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authority of many cases under those repealed statutes, which have employed the abilities and learning of the ablest judges on the bench of the S. J. Court for the last forty years, to determine. It is no satisfactory answer, that, by re-enacting the provisions of the repealed statutes, in other phraseology, the Legislature have left the law, in those cases, as it was before, and consequently intended, that the cases under the former statutes, should retain the same authority, as before the repeal. Such a proposition may afford ground for argument, but until it it is sanctioned by a judicial decision, scems entitled to no higher respect. In every single case, of a re-enactment of the provisions of a repealed statute, where the slightest alteration is made either in the phraseology, or the context, before any respect can be paid to the decisions made under the repealed statute, for the purpose of showing by analogy, the construction, that ought to be given to the Revised Statutes, on the same subjects, the first question must always be to settle whether the Legislature intended to alter the law; if so, to what extent ? if they did not intend to alter the law, why did they change the phrascology? Did they mean to leave the express provisions of the law, precisely as they were expressed in the former law, but by altering the phraseology, did they or did they not mean to negative the construction, which the court had given in some particular cases, grounded merely on the peculiarity of the phraseology of the former statutes, and which construction the court had regarded as a necessary implication ? Until this doubt is solved, and it seems a reasonable one, and one which may arise in many cases, an air of uncertainty is thrown over the law; the authority of adjudged cases is greatly weakened ; and the labor of the advocate and the counselor is doubled, to settle in his own mind, what the law is, in cases not falling within the plain and express language of the Revised Statutes. The stately and venerable fabric of the law, which has been so many years in building, is thus shaken to its foundation, as if by an earthquake; and though externally it may retain its former beauty and magnificence, yet we have lost our confidence in its durability and strength. We know not, whether it may not have flaws in it, and instead of being the mansion of truth and certainty, we cannot tell whether it may not, from time to time, falt piecemcal and destroy the rights of those unhappy persons, who are compelled to rely upon it for the protection and enforcement of them.
Further, the cases, which were decided under some of the provisions of the repealed statutes, were so decided after solemn argu
ment, in important trials before learned and prudent judges, whose deliberate opinions are carefully and faithfully reported. The grounds of those decisions therefore appear at length, and the attentive reader may readily discern, how far each decision may securely be relied upon, as a guide, in cases more or less analogous, arising under the Revised Statutes. But, when by the operation of these Revised Statutes, the provision of the repealed statutes, on which any such solemn decision was grounded, is taken away, though intended to be re-enacted in substance, those decisions become almost a mere tubula rasa, and the Courts must go through the same toils and lucubrations again, to ascertain, if their former decisions can be suffered to stand without destroying the harmony and symmetry of the new system of law, intended to be established under the Revised Statutes.
But, it may be replied, that the Commissioners have annexed to the alterations, which they recommended to be made, in those statutes, which they have revised, a series of annotations, by way of running commentary, in which the reason of the alterations, which they recommend, and consequently the limits to which they may fairly be extended, by construction, manifestly appear, and that the Legislature, by the adoption of those alterations, have sanctioned the policy upon which they are founded, as well as the construction which the commissioners intended should be given to the clauses in which such alterations are contained. But, as the Legislature did not always agree in opinion with the commissioners, as obviously appears, because they did not adopt all the alterations which the commissioners recommended, it is possible, they may have adopted some few of those alterations, with views in some measure different from those of the commissioners ; the reason of those regulations, introduced originally by the Revised Statutes, cannot therefore always be known with such certainty, as to make the commentary of the commissioners of equal authority with cases adjudged under those statutes by the Supreme Judicial Court, and reported by able reporters. But, besides, the commentary of the commissioners does not appear in the ordinary edition of the Revised Statutes, neither, if it did, is it within the power of the Legislature itself, to give the sanction of authority to those annotations, unless by embodying them in the positive enactments of the statutes.
Thus it is apparent, that the repeal of those statutes, on which many of the decisions of the last forty years are based, in some measure unsettles those decisions, and weakens the reliance which otherwise might have been safely placed on the reports of those cases. Its operation may be assimilated to that of opening a set
tled account in Probate or Chancery, where every thing is again thrown open to exception, and where nothing can be finally settled bat by a new decree, after re-hearing. It follows, that these learned reports, in a certain degree, lose their authority and become mere grounds of argument. Yet the beautiful system, as remodeled in the Revised Statutes, and arranged in a style of elegance and logical precision, worthy of the learned and accomplished commissioners, having its true construction gradually settled by the judges, who now grace our highest judicial tribunals, would, after the lapse of a few years, have resumed its former extensive and well ascertained application to every transaction, arising in the intercourse among the members of society ; but that just apprehensions may well be ertertained, that before these years will have elapsed, one half at least, of this beautiful edifice may be torn down, and its place supplied by imaginary improvements of a newer fashion, but equally out of harmony with the principles on which the architecture of the original building was established, and ill adapted to the true wants of society and the exigencies of the times.
