uiunmiiUiHUliitiSlilillMliiliili 
 
 METHODS OF LEGISLATION 
 
 SIR COURTENAY ILBERT. 
 
 [Hi 
 II 
 
 UNIVERSITY OF LONDON PRESS 
 
 
METHODS OF LEGISLATION 
 
lHnf\>er0fts of Xonfcon 
 of laws) 
 
 METHODS 
 OF LEGISLATION 
 
 A LECTURE DELIVERED BEFORE THE 
 UNIVERSITY OF LONDON ON 
 OCTOBER 2 
 
 BY 
 
 SIR COURTENAY ILBERT 
 
 G.C.B. 
 
 llniversitg of 'JLonDcn prea0 
 
 PUBLISHED FOR THE UNIVERSITY OF LONDON PRESS, 
 BY HODDER & STOUGHTON, WARWICK SQUARE,. E.C. 
 1912 
 
HODDER AND STOUGHTON 
 PUBLISHERS TO 
 
 THE UNIVERSITY OF LONDON PRESS 
 
METHODS OF LEGISLATION 
 
 I HAVE undertaken to discourse to you 
 on methods of legislation, or, if you prefer 
 the phrase, the mechanics of law-making. 
 Perhaps I ought to apologize to you for 
 having selected so dry a subject, for the 
 branch of law with which I have to deal 
 is not that which is most attractive or 
 important to the ordinary lawyer. I do 
 not propose to touch on the origin and 
 development of those great principles of 
 law and equity which are based on the 
 ways, the usages, the understandings of 
 the people or of different classes of the 
 
 284218 
 
6 METHODS OF LEGISLATION 
 
 community, and which have been formu- 
 lated by successive generations of great 
 judges and learned jurists. What I have to 
 deal with is the law which is enacted by the 
 legislature, including the rules made by 
 persons or bodies deriving their authority 
 from the legislature, but not what is some- 
 times called judge-made law, that is to say 
 the interpretation, development and appli- 
 cation of common law or enacted law. It 
 is with the making, and not with the 
 interpretation, of enacted law that I am 
 concerned. 
 
 And the questions which I want you to 
 consider are how these enacted laws are in 
 fact made in civilized countries, what 
 different methods of making them are 
 adopted, what advantages may be claimed 
 for the several methods, and what are their 
 defects a large subject, and I must con- 
 
METHODS OF LEGISLATION 7 
 
 tent myself with touching superficially on 
 some of its more important aspects. 
 
 But the task of survey and comparison 
 is materially facilitated by two things. The 
 first is, that there is an agreement among 
 all civilized nations as to the general prin- 
 ciples on which legislative procedure should 
 be founded. A modern law is not brought 
 down from Sinai, or imposed by the will of 
 an irresponsible despot. Every important 
 law must, before it takes its final shape, be 
 submitted to the scrutiny and criticism of, 
 and be liable to amendment and rejection 
 by, a popular assembly elected for that pur- 
 pose. The extent to which this process of 
 scrutiny, criticism and amendment is 
 applied, and the methods by which it is 
 applied, differ according to the nature of 
 the subject-matter, and the procedure, 
 habits and idiosyncrasies of the legislature. 
 
8 METHODS OF LEGISLATION 
 
 The subject of a law may be so technical, 
 and popular confidence in the skill, care 
 and ability of those who prepared it may 
 be so great, that it passes through the 
 legislature practically without criticism or 
 alteration. Some of the great codifying 
 measures of recent times have had this 
 good fortune, though it must be remem- 
 bered that the German Civil Code, perhaps 
 the greatest, and certainly one of the most 
 carefully prepared, of all these measures, 
 underwent not only effective criticism, but 
 substantial alteration, in its passage through 
 the German Reichstag. On the other hand, 
 a measure proposing important adminis- 
 trative or fiscal changes, restricting or 
 regulating the freedom of action of any 
 class of the community, or materially affect- 
 ing their economic condition, ought to 
 undergo, and is pretty certain to undergo, 
 
METHODS OF LEGISLATION 9 
 
 severe scrutiny by the representatives of 
 the people. But liability to this scrutiny 
 exists in all cases, and one of the most 
 difficult of the problems of modern legisla- 
 tion is how to reconcile the right of criti- 
 cism and amendment which is properly 
 claimed by a popular legislative assembly 
 with the precision of language, the elegance 
 and symmetry of form, which are the char- 
 acteristics of a good law. 
 
 General agreement as to the broad prin- 
 ciples by which legislative procedure should 
 be guided is, then, one of the things which 
 facilitate comparison. Another is that both 
 the constitution and the procedure of all 
 modern legislatures, with a very few ex- 
 ceptions, may be traced back to a single 
 prototype, the Parliament which sits at 
 Westminster. 
 
 Upon the relations of affiliation borne 
 
10 METHODS OF LEGISLATION 
 
 to the constitution of the British Parlia- 
 ment by the constitution of the American 
 Congress and of the legislature in the 
 British dominions it is unnecessary to 
 dwell. And it is a commonplace of history 
 that when the constitutions of European 
 countries were being refashioned after the 
 subsidence of the Napoleonic deluge in 
 1815 the British Parliament, with its 
 two houses, was generally adopted as a 
 pattern. 
 
 As regards parliamentary procedure you 
 all know that in every self-governing 
 dominion of the British Empire the instru- 
 ment of constitution always contains a pro- 
 vision that the procedure of the legislature 
 is, in the absence of specific direction, to 
 be in accordance with parliamentary pro- 
 cedure in England, and that the standing 
 orders are based on those in force at West- 
 
METHODS OF LEGISLATION 11 
 
 minster and on the procedure described in 
 Erskine May's great treatise. 1 But about 
 the relation between parliamentary pro- 
 cedure in England and in foreign countries 
 it may be worth while to say a little more. 
 First, as to the United States at the end of 
 the eighteenth century. Thomas Jefferson, 
 when Vice-President of the United States, 
 and therefore President of the Senate, com- 
 piled for the use of the Senate a manual of 
 procedure which was based on the practice, 
 rulings and precedents of the English 
 Parliament. Since then the procedure of 
 both branches of Congress has been largely 
 modified by subsequent orders, rulings and 
 
 1 The procedure of the Canadian House of Com- 
 mons at Ottawa follows very closely that of the 
 House of Commons at Westminster. But there are 
 some racy touches of the vernacular. A member who 
 objects to the second reading of a Bill does not move 
 that it be read a second time that day six months. He 
 moves that it be " given a six months' hoist." 
 
12 METHODS OF LEGISLATION 
 
 precedents, but Jefferson's manual is still 
 to be found embedded as a kernel in the 
 stout volume which answers more or less 
 to the English " May," and several curious 
 traces of English eighteenth-century pro- 
 cedure still survive at Washington. For 
 instance, the procedure at conferences on 
 subjects of difference between the Senate 
 and the House of Representatives may 
 be traced back to the rules which once 
 regulated the conferences, now obsolete, 
 between Lords and Commons at West- 
 minster, though it need hardly be said 
 that at these conferences senators do not 
 sit in little cocked hats whilst members of 
 the other House stand bareheaded. 
 
