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

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 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, and the only way of ascertaining to which class a given bill belongs is by looking to see whether the names on the back of it are those of ordinary private members or of the official servants of the Crown.' Practically there is

1 If a private member after bringing in a bill accepts office under the Crown, custom requires that he should either induce his colleagues

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 a half or more 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. A private member has not these advantages: but if he is wise he submits his bill before it is printed to three or four judicious friends, profits by their criticism, and obtains a promise of their support.

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

to take it up, in which case it becomes a government bill, or else relinquish the charge of it to some private member.

their own bills; those who are not generally employ a barrister. The drafting of government bills has much improved of late years, and the faults of form observable in British Acts are chiefly due to amendments made in committee of the whole House, which are often prepared and inserted in a hurry.

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, and often fully debated, first in committee of the Whole, and then by the House on the stage of report (i.e. report from committee of the Whole to the House). Latterly such bills have begun to be 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 these committees replaces the discussion in committee of the Whole; but the bills come before the House on report for further debate. Many bills, however, never go before select or grand committees, but are dealt with by the House itself in the two last-mentioned stages. 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. Members often receive from persons previously unknown to them suggestions regarding pending measures.

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. Private members are generally alert in watching one another's bills; and the rules of the House of Commons enable them to defeat a measure by objecting to its progress at certain hours.

1 Now and then a bill passes which sensible men of both parties disapprove, because its advocates are more strenuous than its opponents, and the notion that some popular sentiment favours it deters either party from resistance.