Our State Legislatures

I

DOES a fiendish necromancer transform a John into a Judas when he enters the halls of legislation, or is it impossible to elect able and honorable men to make our laws ? Popular impression seems to affirm both horns of this deplorable dilemma. We have grown to distrust our state legislatures. Their convening is not hailed with joy, and a universal sigh of relief follows their adjournment. The utterances of the press, the opinions of publicists and scholars, and the sentiments of the street and the market-place are quite at one in their denunciation of the legislature. Our representatives are the subject of jest and ridicule, of anger and fear. This is a serious matter. When a democracy loses faith in its law-makers, respect for law must soon fade away, and with it vanishes self-government.

Has it never occurred to us that these gibes and thrusts, cartoons and editorials, sermons and sentiments, ought to be directed against, ourselves, and not against our servants ?

I am not writing an apology for legislative excesses. The man who thinks a legislature infallible harbors an insane delusion; the man who thinks it utterly depraved allows his malevolence to dispel his reason.

A careful study of and long familiarity with state legislatures, with their personnel, the conditions under which they were elected, and the environments in which they performed their tasks, leads me to believe that some of our criticism is misplaced, and some of our zeal and activity displayed at the wrong time. There are faults, gross and glaring, in the conduct of state legislatures. There are also faults, as gross and glaring and less excusable, in the conduct of the constituencies which selected the legislators These must be studied together, that the truth may be learned and the faults remedied.

The nature of the problem and the scarcity of published data render the scientific study of the legislative situation delicate and difficult. I have here attempted a fragment of such an inquiry. For this purpose I have taken four legislatures, of states whence biographic data were forthcoming. It is of course vain to seek in a handful of biographic statistics the special fitness of a given class of men for legislative duty. Yet the average human being is influenced most potently by education, by occupation, and by experience. Knowing these we can at least roughly gauge his fitness for the ordinary duties of public life. Genius, indeed, is not amenable to statistical diagnosis, neither is it an element in this analysis. There is not even a “trace.” Genius would not be representative of the masses.

I begin with the legislature of Vermont, a sturdy New England state, clinging more nearly than any of its neighbors to the ideals of a day long past. A survival of the revolutionary times gives each town a representative in the lower chamber. Hence we find one of the largest assemblies in one of the smallest states. There are two hundred and fifty-two members in this populous house of representatives, while in the senate there are thirty members.

Of the thirty members of this senate, only three were college graduates; seven had received training in professional schools; seven had been educated in academies, so numerous in New England; and thirteen received no further education than that offered by the public schools. Nine of the senators were farmers, of lawyers and physicians there were four each, and thirteen were engaged in mercantile pursuits. The state, constitution limits the age of the senators to thirty years. Only three members of this senate were under forty years of age, one half were between fifty and sixty, six ranged in age between forty and fifty years, while six were beyond threescore, the oldest member being seventy-three. The average age of the lawyers was forty-three years, of the physicians fifty years, of the business men fifty-one years, and of the farmers fifty-four years.

Of these thirty men only three had had no previous political experience. Some had been in office practically all their lives. One had carried the burdens of “all the usual town offices.” Another had been township clerk thirty-five years, chairman of the selectmen thirtyseven years, and all this while a member of the school board and an assistant judge. Another had held “most of the town offices,” while still another had held “all except clerk and treasurer,” What showers of public honors!

In the house one twentieth were college graduates, one fourth had received training in academies, while over one half had gone no further than the public schools. There were one hundred and twenty-three farmers in this house, six lawyers, ten physicians, forty-eight merchants and manufacturers, three bankers, five preachers, six insurance writers, two hotel proprietors, three liverymen, fourteen laborers or artisans, including a blacksmith, a driver, a sailor, a teamster, a painter, a “boardsawyer,” several laundry men, carpenters, and loggers. Six had no visible occupation other than that of “politician and office-holder,” while one was a student not yet graduated from his college. One would think that a wonderful degree of versatility and originality was displayed by some of these law-makers in their private pursuits. One member made his daily bread by “occasional speculation,” another was a “fish eulturist.” One useful member was a “lawyer, farmer, and breeder.” Another was busy as “town clerk and treasurer, and clerk in a general store.” But the most versatile of this coterie of men of many affairs was one who professed to find time to be a “furniture dealer and undertaker and miller and dealer in grain and feed.”

