Statutory Laws of the United States To those who have given no study to the laws it might occasion great surprise to find how little of the law administered by the courts is based on congressional or legislative enactment. It is also remarkable that of the great mass of public acts of the lawmaking bodies, published as the work done at each session, so little is of permanent force, and so much is either temporary in character or mere revision or alteration of what preceded it. The compilation of the General Statutes of the United States, published in 1875, contains seventy-four titles. All this is printed in a single volume of 1092 pages, exclusive of index. By far the greater space is devoted to the organization of the departments and working forces of the government, the Army and Navy, the public revenue, and matters growing out of the Civil War. There is very little that affects the daily life of the citizen, except the Postoffice. The ground covered by the statutes of the states is quite different from that of the national legislation. It reaches the daily life of the people at far more points. The statutes of each state regulate the machinery of the state government, and also that of the counties, towns, cities, and school districts. They determine and establish the qualifications of voters, the manner of exercising the elective franchise, the educational system from the district school to the university, the organization of the various courts, their jurisdiction and procedure, the charitable and penal institutions, the establishment, improvement, and repairing of highways and bridges, the descent and distribution of property, the administration of estates, the organization of corporations, their powers, duties, and liabilities, the Criminal Code, defining all public offenses and fixing their punishments, the rules governing the guardianship of minors, and care of their estates, marriage, divorce, the conveyance and mortgaging of land, and recording the deeds and other instruments affecting the title to it, taxation, partnerships, assignments for the benefit of creditors, interest, contracts, fences, landlords and tenants, liens on real and personal property, lunatics, imbeciles and drunkards, domestic animals, trusts and powers. Matters of local concern peculiar to the state are also covered. The bulk of the Compiled General Statutes of the various states varies from one to three large volumes. Taking those of Kansas, a state of medium size, we find the compilation divided into 119 chapters of which thirty-four are devoted to the state institutions, officers, agencies, revenues, and expenditures, eleven to courts and their procedure, four to schools, two to criminal law and practice, two to suffrage and elections, two to cities, two to corporations and the remaining sixty-two to miscellaneous matters, some of very slight importance. For most of the general principles of the law administered by the courts we must look to the great libraries containing the works of textwriters and the reported decisions of the courts of the United States, the several states, England and its dependencies. Hon. Stephen H. Allen in his recent work "Evolution of Government and Laws.' PARLIAMENT BUILDINGS OF THE OLD WORLD. 1. Chamber of Deputies, Paris. By permission Horace K. Turner Co., Boston. 2. Houses of Parliament and Westminster Abbey, London. By permission Horace K. Turner Co., Boston. 3. Parliament Buildings, Vienna. Photo by Boston Photo News Co. 4. New Parliament Building, Constantinople. Photo by Boston Photo News Co. on Statutory Guiding Principles By EDWIN M. ABBOTT, LL. B. [Ed. Note.-Mr. Abbott is a member of the Philadelphia Bar; Secretary of the American Institute of Criminal Law and Criminology; Former Member of the Pennsylvania State Legislature; Chairman of the Commission on Revision and Amendment of the Penal Laws, etc., of the State of Pennsylvania, and Chairman of the Committee on Revision of the Penal Laws of the Pennsylvania State Bar Association.] HE multiplicity and conflict of legislation, both national and state, is a subject for serious thought and consideration. Not only should the judiciary, members of legislative bodies, and the legal fraternity, meditate over this important subject, but merchants, manufacturers, and the general public should study the matter and apply more thought and attention in the future, before securing the passage of an act to cure some desired evil. Statutory revision should never be attempted unless the change is for improvement of existing conditions. Selfish interests of class or individual should never dominate the birth of a new law or the change of an old one. The most important ingredient, therefore, for amended or new legislation should be necessity. By this, I do not mean an exigency to be ameliorated for the benefit of the sponsor or the draftsman of a bill, or what might be termed his clients or individual constituency. The welfare of the commonwealth or the nation should be considered before the improvident enactment of legislation. The Adamson Bill is a most striking illustration of hasty legislation. Without going into the merits or demerits of the question at issue, the bill itself, drawn without the careful consideration and draftsmanship that should be given to all acts of Congress, has demonstrated the necessity for more preparation before presentation and enactment into law by a legislative body. Some critics might reply that the exigency existed for the passage of the Adamson Bill in that it prevented a general strike; but surely, the welfare of the country, after the menace of a strike had been dissipated, is not insured by the passage of an act such as this. We can scan acts of assembly and records of Congress for years back, and, going carefully through the reports, find that legislation has been ground out like grist in the mill. Quantity rather than quality has been the guiding star, and necessity, duplication, or constitutionality has been discarded too often in the mad rush for the honor (?) to be the first to father or sponsor a bill to correct a so-called evil which some element in the nation or state claims unjust, restrictive, or needful of reform. It might be well to hesitate, and ask, "What is law?" Blackstone has said: "Law is a rule of civil conduct prescribed a lawyer be comes dazed and impotent in the face of presentday