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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, he 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 $5,000,000, and the Bank circulation from
$10,000,000 to $28,000,000—a people who were driven onward in their progress mentally, morally and physically, with railroad speed, by the combined forces of the mariner's compass, the art of 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: "We are not prepared and equipped for the great, important and difficult 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 conveniently referred to and affording the necessary facilities for ascertaining 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 Volumes, 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 anew 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 22,1 have two sections No. 22, one of them known as 22* and the other as 22b. 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 the 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 refer 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 impracticable to ascertain to what particular section the decision referred.
I cannot therefore hope that I have in all cases attached the cited case to the proper section. I can only hope that the great pains that have been taken to be accurate has rendered the number of errors in this respect rather small.
Some omissions will be found in the first two volumes that would seem inexcusable, if no explanation was given.
Thus, it has not been unfrequent for the Legislature to pass an
Act entitled "An Act to amend Art. Title of Chapter
of the Part of the Revised Statutes," and then make an
enactment that has no reference whatever to the Revised Statutes except that it is upon a subject touched upon in the Article named in the title of the Act.
Now, as the title is no part of the Statute I could not incorporate the latter into the text of the Revised Statutes without taking that liberty with legislative enactment which throughout I have endeavored to avoid.
Then again — there are some instances where a new Statute is intended as an entire substitute for a particular article or title of the Revised Statutes, yet by mistake the Legislature has repealed another article or title.
Thus, where the new act is a substitute for Title 4 of Chapter 2 and Title 4 of Chapter 3 is repealed.
So too where a substitute has been enacted for a whole title, the proper title repealed, and, by some oversight, the new act is not made a part of the Revised Statutes. Such is the case with the census law, and the election law, and with some others.
The duty of an editor to leave them out of the text of the Revised Statutes proper would seem plain enough, but a difficulty is created by the fact that having found their way into some of the Editions of the Revised Statutes, subsequent enactments have recognized them as belonging there.
Within the thirty-two years which have elapsed since the Revised Statutes went into effect, acts have been passed that do, in fact, but not in terms, repeal some parts — some that repeal in terms and enact a substitute which is not made a part of the Revised Statutes —some that repeal what "is inconsistent "with the new enactment— some where the Revised Statutes are altered as to certain localities, extended to some new place or some old place exempted from their operation — many instances where by subsequent events portions are rendered inoperative — some where the titles say the enactments are in addition to or amendatory of the Revised Statutes, yet those Statutes are not even alluded to in the enactment—and frequently, alterations are made without any reference to the former law.
These circumstances presented to me the alternative of either usurping the province of the Legislature and acting the part of a Ecviser, for which I had no authority, or, giving the enactments precisely as I found them.
The latter, being the course I have marked out for myself, has been pursued; but without injury to the reader, for those enactments which are omitted from the Revised Statutes proper, will be found among the general laws, in the subsequent volumes. And the present publication gives the Statutes which it purports to contain, precisely as the Legislature has enacted them and not otherwise.
To facilitate the use of these volumes, I have endeavored to give, at the proper place in the Revised Statutes, a reference to all the subsequent enactments which affect the same topic.
Such of those subsequent enactments as are yet in force and are not merely local in their application, will be found in the subsequent volumes, arranged under the topics to which they belong.
The Revisers' Notes.
In the original report of the Revisers to the Legislature they incorporated notes setting forth their reasons for the enactments proposed by them. Those notes were characterized by great learning and research and were highly valued by the Legislature and by the profession. So much so indeed, that the Revisers in their second Edition felt themselves compelled to publish them, and I have always regarded the second Edition as the most valuable of all for that reason among others.
The lawyers would cite those notes as evidence of what the Statutes meant and, strange as it may appear! it is nevertheless