colour and texture from the rest. But as we do not need much legislation, and as nearly the whole field of ordinary private law lies outside the province of Congress, the mischief is slighter than you Europeans expect. If we made legislation easier, we might have too much of it; and in trying to give it the more definite character you suggest, we might make it too bold and sweeping. Be our present system bad or good, it is the only system possible under our Constitution, and the fact that it was not directly created by that instrument, but has been evolved by the experience of four or five generations, shows how st ong must be the tendencies whose natural working has produced it."

NOTE TO CHAPTER XV

LIST OF STANDING AND SELECT COMMITTEES of the House in the Sixtyfirst Congress, Second Session. (Corrected to April, 1910.)

On Ways and Means; Appropriations; Judiciary; Banking and Currency; Coinage, Weights and Measures; Interstate and Foreign Commerce Rivers and Harbours; Merchant Marine and Fisheries; Agriculture; Elections (three Committees); Foreign Affairs; Military Affairs; Naval Affairs; Post Office and Post Roads; Public Lands; Indian Affairs; Territories; Railways and Canals; Manufactures; Mines and Mining; Public Buildings and Grounds; Pacific Railroads; Levees and Improvements of the Mississippi River; Education; Labour; Militia; Patents; Invalid Pensions; Pensions; Claims; War Claims; Private Land Claims; District of Columbia; Revision of the Laws; Expenditures in the State Department; Do., Treasury Department; Do., War Department; Do., Navy Department; Do., Post Office Department; Do., Interior Department; Do., Department of Justice; Do., Agriculture; Do., Department of Commerce and Labour; Do., Public Buildings; Rules; Accounts; Mileage; Library; Printing; Enrolled Bills: Select Committees Reform in the Civil Service; Election of President and Vice-President; Census; Ventilation and Acoustics; Alcoholic Liquor Traffic; Irrigation of Arid Lands; Immigration and Naturalization; Industrial Arts and Expositions; Disposition of Useless Papers in the Executive Departments (joint).

The committees in the Sixty-second Congress differed very little from this list.

CHAPTER XVI

CONGRESSIONAL LEGISLATION

LEGISLATION is more specifically and exclusively the business of Congress than it is the business of governing parliaments such as those of England, France, and Italy. We must therefore, in order to judge of the excellence of Congress as a working machine, examine the quality of the legislation which it turns out.

Acts of Congress are of two kinds, public and private. Passing by private acts for the present, though they occupy a large part of congressional time,1 let us consider public acts. These are of two kinds, those which deal with the law or its administration, and those which deal with finance, that is to say, provide for the raising and application of revenue. I devote this chap

ter to the former class, and the next to the latter.

There are many points of view from which one may regard the work of legislation. I suggest a few only, in respect of which the excellence of the work may be tested; and propose to ask: What security do the legislative methods and habits of Congress offer for the attainment of the following desirable objects? viz. :

1. The excellence of the substance of a bill, i.e. its tendency to improve the law and promote the public welfare.

2. The excellence of the form of a bill, i.e. its arrangement and the scientific precision of its language.

3. The harmony and consistency of an act with the other acts of the same session.

4. The due examination and sifting in debate of a bill.

5. The publicity of a bill, i.e. the bringing it to the knowledge of the country at large, so that public opinion may be fully expressed regarding it.

6. The honesty and courage of the legislative assembly in

1 Some remarks on private bills will be found in Note A to this chapter at the end of this volume.

rejecting a bill, however likely to be popular, which their judgment disapproves.

7. The responsibility of some person or body of persons for the enactment of a measure, i.e. the fixing on the right shoulders of the praise for passing a good, the blame for passing a bad, act.

The criticisms that may be passed on American practice under the preceding heads will be made clearer by a comparison of English practice. Let us therefore first see how English bills and acts stand the tests we are to apply to the work of Congress.

In England public bills fall into two classes, those brought in by the ministry of the day as responsible advisers of the sovereign, and those brought in by private members. In point of law and in point of form there is no difference between these classes. Practically there is all the difference in the world, because a government bill has behind it the responsibility of the ministry, and presumably the weight of the majority which keeps the ministry in office. The ministry dispose of more than a half of the working time of the House, and have therefore much greater facilities for pushing forward their bills. Nearly all the most important bills, which involve large political issues, are government bills, so that the hostile critic of a private member's bill will sometimes argue that the House ought not to permit the member to proceed with it, because it is too large for any unofficial hands. This premised, we may proceed to the seven points above mentioned.

