Page images

second edition, section one of that Act, is incorporated into the Revised Statutes as $ 3, Tit. 3, Chap. IX, Part I; section two is incorporated as $ 37 of Art. 1, Title 1, Chap. 15, of Part I: and sections three and four are incorporated as 30 and $ 31 of the same article.

And what adds to the incongruity, is the fact that the first section which requires a certain thing to be done within sixty days after the passage of the Act, viz.: January 25, 1832, is incorporated into the Revised Statutes, which passed on the 3d of December, 1827, and took effect on the 1st January, 1828, so that the Legislature are made to enact in January, 1832, that a certain thing shall, at a future time, be done on a day already passed four years ago!

These incongruities I found myself compelled to fall into the moment I should attempt to take the liberty of altering the actual enactments of the Legislature, and I became satisfied that this

purpose of having what was termed the Revised Statutes contain all of our Statute law, could never be effectually executed save by the legislative power.

The Revisers as early as their second edition felt the difficulty of the attempted task, and that which was merely difficult in six years after the revision went into effect, has become well nigh impossible after a lapse of over thirty years.

At all events I found that I should involve myself in great confusion by attempting it without legislative power.

The plan therefore which I have adopted is different from that of any of the preceding editions.

I aim at the attainment of the same purpose, but I do that by giving first the Revised Statutes with scrupulous accuracy, just as the Legislature has at this moment left them, and next and in separate volumes, all the general laws of the State now in force.

Those general laws I have grouped together, so that all the acts on any given topic will be found together, and the topics arranged according to the order adopted in the Revision.

For example, in the Revised Statutes the topics are arranged in the order of



INTERNAL POLICE, &c., &c. I adopt the same order in my subsequent volumes and group the acts together : for instance, under the head of “Corporations will be found all general laws now existing on that topic; and under each head I arrange the several Statutes in chronological order, excepting only in one or two instances, where the Legislature has altered that order.

CODIFICATION. The idea of codifying the law is very popular with our people at large and even with lawyers.

A“short cut” to knowledge will always be as acceptable to the Doctors of the Law, as it ever has been to other classes.

Hence the Code Justinian and the Code Napoleon have been so highly regarded.

Hence our Constitution of 1846 provided for two codifications, one of the Practice and one of the General Law.

And hence, while our Revisions of 1801 and 1813 had been mere compilations and simplifications of the scattered fragments of Statute Law, the Revision of 1830 had the more ambitious aim of codification.

That work, though performed with admirable learning and talent, failed in its great aim of codification.

So our Code of Practice, with all its manifold merits, failed in the same purpose.

The reason of this seems to me plain.

A Code contains within itself no element of reproduction, but on the other hand involves the idea of permanence, stability, unchangeableness.

It is what Kossuth aptly called a “system of cast iron,” and is at war with that elasticity which has ever commended the Common Law as a system peculiarly adapted to a free people. Codification may do in an arbitrary monarchy, where the necessity of government demands that the people must stand still. It can hardly be adopted elsewhere without becoming an instrument of stealing power from the many to the few.

When Solon prepared his Code of Laws for Athens, he made the people swear that they would make no alterations in it for ten years.

When Justinian proclaimed his Code, le prohibited the civilians of his time and those of all future ages from writing any commentary on it.

Yet with all these appliances, stability could not be attained.

Montesquieu says that “greater changes took place in a few years in the laws and jurisprudence of Justinian than in the 300 years of the French monarchy immediately preceding his time." And within six years after the promulgation of Solon's Code, Pisistratus usurped the power of the State and continued the usurpation in spite of all of Solon's efforts and Solon's laws.

It has been so with our Revised Statutes. During the 35 years that have elapsed since they were enacted, I do not know that a year has elapsed without some alteration in them. So that what in the first edition filled some 2400 pages, has swelled up to over 3600 in the fifth.

Our Code of Practice, which in 1848 was 72 pages, has received 137 pages of amendments in 13 years, and has given rise to such an immense mass of litigation that it has been well said that if the Legislature had delegated to the lawyers the power of concocting a scheme for the advancement of their own interest, no better plan than the Code could have been devised for the attainment of that end.

