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been referred as a matter of course. “Not having been discussed, much less affirmed in principle, by the House, a bill comes before its committee with no presumption in its favor, but rather as a shivering ghost stands before Minos in the nether world. It is one of many, and for the most a sad fate is reserved."
“A committee have technically no right to initiate a bill, but as they can either transform one referred to them, or, if none has been referred which touches the subject they seek to deal with, can procure one to be brought in and referred to them, their command of their own province is unbounded. Hence the character of all the measures that may be passed or even considered by the House upon a particular branch of legislation, depends on the composition of the committee concerned with that branch."
“ It is through these committees chiefly that the executive and legislative branches of government touch one another. Yet the contact, although the most important thing in a government, is the thing which the nation least notices, and has the scantiest means of watching."
“As on an average each committee (excluding the two or three great ones) has only two hours out of the whole ten months of Congress allotted to it to present and have discussed all its bills, it is plain that few measures can be considered, and each but shortly, in the House.”
“What are the results of this system ! It destroys the unity of the House as a legislative body. Since the practical work of shaping legislation is done in the committees, the interest of members centres there, and they care less about the proceedings of the whole body. It is as a committee-man that a member does his real work. In fact the House has become not so much a legislative assembly as a huge panel from which committees are selected."
The ever increasing number of members has probably made this condition of things necessarily permanent. The work is done in committee, because it has become physically impossible to do it anywhere else. There measures can be discussed, and both sides heard. But few members of the House know what measures have been passed or acted upon, at any sitting, until they read it in the next day's newspapers. The chairmen of the leading committees and the Speaker keep the run
of the main business to be transacted: the Speaker as a sort of despot, recognizing whom he will, and the chairmen as “practically a second set of ministers before whom the Departments tremble, and who, though they can neither appoint nor dismiss a post-master or a tide-waiter, can by legislation determine the policy of the branch of administration which they oversee.”
In the chapter on “Congressional Legislation,” some of the defects in our mode of framing and bringing forward bills are frankly criticised. Our Congress is not to be classed as one of the “governing Parliaments, such as those of England, France, and Italy.” The Executive with us is still left to govern, and Congress is only to enact the laws for him to administer through a ministry of his own liking. In the House of Commons, as the leader really is the executive power of the empire, and is continually fighing for his crown, he must exercise peculiar care as to the choice and form of the measure for which he is content to be responsible. “The ministry dispose of a half or more of the working time of the House.” “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 officers."
So far as concerns their actual wording “government bills are prepared by the official government draftsmen, two eminent lawyers with several assistants, who constitute an office for this purpose."
But the ministry does not discharge its duty by taking care that its own bills are right, or that those aimed against them by the opposition are defeated. “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 any 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.”
This function of the British ministry Americans are content to leave to public opinion, that is, to the daily newspapers. But the newspaper is better at criticizing a policy, than the terms in which it is expressed. The form of congressional and of all American legislation, is therefore slovenly in the extreme, as compared with that of most other countries.
An Act of great importance was passed on the last day of the Forty-ninth Congress, to alter the jurisdiction of the Courts of the United States, in which the word controversy was spelled controversary in four separate places, and which contained the following remarkable patchwork of a sentence, among several others hardly less obscure: “Nor shall any circuit or district court have cognizance of any suit except upon foreign bills of exchange, to recover the contents of any promissory note or other chose in action in favor of any assignee, or of any subsequent holder of such instrument be payable to bearer, and be not made by any corporation, unless," etc., etc. Here the courts eventually decided to read of after the word holder, as meant for if ; but no judicial construction could hide or better the involved phraseology by which suits against corporations on their commercial paper were left unaffected by the Act, doubtless by an amendment hurriedly drafted and adopted on the spur of the moment. Mr. Bryce says that our system of committees is “really a plan for legislating by a number of commissions,” in that their reports are of such a kind as seem “designed to make amendment in details needless, while leaving the general policy to be accepted or rejected by a simple vote of the whole body. In this last respect the plan may be compared with that of the Romans during the Republic, whose general assembly of the people approved or disapproved of a bill as a whole, without power of amendment, a plan which had the advantage of making laws clear and simple.” Perhaps it would be better if the recommendations of our committees were held more sacred, for many of the worst features of our laws have crept in by amendments, thrust upon a bill, without the consent of the committee, and perhaps accepted by the chairman on but a moment's consideration as the price of carrying it, because he knows that discussion would bring a delay, which means defeat. In one of our appropriation bills, a few years ago, for instance, in connection with an appropriation for lighthouses, came a provision that all bridges over navigable rivers shall be lighted by their owners in a certain way. It is safe to assume that this bill never left the committee room in that shape, but was amended on its passage by the effort of some member who had or whose constituents had a grievance which could not so easily be redressed in any other way.
