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STATE OF ILLINOIS,
THE GENERAL ASSEMBLY OF SAID STATE, AT ITS REGULAR
SESSION, HELD IN THE YEARS, A. D., 1844–5.
ACTS PASSED AT THE SAME AND PREVIOUS SESSIONS, NOT INCORPORATED)
IN THE REVISED STATUTES, BUT WHICH
REMAIN IN FORCE.
REVISED AND PREPARED FOR PUBLICATION, WITH NOTES.
INDEX, &c. BY M. BRAYMAN.
PUBLISHED BY AUTHORITY OF THE GENERAL ASSEMBLY.
VILLIAN WALTERS, FRINTER, For WALTERS & WEBER, PUBLIC PRINTERS,
While all that relates to the general history of a State-its early settlement—its struggles for existence—its wars—its spreading population—its rising institutions -its advances in political power and social improvement, readily find a place in the chronicles of the times, the history of its JURISPRUDENCE is seldom written.
To trace that history through even the limited period of time which marks the distinct political existence of what is now the State of Illinois, would present an ample field, as well as a gratifying reward, to the philosophic legal inquirer.
It were to be expected, that the early enactments which proceeded, first from the Territorial, then from the State Government, would be crude, imperfect and inharmonious. They were not adopted together, as a distinct body of statute law, nor with any view to their connexion or consisteney with each other; but hastily produced, at different times and places, in obedience to the ever-varying wants and circumstances of an unsettled, scattered and heterogeneous population. And if we recur to the days during which those hardy pioneers of civilization were contending with the difficulties of an untried soil and climate—when, to acquire the means of subsistence and defence, were objects of daily toil and nightly solicitudewhen the rifle, and the plough, and the woodman's axe, proved better friends than the pen and the musty volume,--and the strong arm afforded more efficient protection than any law, we may readily conclude, that they found little leisure for the business of legislation, and that they made their laws, as they made their log cabins, their roads and bridges—as they needed them, for their shelter and convenience, from time to time.
Many of those laws, enacted under circumstances so disadvantageous, during the early history of our legislation, particularly those concerning rights to real estates and the administration of the penal code, stand almost untouched by the hand of innovation, as monuments of the sagacity, legal ability, and just views of those who framed them. Amidst the vicious superabundance of legislation in more recent times, some respect has been paid to the stern wisdom of the past; and it may be said, without offence, that greater progress has been made in manufacturing than in perfecting, laws for the government of the State.
It evidently does not appear that the improvements which so strongly mark every other feature in the history of our State, have extended, with the same beneficial effects, to our legislation. The same habit of passing laws to meet special cases, and to obviate present inconveniences, which obtained at first, through necessity, has never been wholly shaken off; and one cannot but feel surprise at the great number of acts which are forced through at every session, at the suggestion
of individual interest, or to subserve purposes of temporary expediency, without reference to, and often to the sacrifice of, the public good.
Laws which, when adopted, were complete, and covered the entire subject matter to which they related, have become buried beneath an accumulated mass of distinct amendatory acts, by which they have been partially repealed, some of their provisions superceded, changed and subjected to new constructions. The same identical matters have been passed upon in laws enacted at different times, until, comparing one with another, sections have become interwoven, involved and contradictory, rendering it impossible to ascertain, without judicial construction, the real intention of the legislature. Scarcely a single act, as originally passed, remained untouched; and to ascertain what was really the law upon any particular point, it became indispensable for the legal inquirer to travel through the whole labyrinth of past legislation, without even the aid, in most cases, of intelligible indexes to the volumes in which the laws were to be found.
Such a state of things could not but be productive of serious confusion and embarrassment. Magistrates and others, charged with the administration of justice, found it difficult to extract the existing low from the mass of rubbish with which it was incumbered, and were often led into erroneous judgments, requiring vexatious delays, and a round of expensive litigation for their correction. Each succeeding Legislature seems to have proceeded to the enactment of its assigned number and quantity of acts, upon the topics usually presented for its action, without reference to what its predecessors had done upon the same subjects; until, at the present time, the laws by which we are governed, lie in broken and unseemly fragments along the course of our legislative history, no more resembling that uniform, harmonious and energetic system of statute law, which should stand prominent among the institutions of a civilized State, than do the collections of fugitive shells which the successive waves of the ocean have cast upon its shore, the most perfect specimen of architectural symmetry and strength.
The necessity of a revision and re-publication of the laws, in a fórm more consistent with the public wants, and the advanced state of legal science, las long been conceded. No authorized publication had been made since 1833. The population of the State had vastly augmented in the intervening time. Whole counties had been settled and organized, and the number of officers requiring copies of the laws, greatly increased. They could not be supplied, and magistrates and others, frequently found it almost impossible to procure copies even for occasional reference in cases of emergency. It is not surprising, under these circumstances, that the demand for a publication and dissemination of the laws, in some form, was urgent and continued. Even a re-publication, in their imperfect and almost unintelligible state, would have been preferred to the general destitution.
Efforts to remedy the evil, have been made at various sessions of the General Assembly. At its session of 1840-1, the duty of revising the laws upon a plan similar to the present, was imposed upon the Secretary of State and Attorney General, who were required to report the result of their labors at the succeeding session. Nothing, however, was done, and at the session of 1842–3, an act passed both Houses, authorizing a re-publication of all the existing laws of a general nature, without revision or amendment; but that act, not being approved by the Council of Revision, failed to become a law, and no farther action was had upon the subject.
So much time having been lost, and the necessity of a speedy accomplishment of the work becoming every day more apparent, the undersigned, at the suggestion of His Excellency, Governor Ford, commenced in April, 1844, the compilation of the chapters comprised in this volume.
On the meeting of the Legislature, the subject was brought to its notice by the Exerutive; and, in answer to a call of the House of Representatives, a communication «xplanatory of the nature, extent, and progress of the work, was submitted to that body. After much delay, the following preamble and resolutions, having passed the House, were, on the 18th of January, 1845, concurred in by the Senate:
“WHEREAS, a revision and re-publication of such laws of this State of a general nature, as are now in force, together with such laws of a general nature as may be passed at the present session of the General Assembly, are indispensably necessary, both to supply the public wants and to render the law more plain and intelligible:And whereas, information has been received from the Executive, that such revision or compilation has been commenced by M. Brayman, and is so near its completion that the same can be presented to the Legislature, and acted upon at its present session : Therefore,
"1. Resolved, by the House of Representatives, the Senate concurring herein, That the said M. Brayman be appointed and authorized to proceed and complete his said revision and compilation of the laws of this state as speedily as possible, upon the plan adopted, as specified in his communication to the Governor.
2. Resolved, That said work shall be done under the joint direction and supervision of the judiciary committees of the Senate and House of Representatives, to whom it shall be submitted as rapidly as the chapters thereof are in readiness.
3. Resolved, That said joint committee, or a sub-committee which such joint committee may appoint from their own number, shall diligently examine and compare the same, and cause to be made such corrections and alterations as they shall deem necessary to render such laws full, perfect and consistent; and so as to reduce the statute laws of this State of a general nature, to a compact code, conveniently divided into chapters and sections, and arranged in alphabetical order. And it shall be the duty of the reviser, to insert appropriately in the work, such alterations and amendments as such committee shall suggest, not inconsistent with the spirit and meaning of the law.
“4. Piesolved, That all acts of a general nature, passed or to be passed, at the present session of the General Assembly, shall be incorporated in such revision, to be inserted in the several parts and chapters thereof, to which such acts, or their several parts, appropriately belong,