 On the historical relation between 
 English and French parliamentary pro- 
 cedure I should like to quote the accounts 
 given by two men, each of whom was 
 
METHODS OF LEGISLATION 13 
 
 entitled to speak with high authority. You 
 are probably familiar with the name of 
 Etienne Dumont, the citizen of Geneva 
 who was the friend of Romilly and the 
 interpreter of Bentham. At the outbreak 
 of the French Revolution in 1789, Dumont 
 was in Paris, and was in close and intimate 
 relations with Mirabeau. No one was a 
 greater adept at picking other men's brains 
 than that unprincipled genius, and Dumont 
 was largely employed by him in writing 
 his speeches, and composing the literature 
 which he scattered broadcast, and generally 
 in helping him in his work with the 
 National Assembly. In fact, he devilled 
 for Mirabeau on an extensive scale. One 
 of the first things required was to devise 
 some kind of procedure for that new- 
 born and unorganized body, the National 
 Assembly, and this is what Dumont, in 
 
14 METHODS OF LEGISLATION 
 
 his Souvenirs sur Mirabeau, tells us about 
 the proposals on this subject 
 
 " Romilly," he says, " had done a very 
 interesting piece of work on the rules 
 observed by the House of Commons in 
 England. These rules are the fruit of 
 reasoned experience, and the more they are 
 examined the more they are admired. They 
 are customs carefully preserved in a body 
 very averse to innovations. They are not 
 reduced to writing; to state them requires 
 great care and great trouble. Romilly's 
 little code indicated the best way of putting 
 questions, of preparing motions, of debat- 
 ing them, of taking votes, of appointing 
 committees, of passing business through its 
 various stages, in a word, all the tactics of 
 a political assembly. I had translated this 
 treatise at the beginning of the States 
 General. Mirabeau presented it to the 
 
METHODS OF LEGISLATION 15 
 
 House and laid it on the table when there 
 was a proposal to draw up rules of pro- 
 cedure for the National Assembly. ' We 
 are not English, and we don't want any- 
 thing English.' This was the reply made 
 to him." 
 
 So far Dumont. Now let us hear what 
 was said about the same subject many years 
 afterwards by a great French statesman. In 
 the summer of 1848 Guizot was in Eng- 
 land, having been driven from France by 
 the Revolution of February. In that 
 summer a select committee of the House 
 of Commons was sitting to consider the 
 public business of the House, and on the 
 3 ist of July Guizot was called to give 
 evidence before it. Evelyn Denison, after- 
 wards Speaker, was in the chair, and the 
 first question a very leading question 
 which he put to Guizot, was this : " Were 
 
16 METHODS OF LEGISLATION 
 
 the rules and orders of the French Chamber 
 originally very nearly the same as those of 
 the House of Commons? " 
 
 Guizot's answer was : " Yes. In the 
 beginning of our constituent assembly at 
 the Revolution, Mirabeau asked fitienne 
 Dumont to give him a sketch of the pro- 
 ceedings of the English House of Com- 
 mons, and Etienne Dumont gave to 
 Mirabeau such a sketch, which is printed 
 in a work called The Tactics of Political 
 Assemblies, and the sketch of Etienne 
 Dumont became the model of the first rules 
 of our National Assembly. So that in the 
 beginning of our Revolution the proceed- 
 ings of your House of Commons became 
 the source of ours. In 1814, when the 
 charter was granted by the King " [Louis 
 XVIII] "the same rules were adopted, 
 with some changes." 
 
METHODS OF LEGISLATION 17 
 
 You will see that the two accounts do 
 not quite tally. Dumont's requires some 
 supplementing; Guizot's a little correction. 
 What really happened seems to have been 
 this. The treatise prepared by Romilly, 
 and translated by Dumont, was published 
 as a pamphlet, and was subsequently 
 absorbed into and incorporated in a larger 
 work which was inspired by Bentham, and 
 based upon his notes, but was written by 
 Dumont, and given by him to the world 
 in 1815 under the title of La tactique des 
 assemblies legislatives. This work, of 
 which a second edition appeared in 1822, 
 exercised a very great influence on states- 
 men and on political writers and thinkers, 
 not only in France but in other parts of 
 Europe, and much use was made of the 
 information and suggestions which it con- 
 tained in framing the rules of procedure 
 
18 METHODS OF LEGISLATION 
 
 for the European legislatures which came 
 into existence in the first half of the last 
 century. 1 It is to be found in its English 
 form, under the title of an Essay on 
 Political Tactics, in the second volume of 
 Bentham's collected works. 
 
 Have I gone too much into detail on 
 this subject? If so, my excuses are two. 
 First, it is always interesting to trace the 
 historical relation between the political and 
 administrative institutions of different 
 countries, and to show, as Miss Bateson 
 and others have shown in the case of 
 municipal charters, the cases in which, and 
 the steps by which, they can be traced to a 
 common model, such as the charter granted 
 to the Norman town of Breteuil. And 
 secondly, in a place where Bentham's 
 
 1 See Redlich : Procedure of the House oj Commons, 
 III., 180-183. 
 
METHODS OF LEGISLATION 19 
 
 memory is deservedly held in special 
 veneration, it is appropriate to illustrate 
 the enormous influence which he exercised 
 both over the form and over the subject- 
 matter of legislation. 
 
 And now, having cleared the ground, let 
 me say something about the successive 
 stages through which a legislative measure 
 has to pass before it takes effect as law. 
 We may distinguish four of these stages. 
 i. The preparation of the measure. 2. Its 
 passage through the legislature. 3. Its 
 formal enactment. 4. Its publication. 
 
 On the enormous importance of having 
 the draft of a measure carefully prepared 
 before its submission to a popular legisla- 
 ture, it is unnecessary to dwell. Yet this 
 importance is still imperfectly realized in 
 some civilized countries, and the machinery 
 required for the preparation of drafts which 
 
 B 2 
 
20 METHODS OF LEGISLATION 
 
 are intended to become laws is defective or 
 imperfect. In our own country the office 
 of the parliamentary counsel which is 
 responsible for the preparation of govern- 
 ment bills dates from 1869. About the 
 quality of the work done by an office with 
 which I was for many years closely con- 
 nected it would be unbecoming for me to 
 say much. All that I need say is that the 
 work of the office is exceptionally difficult 
 and laborious, that it is done under trying 
 and exhausting conditions, and that, 
 although it is subjected, and properly 
 subjected, to stringent criticism, it has, in 
 the opinion of competent judges, accom- 
 plished much in improving the form of 
 our statute law. The office is responsible 
 only for government bills, and for such 
 alterations in bills introduced by private 
 members as are required by the govern- 
 ment as conditions for the grant of facilities 
 
METHODS OF LEGISLATION 21 
 
 in their passage through the legislature. In 
 the number of public bills which succeed 
 in becoming law the proportion of private 
 members' bills is, as is well known, very 
 small, and there are some who regret the 
 small and probably decreasing share taken 
 by the private member in the initiation of 
 measures which are destined to find their 
 place on the Statute-book. I do not myself 
 share that regret. It is for the interest of 
 the public that the laws by which they are 
 to be governed should be carefully pre- 
 pared, and, though no one would think of 
 proposing to reserve to the government the 
 right of introducing bills, yet it would be 
 impossible to place at the disposal of every 
 private member the services of the trained 
 and skilled staff who assist the government 
 in the preparation of their bills. Of the 
 large number of bills introduced in each 
 session by private members, very few can 
 
22 METHODS OF LEGISLATION 
 
 hope to profit by the priority given by the 
 ballot on the days reserved for their bills, 
 or to escape the opposition of a single 
 member which is fatal to the chances of 
 slipping through during the time for 
 unopposed business. But they are of great 
 value in suggesting and pressing upon the 
 attention of the legislature and the govern- 
 ment proposals for improvement of the 
 law. The suggestions are often in a crude 
 form, but if their principles find favour, 
 they frequently supply materials which 
 form the basis of useful legislation. 
 