In this house were twelve under thirty years of age; one sixth were between thirty and forty years, one third were between forty and fifty years; one fourth were between fifty and sixty years; while thirty-five were old men over sixty. The average age of the lawyers was forty, of the business men forty-three, of the laborers forty-three, of the farmers fifty, of the physicians fifty-two, of the clergymen fifty-five.

This house also was rich in political experience. Only one eighth had never before held public office, and these were mostly the young men. Many of the older members had held office for fifteen, eighteen, twenty, and thirty - six years. Over one half had held more than three offices, and had been in public service more than ten years.

Of this body of two hundred and eightytwo law-makers, only nineteen had sat in former legislatures, — several, it is true, for four or five terms; but the vast bulk had received no previous training in legislative work. Such special preparation for legislative duties as they possessed, they had received in the minor township and county offices. Thirteen of these men were old soldiers, and two were of foreign birth.

Ohio may be taken as a type of the populous state in which manufacturing, mining, and agriculture are of nearly equal importance. There sat in its general assembly thirty - three senators and one hundred and ten representatives.

In the senate one third had received a college training, a second third had not been farther than the common schools, and the last third had been trained in academies, normal schools, and professional schools. Fourteen, or almost one half of this body, were lawyers; nine were engaged in business affairs. There were two teachers, two editors, two farmers, and one physician. Nine of the senators were under forty years old, nine were between forty and fifty years, ten were between fifty and sixty years, and two were over sixty years old. The average age of the lawyers was thirty-six years, of the editors, thirty-eight years, of the business men forty-four years, of the teachers forty-nine years, and of the farmers fifty-five years.

One half of these senators had not held previous political office of any kind. Only six had had previous legislative experience.

One eighth of the house members had received a college education; three eighths attended normal schools, academies, or professional schools, and nearly one half received only a common school education, one representative reporting that he had not been “in school after twelve.” One third of these representatives were lawyers, one fifth were farmers, one sixth were business men, including manufacturers, bankers, druggists, a lumber dealer, a cattle buyer, a hatter, and a confectioner; there were ten teachers, all from country schools or villages; five physicians, three editors, and one preacher. Ten laborers and artisans also participated in the law-making. This category includes a machinist, several carpenters, and a cigar maker. There were two auctioneers in this house, one the proud possessor of “an established reputation,” and the other, “one of the best in the country.” Here was a commercial traveler who laid claim to greatness because he had “traveled more than one hundred and eighty thousand miles.” One member had for thirty years been a court crier accustomed to the routine of court drudgery. With him sat a metal polisher who was an exponent of labor unionism. One member was still a student in a law school. And, most unusual of all, there sat in this heterogeneous assembly a “musical composer” with a “national reputation, being the author of many works on music and over one hundred piano compositions, many of which have proven very popular,” which is more than can be said of some of the legal compositions which he helped enact.

Of these representatives of the people, six were under thirty years of age, very nearly one half were between thirty and forty years, one fifth between forty and fifty, one eighth between fifty and sixty, and one eighth over sixty, the oldest member being eighty years old. The average age of the teachers was thirty-five, of the lawyers thirty-five, of the editors fortytwo, of the physicians forty-five, of the laborers forty-one, and of the farmers fifty-four years.

One third of the house had not held any previous political office. Nearly one fourth had been members of former legislatures, and four of these men were professional politicians; while others were “experienced politicians or active in politics,” or had “entered politics.” Such members had usually filled county and township offices. It is probable that scarcely any one is sent to the state legislature who has not been active in local party organizations, as a committeeman or as a delegate to county or district conventions. The acquaintance thus formed is an essential prelude to a successful political canvass.

There were members in this assembly who had tried their skill at many occupations. The teacher who had turned lawyer or editor or farmer was the most numerous of this class. Several were both farmer and merchant; others wrote insurance between the intervals of law practice or merchandizing. It is the man of modest affairs, or the man of no affairs, who most relishes legislative experience.

Over one tenth of these members were old soldiers, and five were foreign born.