The form of a bill to be reported is also often left by the committee to the discretion of the chairman, and he brings up for adoption as their work what is really his own.
The writer of this Article, a few years ago, happened to be, as a spectator, on the floor of one of the chambers of the legislature of his State, when the chairman of an important committee handed him a bill designed to remedy a certain defect in the existing statutes, and asked if he would not try to put it into better shape. This was hastily done after a few minutes consideration, and immediately afterwards the bill was reported to the house, as recommended by the committee, and passed without discussion.
What has been said thus far applies mainly to public laws, but as to private bills the contrast between English and American methods is still more sharp.
Professor Bryce discusses it at length in connection with the working of our State governments. Special bills for the special benefit of some private interest or locality make up by far the larger part of American legislation. “They are one of the scandals of the country.”
The tendencies of our more recent State Constitutions is to limit their field within narrower and narrower bounds. But to a certain extent they will always be necessary, and no American legislature has yet made adequate provision for guarding itself against too great facility in granting them.
For forty years England has treated them less as legislation than as a kind of semi-judicial relief, to be granted only on a petition and trial. No private or local bill is heard unless it was filed in the private bills office sixty days before the opening of the session. Notice must be given to all adversely interested, and considerable payments, averaging not less than two
hundred pounds, made to reimburse the government for the scrutiny with which they examine the proposition. There are special parliamentary agents whose profession it is to promote private bills.
Something of this nature was formerly the practice in New England. The legislature was deemed also to be a court to grant relief whenever the ordinary tribunals were withont jurisdiction. A petition accompanied by a writ and served by the sheriff, summoned the adverse parties to the capital on a set day during the session, and costs were taxed against the losing party, and collected on execution. The shadow of these forms still continues in some of them, but is yearly growing thinner.
The American Bar Association a few years ago instructed its Committee on Jurisprudence to inquire into this subject, and their report contains the following reference to the character and dangers of private bills:
“ These constitute the bulk of our legislation. Though designed to serve some private or local interest, each of them necessarily takes something away from the public, some appropriation, immunity or special privilege.
“Their number is steadily increasing, and the intended checks in our more recent State Constitutions have but partially availed against the ingenuity of our profession. Three thousand more bills were introduced at the last session of Congress than at the corresponding session of the preceding Congress. Eleven hundred statutes were enacted, of which five-sixths were private laws. The President of the United States has felt called upon to give to many of these measures a closer scrutiny than has been usually demanded of his predecessors, and but for his repeated vetoes there would have been a hundred more.
It is a wasteful, perhaps almost an unrepublican method of government, to burden the chief executive with a minute supervision of all special legislation. There are others who can do it as well, or better, and whose time is of less value to the public. There are treasury offcials who should know better how to guard the treasury. There are some private interests likely to oppose, if they had the opportunity, whatever bills other private interests may be concerned in promoting.*
The measure of protection recommended was the creation in every State of a committee of revision to put all bills into proper legal form, having due reference to the existing law, before they can come up for final passage, and a trial of the
* Reports of Am. Bar Association, vol. ix, page 282.