 About the machinery for the preparation 
 of legislative measures in British domi- 
 nions, colonies and dependencies much 
 valuable information was collected some 
 years ago, in response to inquiries circulated 
 by the Colonial Office at the instance of the 
 Society of Comparative Legislation, and 
 
METHODS OF LEGISLATION 28 
 
 the answers were published in the journals 
 of the Society, and summarized in my own 
 book on Legislative Methods and Forms. 
 The legislative department of the govern- 
 ment of India was established in the same 
 year (1869) as tne ffi ce of tne parlia- 
 mentary counsel in England, and per- 
 forms similar work. The methods adopted 
 in the self-governing dominions are 
 various. In some of them there are official 
 draftsmen, usually working under the 
 Attorney-General or attached to his depart- 
 ment. In Canada each house has a law 
 clerk, who acts as a legislative draftsman. 
 The law clerk of the senate is appointed 
 by that body. The law clerk of the lower 
 House, in which the great majority of 
 measures are introduced, is appointed by 
 the Speaker. But he is also law clerk of 
 the government, and therefore acts in a 
 
24 METHODS OF LEGISLATION 
 
 dual capacity, as an officer of the House and 
 as an officer of the executive government. 
 The great self-governing dominions are, 
 of course, responsible both for the form 
 and for the substance of their legislation, 
 but over the legislation of the Crown 
 colonies a good deal of supervision is 
 exercised by the Colonial Office. 
 
 But, after all, this apparatus of drafts- 
 men is mere machinery. Good machinery 
 is indispensable, but the best machinery is 
 useless unless it is properly worked. What 
 is required for the preparation of a good 
 law is the bestowal upon it of all the time 
 and all the brain-labour available, especially 
 during the period of gestation, the period 
 before its introduction to the legislature. 
 Those who are responsible for the bestowal 
 of such time and labour are, not the drafts- 
 man, who is a mere instrument, though he 
 
METHODS OF LEGISLATION 25 
 
 must be a capable and intelligent instru- 
 ment, but the ministers or others who 
 introduce the measure and have to guide 
 it through the House. And unless they 
 perform these duties, the labour of the 
 draftsman is but in vain. 
 
 About the methods adopted for the 
 preparation of legislative measures in 
 foreign countries my information is more 
 scanty. In the United States the strict 
 separation between the legislature and the 
 executive makes it impossible to adopt the 
 system under which official draftsmen of 
 the government act in the United Kingdom 
 and in other parts of the British Empire. 
 There are no government bills, and there 
 is no direct responsibility on the part of 
 the government for the preparation, intro- 
 duction or passage of bills. Every bill is 
 a private member's bill, and their number 
 
26 METHODS OF LEGISLATION 
 
 is legion. In the sixtieth Congress at 
 Washington 44,500 bills and resolutions in 
 the nature of bills were introduced. But 
 the rate of mortality among them approxi- 
 mates to that among the infant codfish. 
 The vast majority of them perish in the 
 committees to which they are consigned, 
 and their death does not appear to be much 
 regretted. Some proposals have been put 
 forward, and some attempts, about which 
 I should like to know more, have, I believe, 
 been made in Congress and in some of the 
 State legislatures to systematize and im- 
 prove the method of drafting bills. In 
 some of the States the Governor exercises 
 pretty freely his right of veto to kill bills 
 which are faulty in form or substance, and 
 thus exercises an indirect and negative 
 control over legislation. And perhaps the 
 most hopeful direction in which reform 
 
METHODS OF LEGISLATION 27 
 
 of the existing system could move would 
 be to employ an official draftsman or staff 
 of draftsmen who should, as in Canada, act 
 under the authority both of the legislature 
 and of the executive government. But it 
 would be presumptuous for me to offer 
 suggestions on this subject. All I can say 
 is that absence of responsibility for the 
 preparation of legislative measures, and 
 absence of security for their conformity to 
 general principles and their consistency 
 with each other, are among the chief defects 
 noted by competent critics in American 
 legislative procedure. 
 
 In France the right of initiating legisla- 
 tion belongs to every member of the legis- 
 lature, but a distinction is drawn between 
 government bills, which are called pro jets 
 de lots, and private members' bills, which 
 are called propositions de lois, and there is 
 
28 METHODS OF LEGISLATION 
 
 some difference between the formalities of 
 introduction and procedure in the two 
 classes. Before the establishment of the 
 Third Republic, and especially under the 
 Consulate and the First and Second 
 Empires, the Council of State played the 
 most important part in the preparation and 
 passage of laws. The Council of State, 
 acting through a legislative committee, 
 made all the laws of the Consulate and the 
 First Empire, including the great 
 Napoleonic Codes. Under the constitution 
 of 1852, that of the Second Empire, the 
 Council superseded the ministers in the 
 task of preparing bills and practically 
 superseded the legislative assembly in the 
 task of examining them. The powers of 
 that assembly were slightly enlarged in 
 1 86 1, but practically it remained under 
 the tutelage of the Council of State 
 
METHODS OF LEGISLATION 29 
 
 during the whole of the Second Empire. 
 The Third Republic changed all this 
 and closely clipped the wings of the 
 Council of State. It is still the duty of the 
 Council to advise the government on any 
 legislative proposal submitted to it. But 
 there is no obligation to consult the 
 Council, and the form and progress of a 
 legislative measure are in no way dependent 
 on its approval. 
 
 In the German Empire the Reichstag 
 has theoretically the right of initiating 
 legislation, but, as I am informed, by far 
 the larger part of the statutes which it 
 passes are prepared and first discussed by 
 the Bundesrath. They are then sent to 
 the Reichstag, and, if passed by that body, 
 are again submitted to the Bundesrath for 
 approval before they are promulgated by 
 the Emperor. 
 
30 METHODS OF LEGISLATION 
 
 The German Empire makes great use of 
 expert commissions, such as that which 
 elaborated its great civil code, and it has 
 very competent lawyers upon or attached 
 to its official staff. And I am reminded 
 by Dr. Schuster, in an interesting article 
 which he contributed to a recent number 
 of the Journal of the Society of Compar- 
 ative Legislation, that the text of bills of 
 such magnitude as the bill for consolidating 
 the insurance laws which was then before 
 the German legislature is generally " pub- 
 lished a long time sometimes several 
 years before the discussion in Parliament 
 begins, so as to give the government an 
 opportunity to introduce such modifications 
 as may seem appropriate after full con- 
 sideration of the results of public discus- 
 sion." But I must frankly confess that 1 
 am in much ignorance about the methods 
 
METHODS OF LEGISLATION 31 
 
 actually adopted for the preparation of 
 legislative measures, especially of those 
 for which the government are responsible, 
 whether in France, Germany or elsewhere 
 in Europe, and I should be very grateful 
 for enlightenment on the subject. Infor- 
 mation about it could doubtless be obtained 
 by personal inquiry on the part of any one 
 who knew what to ask and where to ask, 
 and, like the practice of government 
 departments in England, it is a subject 
 about which more can be learnt by such 
 inquiry than by consulting text-books. It 
 may very well be that somebody has 
 embodied in a text-book the kind of 
 information which I desiderate, but, if so, 
 I have not come across it. 1 
 
 However a statute is prepared, if it 
 deal with a large subject, it is, and must 
 1 See Appendix. 
 
