« ForrigeFortsett »
JERRATA TO WOL. I.
The reader is requested to note the errors, and make the corrections and amendmenae following: . .
THIS first attempt to revise and digest into compact and regular order, the tumid and incongruous mass of acts of assembly, and English statutes made of force, which eompose the statute law of South-Carolina; and to incorporate therewith the constitutions of the state and of the United States, together with such of the laws of the United States as more immediately concern the state functionaries and the people at large, (without any power to reject, abridge, or in any manner change the matter or composition of these materials) has been found to be a task more important, and difficult to execute, than at the commencement of the undertaking it was conceived to be. That it should fail of complete success in the accomplishment; that the plan of the work should be disapproved of by many; that numerous defects, mistakes and omissions, should be discovered in the execution of it, and seriously objected to its utility, are circumstances which have been anticipated and fully expected. The difficulties opposed to a successful completion of such an enterprize, under the most propitious circumstances, are neither few nor small. From the year 1682, which is as far back as our legislative records extend, down to the present time, no scheme, sanctioned by public authority, has been formed and executed, with a view to obtain a revisal and digest of our written laws. The act of assembly passed in the year 1785, “to effect a revisal, digest and publication of the laws of this state,” contemplated amendments, alterations, and the enactment of new laws; in short, a complete new code, correspondent to the political changes and new order of things, which had been recently established. The commissioners appointed to form this digest, submitted the result of their la. o the legislature in 1789; but the code which they had prepared was not opted. About the year 1736, Nicholas Trott, formerly chief justice of the province, published a collection of all the acts of assembly then in force, together with the titles of all other acts which had passed from the first settlement .#the country. The collection of public laws edited by judge Grimké, in the year 1790, contains all the public, permanent and general laws then in force, together with many others of a local, temporary and private nature; and also the English statutes made of force, copied from the English statute books. This collection also contains the i. of all the acts passed from the first establishment of the civil government of e country. - Since the publication of this work, Messrs. Daniel and J. J. Faust, have edited a ...” of the acts of assembly, passed from the year 1791 to the year 1804, inClusive. Except the loose and fugitive publications of the acts of each session of the legislature, and the constitutions of the state and the United States, these collections are the only sources whence we can derive a knowledge of our written laws; unless we could have access, which every citizen cannot conveniently have, to the original legislative acts of record, in the archives of state. Many of the laws contained in these collections have been repealed, either altogether or in part; many of them have been altered, or differently modified; several are either in whole or in part, inconsistent with, or in flat contradiction to others;
3. so thwart and confuse each other, as to render their interpretation extremely ifficult. - .
The obscurity and uncertainty of our laws is further encreased by the adoption of numerous English statutes (either'expressly or by necessary construction) in the very form and expression of the original acts of parliament. Many of these are extremely ancient, and conceived in terms so uncouth and quaint, as to be in some measure unintelligible, whilst their application, at this day, to a state of things in many respects widely different from that to which they were originally adapted, is oftentimes attended with perplexity and doubt. Many of them have become obsolete, or else wholly or in part repugnant, or inapplicable to the local and political situation of this country: and some of them depend on principles and regulations which never were, or are now no longer recognized as the law of this land. Independently of the confusion and uncertainty necessarily arising from such a combination of circumstances, it is to be regretted that any of our laws should be suffered still to wear the badge of foreign imposition, and colonial subjection; and that our statute book should be encumbered with the weight of so much extraneous and useless trash. In most of our sister states, their laws have been revised and reduced. In some of them this has been repeatedly done; by which means their codes have been corrected and reformed, as the progress and exigencies of society required. Exuberances have been pared away, ambiguities and obscurities removed, and such salutary alterations and additional regulations cautiously and judiciously introduced, as the necessities and happiness of the community called for. Where these things have taken place, the task cannot be difficult, to form a digest, or methodical collection of the laws, by arranging the different subjects treated of therein, under distinct and appropriate heads, or titles. This might be done with little confusion or embarrassment, and the whole work compressed within a moderate compass. But in this state a different order of things has prevailed. The heterogeneous Ymass of discordant materials which compose the motley fabric of our jurisprudence, has been gradually accumulating for more than the space of a century, without any successful attempt having been made by public authority, to reduce the bulk, and bring it to consistency and order. Succeeding legislatures have always been more anxiously employed in the enactment of new laws, than in reforming the old. They have not always been sufficiently diligent to enquire into, nor careful to ascertain the necessity and propriety of innovating on the laws already established. In