The awakening interest in South American affairs has served to make prominent the confusion of the public mind on certain fundamental questions relating to the present situation and the probable future of political and social institutions in this quarter of the globe. This confusion is due, in large part, to the widely divergent opinions of writers on South America. At first this conflict of views was received with a certain amused indifference, it being assumed that this unknown land, so rich in adventure, was rapidly becoming the theatre of the modern romantic novel, displacing to a certain extent the battlements and towers of mediaeval Europe. During the last few years, however, the attitude of the public toward South America has undergone a profound change. We are no longer satisfied with the swashbuckler descriptions of revolutions and other armed conflicts but are demanding unvarnished statements of the actual situation. There is a real national interest that this demand be satisfied, for it is evident that the time is rapidly approaching, if indeed it is not already at hand, when the people of the United States must be prepared to express themselves clearly and unequivocally on certain, fundamental questions affecting their relation with the peoples of Latin America.

Within a comparatively few years the United States has become a world power in the broadest sense of that descriptive term. Coordinately with our wonderful internal development have grown our influence and commerce with foreign nations. Although we have been and are overwhelmingly absorbed with the solution of great and grave internal national problems, we have confronted, and are facing, problems of equal importance in our dealings with other nations. We can make no greater error in shaping our present policies with reference to their effect on the future than to disregard the obligations and responsibilities which rest upon us as the most powerful and populous republic of the western hemisphere. When we study, moreover, the various phases of our foreign affairs we find the most interesting and perhaps the most important field of our friendly and commercial influence to be that of the twenty republics to the south of us.

The time has unquestionably come for us to develop not only more commerce with South America but also more intelligent relations with our southern neighbors. Most of us are much more ignorant about their history and politics than we care to admit. There is an increasing demand for trustworthy books on these subjects and the question arises as to whether it can be met. Is the field a profitable one for research, and is it possible with our available resources to undertake the production of scholarly works? It is the aim of this paper to answer these questions and to indicate the whereabouts of some of the more important collections of manuscript and printed sources, particularly those that are accessible in this country.

The basis for the paper is the author's card catalogue in the Yale Library, which includes among many others the titles of books relating to South America that are now in the Harvard Library, the Library of Congress, and the Yale Library. It is planned to make,this catalogue a subject index of material relating to Spanish America. At present it contains about 25,000 cards.

At the close of the Napoleonic wars the colonial empire of France had reached the lowest point in its history. Of the very extensive territories which the Bourbon monarchy had accumulated during the seventeenth and eighteenth centuries, there remained in America only a few small islands in the Gulf of St. Lawrence and the Caribbean; in Africa only Senegal, Reunion and Madagascar (the latter practically abandoned); and in Asia only Pondicherry and a few small trading posts on the mainland of India. France had been forced to yield her place among the great colonizing powers of the world.

The course of events during the nineteenth century, however, has on more than one occasion borne testimony to the marvelous recuperative power of the French people; and in no more striking respect has this power been shown than in the development of new interests beyond the seas. Through the acquisition of Algeria and other important territories in Africa, and the assumption of protectorates over Tunis, Madagascar and extensive regions in Indo-China, the French have regained for themselves a place second only to Great Britain among the colonial powers of the present day.

The skillful policy of Sir Wilfred Laurier, the discussions of the colonial conferences, the propaganda of Mr. Chamberlain, and the activities of the colonial legislatures have served to bring the subject of preferential trade most prominently before the attention of the British public. Unfortunately the consideration of the question has been almost exclusively of a partisan character, the merit or expediency of the policy being lost sight of amid the stress of national political issues. The question, however, is one which readily admits of scientific economic treatment, since the history of imperial relations, and more especially the reciprocal economic policies of the several groups of colonies offer abundant material for an impartial historical and political investigation. The preferential program is not new or experimental; it has been tried both as an imperial and intercolonial policy by imperial and colonial governments alike. The Canadian, Australian and South African colonies have all attempted to work out within their several groups a more perfect political organization through some system of commercial coöperation or fiscal preference. The experience of the Australian group is especially valuable and instructive to the student of imperial politics, on account of the favorable conditions under which the experiment was made. On the one hand, the isolation and the geographical unity of the colonies, the uniformity of their legal systems and political institutions, and above all the racial, social and religious unity of the inhabitants combined to weld the colonies into an organic whole; on the other hand, the diversity of economic life, the natural independence of the colonies, thanks to an open sea-board, the irreconcilable differences in their fiscal systems, the ambitions of local politicians, the jealousies of competing cities, and the selfishness of particularistic interests impelled each state to maintain a separate existence, and to pursue a course of free and independent action.

The larger aspects of the legislature and of its functions: the question of the right principle of representation, of the frequency of legislative sessions, of popular control and cooperation through the referendum and the initiative, have their bearing upon the quality of legislation, but they are essentially political questions, and beyond the range of the present discussion. This discussion is to confine itself to a problem of narrower scope, and somewhat technical in its nature, which may be stated as follows:

Given a legislature of average ability, fairly representative in character, not exempt from political bias or popular prejudice, but willing on the whole to act according to the best of its lights, such a legislature as we now have, and shall have for many years to come: how can it be enabled to perform its task most creditably and most efficiently?

For the last few years the public press and current literature have been full of discussion upon the corruption and inefficiency of our representative bodies, national, State and city.

The student of political science must search deeper than this popular clamor for the cause of the lack of confidence in our legislative bodies.