32 METHODS OF LEGISLATION 
 
 be, in its ultimate shape, the product of 
 many minds. There is a delightful chapter 
 in a delightful book which some of you 
 may have read, Professor Gilbert Murray's 
 Rise of the Greek Epic, in which the 
 author, for the purpose of supporting his 
 theory of the composition of the Iliad, 
 dwells on the difference between an ancient 
 book and a modern book, and describes 
 how an ancient book was worked over, 
 modified, amplified by a succession of 
 writers all belonging to the same school, 
 each merging his individuality in that 
 school. It is a far cry from the Iliad to 
 the English Statute-book, and the last 
 thing to which one would compare a 
 modern statute is an early Greek epic. But 
 they have one feature in common, that of 
 impersonality of authorship. We some- 
 times speak of a learned lawyer, such as 
 
METHODS OF LEGISLATION 33 
 
 the great conveyancer, Brodie, 1 as having 
 " penned " a particular statute, but most 
 laws, at least those of a comprehensive 
 nature, cannot be assigned to any particular 
 author, and the task of the draftsman, his 
 modest but difficult task, is to work into 
 intelligible and consistent shape materials 
 accumulated during a long course of ex- 
 perience and suggestions gathered from 
 many quarters, and to embody in his draft, 
 as best he may, alterations made in the 
 course of its passage into law. A little 
 while ago I was looking at an important 
 bill, which I hope will become law before 
 the end of the present session, 2 the bill to 
 consolidate with amendments the law of 
 copyright, and I thought that I recognized 
 
 1 I take this opportunity of correcting a slip in my 
 book on Legislative Methods and Forms. On p. 80, 
 Christie ' should be < Brodie/ 
 
 2 It has since become law. 
 
 c 
 
34 METHODS OF LEGISLATION 
 
 in it some phrases and turns of expression 
 which struck me as familiar. And then I 
 remembered that as long ago as 1879, 
 before I went to India, I had prepared a 
 comprehensive Copyright Bill for the 
 government, working, of course, upon the 
 basis of pre-existing acts and drafts. Since 
 then copyright has been the subject of 
 international conferences and conventions, 
 of discussions with the governments of 
 foreign countries and of British self- 
 governing dominions, of commissions and 
 departmental committees, and the bill of 
 1879 nas keen altered out of knowledge 
 and vastly improved. But some traces of 
 it still remain. This, or something like 
 this, is the history of the early stages of 
 many important legislative measures. 
 
 Let us turn from the preparation of bills 
 outside the legislature to the passage of 
 
METHODS OF LEGISLATION 35 
 
 bills through the legislature. A decisive 
 step in the history of English legislation 
 was the transition from legislation on peti- 
 tion to legislation by bill. In the earliest 
 ages of Parliament the House of Commons 
 I speak of that House because the other 
 House still retained the character of the 
 King's Council was not a legislating body 
 but a petitioning body. It presented 
 petitions for the redress of grievances, by 
 legislation or otherwise. The Commons 
 petitioned for a law, they did not make the 
 law. Later on they claimed an authori- 
 tative share in the making of laws, and the 
 change is reflected in successive alterations 
 of the enacting formula. Then they went 
 a step further and dictated the terms in 
 which the law for which they asked was 
 to be made. They presented a bill in the 
 form of an act or statute, and said, " This, 
 
 c 2 
 
36 METHODS OF LEGISLATION 
 
 and no other, is the law which we want." 
 These two things, the assertion by Parlia- 
 ment of legislative authority, and the 
 substitution of bill for petition, altered the 
 relations between the two factors of 
 English legislature. What had been 
 legislation by the King with the approval 
 of Parliament, became legislation by Parlia- 
 ment with the approval of the King. The 
 Lancastrian kings surrendered a power 
 which the French kings retained, and 
 which even the most powerful of the Tudor 
 monarchs were unable to recover. 
 
 About the same time with these changes 
 began the practice of reading a bill three 
 times before it was passed. At what pre- 
 cise date it began, whence it was derived, 
 by whom or by what other procedure, if 
 any, it was suggested, is not known. It 
 began when the records of the two Houses 
 
METHODS OF LEGISLATION 37 
 
 were the rolls of Parliament, and these 
 rolls are defective evidence on matters of 
 procedure. We find it in existence when 
 the journals began to be kept under the 
 Tudors. At first the readings were, no 
 doubt, real readings, not mere stages of 
 procedure. And it became the practice that 
 the first reading should follow immediately, 
 and, as a matter of course, after introduc- 
 tion ; that on the second reading the general 
 principles of the measure should be con- 
 sidered, and, if necessary, debated; that 
 after second reading the bill should go to 
 committee for discussion, and, if necessary, 
 amendment of details; and that the bill as 
 reported back, after such consideration as 
 was necessary, should, if approved, be read 
 a third time. 
 
 This practice of three readings, with suit- 
 able intervals between them, found its way 
 
38 METHODS OF LEGISLATION 
 
 into other legislatures which took the 
 procedure of the English Parliament as 
 their model, but there underwent various 
 modifications. The chief differences arise 
 from the more or less extensive use made 
 of committees. The committees of the 
 English Parliament, as we find them in the 
 journals of the sixteenth century, were 
 small committees. A bill would be com- 
 mitted to one or two persons for con- 
 sideration and report. These persons were 
 called committees, with the accent on the 
 last syllable, as in the case of committees 
 in lunacy. Then larger committees were 
 appointed for the consideration of bills or 
 groups of bills. A committee would often 
 include " all the gentlemen of the long 
 robe," that is to say, all the lawyers who 
 were members of the House. It was not 
 always easy to secure attendance at these 
 committees, and it became the practice to 
 
METHODS OF LEGISLATION 39 
 
 invite any member who wished to attend. 
 Thus grew up the committees of the whole 
 House, which consisted, potentially, of all 
 the members of the House, but which con- 
 ducted their proceedings with greater 
 privacy and with less formality than at 
 sittings when the Speaker was in the chair. 
 But attendance at these committees was apt 
 to be scanty, and those who were qualified 
 to take part, and did take part, in their 
 discussions, as indeed in debates when the 
 Speaker was in the chair, were, compar- 
 atively speaking, very few. " It must be 
 observed at all times," says Bentham, " that 
 these assemblies " (the assemblies of the 
 House of Commons) " are rarely numer- 
 ous, that there are few habitual orators, 
 and that these almost always occupy the 
 same place.' * 1 This passage occurs in a 
 discussion of the comparative advantages 
 
 1 Essay on Political Tactics, Works, II. 322. 
 
40 METHODS OF LEGISLATION 
 
 of speaking from a tribune or rostrum and 
 from the member's ordinary place, and 
 probably refers to the House of Commons 
 as it existed towards the end of the eigh- 
 teenth or the beginning of the nineteenth 
 century. But it would have applied to the 
 House at a much later date. Last August 
 Mr. Lloyd George gave a concrete illustra- 
 tion of the difference which half a century 
 had made in the habits and proceedings of 
 the House of Commons by putting side by 
 side on the table of the House the slender 
 volume which recorded the divisions on 
 Mr. Gladstone's budget of 1861 and the 
 bulky tome recording the divisions on his 
 own budget of 1909. The growth of news- 
 papers, the advance of education, the enor- 
 mous increase in the number of those who 
 take an intelligent interest in the proceed- 
 ings of Parliament, the demand made on 
 
METHODS OF LEGISLATION 41 
 
 members for public speeches, the capacity 
 .for oratory and debate thus acquired, have 
 revolutionized the ways of the House. The 
 silent member, the member described by 
 Mr. Gladstone, who felt that he had ex- 
 hausted his duty if he made one speech 
 during the interval between two general 
 elections, has now become a rarity. But 
 multitude of orators and readiness of speech 
 at all times and on all topics do not con- 
 duce to the despatch of business; and 
 increase in the bulk of legislation, accom- 
 panied by increase in the number of those 
 who were anxious to discuss, capable of 
 discussing, and entitled to discuss principles 
 and details of legislative measures, made 
 some reform of legislative procedure 
 imperative. 
 