the haste exercised to remedy existing grievances, collateral inconveniencies and remote consequences have not always been foreseen and calculated: yet from these often flow greater mischiefs, than beneficial effects from the application of the remedy provided. | : The lust for legislation is generally too eager and vehement to endure delay. The suggestions of cautious prudence and experience are not often attended to : and the research and reflection necessary to acquire correct and adequate information, is commonly omitted as too tedious and laborious. Hence have arisen various clashing and irreconcilable statutes; various implex and inexplicable regulations, and many similar provisions differently expressed, modified or directed. Hence it has happened that the common law has been so frequently re-enacted, or cases specially provided for, which the common law was fully competent to redress, and other cases provided for, where statutory provision had already been made. Such are the crude, diffuse and refractory materials, of which the present compilation is formed. The humble office of compiler did not permit him (if he had been competent to such a performance) to correct, amend, or in any manner alter the form or substance of any of the laws which were to enter into the composition of his work. It was his duty to collect all such as are of force, and insert them in their proper places in the Digest, so far as it was practicable to do so, in the same form and precise language in which they appear in the originals, or in the copies published by authority. This was found to be a business not easy to accomplish with accuracy and certainty. Various clauses and passages in different statutes, directly or indirectly, immediately or consequentially bearing on the same objects, were to be examined, collated and deliberately scanned: where they seemed to come in conflict, the intention of the legislature was to be considered, and other proper tests applied, in order to ascertain and fix their respective or comparative claims to preference or concurrent operation. This was necessary, in order not only to discard useless matter, but to a correct arrangement of the matter reserved, under proper heads, and the compression thereof to a reasonable size. * , But, in the execution of this task, many difficulties were presented. In some cases the constitutionality of certain acts, or clauses of acts, appeared questionINTRODUCTION, vii
able, and the extent, operation and applicability of others, undertain. In many cases it was not clear whether subsequent acts had repealed others of prior date, or whether they might not be construed to stand together, as independent regulations. To avoid the imputation of presumption, as well as to find relief (in some instances) from the perplexities of his own judgment, the compiler deemed it most prudent and safe, where such difficulties occurred, to leave the matter in question open for the determination of the proper and competent tribunals, (the courts of judicature and the legislature) by forbearing to retrench any of the same, however they might seem to clash and disagree. The more thoughtful and experienced part of society, who feel most anxious for the permanent security of persons and property, must be desirous that our legal code, at no distant period, should be rescued from the reproach which at present attaches to it, and the state of degradation into which it is sunk. The attempt now made to bring order out of confusion, and reduce our written laws to greater certainty, may hereafter contribute to hasten and complete that desirable end. And that object might be effected with more facility, and more satisfactorily, than is generally imagined, by a judicious choice of fit and competent persons, appointed for that special purpose. The task would doubtless be attended with labour and difficulty; but it is susceptible of being so executed as to merit the approbation, and conduce to the safety and happiness of every good citizen. The course to be taken should be that which is recommended by Doctor Burn, in the conclusion of his Justice of Peace:—To repeal expressly, all acts and parts of acts, which are virtually repealed by subsequent contradictory or repugnant acts: To repeal all acts which are obsolete and useless from the effects of time, or a material change of circumstances; or by statutory provisions, alterations and amendments, made or enacted subsequently: To repeal or alter all frivolous, unnecessary or superfluous acts, which possibly cannot, or probably never will be executed: To omit, in the collection for public use, all acts of private concern. And no act ought to be declared a public act, of which every one is bound to take notice (which is now very common) without special pleading. All public acts, and clauses of acts, relating to the same subject, should be formed into one act, or into two or more consistent and homogenial acts, and the others repealed; as workmen destroy the scaffolding when the building is completely raised. The work ought not to be committed to unskilful and unexperienced hands, lest, instead of a commodious building, (to pursue the metaphor) they might erect an ill constructed and inconvenient fabric, which would soon tumble to pieces by its own weight. The statute laws, though greater in number, and more intricate and confused than they should be, are nevertheless for the most part understood, and especially by men of the profession, and the law respecting them settled; but if they should be repealed and others enacted, unless great care and circumspection. were employed in the business, much difficulty, confusion and uncertainty would result, by breaking the connection between the former acts, or clauses of acts, an changing the words and phraseology. ' With a sound understanding, a clear head, and much patience and diligence, the work might be successfully executed, by strictly observing the following rule: “To retain as much as possible, the identical words and sentences of former statutes, only rejecting what is superfluous, inserting the clear law as it now stands, and putting the same