‘Preventing trees being planted on either side of public roads’

I now introduce the term ‘prescriptive encounter’. Five types are detailed. Word counts are supplied when they illustrate distinctions at work.

First, an assembly may compose constitutional or statutory text.

Second, an assembly may compose a mini-code of procedural rules. British and American efforts in 1774 totalled 851 words and 109 words, respectively. Mini-codes were not gargantuan in length. They did not offer dense or semantically even coverage of all the operations of a parliamentary assembly. Codes of procedure did exhibit these features, but, strictly speak­ing, legislators did not write codes of procedure in the study interval.

Third, inspired by a perceived need to solve a procedural difficulty an assembly might toss off one, two or three new rules. Succinct expression was the order of the day. The first time that the House of Commons addressed a topic (private bills) via multiple Standing Orders declared on the same calendar day (15 February 1700) it employed 99 words. The United States Senate employed 180 words to compose two new rules (governing treaty ratification) in less than thirty days (6 January and 3 February 1801).

Fourth, an assembly might also review and revise existing procedural rules. (In this case word counts do not illustrate the point.) The British prac­tice, beginning with the Montagu committee, called for the House of Com­mons to task a committee for this purpose. The committee recommended revisions or repeals required in the Standing Orders of the House of Com­mons. The Americans did not revise their mini-codes until the end of the study interval. If American legislators found an existing set of rules wanting, they trashed the lot and coded a new set of prescriptions.

bound to enhance the confidence of members in their technical skills. Of course, this approach might value quantity over quality but American law­makers had to start somewhere.

Fifth, an assembly might translate past practices into a single procedural rule. A rough measure suggests that the British used many more words to craft any given declared Standing Order than their American counterparts. Commons' first nine rules (declared from 7 February 1677 to 22 Febru­ary 1731) employed 1,912 words while the Senate's entire code of 40 rules (7 December 1801) used 1,909 words. By this rough count, the British used four times as many words as their American cousins in writing any single rule.

As is apparent from the preceding not all inventories of rules were created equal, at least as far as professional readers were concerned. One inventory might be deemed suitable for stand-alone publication. Another might never find its way to a bookdealer's stall. A legislative committee's one-off review and revision of existing rules or an assembly's translation of a few practices into a handful of procedures did not regularly appear in a stand-alone print­ing. At least not in the study interval. Eventually convergence dominated presentation of inventories. Annual stand-alone publication of Standing Orders in mini-code format became standard practice in the first third of the nineteenth century. By mid-century or so, the comprehensive code of procedure - a door-stop's worth of rules by eighteenth-century standards - was the norm. British practice eventually came around to the American way of doing business. The North Atlantic race for word count supremacy may, on this account, be judged a tie.

Prescriptive encounters share much in common, functionally consid­ered. These encounters obliged members to connect the aspirational to the technical. The former term gathers ideas framing the role of the systems, structures and institutions in political society.

What do they have in common? Whether legislators write merit bills or procedural resolutions, these efforts exhibit the following similarity in risk­taking. Once a bill was enacted into law or a resolution declared a standing order, events passed out of the control of legislators. Even if events were wholly intra-mural - such as might obtain when a new procedural difficulty

‘This beautiful political order’ 153 arose - the assembly was well aware that, given a strong leader or ‘tumul­tuous’ majority, existing procedures might be ignored or even overthrown. Both of these contingencies worked to the same effect. Coding prescriptions was the eighteenth century’s preferred means of managing the future present. It was literally the best that could be accomplished.

If the future present was likely to deliver events beyond human control, that opened the way for public officials to celebrate the here and now, which turned attention back to their present accomplishments. Public officials were best positioned to claim credit for official acts; this satisfied the urge to manage the news cycle.

I turn now to a second point: I have quoted Edward Christian’s defiance: modifications proposed to existing law projects should meet a test of ‘math­ematical demonstration’ to confirm that ‘future prospects’ (of such a bill) were worthy of further legislative attention.²⁰ As befits a literary mystery worthy of Horace Walpole, Christian tucked his analysis into a footnote in his (Christian’s) notes on Blackstone’s Commentaries (1793-94; 12th ed.). Christian sought (as did Blackstone) better law-making from legislators. Christian assumed that laws deserved to stay on the books until overthrown by the ‘mathematical demonstration’ that a better law could be crafted. A minimum useful life could be assigned to a statute; this value was to be treated as the default predicate, absent the ‘mathematical demonstration’ his discussion prescribed.