Indiana represents the states of the middle west where the agricultural interests are still predominant. Of the fifty senators who composed its upper house, ten had received a college education; eight had graduated from professional schools; eight had partially completed a college course ; twelve had attended normal schools or academies; while quite one third had not passed beyond the common schools. Lawyers composed just one half of this senate, six followed mercantile pursuits, seven were farmers; of artisans there were five, including a glass cutter arid a factory foreman; there were also four physicians, two teachers, and one editor. Only one of the senators was under thirty years old. One half were under forty, one third were between forty and fifty, eight were between fifty and sixty; while only three were over sixty. The average age of the lawyers, the predominating force of the body, was forty years, of the physicians thirty-nine, of the teachers forty years, of the artisans fortyfive years, of the farmers forty-seven years, and of the business men fifty years. This was virtually a senate of young men. One third had not held previous political office, while one tenth had held office over ten years, and one third had been members of former legislatures, many of them for several terms.

One seventh of the house members were college graduates, sixteen had received training in professional schools, six partially completed their college course, while eighteen had attended academies or normal schools. Nearly one half the members had no other education than that offered by the public schools. The records of some of these men recall the pioneer days. Two had received but“six months’ schooling.” Another had been deprived of all educational advantages in his youth, and what education he possessed he received after he had grown to manhood. One member had learned to read in Sunday School. Yet another had only a “ limited education.” And still another survival of the age of primitive things had gotten “four months of schooling in a log school-house.” Not quite one third of these representatives of the people were lawyers; another full third were farmers; of the remaining one third, four were physicians and four were editors; the remainder was about equally divided between business men and artisans or laborers. With the bankers, manufacturers, and merchants, sat carriage-makers, miners, painters, glass-blowers,bricklayers, bottle-blowers, and plumbers. Here also we find a member who was still a student, in college, and who was honored with the privilege of nominating a United States senator.

Of experience in office-holding a scant one third had had none, while five had been in public service over ten years, and one had held office over twenty-two years. Nearly one fourth had been members of former legislatures.

Nine of this house were under thirty years of age, and nine were over sixty. The rest were about equally divided among the three decades between thirty and sixty years. The average age of the lawyers was thirty-four, and twenty of this number were only thirty or under; of the laborers or artisans, fortytwo; of the business men, forty-four; of the physicians fifty-five; and of the farmers, fifty-five years.

In this assembly were eight old soldiers, and four foreign born. There is evidence here of the same diversity of gifts that we have found in the other states. Here is one man who was “teacher, publisher, and lawyer.” Another who combined the tasks of “farmer, brick-maker, and bricklayer.” Of “farmer and lawyer” there are many; so of those who unite the duties of “teacher and merchant” or “teach er and farmer,” or “merchant and insurance; ” while one carries his partisanship into his bread-winning as a “farmer, carpenter, contractor, and Democrat.”

Here also sat representatives of the labor union, one of whom avowed his convictions that “our tax and financial systems should be overhauled.” Fortunately he was in a large minority, and there was no overturning of established institutions. A “ sound-money-protectionist-expansionist ” helped neutralize the acid of socialism.

Finally, Missouri maybe taken as a representative of the southwestern states where the sentiments of ante-bellum days are being rapidly dispelled by manufacture and industry.

In the assembly I describe sat thirtyfour senators and one hundred and fortytwo representatives. One third of the senators were college graduates; nearly one half had not passed beyond the common schools; of the remainder about equal numbers had either a professional training, or had attended college for a short time, or had taken a course in a normal school or in an academy. Two thirds of the senators were lawyers; the remaining one third were mainly business men, only three farmers being found in the list, and one physician. One half of these men were between forty and fifty years of age, two were over sixty, and one third were under forty. The lawyers averaged fortyone years, the business men forty-seven years, and the farmers sixty-four years. Only five of this membership had held no former political office, and two thirds had been members of former legislatures, most of these for several terms. Nearly all of the lawyer-members had been prosecuting attorneys, or city attorneys, or county judges. This senate was therefore rich in political experience.

Of the one hundred and forty-two members of the lower house, only seven had completed their college course, while twenty-seven had gone partially through college. Thirteen had attended professional schools, and twenty-one had received their education in secondary schools. Over fifty-four per cent were limited to a common school education. One member had formed the commendable habit of “studying at home,” and his colleague in intellectual industry confessed himself “quite a student of political economy.”

Not quite one third of the house were lawyers, and one third were farmers; one fourth were engaged in business pursuits, including banking, manufacturing, real estate, insurance, contracting, and milling. Six members were physicians, three were teachers, and nine were editors and “newspaper men.” With the two clergymen sat one college professor and one saloon-keeper. The unions were represented by a plasterer, a “grainer and marbler,” a miner, a smelter, and a “ railroad car inspector.”

