drew a distinction between the province of statute or positive law and that of jurisprudence which seems to correspond roughly with that adopted by Parliament as separating the field of common law and equity from that of statute law. In the United States administrative law forms a large part of the entire body of statute law, as may be seen by reference to the general laws of any state. In Massachusetts, for example, of the two hundred and twenty-seven chapters which compose the Revised Laws of 1902, one hundred and twenty-six chapters are set apart under the heading "Of the Administration of the Government."

It should be noted also that the current of opinion in favor of collectivism, as it is called, or socialism, which is now running strong, if it is not actually dominant, tends to increase the amount of administrative law in the states. In 1901 the commissioners appointed to revise and consolidate the statutes of Massachusetts since 1882, stated that in the revision as reported by them, seventeen new titles were included, which had never appeared in any revision of Massachusetts laws. Out of those seventeen titles, seven bear evidence of the tendency of the state government upon various grounds to extend its activity, by doing itself work which previously had been left to cities and towns, by supervising and regulating professions and business which had previously been left without public supervision, and by authorizing cities and towns to carry on as public utilities work which previously had been left wholly to private enterprise. All these activities rest more or less upon the fundamental assumption of collectivism — faith in the benefit to be derived from state intervention. Other statutes of the same class will be found under the headings Of the Regulation of Trade, the Police Power, and the Employment of Labor. These new activities of the state require an increase of administrative machinery in the form of boards, commissions, or other public officers, and engage more and more the attention of legislatures, leaving to them less time for legislation affecting private law.*

1 Savigny, Vocation of our Age for Legislation and Jurisp., Hayward's translation, 32 et seq.; 2 Pol. Sci. Quar. 119, 124, n. 2. See also 3 Pol. Sci. Quar. 136.

2 Report of Commissioners, iv. The seven chapters are: c. 28, Of Public Parks and Playgrounds; c. 34, Of the Manufacture and Distribution of Electricity by Cities and Towns; c. 47, Of State Highways; c. 76, Of the Registration of Physicians, Surgeons, Pharmacists and Dentists; c. 83, Of the Protection of Infants and Care of Pauper Children; c. 84, Of the State Board of Charity; c. 88, Of the Massachusetts State Sanatorium. ▲ Ibid. 305, and n. 2.

3 Dicey, Law and Opinion, 258.

For the purpose of considering statute law in relation to uniformity of law, all statutes relative to administrative law may be laid aside. One of the great advantages of local self-government through the agency of states is that each state may adopt those methods of administration which will secure the best results for its own people. Diversity in administrative law in the several states may be more desirable than uniformity.

In the case of private law, on the other hand, no argument is needed to prove that uniformity is desirable. Among a people as closely bound together as the people of the United States a large measure of uniformity in private law is not only desirable, but practically necessary. By private law is meant (speaking generally, without seeking the accuracy of scientific definition) the rules relating to contract, tort, property, family relations, succession, and inheritance. This has been called "lawyers' law," in contradistinction to statute law. The practical question is, what is the probable effect of legislation on the uniformity of this body of law in the several states?

In order to answer that question intelligently, it is necessary to know what the forces are which induce legislative action. A legislature is analogous to a court, with rules of procedure for the admission and despatch of business. Under the freedom of petition secured by American constitutions the people have practically an unlimited right to approach the legislature with petitions for new laws. In Massachusetts every year about thirteen hundred subjects are presented for legislative action, most of them by petition with an accompanying draft of bill. These petitions are of great interest as evidence showing what subjects are engaging the public attention. In most of the petitions only a small number of persons are interested, but a few of them are likely each year to attract the attention of the entire state. In order to be enacted as statutes or resolves each of the petitions must have behind it some power of public opinion or other power sufficient to move the law-making branch of the government to action. For

1 The continental codes dealing with substantive private law, as the Code Civil in France, and the Burgerliches Gesetzbuch in Germany, deal with the following subjects, adopting with but little variation the divisions found in the Institute of Gaius: Law of Persons, including Family Law; Law of Things, or Property; Law of Obligations, including Contract and Tort; Succession and Inheritance. This corresponds generally with our system of common law and equity.

2 "For lawyers' law Parliament has neither time nor taste." Ilbert, Leg. Methods 213.

this reason the annual Acts and Resolves show better than any other record extant what Massachusetts is thinking of and doing. This is true also of the legislation of the other states.

When the legislature is approached by bodies representing a well-formed public opinion, or which create the belief that they represent public opinion, a favorable hearing is almost sure to be granted. No legislature will long defy an aroused public opinion, whether that opinion is based upon reason or sentiment. The real difficulty of a legislator is that upon most of the questions upon which he is required to act there either is no definite public opinion, or it is not ascertainable. The general public are too much occupied with their private affairs to form opinions, or to make their opinions known, on the multitude of questions before the legislature. Persons having a private and special interest in proposed measures, or mere theorists, with no solid foundation for their petitions, by importuning legislative committees, often produce a belief that legislation is demanded by public opinion, for which there is in fact no real public support. As a general rule there is no public opinion in regard to proposed legislation affecting common law or equity. There will never be an uprising of the people either for or against the rule established in Lawrence v. Fox. Whether a third person shall be allowed to bring suit upon a contract made for his benefit is a question requiring technical knowledge for its solution, and is of interest only to the parties, and to lawyers, judges, and persons especially interested in the administration of justice and in the safe and symmetrical development of the common law. There is a professional or expert opinion upon the subject, but for most purposes what is called public opinion is a negligible quantity in relation to statutory changes in private law.