into a form more regular, concise and easy.” It would be best to refrain from introducing new laws, whatever may be the fancied utility or improvement to be thereby attained, unless the necessity should be urgent, and the advantage plain and evident. “It were good (says Bacon) that men in their innovations would follow the example of time, which indeed innovateth greatly, but quietly and by degrees scarcely to be perceived.” It was a law among the Locrians, that he who proposed a new law, stood forth in the assembly of the people with a cord round his neck, and if the law was rejected, the innovator was instantly strangled. Reformation should produce the change, and not the desire of change the pretended reformation. When we tread super antiquas vias we walk safely; and as the Scriptures advise, “we should make a stand upon the ancient way, and then look about us, and discover what is the straight and right way, and so walk in it.” The community, it is belieyed, would derive much more benefit from such a revision. and improvement of our existing laws, as might be obtained in the way above proposed, than from the abundance of new acts which the most prolific legislature could produces
The science of legislation should be the slow growth of time and experience, which would furnish occasionally the advantage of both method and materials. The genius of a rude people is perceptible in the construction of their laws, which are generally loose, irregular, vague and defective; and where the end is salutary, the means are frequently absurd. It has been said, that the multiplicity of the laws is the price which every subject of a free government pays for his freedom; as they grow with the civilization of society, and as pursuits and occupations become more various and diffusive: yet this can be no reason why pains should not be taken to improve the style and composition of the laws, to render them more concise, plain and simple, and to condense them into a more solid and regular form. Nor is it any argument against the employment of means to reduce them to a greater conformity to principles that are permanent, uniform and universal: to a consistency with the dictates of natural justice, the feelings of humanity, and the constitutional rights of the people. And here, it may not be amiss to suggest the obvious propriety and utility of distinguishing the several acts of each legislative session, by numbering them as ehapters; and the several clauses of each act, by numbering them as sections. This method is uniformly observed by the legislatures of the other states, and the Congress of the United States, as well as by the British parliament. But if the method did not elsewlrere obtain, the certainty and convenience with which any act, or part of an act, might be referred to, would be a sufficient reason for adopting it. - - - - * * i. has never been customary in this state to designate the consecutive order of the acts of the several sessions, or of the respective legislative bodies; and it has rarely happened (especially of late) that the different clauses of the acts have been numbered. Hence arises great inconvenience and awkwardness, in referring to any particular act, or clause. The reference can only be made to the act, as one among many, passed at such a session, or in such a year, or by reciting the title of the act, which in some instances would be disgustingly prolix and insipid, and would occupy nearly as much room as the act itself. And in either case the reader would be necessitated to exercise his industry and patience by running through all the acts, and the clauses of the acts, to find the subject of reference. In this Digest, for the convenience of easy and accurate reference, the titles are numbered, and also the several substantive passages, or parts of the acts, inserted under each title respectively, without adhering to the division into clauses, as they are arranged in the acts. In the execution of this plan, there will, doubtless, be found many faults; but in general, it is heped, it will prove useful. . It may be expected that something should be said by way of apology for the intrusion of so many notes, into a compilation of this sort, some of which may appear more like dissertations than explanatory remarks, while others may be consid. ered as impertinent, or at least, as unnecessarily encreasing the size of the work. Whatever opinions may be entertained on this subject, the author can only say, that in his humble judgment, something in the way he has attempted appeared necessary, or at any rate promised to be of advantage to the generality of such readers as might occasionally peruse the work, by explaining and illustrating sundry dark passages and technical expressions, to be found in our laws, and by presenting to view the circumstances under which certain statutes were enacted, and the reasons which operated in passing them. - It is not pretended that these objects have been fully attained by the notes in question. The author is but too sensible of their imperfections to cherish any such belief. Yet he feels confident that they will be approved of by many, who have not had leisure or opportunity fully to investigate the laws of their country, and who may be somewhat puzzled to understand some of the more ancient statutes of force here, and the maxims and doctrines of the common law, by which they must be expounded and applied. The observations of the annotator on some of the acts of modern date, and on other subjects, must be submitted to the mercy and candour of the public. The idea of inserting a few explanatory notes and observations, in the course of the work, was strengthened by the suggestion of a learned friend, who pointed out a passage in the preface to the Lectures of professor Wilson, late one of the judges of the supreme court of the United States, which is in these words: “The acts of the legislature of Pennsylvania, though very numerous, compose but a small proportion of her laws. The common law is a part, and by far the most important part of her system of jurisprudence, Statute regulations are intended only for those cases,