628 PRIVATE LAW 



all of the legislation that has been declared unconstitutional has been 

 vicious or oppressive, and none of it has been absolutely arbitrary 

 or unreasonable; but most of it has been of doubtful wisdom or 

 expediency, and probably all of it had inflicted or threatened to 

 inflict serious injury on legitimate interests. And it is probably true 

 that, in the great majority of cases, those interests received their 

 first hearing under forms giving some assurance of impartial and 

 adequate consideration in the courts of justice. The explanation, 

 although not the juristic theory, of this phase of judicial control, is 

 that a corrective is needed against methods of legislation affording 

 no guaranty of justice. 



These methods - - if we should not rather speak of lack of methods 

 are perhaps the natural result of leaving the entire work of legis- 

 lation to a large body constituted primarily for purposes of policy 

 and not of justice. Parliamentary legislation in England until 

 recent times was marked by the faults which we have inherited: 

 spasmodic and unrelated measures not uncommonly induced by 

 some striking case revealing the injustice or defect of the existing 

 law, or by the pressure of special interests; no definite responsibility 

 for the introduction of bills; no thorough preliminary investigation 

 of the conditions to be remedied; no adequate public discussion of 

 the terms of a proposed measure; and involved if not faulty phrase- 

 ology of statutes. In England these conditions have been practi- 

 cally superseded, because none but government measures have any 

 chance of passing and because the government is at present aided 

 by the honest labors of parliamentary commissions of inquiry and 

 by the skill and experience of expert draftsmen. 1 In most of the 

 American states the defects that have been pointed out continue 

 practically unchanged; in others the improvement has been only 

 slight. 



The natural consequence of the faults described has been a marked 

 inferiority of statutory legislation, and, owing to this, a peculiar 

 attitude of impatience and disrespect toward it on the part of the 

 courts and of the profession, so that it is almost regarded as a dis- 

 turbing factor in the otherwise well -coordinated structure of the 

 common law. If in this country we are slow in remedying this 

 condition of things, it is partly because of the intrinsic difficulty of 

 reform and of the technical nature of the evils to be cured; partly 

 because in former times other and more pressing problems concerning 

 legislation engrossed the public attention. The use of the legislative 

 machinery for partisan political purposes, and the necessity of 

 legislative action for the grant of franchises, added fraud and cor- 



1 On the history and present methods of drafting statutes in England, see 

 Frederick Clifford, History of Private Bill Legislation, 2 vols., London, 1S85-87; 

 and Sir Courtenay Ilbert, Legislative Methods and Forms, Oxford, 1901. 



