a question of improving the form and expression of
the law, an absolute monarch evidently enjoys the finest possible
opportunities of creating a perfect system. He can command all the
highest legal ability of the State. He can bestow upon his commission of
legislators or codifiers the widest discretion. When they have finished
their work he can subject it to any criticism he pleases before enacting
it as law. When he enacts it, he can abolish all pre-existing law by a
stroke of the pen. Even afterwards he can readily correct any faults
that may have been discovered, can suppress old editions, can provide
means by which the law shall be regularly from time to time amended, so
that all new statutes and all interpreting decisions shall be
incorporated with it or appended as supplements to it. Few are the
philanthropic enthusiasts, few are the theoretical codifiers, who have
not sighed for an Autocrat to carry out their large designs.
According to that law of compensation which obtains in all human affairs
these advantages are beset by corresponding dangers. Ease begets
confidence, confidence degenerates into laxity and recklessness. As the
laws of metre and rhyme help the versifier by forcing him to study and
polish his diction, so he who is not now and then stopped by obstacles
is apt to advance too quickly, and may not consider whither he is going.
If an error can be readily recalled it is lightly ventured, and the
hasty legislator discovers too late that it is not the same thing to
recall an error as never to have committed it. In the field of
legislation the danger of doing too much is a serious danger, not only
because the chances of error are manifold[133], but because the law
ought to undergo as few bold and sudden changes as possible. The natural
process whereby the new circumstances, new conditions, new commercial
and social relations that are always springing up become recognized in
custom and dealt with by juridical science before direct legislation
impresses a definite form upon the rules that are to fix them—this
process is the best, and indeed the only safe way by which a nation can
create a refined and harmonious legal system. Even the certainty of the
law is apt to suffer if legislation becomes too easy, for the impatient
autocrat may well be tempted, when some defect has been discovered, to
change it forthwith, and then to find that the change has been too
sweeping, so that steps must be taken backward, with the result of
rendering doubtful or invalid transactions which have occurred in the
meantime. If these dangers are to be avoided, it must be by entrusting
legislation to the hands of advisers not only learned and skilful but
also of a conservative spirit. In war and politics boldness is quite as
needful as caution, but in reforming the law of a country the risk of
going too slow is less serious than that of going too fast.
-----
Footnote 133:
Τὸ μὲν γὰρ ἁμαρτάνειν πολλαχῶς ἐστι, τὸ δὲ κατορθοῦν μοναχῶς, says
Aristotle: ‘You can hit only in one way, but you may miss in many.’
-----
These observations are illustrated by the course of events at Rome. At
first, while the magistrates were still hard at work in building up the
law by their Edicts, and the jurists no less active in developing it on
conservative lines by their _responsa_ and treatises, the Emperors used
their legislative power sparingly because they were guided by
accomplished lawyers. Comparatively few constitutions are cited from the
days of Trajan and Hadrian, and even from those of the Antonines. These
constitutions are short, clear, precise, introducing only those new
rules or deciding only those questions which it was necessary to
establish or deal with. After the time of Diocletian[134], when the
powers of the old magistrates had withered away and the fountain of
juristic genius had dried up, direct legislation became far more
copious, and began to range more widely over all sorts of subjects.
Serviceable it certainly was in the way of abolition, for there was much
to be abolished. But it tended to become always more and more rash and
heedless in its dealings with the pre-existing law. Apart from the
harshness or bad economics which frequently marred its provisions, it
was often injudicious in matters of pure legal science. If in some cases
it cleared the ground of antiquated rules and forms, in others it merely
shore away abruptly and inartistically the more conspicuously
inconvenient applications of an old doctrine, while leaving the doctrine
itself to create future difficulty. It acted too much with reference to
the particular evil dealt with, too little with a view to the law as a
whole. It was, in a word, too unmindful of that _elegantia_, that inner
harmony and consistency with principle which had been always before the
eyes of the elder jurists. Legal style and diction experienced a similar
declension. From and after the days of Diocletian, the language of
imperial ordinances grows more and more rhetorical, pompous, and turgid.