 The first remedy adopted for the con- 
 gestion of legislative business was the 
 
42 METHODS OF LEGISLATION 
 
 establishment of two large standing com- 
 mittees to which bills might, by order of 
 the House, be committed after second 
 reading instead of going to a committee of 
 the whole House. A step further in the 
 same direction was taken in 1907. Two 
 things were done. The number of standing 
 committees was doubled it is now four 
 and the presumption as to whether a bill 
 should go to a standing committee was 
 reversed. Under the old rules a bill did 
 not go to a standing committee except in 
 pursuance of a special order. Under the 
 new rules all bills, subject to a few excep- 
 tions, go to a standing committee, unless 
 the House orders otherwise. The system of 
 standing committees, both before and since 
 1907, has, on the whole, worked well. 
 Sometimes there is difficulty in securing 
 the attendance of a quorum for a bill 
 
METHODS OF LEGISLATION 43 
 
 which excites little interest; sometimes the 
 discussions on a bill which excites great 
 interest have been turbulent and protracted. 
 But as a rule the proceedings have been 
 quiet and businesslike. Common sense, 
 and the practice of companies and other 
 associations, suggest that the details of a 
 draft can be better discussed in a small 
 than in a large body, and room can usually 
 be found on every standing committee for 
 every member who is qualified by special 
 interest or knowledge to take part in its 
 proceedings. But when the discussions 
 raise important questions of general prin- 
 ciple, as they sometimes do, there is a 
 real difficulty in excluding these questions 
 from the consideration of the whole House, 
 and there is a tendency to meet that diffi- 
 culty by raising the questions again when 
 the bill as reported by the committee is 
 
44 METHODS OF LEGISLATION 
 
 considered by the House, a process which 
 involves tedious repetitions of previous 
 debates. The problem is how to reconcile 
 effective control by the House over matters 
 of principle with the delegation to a smaller 
 body of the duty of elaborating details, and 
 a very difficult problem it is. It has some- 
 times occurred to me that the general dis- 
 cussion of principles which takes place on 
 the second reading of a bill might be 
 supplemented by instructions laying down 
 for the guidance of the committee general 
 rules on particular points of importance, 
 and that thus the issues might be sifted 
 by distinguishing principles from details. 
 I believe that a suggestion to this effect 
 was once thrown out by Mr. Balfour, but 
 he doubtless felt, as we should feel, that 
 there is great risk of any such system, like 
 the old system of permissive instructions 
 
METHODS OF LEGISLATION 45 
 
 before it was crippled by rulings from the 
 chair, being utilized for purposes of ob- 
 struction, and thus tending to lengthen 
 proceedings for which the available time 
 of the House is even now quite inadequate. 
 
 No one pretends that the legislative pro- 
 cedure of Parliament, whether allowed to 
 run its normal length, or cut short by 
 application, more or less drastic, of the 
 closure, is satisfactory. But it must be 
 remembered that the problem of legislating 
 through the agency of a representative and 
 popular assembly, the necessity for which is 
 admitted by every free country, has 
 nowhere been satisfactorily solved, and I 
 doubt whether we can from the procedure 
 of other legislatures derive many useful 
 hints for our own. Still the comparison is 
 always instructive. 
 
 One of the chief differences, as I have 
 
46 METHODS OF LEGISLATION 
 
 said before, is in the use made of com- 
 mittees. The United States is the country 
 which seems to have carried the use of 
 committees to the furthest point, and 
 legislation by Congress is legislation by 
 committees of Congress. At the beginning 
 of each session the Speaker of the House 
 of Representatives appoints some fifty odd 
 standing committees on particular subjects, 
 taking care, by the selection of the chair- 
 man and the constitution of the committee, 
 that the political party to which he belongs 
 is sufficiently represented on each com- 
 mittee. 1 Every bill when introduced is 
 read formally both a first and a second 
 time, and, without previous discussion in 
 the House, goes to that committee to which, 
 in the opinion of the Speaker, its subject 
 
 1 This was the system under Speaker Cannon. It 
 has been somewhat modified since. 
 
METHODS OF LEGISLATION 47 
 
 properly belongs. And there it usually 
 remains. If it is fortunate enough to be 
 taken up for consideration by the com- 
 mittee and to emerge, and if, through the 
 favour of the rules committee which gives 
 special facilities for advancing bills in the 
 House, it comes up for debate there, the 
 debate is usually cut short by a very drastic 
 application of the closure. The discussions 
 in committee are private and unreported, 
 those in the House are brief and usually 
 perfunctory, and I believe that most 
 Americans would agree that the amount of 
 sifting which bills undergo in Congress, 
 and the amount of attention and criticism 
 which is brought to bear upon them both 
 inside and outside the legislature, are far 
 less than in the case of bills introduced into 
 the Parliament at Westminster. 
 Another difference lies in the greater or 
 
48 METHODS OF LEGISLATION 
 
 less use made of the power of the executive 
 government to supplement parliamentary 
 legislation by means of rules or orders 
 having the effect of law. All free countries 
 recognize the importance of maintaining 
 the principle that a distinction ought to be 
 drawn between the legislative, judicial and 
 executive functions of government, and 
 that these functions ought to be exercised 
 by separate bodies. But they differ very 
 much in the application of this principle. 
 The principle of separation of powers, as 
 it is sometimes called, was a leading tenet 
 in the political philosophy of the eighteenth 
 century, and is nowhere more emphatically 
 affirmed than in the constitution of the 
 United States, with results which are not 
 always conducive to good government. 
 There is always and everywhere a tend- 
 ency on the part of those responsible for 
 
METHODS OF LEGISLATION 49 
 
 the three great branches of government 
 respectively, to regard the others as rivals, 
 to fret at limitations on their own powers, 
 and to poach on the provinces of their 
 neighbours. And this tendency is increased 
 and accentuated if too hard and fast a line 
 is drawn between organs and functions 
 which ought to work in harmony with each 
 other, and the relations of which to each 
 other require the most delicate adjustment 
 for their proper working. One result of 
 denying to the legislature at Washington 
 the control which the legislature at West- 
 minster exercises over the executive, is that 
 Congress is always trying to regulate by 
 bill matters of detail which in this country 
 would be left, and in the opinion of most 
 of us would properly be left, to be regu- 
 lated by administrative action and adminis- 
 trative regulations. 
 
50 METHODS OF LEGISLATION 
 
 On the relations between the legislature 
 and the judiciary something was said to 
 you last year by Lord Shaw of Dunferm- 
 line, and I need not add to what was then 
 so eloquently and forcibly expressed. Nor 
 do I intend to touch to-day on another 
 important and difficult question about 
 which much has been said and written in 
 recent years, the proper relations between 
 the judiciary and the executive, the cases 
 in which and the extent to which the deci- 
 sion of points arising on the construction of 
 statutes or statutory rules may properly be 
 taken out of the jurisdiction of ordinary 
 courts of law and left to the decision of 
 administrative tribunals. It was on the 
 third of the debatable lands that I intended 
 to touch, the border line between legislative 
 and executive action. One day, not long 
 after the revolution of Brumaire, Napoleon 
 
METHODS OF LEGISLATION 51 
 
 Bonaparte was discussing with Roederer 
 the draft of the famous constitution of the 
 year VIII, the draft which emanated from 
 the brain of Sieves, which was so altered 
 by Bonaparte as to make it serve his own 
 purposes and defeat those of its author, and 
 under which Bonaparte became First and 
 Cambaceres Second Consul. " A constitu- 
 tion,' > said Bonaparte, " should be short 
 
 and " " Clear, 5 ' interposed Roederer. 
 