Let the careful reader look at the act of Amendment to the Revised Statutes of Massachusetts, passed within four months after the Revised Statutes were adopted by the Legislature, and observe the excessively awkward mode, in which the amendments, whatever their policy may be, are introduced, and in which fifteen different chapters of the Revised Statutes are altered or amended ; let him look at various chapters of the Revised Statutes in relation to pleadings in various actions and under various circumstances, and then turn to the act of 1836, enacted a few months afterwards, by which special pleading is wholly abolished ; let him look at the chapter of the Revised Statutes regulating the commissions of executors and administrators, and then look at the act of the Legislature repealing that act a short time after; let him look at the fluctuating policy of the Legislature with regard to the License Law, the laws relating to insolvent debtors, &c., &c., &c.
These incessant changes, it is believed, are principally owing to the House of Representatives, the mater familias of the commonwealth, which, though graced in the highest degree with the feminine accomplishments of eloquence, activity and versatility, can hardly be expected to be found equally adorned with the masculine virtues, wisdom, firmness, stability or consistency; and though the Senate, the pater familias, may naturally be supposed to possess these latter qualifications in a high degree, yet, in accordance with what is reported frequently to happen in New England, the stronger judgment, gives the reins too much to the weaker; and the benev. olent governor, the avus, though intended by the constitution of the commonwealth to be a counterpoise to the influence of both houses, at least within certain prescribed limits, rarely possessing sufficient moral or political courage to oppose the inclination of the two houses, it is apprehended too often approves of acts of a bare majority of both houses, without any better reason, than because they are so ; thus compromising his dignity, and reducing his own legitimate authority to a zero. Hinc ille lachryme.
But, as stability in the laws is of the next greatest consequence to their wisdom and sound policy, it would be better for the Gover. nor never to consent to alter any law, established by a previous Legislature, unless the repeal should be sanctioned by two thirds of both houses. The people might then have a better founded confidence in the continuance of those laws, (once called PERPETUAL, but with no better reason than because they were perpetually changing) which are to regulate their dealings with each other, and no longer be apprehensive, that laws of the greatest importance on account of their influence on society, will be altered even before they can be well known and understood, and before the various dealings and operations, commenced under them can be completed. To illustrate :- Let it be supposed for a moment, an important bill is proposed, and after due deliberation, is adopted by a small majority of both houses of the Legislature, and is approved by the Governor. Suppose, further, that the minority in each house, on this subject, being very powerful and having great influence with the people throughout the commonwealth, succeed in their attempts to procure the return of representatives and senators, who are selected for the express purpose of endeavoring to procure the repeal of the law in question. Suppose that a bill for the repeal of the law, is passed by a small majority of both houses, and is then laid before the Governor for his approbation ; may he not well refuse to approve the bill on account of the following objections; and is there any thing in those objections, that ought to make him reluctant to have them entered on the records of the General Court. e. g. :
“ The views of the Governor, in relation to the expediency of the law, the repeal of which is the object of the act laid before him by the Legislature for his approbation, not being materially changed by the highly interesting debates in the Senate and House of Representatives, he is constrained to withhold his approbation of the act for the repeal of that law. When the law referred to, at a former session of the Legislature, was offered to him for his approbation, he did not consider it as introducing a change of policy of sufficient importance to induce him to make any objection to its enactment. He was therefore willing to give his approbation to the declared will of the majority of both houses of the Legislature. But, the act having been passed, and its policy being thus recog. nized, the opinions and wishes of the members of a new Legislature, even although some of the members should be chosen for the express purpose of endeavoring to procure a repeal of the act under consideration, furnish in his mind, no sufficient counterpoise to the weight of opinion of the former Legislature, to turn the scale against the law. For, should the Governor approve of the repeal of the law, merely because the new members of the Legislature are opposed to its continuance, those of the members, who favor the continuance of the law, by using more strenuous efforts, at the next election, may prevail on the people to select members, who shall be in favor of its re-enactment, in which case, a regard for consistency will compel him again to approve of its re-enactment. But, from such wavering and vacillation there will be great danger, not only that the Governor may lose all claim to personal respect from the people, as having no settled principles or opinions of his own, but the office of Governor will lose its constitutional weight and importance, the people be kept in a state of continual fermentation, through the organization of interested factions, and the legislation of the State come to be lightly esteemed among those of its neighbors, who possess more wisdom and stability.
“ Changing the laws, therefore, being of itself an evil, he is unwilling to approve of any act, which tends to introduce any im. portant alteration in the general policy of the State, the expediency of which alteration, shall not have received the sanction of two thirds of the members of both houses ; because, in his mind, the benefit of such proposed alteration will not countervail the mistakes which may arise among the people, while the law is new, the want of public confidence, resulting from this source, the disparaging opinion of mutability and instability," which the people will be apt to form of the General Court, and the loss of esteem and respect among the neighboring states from the same cause.”
It is to the wisdom and steadiness of our Governors, for the time being, therefore, that we must look, for a remedy for the evil just alluded to, i. e. instability in our legislation ; and their sanction, like a balance wheel to regulate the whole machine of state, was required by the constitution to give efficacy to our laws. Should that balance wheel, to use a technical but barbarous term of machinists, be found to wabble, with the motion of the other wheels, or be too light or too weak to afford a sufficient check, to their