The imperial utterances had never emulated the scrupulous exactitude and
technicality of the republican _leges_. But they were, during the first
two centuries of the Empire, simple and concise. Afterwards, while
becoming more prolix they became also less exact. These faults are, to
be sure, not mainly due to the more palpably despotic position of the
Emperor, but rather to the steady deterioration of juridical and
literary capacity which mark these later centuries. That the decline was
less evident in the department of law than in most other branches of
intellectual life may be ascribed, partly to the nature of the subject,
which does not invite florid treatment, partly to the absence of Greek
rhetorical models, Greek being eminently the language of rhetoric,
partly, perhaps, also to the influence of the two great law schools of
Beyrut and Constantinople, and to the fact that the writings by which
the lawyer’s mind was formed were still the admirable works of the
luminaries of the early Empire. Still the fall is a great one. How much
more repellent is the extreme of over-ripe laxity than the extreme of
primitive stiffness may be felt by any one who will compare the weak and
wordy ‘New Constitutions’ (_Novels_ ) of Justinian with the crabbed
strength of the Twelve Tables, abrogated by Justinian himself after a
thousand years of reverence. There is, in fact, only one fault which the
later imperial legislation may appear to have avoided when we compare it
with that of modern England or America. It goes much less into detail.
It does not seek to exhaust possible cases, and provide for every one of
them. This merit, however, is due, not so much to skill on the part of
the Roman draftsmen, as to the range of power allowed to Roman officials
and judges, and to the faint recognition of the rights of the individual
subject. The tedious minuteness of modern English and American statutes,
if it grieves the scientific lawyer, is after all a laudable recognition
and expression of that respect for personal liberty and jealousy of the
action of the executive which have distinguished the English race on
both sides of the Atlantic. Thus that which might appear to be an
excellence of the later imperial legislation in point of form is seen to
be an evil in point of substance, for it is due, not to any superiority
of legal skill, but to the existence of an autocracy which did not care
to limit the discretion of its subordinate officers.
-----
Footnote 134:
Many of Diocletian’s rescripts are well expressed and show a mastery
of the old legal principles.
-----
IX. DIRECT LEGISLATION IN ENGLAND:
PARLIAMENT.
It remains for us to consider the organ of direct legislation in
England, and the work which that organ turns out. Here again I must turn
away from the large field of historical inquiry. The history of English
statutes, their development out of petitions addressed to the sovereign
in his Great Council, the mode in which they were drafted, debated, and
passed, the rules of interpretation which have obtained regarding them,
their influence at different epochs upon the growth of the Common Law,
the development and value of the functions of non-official members of
Parliament in preparing them and getting them passed, the decay of those
functions which the last few years have seen—all these would supply
interesting and instructive matter, not merely for an essay but for a
treatise. But seeing how long we have had to wait for a philosophical
history of the law of England in general, one need not be surprised that
this particular department still waits for its historian[135].
-----
Footnote 135:
The admirable _History of English Law_ of Professors Pollock and
Maitland stops soon after the point at which parliamentary legislation
begins. Since the passage in the text was written, the book of Sir C.
P. Ilbert, entitled _Legislative Methods and Forms_, has been
published. It is full of valuable information and acute remarks upon
modern English legislation, and brings together a mass of historical
facts never previously collected.
-----
In England there has been, through the long course of our history, only
one organ of Direct Legislation, viz. the Great Council of the nation.
It began as a Primary Assembly of all freemen. It passed, between the
time of Athelstan and that of Henry III, through a phase in which it
had, owing to the growth of the nation and to the practical limitation
of its membership, almost ceased to be Primary in fact, though its
theoretical character, as embracing the whole people, had not been
abrogated. Since the time of Edward I it has consisted of two branches,
one of which is Primary, the other Representative; and this present
phase is evidently drawing to its end.
Thus the history of Direct Legislation in England stands contrasted with
the history of such legislation in Rome in two points: (1) that we in
England have always had an organ which in intendment of law was the same
from beginning to end, and admittedly supreme; and (2) that we have
never had more than one organ at the same time, whereas at Rome the
theoretically complete and unrestricted legislative power of the popular
Assembly coexisted, for a time, with the legislative power of the
Senate, and the theoretically complete and unrestricted legislative
power of the Senate coexisted for a certain period with the legislative
power (stronger, but at first carefully disguised) of the Emperor. It
may seem absurd to speak of two organs of direct legislation as each
complete and supreme: yet such would seem to have been the theory of the
Roman law. We in England came near having a similar state of things in
the days when the Crown claimed, and was sometimes permitted to exert, a
power of legislating apart from Parliament and not in virtue of any
permission by Parliament. But this power was never formally recognized
by the law.
