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making a labor-saving machine — that might be welcome because of its power of economizing time and toil.
This is the most that I have aimed at, and if I have succeeded in that purpose I shall be well content that my labor has not been in vain.
OBJECT OF THE COMPILATION. From the inauguration of our Revised Statutes — now over thirty years ago — it has been the purpose, as avowed by the Revisers, to present, massed together, “ a full and accurate view of the whole existing Statute law of a general nature.”
This purpose has been attempted to be carried out, in all the subsequent editions, by incorporating into the body of the Revised Statutes, not only all the alterations made in them by the Legislature, but all general and independent legislation.
In the first edition, published in 1829, nothing was inserted in the first two volumes but the Revision as adopted by the Legislature except the laws of Congress in relation to the militia.
The second edition, published by the Revisers in 1836, professed to be the Revised Statutes “as altered by the Legislature, including the statutory provisions of a general nature, passed from 1828 to 1835 inclusive."
The third edition, published in 1846 — the fourth in 1852, and the fifth in 1859, all followed the example of the second edition in incorporating into the text of the Revised Statutes, or as distinct titles or articles, “all laws subsequently passed which were of general operation."
It is singular that, while during the first thirty years of this century, we had three revisions of our Statutes, viz. : in 1801, 1813 and 1830, — in the next thirty years, we had none; yet in this latter period more general and important alterations have been made in our civil polity than in the former.
The abolition of the Court of Chancery, the remodeling of our whole judicial system, the adoption of a Code of Practice, the radical changes wrought by the Constitution of 1846, and which have caused the discussion in our courts within the last fifteen years, of more constitutional questions than were known in the whole of our previous history, and the free legislation of over thirty years have all tended to render a revision more necessary than ever.
No revision being authorized during this later period, the effort has been to attain the same object in the several editions of the Revised Statutes. But that could be done very imperfectly without the aid of legislative power, and the difficulty has been every year growing greater.
Aside from the increased bulk of the volumes, confusion and uncertainty must necessarily grow out of unauthorized attempts to add to the Revised Statutes what the Legislature have not enacted as such.
A few instances will illustrate this. The Revisers in their second edition incorporated into the text, the act of 1831 to abolish imprisonment for debt. For that purpose, they inserted thirty-one of the forty-eight sections of that act as an additional article to Title 1 of Chapter 5 of Part II: one of the sections as part of § 228 of Article 13, Title 4, Chapter 2, Part III: fourteen of the sections as additions after § 228 of the same article, while two of the sections, 44 and 45 and part of 48 are not, that I can find, inserted anywhere.
This is virtually a revision of the Act of 1831, and being done without legislative power, it is necessarily imperfect; and one mischief arising from this I have found in a subsequent Statute, which intended to repeal a portion of that Act, but which applied its repealing power to a section of the Revised Statutes, and not to a section of the Act of 1831. By a subsequent act that error was corrected.
I have found several instances in which the Legislature has been thus misled. Finding, what is in fact an independent enactment, incorporated into some one of the editions of the Revised Statutes, laws have been passed repealing it as part of the Revised Statutes, but leaving it to stand untouched as a law by itself.
This gives rise to several troublesome questions. One is, how far the original, independent enactment is affected by this subsequent legislation, and another is, how far the subsequent recognition of the independent enactment as part of the Revised Statutes does actually incorporate it into them.
Those are questions for the Courts to dispose of, and not for me as an Editor.
Part I, Ch. 8, Tit. 3, Art. 1, is an apt illustration of the additions to the original Revised Statutes, which have been made without legislative authority. The original article contained eighteen sections. As published by the Revisers in their second edition it contained twenty-eight sections, the additional ten being enactments in 1835, 1833 and 1831, which do indeed relate to the same topic, but which were independent enactments and nowhere made a part of the Revised Statutes.
In the third edition the article has twenty-eight sections, including three passed in 1831, two in 1833, one in 1835, one in 1841, one in 1842 and two in 1843.
In the fourth edition, the article contains twenty-six sections, including four sections passed as independent enactments in 1841, 1842, and 1843, and omiting six of those added as above mentioned, in the second edition. So that no two of the editions agree, and all differ from the first edition. And all this without legislative authority.
Then the number and location of the added sections are different in the editions. What are sections 21, 22 and 23, in the second, are sections 22, 23 and 24, in the third, and are 23, 24 and 25, in the fourth ; and in the fourth they come after original section 18, while in the second and third they precede it.
In the second edition there is added to this Title as Article Fourth, what is said to be “ Laws of 1831, Chap. 310, § 2 to 9," and “Laws of 1830, Chap. 242, § 3.”
In the third edition there is also added a fourth article consisting of the same seven sections from the Act of 1831 (giving it correctly as Chap. 320), and omitting the enactment of 1830, and in the fourth and fifth editions the syllabus at the head of Title III, professes to insert the same fourth article. No such article is given, however, but the same sections of the Act of 1831 are given afterwards in connection with other independent enactments, passed in 1840, (and in the fifth edition, with a section added passed in 1857) as a new and added Title IX – the Chapter of the Revised Statutes proper containing in fact only eight titles.*
Another mischief of the liberties thus taken with legislative enactments, is illustrated by this simple statement.
Chap. 8 of the Laws of 1832, contained four sections which are none of them made parts of the Revised Statutes. Yet in the second edition, section one of that Act, is incorporated into the Revised Statutes as s 3, Tit. 3, Chap. IX, Part I; section two is incorporated as 937 of Art. 1, Title 1, Chap. 15, of Part I: and sections three and four are incorporated as s 30 and 31 of the same article.
* The whole title properly contains 41 sections, but it is made to contain 49 sections in the 4th and 5th editions, 51 sections in the 2d, and 58 sections in the 3d - none of those left out having been repealed.
And what adds to the incongruity, is the fact that the first section which requires à 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
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.