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it was never made a distinct branch, or title, in Bacon or Comyns, or any old book by this name.
19th Division, takes into view Costs, the grounds of them, and the most material laws on the subject, in chapter 195.
20th Division, includes a view of Statutes generally, American and English here adopted; their general principles and construction, and exceptions in them; the effects of repeals, &c. in chapter 196.
21st Division, embraces Crimes and Punishments, in their usual order, and the laws and pleadings as to them, in chapters 197 to 221, not materially varying from Blackstone's arrangement; except the author first considers criminal law, crimes and punishments on general principles, found in later good authors, and in American statutes-has made malice a distinct article, principals and accessaries another in chapter 197-considered together, in chapter 198, in 12 articles, all the crimes, &c. against religion and morality in our country; crimes against the state, and the punishment &c. by our laws, in 11 articles, chapter 199, and in 7 articles, chapter 200, in which felony is made a distinct article ;-other crimes against the public, mostly misdemeanors, as against the public justice, the public peace, the public trade, and public police, are considered first, generally, then in detail, in alphabetical order, in 100 articles in chapters 201 to 211 on our laws;-then crimes against individuals, in 50 articles in chapters 212 to 217;-indictments, in chapter 218-informations, chapter 219;-process and commitment, 220; and pleadings in criminal cases 221-all on our laws, and at large.
22d Division. Includes, in chapter 22, Impeachments.
23d Division.-Statute Titles in most of the States, in chapter 223. 24th Division.-Cases of Seizures, under revenue and other laws, and pleadings in them, in chapter 224.
25th Division.-Federal principles and cases in Equity, in chapter
26th Division —Pleadings in Equity, English and American, generally, in chapter 226.
27th Division-Captures, in chapter 227.
28th Division.-Writs of Right examined, in chapter 228.
In each division, generally, all the rights of persons and of things have been examined with an eye to the action or remedy, in each case the most proper to enforce or establish the right or title. It is the remedy made effectual, which enforces the right and makes it valuable, that claims the lawyer's attention.
To the work are added a Table of Contents; and a copious, expressive Index; also a table of Cases, some of the most material, alphabeting plt's. names &c. with sufficient minuteness, and distinguishing
American from English cases by printing the American in italics. Readily to supply the place of an alphabetical arrangeinent a short index of six pages is printed in the first volume.
As to causes belonging to divisions 22, 23, 24, 25 and 27, only eminent counsel are usually engaged in them, and they not often. The same remark applies in a good degree to divisions 26 and 28. These seven divisions are last in the arrangement. Though important parts of American law, the subjects are but little noticed by Bacon, and most other abridgments.
The alphabetical order entire.-Several reasons have been stated already for not adopting it-a few may be added: 1st. It does not consist with the nature and principles of our respective actions, or the forms of pleadings in them generally: 2d. It leads the student, in many cases, to read law first, which in its nature is last: 3d. It answers no one purpose, but that of an index in a small degree; for in the usual form the alphabetical titles are too few to be of much use; hence, to Comyns' Digest in this order it was found necessary to add an index of 200 pages; the same to Bacon's Abridgment; after trying a very short index a copious one was, from experience, added: 4th. Of late the best legal instructers pay no regard to it, in directing the course of legal studies: 5th. Any index to be useful, must be copious, and generally express concisely the sense of the clause, matter, &c. referred to.
From the commencement of this undertaking, the first object has been to have in it none but sound law; to this purpose invariably, the endeavour has been to rely on the best principles and authorities. Often English decisions do not appear to be repugnant to ours, because the remote principle that makes them so, is not observed. For instance, there is a feudal principle in England, which requires that a man must be actually seized of lands, as well as be the owner of them, to cause them to descend to his heir, and many English decisions rest solely on this principle, though at first view this may not be perceived. We are misled, if we adopt such decisions in those States, in which there is no such principle. The maxim, seisina facit stipitem, is an unyielding one in the English law, which has no place in ours; our lands descend to the heirs of him, who owned them at his death, and not devised, seized or not. Ownership here directs the descent of property in lands in fee, but in England, seizin. So lawyers in one State may be inadvertently misled by decisions in another, made on a remote principle or rule of law understood, but not mentioned in the decisions. For instance, in Connecticut it is a rule, "where a right of possession is lost, all title and ownership is lost." We have no such principle or rule in Massachusetts, at least as to estates of freehold and of inheritance. Such considerations require research and caution.