The Parliament of the United Kingdom and that eldest and strongest of
its numerous progeny, the Congress of the United States, seem at first
sight well composed and admirably equipped for securing legislation
which shall be excellent in point both of Substance and of Form. As to
excellence of Substance, these assemblies ought to be able to make such
laws as the people wish and need, for they are popular in character,
giving full expression to the wishes of all classes, and enabling any
person or section aggrieved by existing defects in the law to state his
complaints and suggest a remedy for them. The British Parliament,
moreover, consists of two Houses, one of which, while deficient in the
strength that comes from popular election, is by its composition capable
of looking at questions from a point of view unlike that of the Lower
House. It contains many men of great ability and knowledge of affairs,
so that it could well discharge (if so disposed) the functions of
criticism and revision. So the American Congress has also the advantage
of being composed of two branches, either of which can criticize and
amend the Bills passed by the other.
As regards excellence of Form, which is that with which we are here
specially concerned, several notable merits may be claimed for the
British Parliament. The House of Lords, as has been just observed,
contains among the fifty or sixty persons (out of nearly six hundred
members) who habitually attend its sittings not a few possessing
intellectual power and practical experience, with (usually) some seven
or eight distinguished lawyers, the flower of the legal profession.
Being a representative body, the House of Commons contains persons who
are presumably above the average in knowledge of the world and its
affairs, as well as in intellectual capacity. Among these there are to
be found many men (though a smaller proportion than is found in the
American Congress or in some colonial legislatures) who possess a
technical acquaintance with the laws of the country, and ought to be
specially well fitted to amend them, while at the same time any such
tendency as professional men might have to indulge in mere
technicalities is likely to be corrected by the presence of a majority
of laymen. They deliberate in full publicity, and thereby can obtain
from all quarters suggestions that may direct or help them. They are
responsible to those who have sent them up, and who can closely watch
their conduct. Ample opportunities are provided for the discussion of
every measure, and for curing any defect which may lurk in any Bill
brought forward either by the Ministers of the Crown, liable through
their position to a fire of hostile criticism, or by a private member.
Every Bill has to pass through seven stages in the House of
Commons[136], and six in the House of Lords, and at each of these stages
it may be debated at indefinite length[137]. That must be, one would
think, either a very trivial or a strangely hidden blemish which escapes
the notice of keen, experienced, and often unfriendly critics on twelve
successive occasions[138]. Could any machinery be better adapted to
secure that the laws passed shall be expressed in the most clear and
precise terms, that each shall be well arranged and self-consistent,
that every new statute shall be properly fitted into those that have
gone before, and shall, in effecting any change, repeal expressly the
parts of previous statutes which it affects, so as to provide against
possible uncertainty or discrepancy?
-----
Footnote 136:
Now (1900) reduced to six by the discontinuance of the habit of
putting the question that Mr. Speaker do leave the chair when the
House of Commons goes into Committee.
Footnote 137:
Now, however, subject to the power of imposing the closure of debate,
a power the growing frequency of whose exercise has greatly altered
the character of the House.
Footnote 138:
Now reduced to eleven. The number of stages for a Bill which passes
through both Houses must be calculated by subtracting one from the
number reached by adding the stages in each House, because a Bill
coming from either House to the other obtains its first reading as a
matter of course, without debate.
-----
Why is it then that we hear so many complaints about the condition of
the laws of England as to the number of points which remain unsettled,
as to the confusion in which some great departments of law lie, as to
the undue length of our statutes, their obscurity, their
inconsistencies, their omissions? I do not inquire to what extent these
complaints are well founded. It is enough to note that they proceed not
merely from scientific jurists, who might be supposed to be enamoured of
an impossible ideal, but from such practical men as compose our
commercial classes, such technically competent as well as practical men
as the judges of the land.