lawmaking. Sir Frederick Pollock has said: "The greater have been a lawyer's opportunities of knowledge and the more time he has given to the study of legal principles, the greater will be his hesitation in face of the apparently simple question, What is law?" It has fection of reason, that is, always intended to conform thereto, and that what is not reason is not law." But the modern-day revision of law. and the application of legal principles often goes far beyond any reasonable interpretation of necessity, and beyond the been questioned if it would not be most. expeditious to adjourn Congress and all of the legislatures for four or six years, and allow the present acts and statutes to become understood before enacting new ones. Business would undoubtedly benefit by it, and the legal profession and judiciary might have an opportunity of catching up with the plethora of legislation which has been flooding the country. Of course, modern conditions necessitate modern laws. The introduction of the automobile, the aeroplane, the electric railroad, wireless telegraphy, and modern inventions of many kinds have called forth legislation, both criminal and civil. Blackstone refers to law as "the per signification of reason itself. Perhaps the definition of James C. Carter that "law is the rule of conduct which society has determined must be enforced" is the leading principle which guides many, either in proposing legislation, securing its passage, or enforcing it. never dominate proposed legislation. Then, again, we find the claim that our judiciary is making law. That judges make law is true, and despite the propoganda for the recall of judicial decisions, to be submitted to the will of society or public approval, the attempt to curtail and restrict our judges died a natural death, which was proper. Our judiciary are mostly trained lawyers who gather their experience from day to day. They usually decide without consideration of class, creed, or social distinction. It is right, therefore, that they should be empowered to make law, particularly in the face of the conflict and abuse in modern legislation. This is a grave responsibility, but they should not shirk it; and the decisions of our courts stand to-day as both substantial law and revisionary law, the statutes to the contrary notwithstanding. New law at the hands of the judiciary takes into consideration statutory enactment, constitutional inhibition, reason, and common sense. When the judiciary trangresses in the making of law to such an extent that it appears improvident or oppressive, redress can be had from the legislative body to correct it. To give a concrete instance of such procedure, we could refer to the Pennsylvania statute which secures to defendants in criminal cases the privilege of refusing to testify against themselves with regard to former conviction for crime. District attorneys evaded this statute by inquiring of a defendant where he had been living during the period of a prior incarceration. Of course, this brought to the knowledge of a jury the fact of a previous conviction. The supreme court of Pennsylvania went so far in Com. v. Racco, 225 Pa. 113, 133 Am. St. Rep. 872, 73 Atl. 1067, as to uphold such conduct on the part of district attorneys. Consequently, the act of March 15, 1911, P. L. 20, was enacted to cure this evil, and to protect defendants from any further violation of their rights. This act prohibited the asking of any questions which would tend to show that, prior to the trial then proceeding, a defendant had been charged with or convicted of any other offense than the one on trial, unless questions were asked of witnesses for the prosecution with a view to establish his own good character or reputation, or he had given evidence tending to prove his own good character or reputation, or he shall have testified at such trial against a codefendant charged with the same offense. The above legislation was founded upon a necessity which demanded a revision of existing conditions brought about both by statutory enactment which had been not clearly followed, and by judicial interpretation thereof, which had misconstrued the original intention of law which had been made for protection of defend ants. So, we might cite other instances which arise from time to time where necessity requires revision. But there is also the "freak" class of legislation, such as regulation of the length of sheets on beds; or where a fire occurs within 3 miles of a railroad, and the burden of proof is shifted to the railroad to disprove that it was responsible for the fire; or defining the word "sausage;" or making it a criminal offense to peep in one's window. These make a mockery of law, and are a travesty on justice and common sense. The inspiration for this appears to be, that every member of a lawmaking body believes himself endowed from on High, with a mission to revise the law, and he gathers from every quarter suggestions for change. These he hastily drafts, and seldom submits to a legislative reference bureau (which could properly draft his act, or discard it as unnecessary). Then it is just as carelessly introduced, referred to committee, reported back to the legislative body, and enacted into law. Sometimes an alert member will discover the ridiculous nature of the act, and it dies quietly by the roadside. Again, an efficient attorney general will ferret out this unnecessary legislation, and see that the governor vetoes it. But too much of "gallery playing" legislation has passed through our legislative bodies. If some discerning and ambitious legislator would carefully scan the archives. of legislation and segregate the unnecessary, improvident, and ridiculous statutes from the records, and have them repealed, he would confer a great blessing on humanity in every state in the Union. Civil law and penal law should, therefore, be brought up to a status of fairness, equity, and necessity required by modern conditions, and all other attempts at statutory revision (for the present at least) should be prohibited. It is hoped, therefore, that the pending sessions of Congress and of the many legislatures will find the members imbued with a true patriotism and an unselfish desire to place the laws of the Union and states on such a plane that there shall be no criticism such as has been leveled at modern legislation in the past few decades. Edivin M. Abbott. |