The variations of mercantile and professional combinations were as amusing as in the other states we have studied. Here was an “undertaker and lawyer,” certainly a misjoinder of parties; should it not read “undertaker and physician ?” Here sat the “promoter and real estate merchant,” the “salesman and mine organizer,” the “furniture dealer and editor,” the “horticulturalist,” and the “breeder of hogs,” the “merchant, miner and farmer,” and the “teacher, minister, and farmer.” Of “farmer and merchant ” there were several, also of “farmer and miner,” and “farmer and teacher.”

Seven of this interesting throng were under thirty years of age, one seventh were over sixty; over one third were between thirty and forty, one half between forty and sixty years. The average age of the lawyers was forty-one, of the laborers thirty-nine, of the teachers thirty-five, of the physicians forty-two, of the business men forty-four, of the editors fortytwo, and of the farmers fifty-one years.

One fourth of the house had not held previous political office, while one third had been members of former legislatures, many of them for several terms. Over one half of the members had held more than two offices, and one third had been in office more than ten years. In this assembly of one hundred and seventy-five citizens, seven were of foreign birth, and forty-two had borne arms in the Civil War, either for the Union or for the Confederacy.

These are the four legislatures, and from what I can learn they are typical of the entire forty-five that convene annually or biennially in our land.

To those who look for a body of welltrained and expert law-makers, this analysis must be depressing; to those who affirm that the average state legislature is not representative of the great body of citizens, the data gathered are likewise disappointing. For one must be profoundly impressed by the real representative character of these law-making bodies. Every degree of education is represented. Indeed, the one fifth of the men of college training and the one third of academy or professional training far outnumber the ratio of such men in everyday life. Every profession is represented, almost every conceivable business activity has its patrons on the floor of our legislature; with the farmer sits the artisan, with the banker sits the union labor agitator, with the manufacturer sits the small shopkeeper, with the preacher sits the saloonkeeper, with the professional specialist sits the jack-of-al1-trades. It is true that these assemblies are far more representative of the rural communities than of the great cities. I have mentioned the men who engage in a multiplicity of pursuits. These can thrive only in the country. The city exacts specialization. From the cities come most of the young lawyers seeking publicity,the labor union representatives, and the professional politicians.

The age of the law-maker is not that of unfledged youth or useless age. Man is in his prime from forty to sixty, and the very large majority of our legislators are of that age. The extreme youth, not yet in possession of his college degree, and the man laden with the experiences of eighty years, are only picturesque extremes in these democratic assemblies.

And in the experiences of political life likewise, every phase and variation is represented. Those who have been only voters, those who make politics a business; those who are ardent partisans, and those who are politically torpid; the conservative and the demagogue, all are intermingled in these representative bodies. Even the foreign-born citizens are well represented.

II

But a legislature is not only to represent the people, it is to make laws; and,unfortunately for our legislative system, the making of laws requires expert knowledge, judicious temperament, and great wisdom. None of these qualities are apparent in bulk, in any state legislature. The class of men who possess expert knowledge in framing and interpreting law are the lawyers. While they predominate over other professions in the legislature, those who are found there are either young men, or men without large practice. I think that it will surprise my readers to learn that from one fourth to one third of the members had previous experience in legislative work. These can temper the conduct of the raw members, but they can scarcely be called experts. It requires also another species of expert to aid in lawmaking, the man who is possessed of technical information concerning the conditions that bring forth the law: the mining engineer, the electrician, the ship-master, the sociologist; the men who are most affected by the contemplated laws. These are rarely found in the halls of legislation.

There are other features of this problem which cannot be revealed by statistics, but which must be discovered by personal knowledge. How many of these men have been elected by corporate interests, to help pass laws favorable to corporations ? How many are owned by politicians, and how many by rich individuals seeking ulterior gain ? How many sought their seats with the secret purpose of bartering their influence for money ? And finally, how many are absolutely independent, placing public welfare high above the claims of party or of persons ? My experience must lead me to answer each of these questions in the same manner: but very few.

The legislature is composed of average men, possessed of human weaknesses, prejudices, and passions. They are elected by party machinery. They are pressed by corporate and party demands. The majority are as honest as they are simple, and as efficient as they are wise. These men meet to frame our laws, their work is largely foreordained. Let us scan hastily their method of organizing, and the quality of their output.