 " A constitution," repeated Bonaparte with 
 emphasis and without appearing to notice 
 the interruption, "A constitution should 
 be short and obscure." 1 The constitution 
 
 1 I took this story from Vandal, ISAvencment de 
 Bonaparte^ I. 526, where Roederer, III. 428, is quoted 
 as the authority. But I have since discovered that 
 Dr. Holland Rose (Life of Napoleon, I. 349), quot- 
 ing the same authority, describes the conversation as 
 having taken place, not with Napoleon but with 
 Talleyrand, and as referring, not to the constitution of 
 the year VIII, but to the constitution of the Cisalpine 
 
 D 2 
 
52 METHODS OF LEGISLATION 
 
 as finally drafted left many points to be 
 worked out in practice, and was perhaps 
 none the worse for that. Under it, you 
 will remember, the Council of State was 
 charged with the duty of framing laws, the 
 tribunes with the duty of discussing and 
 criticizing the draft of a law, the legislature 
 with the duty of deciding by vote, but 
 without debate, whether it should or should 
 not become a law. " But what is a law ? " 
 Bonaparte asked Cambaceres, in the early 
 days of the constitution. " What must be 
 settled by law, and how much can we, the 
 
 Republic. Dr. Rose's version appears to be correct. 
 The passage in Roederer runs as follows : 
 
 " Bonaparte m'ayant charge de rediger ses idees 
 pour la constitution cisalpine, je lui en presentai deux 
 pro jets ; Tun, fort court, qui se bornait a Perection des 
 pouvoirs ; 1'autre, mele de dispositions qu'on pouvait 
 laisser a la loi : je priais Talleyrand de conseiller au 
 premier consul de preferer la premiere, et je lui disais : 
 ' II faut qu'une constitution soit courte et . . .' j'allais 
 ajouter : * Claire/ il me coupe la parole, et me dit : 
 ' Oui, courte et obscure. ' " 
 
METHODS OF LEGISLATION 53 
 
 consuls, do by reglements in our Council 
 of State, without calling in the aid of the 
 legislature?" Cambaceres' answer was 
 discreetly oracular : " A reglement is only 
 the particular application of the law. Law 
 is the general rule made by those who have 
 the right and power to make it." Bona- 
 parte smiled and did not press his question 
 further. 1 He kept this sibylline utterance 
 and pondered it in his heart, and in the 
 later days of the Empire made it the 
 foundation of and justification for his 
 extensive legislation by decrees. If the 
 extent to which decrees can be made is left 
 to the discretion of the executive the power 
 is capable of indefinite extension. The 
 spirit of the constitution of the year VIII 
 still breathes in the French constitutions 
 
 1 Vandal, II. 166, quoting Cambaceres, Eclair- 
 cisscments. 
 
54 METHODS OF LEGISLATION 
 
 of later dates, and in the other European 
 constitutions modelled on or suggested by 
 those of France. Under all these constitu- 
 tions the executive government has, and 
 freely exercises, an inherent power of 
 making decrees, reglements, and similar 
 orders and regulations which supplement 
 the action of the legislature. For instance, 
 if you take up such a volume as the 
 Annitaire of French legislation, published 
 by the French Society of Comparative 
 Legislation, you will find a large amount of 
 space occupied by decrees ranking alongside 
 of ordinary laws. Our Henry VIII was a 
 monarch who entertained views about the 
 functions of the legislature not unlike those 
 of the first Napoleon. He held that 
 Parliament was a useful servant but ought 
 not to be a master, and if his famous Statute 
 of Proclamations had remained on the 
 
METHODS OF LEGISLATION 55 
 
 English Statute-book the Crown would 
 have had a large power of making laws by 
 proclamations and ordinances which might 
 have altered the course of English history. 1 
 But the act was repealed in the next reign 
 and has not been revived, and the residuary 
 power of the Crown to legislate by Orders 
 in Council and proclamations has been 
 reduced by usage and by the action of 
 Parliament to very small dimensions. It 
 is true that in modern times a vast amount 
 of legislation is effected every year by 
 means of Orders in Council, and statutory 
 rules and orders. The adoption of these 
 methods has been rendered necessary by 
 the great quantity of administrative legisla- 
 tion which has been the characteristic 
 feature of parliamentary history since the 
 Reform Act of 1832. It has done much 
 
 1 Stc Dicey, The Law of the Constitution, yth ed. p. 48. 
 
56 METHODS OF LEGISLATION 
 
 to shorten and simplify acts of Parliament, 
 and it is of great value in providing the 
 requisite amount of elasticity in the experi- 
 mental stages which follow the enactment 
 of a new law. But it is subordinate and 
 derivative legislation. It derives its force 
 from Acts of Parliament, and it is for 
 Parliament to determine, by provisions of 
 the Act, the cases in which, the extent to 
 which, and the conditions under which, the 
 power is to be exercised. 
 
 After the Restoration, France borrowed 
 from England the practice of reading a bill 
 three times and continued it until 1875. 
 But France had in 1789, and still has, 
 another parliamentary practice which was 
 not borrowed from England, which she 
 shares with some other European countries, 
 and which was perhaps derived from her 
 pre-revolutionary provincial assemblies. It 
 
METHODS OF LEGISLATION 57 
 
 is that of dividing the whole chamber up 
 into bureaus. The word bureau, as used 
 in French parliamentary language, has two 
 meanings, which are sometimes a little 
 confusing to a foreigner. It is applied to 
 the staff of parliamentary officials, consist- 
 ing at present of the President, four vice- 
 presidents, eight secretaries, and two 
 quaestors (questeurs). But it is also applied 
 to the groups into which the whole chamber 
 is divided. At the beginning of each 
 session, the chamber, which consists at 
 present of 584 members, is divided by lot 
 into two bureaus, of approximately equal 
 numbers, and these bureaus are reshaped 
 by lot every month. The bureaus appear 
 to be at present little more than machinery 
 for the constitution of the commissions or 
 committees to which bills are referred. 
 When a commission is appointed by the 
 
58 METHODS OF LEGISLATION 
 
 bureaus, each bureau selects from its own 
 body one, two, or three persons to be 
 members of the commission. But under 
 the present practice the commissions are 
 sometimes appointed by the chamber as a 
 whole, like our select committees on public 
 bills and subjects of inquiry, and it is in 
 this way, if I understand the reglements 
 rightly, that are appointed the sixteen great 
 permanent commissions, of thirty-three 
 members each, into which, under a standing 
 order of 1902, the chamber is divided at 
 the beginning of each session. In fact, the 
 method of appointing committees by the 
 bureaus, to which there are some obvious 
 objections, seems to be in course of super- 
 session by other methods of appointment. 
 When a bill is introduced, whether it is 
 a projet or a proposition, it either goes to 
 the bureaus to be referred by them to a 
 
METHODS OF LEGISLATION 59 
 
 commission, or goes direct to one of the 
 permanent commissions. By the commis- 
 sion the bill is examined, first in principle, 
 then in detail. The sittings of the com- 
 mission are private. The commission 
 choose a reporter (rapporteur) who is 
 charged with the important duty of formu- 
 lating the views of the commission which 
 he represents. The report which he pre- 
 pares is not a mere formal document, but 
 states fully the arguments for and against 
 the proposals accepted. A minister cannot 
 be a member of a commission, and therefore 
 cannot be a rapporteur, but the functions 
 of a rapporteur are important, and their 
 successful discharge may lead to higher 
 things. M. Anatole Briand made his 
 reputation by his great report on the French 
 Disestablishment Bill. The report of the 
 commission is presented to the House, and 
 
60 METHODS OF LEGISLATION 
 
 forms the basis of subsequent discussion on 
 the bill. In these discussions the rappor- 
 teur, as representative of the commission, 
 takes a leading part in supporting their 
 conclusions. In the house itself there must 
 be two deliberations on the bill, separated 
 by an interval of five days. But at the first 
 deliberation a vote is, or may be, taken on 
 the principle of the bill before the House 
 proceeds to the discussion of articles or 
 clauses, and when the articles have been 
 approved at the end of the first deliberation, 
 they are reviewed and pronounced upon at 
 the second deliberation. Thus there are, 
 or may be, as M. Esmein has pointed out, 1 
 three decisive votes corresponding more or 
 less to the three readings under the old 
 practice. 
 Any one who is familiar with the English 
 
 1 Elements de droit constitutionncl, 4th ed. p. 824. 
 
METHODS OF LEGISLATION 61 
 
 parliamentary practice on public bills would 
 probably notice at once three main points 
 of difference in the French practice, (i) A 
 bill goes to a committee before its principles 
 have been discussed in the whole House. 
 In this the French resembles the American 
 practice. (2) The bill is taken out of the 
 hands of the minister or other member who 
 introduces it, and is placed under the con- 
 trol of the commission, who are represented 
 in the House by their rapporteur. (3) The 
 report of the commission is a document of 
 an entirely different character from the 
 report on a bill which comes back from an 
 English standing committee. 
 