The discretionary power vested in the Judges by our code of Practice has been appalling to all who venerate certainty or learning in the law, and has contributed largely towards bringing our judicial system into disrepute.

The attempt at codification inaugurated by the Revisers was continued by them in their 2d and 3d Editions and by subsequent editors in the 4th and 5tb Editions, until with one accord the profession and the public demand a change.

In preparing the work now being ushered to the world, I have listened to the admonition flowing from these facts.

How could legislation be expected to stand still among a people who in 30 years increased in numbers from 2,000,000 to 4,000,000, and whose wealth within the same period augmented from $200,000,000 to $1,400,000,000; where the canal tolls have swelled up from $1,000,000 to $5,000,..., and the Bank circulation from

[ocr errors][ocr errors]

$10,000,000 to $28,000,000 — a people who were driven onwar in their progress mentally, morally and physically, with railroa speed, by the combined forces of the mariner's compass, the art o printing, the use of steam, the magnetic telegraph, &c., &c., &c.

The language of the German jurist, Friedrich Karl Von Savigny is as true of us as it was but a few years ago of his country: W are not prepared and equipped for the great, important and difficul task of codification.”

I have therefore not aimed, even indirectly, at that lofty work but contented myself with the humbler task of compilation only

My purpose has been to give the laws as I find them to exist at the present moment, merely arranging them so as to be conve niently referred to and affording the necessary facilities for ascer taining what alterations have been made by legislation and what interpretation has been established by adjudication.

The labor which the task has cost me will be so much saved to others, and in that will consist the chief merit of my

work. NUMBERING THE SECTIONS, &c. The Legislature in permitting any one to publish the Revised Statutes was careful to insist that the original paging should be preserved, but was silent as to the division of the work into Vol umes, Parts, Chapters, Titles, Articles, Sections, and subdivisions. Were these matters or any of them left free to publishers to do with as they pleased ? Apparently not, for when in 1830 a new Edition was contemplated, the Legislature directed the Revisers to incorporate into the original text, the amendments then made and authorized the Secretary of State to make the necessary alterations in the numbering of the sections.

The Revisers in their Second Edition went far beyond the authority thus given and every subsequent Edition has taken equal liberties with the numbering of the sections, so that in some instances the same sections are numbered differently in each one of the editions.

The confusion and inconvenience, arising from this cause, are apparent to every one.

It seems to me that the Legislature has established a standard for all the divisions of the work as much as it has for the body of its enactments.

To that standard I have adhered with the same tenacity that I have to my purpose of not taking any liberties with the text.

The practice hitherto, when the Legislature has interposed a section between two others or has repealed a section, has been to alter the numbering of all the succeeding sections of the article or title.

My plan is different. If the new sections come in, for instance between sections 21 and 22, I have two sections No. 22, one of them known as 22 and the other as 22. If sections are repealed, to wit, sections 21 and 22, the numbering goes on from section 20 to section 23, leaving a vacancy, but not disturbing the numbers of the other sections, either before or after the missing numbers.

So if a whole Article, Title or Chapter is repealed, no alteration is made in the numbering of the other Articles, Titles or Chapters.

Thus the alterations are carried out with the least possible disturbance to other parts.

CITATION OF AUTHORITIES. To aid the profession the endeavor has been made to cite every case to be found in our reports bearing upon the Statutes, and not merely leading cases.

To the Constitution of the United States is appended a citation of not merely cases in the Federal Courts, but of cases in all the State Courts.

The citations to the State Constitution and the Statutes are confined to tho decisions in our State.

And I have preceded the whole work with a “Table of References” calculated to explain my abbreviations of the Reports.

I can hardly hope that I have attained entire accuracy in this. Over 4,000 cases being cited, the danger of error is very great.

But there is another cause more fraught with danger of error than this, and that is, the manner in which the opinions of our Courts refer to the Statutes.

Some of the Judges are particular to refer to the marginal pages, others again rnfer to the Edition that happens to lie before them, and in some instances I have found several different editions referred to in the same opinion. So that not only is a lawyer obliged to own all five of the editions, in order to understand the decisions, but he will find it very difficult and sometimes actually

« PreviousContinue »