I remember the first state legislature I ever saw. I was a freshman in college and had gone to the capitol to witness the organizing of the senate and house. The scenes I looked upon were almost a parallel to those in which I had been an actor but a few months before, the organizing of our freshman class. The importance suddenly thrust upon the fresh matriculate turns his head about as much as the sudden fame upsets the new legislator. Here are men who have always lived in small towns and out-of-the-way places, unaccustomed to travel and distinction, now become suddenly the centre of interest for the entire state. Their pictures are in the papers, distinguished politicians seek them out, they are complimented and dined, and in the blaze of this transitory flame of glory, they lose themselves. The state legislature has been the burial place of many a man’s virtue.

The most important function of our early legislatures was deliberation. This has almost entirely disappeared. The rush of the age has invaded the dignified assembly hall, and bills are shot through as by pneumatic pressure. The two most important factors in modern legislation are the lobby and the committee. What deliberation now is granted a measure is given in committee rooms and in private discussion. In the turmoil and boyish ardor of organizing, the lobby interests must secure committees.

It takes some weeks before the new members become accustomed to legislative routine. An average session lasts about four months. Of these the first is given over to organizing and learning the pace, the second and third to trading and manipulating, and the final month is devoted to law-passing.

The amount of this legislation is overwhelming. One of the legislatures I have described sat one hundred and thirty-two days. It passed four hundred and fortyeight general laws, three hundred and twenty-eight local laws, and sixty-two joint resolutions, a total of eight hundred and thirty-eight enactments, or an average of six and one third a day. But the work was not thus evenly distributed. One half of these measures were passed the last fifteen days. On the last day were passed seventy general laws, seventeen local laws, and six joint resolutions. On next to the last day were passed fifty-nine general laws, twenty local laws, and one joint resolution. A total of one hundred and seventy - three enactments, or one fifth of the work of the session, in two days. I will grant that some of this grist had been ground out in committee, but how fine could even a committee grind so much grist ? There are twenty-four hours in one day; in forty-eight hours one hundred and seventy-three laws were passed, or one law every sixteen minutes. But as the legislature sat only twelve hours a day, these rules of human conduct were created at the rate of one every eight minutes. What fecundity! And there is a fiction that every one is presumed to know the law.

These were not all trivial measures, mere amendments or matters of little import. The work of this session included important laws concerning the powers of the boards of health, laws regulating electric and gas corporations, and an entire negotiable-instrument code.

In the same year were passed by the various state legislatures nine thousand three hundred and twenty-five local laws, and four thousand eight hundred and thirty-four general laws; a total of fourteen thousand one hundred and fifty-nine. An overproduction that has lifted lawlessness above par.

Of this mass of legislation a portion is wholesome, another portion is merely passive and harmless, — if indeed any innocent and inert law can be harmless, — a third fraction is vicious, and a final part is foolish.

The wholesome laws are usually the result of pre-legislative deliberation. I believe the practice developed in recent years, of codifying all laws upon one subject, is a hopeful tendency toward mature legislation. The listless laws are the offspring of our deplorable habit of special legislation, mated with our American good humor. The foolish laws are the fruit of ill-conceived reforms. And the vicious laws are the result of bribery, of carelessness, of selfishness, and of partisanship.

The first group of vicious laws are due to selfishness and bribery.

Some men are always found in every legislature who were sent there for one special purpose. A few are always found who will play with the gold of others. The combination of these few with the gullible many makes possible vicious laws. Closely related to these men are the one or two “milkers” found in every legislature. These under the guise of benevolence introduce a bill “To further secure the rights of stockholders in insurance companies,” or some kindred title, hiding beneath the most innocent phrases the most violent measures. This brings all the interested corporations to the capital with the pap, and the venal legislator fattens to bursting. Unfortunately legislation is often a marketable commodity.

Another class of vicious legislation is due to carelessness. The volumes of repealed and amended laws are tokens of this thoughtlessness. In 1873 the legislature of New York passed a charter for the metropolis, and the repealing clause threatened a general jail delivery. The governor refused to sign the measure until an amendment rectified this careless error. In 1882 the legislature of the same state passed a municipal code, and a whole page of the original was omitted from the copy sent to the executive for approval. Through a legislative blunder the supreme court of Ohio was robbed of a large portion of its jurisdiction, two years ago, and an act of a special session of the legislature was required to override the mistake. A repealed or amended law is sometimes an indication of a change in conditions; more often it is a confession of weakness or of shortsightedness. Our tendency constantly to amend makes laws shifting as the sands.