Somewhat similar complaints are made in the United States. The methods
of legislation used there are generally similar to those of Britain,
both in the Federal Congress and in the forty-five State Legislatures,
and every one of these bodies consists of two Houses, each jealous of
the other. The chief difference is that the Americans consolidate their
statutes at certain intervals, so that the statute law, both Federal and
State, is brought within a smaller compass than that of the United
Kingdom. Subject to this and to some minor dissimilarities, the remarks
which follow on the causes why British legislation is less perfect than
might be expected from the elaborate machinery provided for producing it
apply to the United States also[139].
-----
Footnote 139:
As to the actual methods and difficulties of Parliamentary
legislation, see the penetrating and careful analysis contained in Sir
C. P. Ilbert’s _Legislative Methods and Forms_, chap. x.
-----
The methods of British legislation, and the dangers incident to those
methods, are exactly the opposite to those which we have noted in Rome.
Both under the Republic, when statutes were passed at the instance of a
magistrate with no possibility of amendment by the Assembly, and under
the later Empire, when the monarch or his advisers could issue a law
with as much ease and as little personal fear of consequences as a
counsel can draw a will or the articles of a joint stock company, no
provision was made for independent criticism, nor for discussion, nor
for the interposition of delays. The excellence of the law depended on
the person who prepared and proposed it, and on him alone[140]; and the
law could be issued to take effect as soon as the Assembly had given its
one vote or the Emperor his one signature. The Senate could indeed
debate and might amend the forms of decrees submitted to it, but as it
was really a mere instrument in the Emperor’s hand it exercised these
powers very sparingly.
-----
Footnote 140:
Although, as observed above, the Emperor might, if he liked, cause a
draft Constitution to be debated in his Consistory.
-----
With us in England the opportunities for debate, for resistance, and for
amendment are so ample as to prevent many things from being done which
ought to be done, and to impress an unscientific cumbrousness,
prolixity, and inelegance upon most of the work we turn out. Too many
persons are concerned, and few of them have any care or taste for
technical excellence. The House of Commons is overloaded with work, some
of it work which it had better not attempt, but which it does attempt in
deference to the clamorous demands of particular sections of opinion. A
reform in the substance of the law excites little interest unless it has
either some political (_i.e._ party) importance, or has a considerable
pressure of public opinion behind it. A reform in the form and
expression of the law, having neither of these forces to back it up,
excites no interest at all. Accordingly it is neglected, for a Ministry
is disposed to think first of pleasing its own supporters, then of
winning popular favour in general, and accordingly gives the time at its
disposal to measures deemed likely to secure for it political advantage.
Private (_i.e._ unofficial) members of Parliament might supply what is
lacking in the Ministry by bringing forward and passing modest and
useful Bills, calculated either to remove minor defects in the substance
of the law or to improve its form. But the Ministry now commands so
large a part of the available time of the House of Commons, and the
opportunities given to members for arresting the progress of other
members’ bills are so abundant, that hardly anything can be accomplished
by an unofficial member. In the United States, where all members are
unofficial, the despotism of the British Ministry, which after all is a
responsible despotism, is replaced by the irresponsible despotism of the
Committees, which are as much disposed as is a British Ministry to be
swayed by sectional pressure or by the prospect of political gain.
The British House of Commons is too large for discussing what may be
called the technical or formal part of legislation. Its debates in
Committee on points of substance are often excellent. But it cares
little for harmony, propriety, and conciseness of language. If an
inexperienced enthusiast for legal symmetry observes, in proposing an
amendment, that his terms will not affect the substance, though they
will improve the form, of the clause, he is impatiently rebuked for
occupying the time of the House with what ‘will make no difference.’ On
the other hand, changes in substance are constantly made in Committee
which have the effect of rendering the form of the measure worse than
when it came from the draftsman’s hands. Clauses are put in or struck
out, exceptions are added, references to other statutes are inserted,
which make the sense of the enactment difficult to follow and its
construction uncertain. Sometimes these faults are corrected in that
later consideration which is called the Report stage. Sometimes they are
not, either because they have escaped notice, or because the Ministry
are in a hurry, and do not wish to risk the further raising of questions
likely to give trouble. The House of Lords ought to correct all such
blemishes. But it seldom does so, either from indolence, or because it
does not wish to differ with the House of Commons except where it has
some class interest, political or economic, to contend for. In fact,
that function of revision which modern theory attributes to the House of
Lords is not discharged.