The materials for the study of principles of legislation are not as simple as those for the study of the common law.
The statutes which are the primary source of the history of legislation, are unindexed except for each volume of session laws, which makes the tracing of developments laborious; especially because the phases of legislation which are of particular scientific interest are often merely incidental to the main topics which alone appear in such indices as exist; no index would thus give a clue whether a prohibition act contained saving clauses with regard to vested rights or compensation provisions. An exhaustive study of such a topic as powers to grant or revoke licenses or of penal clauses would thus be practically impossible. And even if it were possible to collate the entire statutory material, it would hardly be worth the labor expended, for a bare provision without any clue to it is not enlightening. We know how statutes are made to-day, and the method has not been different at any time in the history of American legislation: an interesting or exceptional provision as likely as not represents nothing but the casual thought of the draftsman, and provisions of common occurrence may rest merely on habit and precedent. The significance of a statutory practice depends upon one of two factors, namely, that it has either been the subject of thought and discussion, or that it has been tested by practical application; but in most cases there is no record information on either of these points. The most complete collection of statutory material may therefore be dreary and lifeless, and relatively barren of valuable data. For practical purposes, therefore, it must as a rule suffice to pick out some typical state and period in connection with some field of legislation that has stirred public interest, such as liquor, railroads, or elections, although even with this restriction we shall often remain without any clue as to the significance of provisions. For recent periods a good deal has been done by various agencies in bringing together the entire statutory material on certain topics; on railroad legislation by the Interstate Commerce Commission, on electrical legislation by the American Telegraph and Telephone Company, on tax laws by the Commissioner on Corporations, on road laws and pure food laws by the Department of Agriculture, etc.; but the pictures presented by these collections are purely static, and since the dates of statutes are not given nothing can be learned as to development of laws even by comparison. The most instructive phase of legislation is sometimes its growth by amendments, but nothing is more difficult to trace. Altogether therefore the primary source material for a study of principles of legislation is in a singularly inaccessible and unilluminating condition.
The secondary legislative material - debates, reports, documents - is ample for Congress and poor for most of the states. Congressional debates sometimes throw a valuable light on the legal aspects of legislation, although - as should be expected of speeches in open sessions - other aspects greatly predominate. Committee reports likewise concern themselves rarely with tech" nical phases of bills, and discussions of constitutional questions invariably take the form of regular lawyers' briefs digesting court decisions, without presenting independent views of constitutional principles,-another illustration of the absolute domination of the judicial point of view.
In the states there is practically nothing published in regular series corresponding to Congressional Debates or Documents, but merely scattered papers and reports, which are now being indexed (at least so far as they contain economic material) for the several states by the Carnegie Institution. Committees do not as a rule submit printed reports, and arguments presented to them by interested organizations are not preserved in an accessible form. There is a growing amount of pamphlet literature issued by private and semi-public organizations such as the National Civic Federation, the Association for Labor Legislation, and others, of which an account is given from time to time by a Public Affairs Information Service, and much of which is available for tracing the history of legislation.
Administrative reports sometimes contain valuable information concerning the working of statutes and needed changes, more commonly they give merely statistics, and comment is perfunctory or tainted by official complacency. Of greater interest are the proceedings of national conferences of various classes of officials (factory inspectors, tax commissioners, etc.) so far as they are published and preserved, which is not always the case. The administration of laws of economic and social interest is also frequently made the subject of comment in the proceedings of scientific associations, in journals and treatises, and particularly the material for the study of the administration and enforcement of labor legislation has become abundant, and much of legal interest can be gleaned from these publications. The report made under the auspices of a Committee of Fifty upon the legislative aspects of the liquor problem (Wines and Koren, Boston, 1898) is a source of information, of which we have too few examples. On the whole, the privately collected material is more valuable than the official reports.
In contrast to the United States, the secondary legislative material of the European States is of very great value for the study of principles of legislation. Not too much must be expected of parliamentary debates, since speeches in open sessions are mainly political; in Germany particularly they are spoken "through the window," and are juristically of hardly any value. Of the English debates those of the House of Lords yield much more than those of the House of Commons; for the House of Lords is full of great experts, and in the House of Commons the real debate on measures of technical difficulty takes place in Committee and remains unreported. The French debates seem - at least in the Senate, -of a high order, and give a better insight into French public law than many a treatise.
The English Parliamentary documents known as Blue Books have long been recognized as an invaluable source of economic and social history, and a great deal can also be gathered concerning administration and enforcement of laws. In view of the similarity of common law foundation this material is also instructive to American students, although for the study of constitutional and administrative law it has hardly been utilized. Of non-official publications the Justice of the Peace, a weekly journal for the use of English magistrates, contains perhaps more of value to the student of legislation than any other, for it is the only publication dealing primarily with public legislation, in which the legal point of view distinctly predominates. It does not, however, touch statutes that are not locally administered.
The printed matter published in Germany by or for the various legislative bodies is on the whole similar to that contained in the Blue Books; and the main stress here as there lies on political, social, and economic and not on legal questions. Important legislation is usually preceded by preliminary "memorials" (Denkschriften, Motive) prepared by officials of the ministries; these are often printed, though not always listed in the book trade and hence are sometimes not readily accessible After a statute has been passed, it is likely to be made the subject of an elaborate commentary, in which all preparatory material is digested; indeed the official who had the main share in preparing the law often appears as the author of such a commentary. In this way the process by which final results have been reached is often laid bare, and it is possible to trace the underlying principles of legislation. The subsequent operation and enforcement of statutes can then be studied in administrative reports, some of which, like the factory inspectors' reports, enjoy a high authority. Even from the
German material we can derive valuable lessons for American legislative problems.
The law reports as legislative material. If we are poor in sources of information which in European countries are abundant, we surpass them in the volume of reported adjudications. The law reports could probably be made to yield a great deal of valuable information and material bearing on constructive principles of legislation. They are not indexed or digested for that purpose; but Revised Statutes not uncommonly contain references to the cases in which each particular section is discussed or cited, and on that basis a tolerably complete view of the judicial treatment of statutes may be obtained. This is not merely valuable for purposes of interpretation, but often gives first-hand information concerning the history of a statute, and explains subsequent amendments. That a statute becomes the subject-matter of litigation regularly indicates some difficulty encountered in its application, and may suggest methods or principles of legislation whereby that difficulty might have been avoided. From this point of view cases could perhaps be selected and worked up to as much advantage as they are now for the study of common law doctrines.