We are all aware of the stupendous changes in our economic and industrial conditions, which this country has undergone since the Constitution was adopted. To meet these conditions our whole theory of government has been strained. Great administrative bodies and powerful commissions have arisen. The courts have assumed a power never conferred upon them in the original Constitution. The unwritten law of the land has grown with amazing rapidity. But what corresponding changes have been made in the fundamental source of law—the will of the people as expressed through our legislative representatives? Surely no branch should be more affected by changing conditions than the branch whose duty it is primarily to fit our economic conditions to law. Yet a slight examination will convince us that this body has not changed as other bodies have changed. It has not improved, nor has it become flexible with the increasing demands upon it. Science has increased, but the science of law making has remained practically without static development.

The observations which I have to offer are not those of a student of political science, but of a practicing lawyer, whose duties occasionally bring him before committees of the legislature and whose calling gives him opportunity to notice the practical working of legislative acts.

I fear that before this audience I shall appear in the character of Molière's Bourgeois Gentil homme—announcing discoveries of facts astonishing only to myself, and engaged in the somewhat useless task of “carrying coals to Newcastle.”

I shall confine myself to the consideration of State, as distinguished from national legislation.

As a preface, I call your attention to certain familiar propositions.

The law which governs us is to be found in the constitutions of the United States and of the States, treaties made by authority of the United States, the statutes enacted by the national and State legislatures and the common law.

The common law is the expression of those rules of conduct, which, after long experience, have been found by the courts, to be just in the greatest number of cases. Its principles are readily adaptable to the vast majority of new judicial problems arising from changed conditions and, with exceptions much more rare than legislators imagine, it is safe to allow the courts to work out relief under, and in harmony with, its well established doctrines.

Codification was for many years a word to provoke discussion in any gathering of American lawyers. The idea of a simple and complete code, with which the name of Bentham is chiefly associated, received great favor in this country, although the efforts to put into practice Benthamic theories were seldom even partially successful. During recent years, however, we hear little of codification. The interest of the bar and of political scientists in this theory has apparently greatly waned.

The relative merits of the common law and a code are not within our present field of discussion. The literature upon the subject would probably fill many volumes. I do not even venture an opinion whether the demerits of the code are sufficient to account for its abandonment. I do not believe, however, that the subject was really settled upon its merits or that if similar conditions to those existing twenty-five years ago were to return we should not have the discussion again revived. Probably the most powerful factor in the elimination of this idea has been the rapid increase in the written law. The question is now not whether we shall codify the unwritten law but whether we shall reduce to the form of a partial code the statutes already existing, and if so, how this result can best be accomplished. We cannot codify the unwritten law until we codify the written law.

One needs only to make a cursory survey of the periodical literature, treatises on government and politics, and the reports of proceedings of numerous societies of lawyers and jurists to be thoroughly impressed that there is a widespread conviction, based no doubt upon abundant evidence, that the average popular legislative assembly, if not corrupt and venal, is inherently weak and incompetent, and to this incompetency, plus some corrupt and sinister purposes, may be charged most of the ills we suffer from an incongruous and incomprehensible mass of statute law. The legislative department, the source of all our statute law, has from the beginning been under suspicion and criticism. Our constitutional limitations have been aimed for the most part at the legislative branch, and the bulk of criticism points the same way. We have been, and still are, afflicted with overlegislation and with bad legislation. The annual output of the American legislatures, we are told, is 15,000 laws covering 25,000 pages; from 1899 to 1904 the total number of acts passed by American legislatures was 45,552 while during substantially the same period, the English parliament, legislating for 42,000,000 of home population and millions of dependents, enacted less than 1500 laws, special and general. That the laws are of doubtful quality is indicated by the fact that in New York alone during a period of about twenty years over 500 statutes were challenged in the courts for unconstitutionality, and the amount of litigation due to uncertainty in the statute law passes computation.

Great uncertainty as to the meaning of statutes often results because the most ordinary canons of English composition have been ignored. Intent on expressing the legislative thought in that language which we call legal, the draftsman often makes the law unintelligible to laymen.

It is important of course that the statute law be so expressed that the courts and those learned in the law may know its meaning. Yet that trial courts and lawyers do not always know the meaning of statutes is evidenced by the fact that the appellate courts are so constantly called upon to construe them. In the last volume of the Wisconsin supreme court reports, representing three months output and containing about one hundred cases, the court found it necessary to construe for the lower court or otherwise refer to, one hundred and twenty-six different sections of the revised statutes and twenty-nine chapters of the session laws. If lawyers and judges are puzzled over the meaning of these statutes it is no wonder that laymen are often at fault.

From the standpoint of the reviser, our statute law may, among other things, be criticised for:

1. Unnecessary duplication.

2. Lack of uniformity in sections dealing with the same or similar subjects.

3. Lack of uniformity in the sense in which the same word or phrase is used.

4. Excessive length of sections and want of paragraphing within sections.

5. Lack of classification and arrangement.

6. The intermingling of general with special, local or temporary laws.

7. Defective indexing.

Under any plan for the revision of the statutes, the work must be approved by the legislature. A revision of the statutes has meant a periodical rewriting, rearrangement and condensation of the previous revision and the subsequent session laws. Immediately after the publication of the revision, and sometimes before, the legislature would proceed to undo the work as rapidly as possible. New laws were enacted with but little reference to the existing laws. There was no attempt at classification or arrangement or to follow any methods adopted in the writing of the revision. A periodical revision hardly ever contains more than a part of our statute law and leaves a large gap between each revision to be filled in with undigested session laws.