Christian may be regarded as a Benthamite on this point. In the 1790s legislators gave serious consideration to built-in longevity as a key feature of law projects, whether legislators enacted merit programs or declared new procedures. The Essay’s ‘measure of probability as to the correctness of its decisions’ explicitly framed consideration of the useful life of a statute.²¹ If longevity or useful life made its appearance, even in an obscure footnote in an immensely popular work or a book selling five copies, there is no reason not to test for it.

via some ‘mathematical demonstration’ and not waste their attention on bills that could not meet this threshold requirement.

The foregoing leads to a unified understanding of merit and process. Leg­islators were responsible for whatever process guided and governed their expression of an ideal prescription. Once the real world underwent the impact of a statute or Standing Order, legislators then required to reckon with this impact. This new and second responsibility obliged them to track the interplay of stochastic and systemic variables which captured the behav­iour of consumer-inhabitants in the real world as that world changed around them, thanks to a new statute enacted or Standing Order declared.

The skills required to craft huge, novel-sized merit projects were portable to the challenges facing members when they set about composing proce­dures. Skills acquired in crafting mini-codes of procedures also enhanced the assembly’s law-making skill-set, as evidenced by the increasing num­ber of novel arrangements settled on legislators’ child-agents. These skills shared a moment in common when law-makers were obliged to assess how they had changed the real world. This might be a very noisy moment, given stakeholder demands for goodness and fairness. But the necessity for the reckoning was to be laid entirely at the doorstep of law-makers’ ambitions. Being responsible for changing the world made British and American legis­lators more, not less, ambitious. On reflection, they had much in common with their French counterparts on this score.

In line with the preceding, I argue that the National Debt Reduction Act (1786) was enabled, as a matter of skill acquisition, by the ramp-up in procedural skills which Commons exhibited from 1774 through 1786 in declaring Standing Orders even if these were mostly devoted to guiding and governing improvement projects. In 1781, for example, Commons declared that inclosure bills must be configured so as not to obstruct ‘Public Carriage Roads’. No ‘Trees’ were to be ‘planted on either Side of the said Public Roads, nearer to each other than within the Distance of Fifty Yards’.²² Five years later Parliament detailed the chain of events that was to transpire (in the functions of the Sinking Fund) if and when gross revenues of com­missioners (including parliamentary grants) exceeded £4,000,000 annually. 26 Geo. 3 c. 31, Section XX. Setting conditions and declaring contingen­cies were two tasks that occupied legislators day in and day out. When the House of Commons imagined how events might play out in the future, they indulged their individual and collective passion for fusing the ideal with the real. This was an equal opportunity playing field. The specialised knowl­edge pertinent to successful dealing in conditions and contingencies could be learned in composing resolutions declaring a new procedure or when writing a bill bringing in a new merit project.

The demand for these programs produced results that were surprising. Blackstone’s ‘romantic idea’ came to dominate legislative thinking. Legisla­tors were shifting their focus from grinding out subject-penalising laws to crafting consumer-oriented laws. The new way of doing business involved

‘This beautiful political order’ 155 spending tons of other people’s money. It was also more complicated. Fore­seeable difficulties provided suitable opportunities for law-makers to show off their skills in public. Running an idea exchange - via ordered discourse - became, par excellence, the core task of legislators. Ideas were also sources of social conversation, both polite and professional, and likewise stimu­lated discourse among the learned and entrepreneurial classes. Consumer- oriented law-making - in matters of merit or process - was therefore more fun than indulging the excesses of command and control.

Success on this occasion brought in unforeseen consequences. Assemblies could count on hearing from stakeholders who were eager to relate how a new statute or Standing Order impacted the real world they inhabited and in which they hazarded household net worth. How could law-makers best give voice to this introspective enterprise without their voices getting lost in the chorus of stakeholders eager to deluge assemblies with demands for goods and services? How were legislators to conduct an idea exchange which was designed to improve the functioning of their assembly? Bentham argued that ‘perfection’ of rule-making was attainable by members of assemblies achiev­able through the ‘exercise of their intelligence’.²³ This remark frames further inquiry, to which I now turn.