 I shall not ask you to travel with me into 
 the procedure of other European legisla- 
 tures, partly because the details are 
 technical and would be wearisome, but 
 mainly because I have not that personal 
 
62 METHODS OF LEGISLATION 
 
 knowledge of the way in which the pro- 
 cedure actually works without which one is 
 apt to slip and go astray. 
 
 But I should like to take you back to 
 English legislative machinery, with refer- 
 ence to two questions. First, how far has 
 the English legislature, in recent years, been 
 successful in improving the form of the 
 English statute law ? I am speaking of the 
 legislature, not of the draftsman, who does 
 his work as well as he can under existing 
 conditions. But what is it that is mainly 
 responsible for the unintelligible form of 
 many bills, and especially for the abuses of 
 that method of referential legislation, which 
 is so generally criticized ? * Surely it is the 
 
 1 The practice of legislation by reference is not 
 new, nor is the possible conflict thereon between min- 
 ister and draftsman. William Pitt writing to George 
 Rose on August 10, 1798, says, " I know that 
 Lowndes " (the government draftsman of the day) 
 has always a rage for putting everything into one Act 
 
METHODS OF LEGISLATION 68 
 
 chaotic and fragmentary condition of our 
 statute law, which makes an amending act 
 a new and ugly patch on a complicated piece 
 of patchwork. How far has the legislature 
 succeeded in remedying this evil by passing 
 measures of consolidation ? These measures 
 attract little interest inside the House, and, 
 in spite of their admitted utility, are not 
 really popular outside it, especially among 
 the older members of the legal profession, 
 for when one has spent laborious days and 
 nights in mastering the old statutes, it is a 
 nuisance to have to familiarize oneself with 
 new language, numbering and arrangement. 
 What progress, then, has the legislature 
 made, or is it making, with this useful but 
 unattractive work ? 
 
 of Parliament ; whereas, nine times out of ten, the 
 provision would be made much better by reference " 
 (Rose's Diaries, I. 216). 
 
64 METHODS OF LEGISLATION 
 
 Some ten years ago I was disposed to 
 give a gloomy answer to this question, for 
 the machinery of joint committees of the 
 two Houses for the consideration of con- 
 solidation bills, from which much had been 
 hoped, appeared to have broken down, and 
 the work had come to a standstill. But to- 
 day I can give a more satisfactory and 
 hopeful answer, for, thanks mainly to the 
 practical interest shown in the subject by 
 the present Lord Chancellor, and to the 
 great pains which he has bestowed upon it, 
 progress has been resumed, and is reason- 
 ably good. I hold in my hand a list of con- 
 solidation Acts which have become law in 
 recent years, and if one bears in mind the 
 difficulties and obstacles in the way of pass- 
 ing these measures, it is quite an encourag- 
 ing document. Of these Acts I should like 
 to refer to two in particular. One of them 
 
METHODS OF LEGISLATION 65 
 
 is the Licensing Consolidation Act of 1910, 
 and I mention it because it deals with a 
 very controversial branch of law, and 
 because, though it was prepared in the 
 Parliamentary Counsel's Office, and re- 
 ceived much assistance from the Lord 
 Chancellor, it was piloted through the 
 House of Commons by private members 
 on both sides of the House, and the House 
 accepted their assurance that such altera- 
 tions as it embodied were only such as 
 are necessarily and properly incidental to 
 the process of consolidation. It supplied 
 gratifying evidence that, in dealing with 
 measures of this kind, the House will place 
 great confidence in its committees, if there 
 is reason to believe that the work of 
 the committees has been carefully and 
 thoroughly done. The other is the Lord 
 Chancellor's Perjury Act of the present 
 
66 METHODS OF LEGISLATION 
 
 year, which affects an enormous simplifica- 
 tion of the law and an enormous clearance 
 away of statutory provisions dealing with 
 one particular subject. I hope that the 
 same process will be applied to other 
 branches of the criminal law, as embodied 
 in statutes. 
 
 The other question I should like to ask 
 is this : Can any improvement be made in 
 the machinery for revising the form of a 
 bill after it has passed through the ordeal 
 of committee of the whole House or of a 
 large committee upstairs, or has been 
 allowed, by consent or inadvertence, to pass 
 through its earlier stages without careful 
 examination? Something in this direction 
 is often done when the bill comes before 
 the House for consideration of the report 
 of the committee, and points which are not 
 set right at that stage are often left to be 
 
METHODS OF LEGISLATION 67 
 
 dealt with by amendments in what is 
 euphemistically described as " another 
 place." How far does the House of Lords 
 perform, how far can it, under existing 
 conditions, be expected to perform, the 
 functions of a revising body? I wish to 
 avoid any approach to dealing with what 
 is the subject of acute political controversy, 
 and therefore I will content myself with two 
 or three brief observations. In the first 
 place a large number, probably a great 
 majority, of the amendments made in the 
 Lords are either agreed upon by the pro- 
 moters and the opponents or critics of the 
 Bill, or are suggested by the draftsman for 
 the purpose of removing obvious flaws, 
 such as inconsistencies or obscurities, and, 
 in either case, are made without discussion 
 or comment. In such cases the House of 
 Lords acts rather as an instrument than as 
 
 E 2 
 
68 METHODS OF LEGISLATION 
 
 an organ of revision. In the next place, it 
 would be easy for the Lords to constitute 
 an effective revising body by forming a 
 small legislative committee. But, lastly, 
 and this must be added by way of warning, 
 it is not easy to combine the functions of a 
 revising body, accepting the principles of 
 a measure, and merely endeavouring, by 
 improvement of form, to give better and 
 fuller effect to those principles, with a claim 
 to exercise co-ordinate legislative authority. 
 The House of Commons would, it may 
 be surmised, welcome, receive with respect, 
 and be inclined to adopt, suggestions for 
 improvement of their work coming from a 
 competent and impartial critic or body of 
 critics, and would be disposed to allow 
 adequate time for the performance of the 
 work of criticism and revision, even at the 
 cost of delaying the operation of an Act. 
 
METHODS OF LEGISLATION 69 
 
 But they Would look with greater jealousy 
 and suspicion on alterations made by a rival 
 claiming co-equal powers in the field of 
 legislation. Revision is one thing, legisla- 
 tion is another, and it is not easy to combine 
 the two factors. 
 
 I must deal briefly with the two remain- 
 ing stages in the procedure of legislation. 
 What is it that turns a bill into an Act, 
 converts a project of law into an actual law ? 
 In all countries, I believe, formal assent by 
 or on behalf of the King, Emperor, 
 President, or other head of the executive 
 authority, is required, and is usually con- 
 veyed by signature of the measure as passed 
 by the legislative chambers or chamber. 
 But in Germany, and perhaps elsewhere, 1 
 questions, speculative rather than practical, 
 have been raised as to whether this 
 
 1 See Laband : Droit bublic de F Empire Allemand^ 
 vol. ii., chap. vi. 
 
70 METHODS OF LEGISLATION 
 
 signature confers the force of law or merely 
 authority to promulgate. 
 