There is, however, a notable exception to this rule. Questions of private law which affect social or public interests as distinct from individual interests, such as the relation of employers and employees, or the right of association or combination, questions which touch moral, religious, or other sentiments, such as may arise in the criminal law or in the law of marriage and divorce or on the observance of the Lord's Day, involve a political or social element, and may at any time arouse public discussion which will result in general public opinion that may demand or oppose legislation. It is upon questions of this nature that legislation changing the rules of the common law has been most active. In England within twenty-five

years and in Massachusetts within fifty years the common law unity of husband and wife, and all the rules resulting from that unity, have been swept away by statute, almost completely.1

Upon questions of private law which involve a political or moral element, and which attract public attention, every individual is free to petition for legislation; but upon those questions of private law which are wholly technical only experts are likely to petition for legislation, and there are some experts who are not free to petition. This results from the doctrine of the separation of governmental powers.2

First, in regard to the executive. In England the executive government is seated in Parliament, and any member of the government, being also a member of the House of Commons or of the House of Lords, can introduce a bill providing for legislative changes in the common law, with the support of the cabinet behind it. Under the American system, both in the state and federal governments, the executive may recommend changes by message, but cannot introduce a bill. A message from the executive is referred to the proper legislative committee, and when so referred, follows the usual routine. The governor cannot with propriety appear before the legislative committee, even if he can do so legally, for the doctrine of the separation of powers is regarded as of vital importance by the legislature and rigidly enforced. His power to induce affirmative action by the legislature is not great, except in the case of a governor of unusual tact and ability, and then his power comes from his personal qualities and not from the law.5 Governors do not often recommend statutory changes in the common law for the reason that such changes require technical knowledge, and are not usually of interest to the general public. On the other hand, the power of the executive to stop such changes

1 Dicey, Law and Opinion, 394.

2 See Massachusetts Bill of Rights, XXX.

Ilbert, Leg. Methods, 213, 222; 1 Bryce, Am. Comm., 3 ed., 93.

The only instance known to me in which an American executive appeared before a legislative committee is that of Governor Butler of Massachusetts, who in 1883 appeared in person before a joint committee in the investigation of the Tewksbury almshouse, and conducted one side of the inquiry.

Professor Reinsch commends the leadership which some able governors have recently secured over legislatures, as a symptom of a healthy development in our political system." Am. Legislatures, 285. Mr. Bryce says the separation of the executive from the legislative department is not a necessary incident of democratic government, citing the example of England. 2 Am. Comm., 3 ed., 587.

by the use of the veto, which exists in all but two of the states, is very great.1

Next, in regard to the judiciary. The judges, either as a body or as individuals, have never had, and are not likely to have, more than a slight influence in effecting legislative changes in private law. No regular method is provided by which the judges may approach the legislature as petitioners for legislation, and they cautiously refrain from any action which may expose them as individuals or the judiciary as a body to criticism for interfering with the legislative branch of the government. Occasionally a judge of extraordinary energy and activity, like Judge Story, may suggest changes in the law and prepare drafts of bills for the use of friends who are members of Congress or of a state legislature. The Crimes Act of 1825,2 the Bankruptcy Act of 1841,3 and the Admiralty Jurisdiction Act of 1845, are probably traceable to his influence. It is open, of course, to legislative committees to request information from the judges, but this power is not often used. Practically under our system the whole benefit which might be obtained from the judiciary as an expert body in effecting changes in private law and improvements in the organization of the courts and the administration of public justice is lost to the legislature and to the public.

"5

In England it is far different. "The earliest Acts of Parliament were drawn by one or more of the king's judges." After the Restoration the judges attended the sittings of the House of Lords and were occasionally employed to draft bills. Again the Lord Chief Justice and other eminent judges have for a long time had seats in the House of Lords, not ex officio, but as peers of the realm, with the right as members to introduce bills. To this fact may be traced many valuable acts reforming and improving the common law, such as Lord Denman's Act, abolishing incompetency of witnesses in civil actions from interest or from previous conviction of crime; Lord Campbell's Act, giving a remedy in damages for causing death by wrongful act, and many others. In Massachusetts a judge by accepting a seat in the legislature vacates his judicial office, under

1 North Carolina and Rhode Island. See I Am. Pol. Sci. Rev. 200, 204. A governor of New York has twice prevented the enactment of the Field Civil Code by means of the veto, after it had passed both branches of the legislature.

✦ Jackson v. The Magnolia, 20 How. (U. S.) 296, 342, per Campbell, J. (1858).

Ilbert, Leg. Methods, 77, 78.

6 6 & 7 Vict., c. 85 (1843).

7

9 & 10 Vict., c. 93 (1846).