And a final group of vicious laws are due to partisanship. The machine in American politics is the merging of all functions of government in one control. While I believe that the popular estimates of party tyranny are somewhat overdrawn, there are yet perennial occasions for a general revulsion of feeling. The party lash is too often substituted for public conscience. When a United States senator is to be elected, party servility reaches its extreme. The candidates for the senate are announced before the legislators are nominated, and the senatorial contest is no more confined to the state capitol than the presidential elections to the room wherein the electors meet.

The blood-bought Goebel Law of Kentucky, allowing the governor to appoint all local election officials, and permitting the legislature to canvass election returns and reject the vote of any county, with no power of review in any court, is an example of the vicious extreme to which partisanship leads. In 1901 West Virginia passed ten “ripper” bills, giving the incoming governor the power to appoint all the boards of control of all the public institutions in the state. So are often created new and unnecessary offices and places, to serve as nests for the faithful party workers. The payrolls of our states, like those of our cities, are padded for the benefit of the party henchmen. The evil is multiplied when the machine allies itself to corrupt and powerfid corporate interests. This is not infrequent. Every state has fought such unholy alliances.

The method used by party leaders to bring “pressure” to bear on a member, or to “lead him to see the light,” are as amusing as they are diverse and original. I know of an instance where the wife of a reluctant legislator was kidnapped and held a prisoner for four hours in the rooms of a man who aspired to become, and did become, a United States senator. The political influence over the wife proved as potent as her influence over the husband. This winter, in one of our legislatures, it became necessary to put through a measure which was labeled “purely political, and therefore not a question of conscience,” — an unusual inference. A boy member of the legislature happened to have a conscience which was somewhat political in its sensitiveness, and refused to line up. His father was called to the capital, and parental persuasion succeeded where political power failed.

And finally,in this long list of laws there are always a few fool measures. There is at least one fool in every legislature. He imagines himself a reformer. He slips in his bill and trades and log-rolls for its passage. Thus in Nebraska the reformer wanted to prohibit women from wearing corsets and bloomers. This was clearly class legislation, for the title made no mention of men. In Pennsylvania he wanted to prohibit treating, in Kansas he wished to repeal the Constitution and enact the Decalogue in its stead. In Indiana he desired benevolently to change the mathematical ratio of 1.1416 to 3.15 because it was “easier to calculate.” And in Michigan he wished to forbid the wearing of tights in circuses and theatres, and the use of every language except English on the menus of hotels and restaurants. This last bill had its origin in the woeful experience of a country member who visited Detroit for the first time. He confessed that he could not read the menu at the hotel whither he had resorted for his dinner. So he blindly ordered twelve dishes, “and I’ll be hanged if seven of ’em wer’n’t potatoes,” he divulged, as he explained his reform bill. In Arkansas three years ago the fool member actually succeeded in passing a drastic anti-trust law which prohibits any corporation which is a member of any pool or trust in any part of the world from doing business in the state. The members who passed this all - reaching measure probably formed a purse comitatus to insure its efficiency.

III

These proceedings betray the common weaknesses of mankind lurking in the hearts of our legislators. The creation of a party, the legislator is by nature partisan; the creature of a boss, he is by nature servile; a lover of fame or of wealth, he naturally quails before temptation; a man from the normal walks of life, with neither special training nor special unfitness, lie is amenable to the normal influences that commonly affect human action. There is no need of calling him names. He is the result of our system of politics. The college professor may call him “a country squire” or “ a labor demagogue.” The publicist may rail at “ a body of boys, and inexperienced, unknown farmers.” The preacher may hurl theological epithets at “the puppet tool of the damned boss;” the fact remains that the average legislature represents the average American human being. His pathology is not unique. We must not be so hasty in laying all the blame for vicious and careless legislation at the door of our representatives. A vast deal of the fault lies elsewhere.