 In France the formula required by the 
 decree of April 6, 1876, is this: " The 
 Senate and the Chamber of Deputies have 
 adopted, the President promulgates the 
 following law (la loi dont la teneur suit) y 
 and then at the end comes : " The present 
 law discussed (deliberee) and adopted by 
 the Senate and by the Chamber of Deputies 
 shall be executed as a law of the State." 
 The venerable English formula which has 
 descended from Plantagenet times shows 
 on its face the steps by which the authority 
 of the King was supplemented by the 
 authority of the two Houses of Parliament. 
 " Be it enacted by the King's most excellent 
 Majesty by and with the advice and consent 
 of the Lords Spiritual and Temporal in this 
 present Parliament assembled, and by the 
 authority of the same, as follows," the 
 
METHODS OF LEGISLATION 71 
 
 words " by the authority of the same " 
 having been the latest addition to the 
 formula. The assent of the King to each 
 Act is, by direction of the Lords Commis- 
 sioners who represent him in the House of 
 Lords, signified by the Clerk of Parliaments, 
 as an officer of the King, in the customary 
 form and manner " Le Roy le veult." And 
 the same Clerk of Parliaments makes himself 
 responsible for the law as promulgated 
 being the law as passed in Parliament by 
 signing two copies of it, specially printed 
 on vellum for the purpose, and deposited in 
 the Victoria Tower and the Record Office 
 respectively. 
 
 There remains only the promulgation of 
 law. It is of the greatest importance that 
 laws when made should be promptly pub- 
 lished in a form and manner convenient to 
 the general public. In most parts of the 
 British dominions, and in most, if not all, 
 
72 METHODS OF LEGISLATION 
 
 foreign countries, laws when made, at least 
 those which are important and are of 
 general application, are printed in an official 
 gazette, bulletin des lois y or other similar 
 official publication. In the United King- 
 dom the King's printer is responsible for 
 the printing and publishing of Acts of 
 Parliament. The office of King's Printer is 
 now held by the Controller of the Stationery 
 Office, who acts through the printers with 
 whom he contracts and the publishers whom 
 he employs. He prints and publishes 
 separate copies of each public Act as soon 
 as is practicable after it has received the 
 Royal Assent. He also prints and publishes 
 annually a volume containing the public 
 general Acts of the year, and volumes con- 
 taining the more numerous and bulky local 
 and personal Acts of the same year, the 
 measures which in their passage through 
 Parliament are known as private bills, 
 
METHODS OF LEGISLATION 73 
 
 hybrid bills and provisional order confirma- 
 tion bills. And he publishes annually an 
 index to the public general Acts, and 
 classified lists of the personal and local 
 Acts for the time being in force. This 
 index and these lists were prepared and are 
 annually revised under the directions of the 
 Statute Law Committee. By the help of 
 these volumes the statute law of the country 
 is made as accessible and intelligible to the 
 public as the nature of the subject and of 
 the circumstances permits. 
 
 There is a branch of law for the pub- 
 lication of which very insufficient and 
 unsatisfactory provision was made until 
 comparatively recent times. Under modern 
 parliamentary practice, and owing to the 
 exigencies of modern legislation, there is a 
 great and growing mass of what is some- 
 times called subordinate legislation, that is 
 to say rules and orders made under the 
 
74 METHODS OF LEGISLATION 
 
 authority of Acts of Parliament and having 
 the force of law. Under arrangements 
 which came into force in 1890 the statutory 
 rules and orders of each year are now 
 officially published in a form corresponding 
 to that of the annual statutes, an index to 
 them is periodically revised and published, 
 and a complete collection of the statutory 
 rules and orders for the time being, corre- 
 sponding to the edition of the revised 
 statutes, is also periodically revised, edited 
 and published by official authority. 
 
 Complaints are sometimes made that the 
 publication of our annual statutes needs a 
 little speeding up, and the difficulty of 
 bringing them out in convenient time has 
 been increased by the practice of holding 
 autumn sittings of the legislature. But on 
 the whole I think that our system works 
 well, at least as compared with the systems 
 of other countries. 
 
METHODS OF LEGISLATION 75 
 
 I must end, as I began, with an apology 
 for the sketchiness with which I have been 
 compelled to treat a large and complicated 
 subject. My object has been, not to impart 
 information which you could more easily 
 obtain from books and other sources, and 
 of which my own store is very imper- 
 fect, but to suggest for your consideration 
 some problems which are of importance to 
 the practising lawyer, as well as to those 
 who are to make, to administer, and to 
 observe the law. Is it too much to hope 
 that the University which is specially 
 bound to reverence the memory of Bentham 
 will produce some one who will worthily 
 continue the work which he began in his 
 treatise on legislation, will advance what he 
 would perhaps have called the science of 
 Nomothetics, and will base it on a careful 
 comparative study of legislative institu- 
 tions and procedure in different civilized 
 
76 METHODS OF LEGISLATION 
 
 countries ? The materials for such a study 
 have accumulated enormously since Ben- 
 thanVs time, and the study would have to 
 take into account elements of the problem 
 which Bentham and his school were some- 
 times disposed to overlook or to under- 
 value, the influence on institutions of 
 historical antecedents, of national and racial 
 idiosyncrasies, of difference in social and 
 economic conditions. And its aim should 
 be to ascertain, not merely how institutions 
 are described on paper, but how they 
 actually work in practice. 
 
 I shall be satisfied if I have indicated by 
 my confessions of ignorance a field in 
 which, though much has been done, much 
 still remains to be done, by those who are 
 interested in that branch of comparative 
 jurisprudence which is specially concerned 
 with legislation. 
 
APPENDIX 
 
 METHODS OF LEGISLATION IN FOREIGN 
 COUNTRIES 
 
 I APPEND a list of some books which 
 might be found useful by a student of 
 legislative methods in foreign countries. 
 For the names of some of them I am 
 indebted to my friend Professor Redlich. 
 
 General. 
 
 DUPRIEZ : Les ministres dans les princi- 
 paux pays d'Europe et d'Amerique. 
 
 LOWELL : Governments and Parties in 
 Continental Europe. 
 
 BRYCE : Studies in Jurisprudence, especially 
 Essay II in vol. i. 
 
 77 
 
78 APPENDIX 
 
 France. 
 
 PIERRE, EUGENE : Traite de droit poli- 
 tique electoral et parlementaire. Paris, 
 1893. Supplemental volume, 1906. 
 
 ESMEIN : filaments de droit constitu- 
 tionnel. 
 
 Germany and Austria. 
 
 1. Theory 
 
 LAB AND : Deutsches Staatsrecht. (Also in 
 French, under the title Le droit public 
 de ^Empire Allemand.) 
 
 JELLINEK : Gesetz und Verordnung. 
 
 2. Parliamentary Procedure 
 
 German Reichstag. 
 PERELS : Das autonome Reichstagsrecht. 
 
 Berlin: Mittler, 1903. 
 WEISS : Der deutsche Reichstag und seine 
 
 Geschaftsordnung. Berlin, 1906. 
 
APPENDIX 79 
 
 Prussia. 
 
 RONNE : Das Staatsrecht der preussischen 
 Monarchic, herausg. von Prof. Zorn. 
 Leipzig, 1899. 
 
 PLATE : Die Geschaftsordnung des preus- 
 sischen Abgeordnetenhauses. Berlin, 
 1904. 
 
 Wunemberg. 
 
 MOHL : Staatsrecht d. Konigsr. Wiirtem- 
 berg. 
 
 Austria. 
 
 NEISSER: Die Geschaftsordnung des 
 Abgeordnetenhauses des Reichrates, 
 1909. (Contains also standing orders 
 or reglements of English, French and 
 Belgian legislatures.) 
 
 Belgium. 
 
 ERRERA : Das Staatsrecht d. Konigsr, 
 Belgien. Tubingen, 1909. 
 
80 APPENDIX 
 
 United States. 
 
 BRYCE : American Commonwealth. 
 
 WOODROW WILSON: Congressional Gov- 
 ernment. 
 
 HINDS (ASHER C.) : Digest and Manual 
 of the Rules and Practice of the House 
 of Representatives. (An official pub- 
 lication.) 
 
 Printed for the UNIVERSITY OF LONDON PRESS, Ltd., by 
 RICHARD CLAY & SONS, Ltd., London and Bungay. 
 
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