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Published online by Cambridge University Press: 04 October 2013
The larger aspects of the legislature and of its functions: the question of the right principle of representation, of the frequency of legislative sessions, of popular control and cooperation through the referendum and the initiative, have their bearing upon the quality of legislation, but they are essentially political questions, and beyond the range of the present discussion. This discussion is to confine itself to a problem of narrower scope, and somewhat technical in its nature, which may be stated as follows:
Given a legislature of average ability, fairly representative in character, not exempt from political bias or popular prejudice, but willing on the whole to act according to the best of its lights, such a legislature as we now have, and shall have for many years to come: how can it be enabled to perform its task most creditably and most efficiently?
1 Note the length of the provisions of the Oklahoma Constitution regarding corporations, the longest article by far in the whole instrument.
2 der Rechtsgesetze, Die Abfassung, in Staatsrecht, Völkerrecht und Politik, vol. ii, p. 375–613 Google Scholar, Tubingen, 1862.
3 The statistical table given by Mr. Ilbert on p. 215 of his Legislative Forms and Methods shows that private members introduce about three times as many bills as the government, but that the government succeeds in passing about three times as many bills as private members. The total output of legislation in England is small, in 1900 altogether sixty-four public acts.
4 Preface to SirJenkyn's, Henry British Rule and Jurisdiction beyond the Seas, Oxford, 1902 Google Scholar; SirIlbert, C., Legislative Methods and Forms, Oxford, 1901 Google Scholar; LordThring, , Practical Legislation, Toronto and Boston, 1902 Google Scholar.
5 See Bulletin 2 of the Wisconsin Legislative Reference Department by Miss Schaffner.
6 Civil Code, 1902, sec. 21, 644.
7 New York Legislative Law, sec. 23.
8 General Statutes, Revision 1902, sec. 37.
9 The former position is held at present by Mr. Asher C. Hinds, the latter by Mr. James C. Courts.
10 It may not be amiss to refer to the dignity of the position of reporter of the supreme court of the United States, always filled by a lawyer of distinction.
11 The difference between principle and lack of principle is moat strikingly illustrated by the different treatment of private or special legislation in England and in this country. In England private bill legislation proceeds with all the safeguards of a judicial proceeding, in this country it became such an abuse that it had to be stopped by constitutional restrictions. Special divorces in England were granted by act of parliament upon well defined grounds and settled procedure, which hardly varied in a hundred years; the legislature of Missouri in 1830 granted a divorce, because it appeared from the petitions of both the parties, that they wished to be separated and that they could not live happily together, and “because the happiness of the people should be the ultimate end and object of all governments.” (See American Jurist, vol. vi, p. 407 Google Scholar.)
12 A number of very useful and practical suggestions for the drafting of statutes are contained in Willard, A. R., A Legislative Handbook, New York and London, 1890 Google Scholar, now unfortunately out of print.