In the first place we are law mad. We look upon law as a cure-all. If you want an index to all human ills, read the table of contents of any statute book. The legislature is not to be primarily blamed for this. It is in the air, the people demand this multiplicity of laws. And it certainly is an adventitious budding of our political tree, which the forefathers, in the planting, did not contemplate. The theory of the constitutional fathers was that the government should be one of limited powers. They believed that the people should be let alone, to work out their own salvation. They did not believe that the legislature could create values, morals, and happiness. We say of the commonwealth: “Let the legislature work out your salvation, and while it is doing so, fear and tremble.” This seems to be an American mania, this craze for law-collecting, like our craze for bric-a-brac. In no liberal country in Europe are there so many laws as in our country; in none are laws more burdensome, and less conscientiously enforced. No European health commission has such arbitrary powers as an American board of health. While we are filling quarto pages with legislative rubbish, let us recall Tacitus: “ When a state is most corrupt, then the laws are most multiplied.”

In the second place we have developed the deplorable habit of special or private legislation, and this habit we are carrying to a silly extreme. Over one half of the laws annually passed are local or special in their nature. Utterly insignificant as are these backyard measures, they are enacted at the demand of a clamoring constituency, and rob the legislature of its time and strength. A member’s reputation is multiplied by the number of such laws that he can pass for his neighbors. I know of one who fathered twenty of them successfully, from babyhood to maturity, in one year. His constituency rewarded him for this commendable energy by electing him to higher office.

Everybody with a grievance or an ambition hastens to the legislature. The member feels called upon to look first after the interests of his constituents, afterwards to the interests of the state at large. He uses these private bills as a lever upon which to raise his prestige as a statesman; as a medium of exchange for legislative values, trading with his fellowlawmakers for the passage of their private bills. These measures receive practically no attention from committees. If the people of the district want them, why, that settles it. They know their business. So the whim of a farmer or the wish of a neighborhood becomes glorified into a statute.

This custom is made possible by another American custom, that of district representation. Why should a man live in a given corner in order to be able to make laws for a state ? Of course the reason is that that particular district feels entitled to special legislation. The two customs are twins, one should perish with the other.

In the third place we have not yet learned to differentiate entirely the functions of legislation and administration. When the evolution which dictates the total separation of these functions is completed, then separate organs of administration will be developed, as they are in France and Germany. But meanwhile our state legislatures persist in confusing the administration of state institutions with the making of law. This practice is baneful alike to institutions and departments of government, and to the purely legislative work of the assembly.

In the fourth place we seem entirely oblivious to the forward strides of our republic, and to the fundamental principle that government must march pari passu with progress. We seem to forget that, since the days of the first thirteen states, our population and social and economic conditions have undergone wonderful changes. Then society was agricultural and wealth individual; now society is urban and wealth corporate. The change in needs and the multiplicity and diversity of emergencies which arise in this complex society we meet with legislative methods which were suited to the simple needs of a sparsely settled agricultural community.

The most potent force in our economic life is the corporation. This creature of law has become the creator of law. This shifting of property obligation from the individual to the aggregation necessitates a new conception of duty. But have you ever seen evidences of a corporate conscience ? All branches of our public law have been undergoing a slow metamorphosis, because of the entrance of the corporation into our legal environment. So must all branches of our private law become modified. The corporation has found a permanent place in our business life, but we have not yet formed for ourselves a permanent safeguard against its constant intrusions upon private rights. We have retained the simple methods of a colonial legislature, while society has proceeded with giant strides toward the goal of corporate property and responsibility. It is not an impossible task for a corporation to own a legislature. More than one railroad corporation has successfully accomplished this task of government ownership. These great artificial beings have many times set out to elect a legislature in consonance with their desires. They have also many times secured the control of a legislature after its election. We cannot excuse corruption, neither ought we to excuse a society that meets such novel and potent conditions with such primitive and impotent methods.

IV

There remain the two usual accusations, heard wherever a legislature is discussed : these men lack ability and experience, and they also lack the time necessary for deliberate and judicious action.

It is true that the average representative is not a man of unusual ability. Men of ability cannot usually be persuaded to leave their congenial occupations and subject themselves to the harsh criticisms of an unfeeling public, and to the rigors of a political contest. I value among my acquaintances a man of culture and ability who was requested by his neighbors to allow his name to be used as a candidate for the legislature. He was obliged to refuse, for the pay the state allowed was not enough to meet his expenses as a candidate and legislator. He would have to suspend his work, and hire some one to take his place during the session. It is only in a crisis that a citizen should be compelled to give his fortune and his livelihood to the state. We do not pay our legislators a living wage, certainly not a wage that can attract ability. We do not honor our lawmakers, but rather it is a term of ridicule and jest among the cultured classes to be known as a member of the legislature.

