I

GENERAL INTRODUCTION

THE formulation of statutes by representatives of the people has been a cherished privilege in all Englishspeaking countries and especially in the United States. Laws are being turned out by American legislatures in gradually increasing quantities in the endeavor, it would seem, to meet the demands of a society which is every day becoming more and more complex. That the substance of these countless statutes aims to promote justice and the general welfare may be granted; but is their language so clear as to prevent differences of opinion and costly litigation or so readable as to be comprehended by lay folk, for whom most laws are primarily intended? Naturally, from the standpoint of the average citizen, whether the so-called lawgiver is worthy of his hire depends upon the product of his labors.

Generally speaking, the statute books of Iowa have been employed by two classes of persons: first, those who seek to learn the history of progress in the State; and secondly, those who desire a knowledge of legal rules in order to apply them to private and official life. To the masses the statute laws have made very little appeal or else have existed unheralded, perhaps entirely unknown. On account of the nature of the contents of these formidable-looking volumes of legislation, even those who are forced to resort to their pages experience no little difficulty in finding what they want. The plight of a person

who consults the Iowa statutes is that of the English statesman who thus described his feelings:

Not being myself a lawyer, and possessing, of course, no technical knowledge, I do confess, sir, that there is no task which I contemplate with so much distaste, as the reading through an ordinary act of parliament.1

If the legislative output of popular assemblies in Iowa affords little or no attraction to the average reader, there are weighty reasons why its form and substance are well worth time and study, especially in these days when the happiness of mankind is deemed to rest so largely upon the enactments of the legislature. No doubt the matter about which legislators have declared their will attracts the attention of many who would find no interest whatever in the manner in which these rules of human conduct are expressed. And yet, that the welfare of society depends upon the form of statutes no less than upon the substance can be testified to by men who have discovered to their grief that a poorly worded law inevitably breeds expensive trouble in the courts. An examination, therefore, of the Iowa lawmakers' technique as illustrated by extracts from the statutes themselves may be of the highest practical value to the legislator of the present and the future, and it is with this thought in mind that the writer proposes to discuss the form of statute law in Iowa.

Law-making—indeed, all law — in England early became so much a mystery to laymen that Lord Bacon proposed a digest. "What I shall propound", he said, “is not to the matter of the laws, but to the manner of their registry, expression, and tradition; so that it giveth them rather new light than any new nature. "'2 And Sir William Blackstone, a century later, added his testimony to that of others when he wrote as follows:

For, to say the truth, almost all the perplexed questions, almost all the niceties, intricacies, and delays (which have sometimes disgraced the English, as well as other courts of justice) owe their original not to the common law itself, but to innovations that have been made in it by acts of parliament; "overladen (as) Sir Edward Coke expresses it) with provisos and additions, and many times on a sudden penned or corrected by men of none or very little judgment in law."3

The early American legislatures had only English models when they needed to enunciate their policies by means of written language. Accordingly, legislative practices of English origin were imitated in the difficult task of making laws, and what the first thirteen States copied from the mother country became in turn a pattern for the statement of law in the later American Commonwealths. Now, what sort of legislative models did England have to offer? Jeremy Bentham, greatest of AngloSaxon law reformers, in his essay on Nomography, or The Art of Inditing Laws, bore witness to the defective character of English statutes early in the nineteenth century, when he declared that many of the difficulties of statutes were "due to confusion of thought, to obscurity of expression, to want of orderly arrangement". Although Bentham began to urge reform in the language of the law at least as early as 1793, his criticisms were quite as applicable to statutes, English or American, fifty or sixty years later, and so the form of statutes underwent few improvements: the style and language of laws remained fettered by the technical forms and prejudices of a bygone age. In such ground, then, American statute law took root. Indeed, most States to-day are satisfied with the statute models of generations ago. It is proof of the proverbial conservatism of lawyers and legislators, and

helps to explain why the layman instinctively smells dust in the presence of anything savoring of law.

It is proper to state that the discussion which follows owes its inspiration primarily to the criticisms of Bentham who pioneered the way and to the writings of others who succeeded to his labors. Surprising as it may seem, but few men have followed the trail which Bentham blazed a century ago, and the reason for this fact was recently pointed out, namely: "the large commercial demand for legal works available for the business of litigation . . . . has absorbed the attention of jurists to the utter neglect of scholarly or literary service to the no less important business of legislation." All who are interested in the form of statutes are under lasting obligations to three Englishmen: George Coode who wrote an excellent brochure entitled, On Legislative Expression: or, The Language of the Written Law (1845); Lord Henry Thring, the author of Practical Legislation (1877 and 1902); and Sir Courtenay Ilbert who has covered much the same ground in Legislative Methods and Forms (1901), and The Mechanics of Law Making (1914). The chief American contributors to the literature of the subject with special reference to American legislation are A. R. Willard whose work, A Legislative Handbook, appeared in 1890, and Chester L. Jones whose volume, Statute Law Making in the United States, was published in 1913. The present writer wishes to add that in the following chapters he has looked at the statutes of Iowa in the light of the useful and practical suggestions of his predecessors in the field and to them must be given a large share of the credit for any merit which his criticisms may possess.