1. In England, as the more important bills are government bills, their policy is sure to have been carefully weighed. The ministry have every motive for care, because the fortunes of a first-class bill are their own fortunes. If it is rejected, they fall. A specially difficult bill is usually framed by a committee of the cabinet, and then debated by the cabinet as a whole before it appears in Parliament. Minor bills are settled in the departments by the parliamentary head with his staff of permanent officials.

2. In England, government bills are prepared by the official government draftsmen, two eminent lawyers with several assistants, who constitute an office for this purpose. Private members who are lawyers often draft their own bills; those who are not generally employ a barrister. The drafting of

government bills has improved of late years, and the faults of form still observable in British Acts are chiefly due to amendments made hurriedly in committee of the whole House.

3. The harmony of one government bill with others of the same session is secured by the care of the official draftsmen, as well as by the fact that all emanate from one and the same ministry. No such safeguards exist in the case of private members' bills, but it is of course the duty of the ministry to watch these legislative essays, and get Parliament to strike out of any one of them whatever is inconsistent with another measure passed or intended to be passed in the same session.

4. Difficult and complicated bills which raise no political controversy are sometimes referred to a select committee, which goes through them and reports them as amended to the House. They are afterwards considered, first in committee of the Whole, and then by the House on the stage of report from committee of the Whole to the House. Such bills are now often referred to what are called Grand Committees, i.e. committees of at least fifty appointed in each session for the consideration of particular kinds of business, discussion in which replaces the discussion in committee of the Whole. Many bills, however, never go before select or grand committees. While measures which excite political feeling or touch any powerful interest (such as that of landowners or railroads or liquor-dealers) are exhaustively debated, others may slip through unobserved. The enormous pressure of work and the prolixity with which some kinds of business are discussed, involve the hurrying other business through with scant consideration.

5. Except in the case of discussions at unseasonable hours, the proceedings of Parliament are so far reported in the leading newspapers and commented on by them that bills, even those of private members, generally become known to those whom they may concern. There is usually a debate on the second reading, and this debate attracts notice.

6. A government bill is, by the law of its being, exposed to the hostile criticism of the Opposition, who have an interest in discrediting the ministry by disparaging their work. As respects private members' bills, it is the undoubted duty of some minister to watch them, and to procure their amendment or rejection if he finds them faulty. This duty is discharged less faithfully than might be wished, but perhaps as well as can be

expected from weak human nature, often tempted to conciliate a supporter or an "interest" by allowing a measure to go through which ought to have been stopped.

7. Responsibility for everything done in the House rests upon the ministry of the day, because they are the leaders of the majority. If they allow a private member to pass a bad bill, if they stop him when trying to pass a good bill, they are in theory no less culpable than if they pass a bad bill of their own. Accordingly, when the second reading of a measure of consequence is moved, it is the duty of some member of the ministry to rise, with as little delay as possible, and state whether the ministry support it, or oppose it, or stand neutral. Standing neutral is, so far as responsibility to the country goes, practically the same thing as supporting. The Opposition, as an organized body, are not expected to express their opinion on any bills except those of high political import. Needless to say, private members are also held strictly responsible for the votes they give, these votes being all recorded and published next morning. Of course both parties claim praise or receive blame from the country in respect of their attitude towards bills of moment, and when a session has produced few or feeble Acts the Opposition charge the Ministry with sloth or incompetence.

The rules and usages I have described constitute valuable aids to legislation, and the quality of English and Scottish legislation, take it all and all, is good; that is to say, the statutes are such as public opinion (whether rightly or wrongly) demands, and are well drawn for the purposes they aim at.

Let us now apply the same test to the legislation of Congress. What follows refers primarily to the House, but is largely true of the Senate, because in the Senate also the committees play an important part.

In neither House of Congress are there any government bills. All measures are brought in by private members because all members are private. The nearest approach to the government bill of England is one brought in by a leading member of the majority in pursuance of a resolution taken in the congressional caucus of that majority. This seldom happens. One must therefore compare the ordinary congressional bill with the English private member's bill rather than with a government measure, and expect to find it marked by the faults that