The result of this attitude of the state is perfectly natural. The men of ability avoid the office. About seventy-five per cent of the members seek the place. They are of a kind who relish the opportunities that accompany it. Some are available because they are “old soldiers” from the Civil War, others because they are young soldiers from the Spanish War. Some have been party servants, and this is their reward for faithful service. Some “ voted for Lincoln.” A few are the incarnation of radical ideas. And still fewer have only the recommendation of a quiet, useful life filled with good deeds and honest, plain thinking. Of the four legislatures tabulated above, I can count a scant dozen men in each body who are really men of superior ability or experience. The rest are not necessarily mediocre, but fairly represent the average intelligence, honesty, and ability of the community. There are a few young men who seek the position as a stepping-stone to higher political honors. A few of these subsequently render the nation valuable service; some of our wisest statesmen received their training in these preparatory schools of legislation. A large number graduate into Congress. In the national House of Representatives thirty-seven and one half per cent of the members were thus prepared, and of the Senate forty-four and three tenths per cent.

In 1777 it was written into the constitution of Vermont: “ The House of Freemen of this state shall consist of persons most noted for wisdom and virtue, to be chosen by ballot, by the freemen of every town in this state.”

Time and conditions have lowered our standard. We are content with average wisdom and average virtue; and in years of apathy virtue and wisdom are quite forgotten, and we elect whom the machine nominates. Rotation in office, party control of nominating machinery, the ambitions of corporations and of party leaders, these are the forces that move the pawns on the legislative chess board. Under the political conditions which the majority of the voters tolerate, can we expect the legislature of a state to be composed of the best men of the community ? And we know that the real danger of the democracy is the withdrawal of intelligent and humble men from public duties.

That the legislature lacks time is axiomatic. The community and conditions rob the legislator of his hours. It is not the wilful sin of the representative that he gives heed to the thousand voices that constantly call to him from his constituents. From every hamlet in the state, from every township and city, from every corporation office, flows a stream of bills to the honorable representatives of the various districts, and on the mad current of this stream are rushed forward bills, members, and public. The veto of the governor and the efforts of the few able members cannot dam this annual overflow of our legislative Nile. Unfortunately the silt that the recession of opinion leaves after the adjournment of the legislature reeks with the unwholesome odor of bad laws, of foolish laws, and of vicious laws. This deluge pours forth from the people; it is not the creation of the members.

These are the conditions from which modern legislatures and their work arise.

Instead of setting ourselves to the task of bettering the conditions and making scientific legislation possible, we have turned elsewhere for relief. First, we have tried to minimize legislation by biennial sessions, and some have even suggested quadrennial sessions, and standing commissions for enacting orders which should stand until the meeting of a decennial legislature. This tendency is not in consonance with the spirit of a republic. The evil we combat is not legislation, but unwise legislation. Legislation is a vital function of the body politic. And legislation by representation is the life blood of a republic. We dare not allow the legislative organ to atrophy; we must help it to greater specialization, and thus follow the laws of evolution. The first step in this development was the committee system. That is now outgrown. The next step must be toward a still greater degree of specialization. The function of the lobby must be absorbed by legitimate legislative organs.

Second, we have become accustomed to view the courts and not the law as the bulwark of our freedom. The courts stand between the people and the people’s legislature. They ward off the evil effect of pernicious laws. It is anomalous that a free people should need a court of justice to save it from the destructive forces of its chosen lawmakers. We are drifting from the Saxon toward the Roman ideal, when the court becomes both the lawmaker and the judge.

Our theory of legislation by representation is not wrong, but our practice of the theory is antiquated. Yet even with our present crowded calendars, and lobbies, and party bosses, and corporate omnipotence, noble results can be attained if the people are not supine. After all, it all lies with the people. They can dignify the office of lawmaker by choosing only the honest and the able; they can degrade it, they have degraded it, by choosing the average, the mediocre, the vicious, and the foolish. All of our political evils feed upon the indifference of the people. Popular demand is the ultimate source of good law, popular indifference is the immediate source of bad law.