The author once thought, as he finds some now think, that in a work of the abridged and digest sort, of 5 or 6000 large pages, a great proportion of the local law and equity of every State in the Union, of English ancient law, and the Civil and other foreign laws, might be included; but experience and reflection are quite otherwise, and evince that these can occupy but a small space in a very large work, unless local, old, and foreign laws be made to exclude laws of general use and application. When we consider that the mere indexes only of the statutes, forms, and decisions, published in our twenty-four States, fill above 3,000 pages, a lawyer can have reflected but little, who shall believe he can publish them to any valuable purpose in one half, or one third of that number of pages. The State law, published forty years ago, did not fill a tenth part so many pages as State law now published fills. And if our law books in the English language only, now increase fifty volumes a year, what will they come to in fifty years more? If the revision of the Roman or French laws, in each case of a single sovereignty only, was such a vast undertaking, what must be the revision of our laws in some future period? The laws of twenty five sovereignties, besides an immense mass of imported laws, all increasing.
The work has necessarily been many years in hand, even since its outlines were adopted in 1801, there has been an immense and unexpected increase of American law since that time. Since that period some entire branches have come into existence; numerous statutes have been enacted, and near all the decisions published in the American reports, and a vast number of English decisions in law and equity have been imported and used. It has been impossible to foresee from time to time the effects these new and numerous acts and decisions would have on the arrangements, how they would overload some parts, and give to others an ill shape. And it is also almost impossible for any man to keep pace with the increase and changes of American law. In the arrangement, chapters, articles, and sections, have been referred to and relied on in preference to pages. There are two obvious objections in referring only to pages; one, the paging is often varied, the other, the reference is not minute or particular enough. Also on the plan of chapters, articles, &c. the index, table of contents, and of cases are conveniently formed and used, as the work is in progress, and additions are with facility admitted. This plan is well preserved even where volume and page are added in the references.
The evil to be feared in our country is, that so many sovereign legislatures, and so many Supreme courts, will produce too much law, and in too great a variety; so much and so various, that any general revision will become impracticable. It may be observed that a complete system of law and equity, best calculated to preserve the power of the
magistrate and the rights of the people, is the last thing men attain to in society. Peter the Great soon understood every thing in the civilized parts of Europe, but the laws; and because he could uot understand them, he never ceased to prefer the despotism of Turkey," where the Anjudges are not restrained by any methods, forms, or laws.” cient Greece, though eminent in other sciences, never had such a system. The reason is seen in the almost infinite variety, extent, and combination of ideas, founded in nature, experience, and cultivated morality, so essential in forming and completing such a system. It is very clear that a great republic, in which there is room for talents; in which thoughts and actions are not restrained by religious or political despotism; in which education is encouraged, and moral character is esteemed; in which the law rules, and not the sword; in which each one asserts his rights by law, and not by force; and in which there is representation, jury-trial, and a free press, is the natural field of law and equity: but to produce these in perfection, there must be a national character. The rules of law and equity, in important matters, must be uniform, and pervade the whole nation; for if there be a code for each inconsiderable part, laws, and so law books, must necessarily be so extremely multiplied in the numerous parts, making and executing laws independently of each other, that soon, but few, even of the lawyers, can know what the law is, except in his own limited part, and not even there, if judges allow an inundation of law books, of every kind, to be used in hearing and deciding causes. A serious evil we are fast running into, in most of our States. This inundation of books, made in different States and nations, will increase, until we can shake off more of our local notions. Our true course is plain, that is, by degrees, to make our laws more uniform and national, especially where there is nothing to make them otherwise, but local feelings and prejudices. We have in the common and federal law, the materials of national uniformity in numerous cases. We have a national judiciary promoting this uniformity; and we have lawyers, learned, industrious, and able, to second this judiciary. We only want a general efficient plan, supported with zeal, energy, and national feelings.
It has been truly said, that law, well calculated to preserve liberty and order, though to be produced with difficulty, "is a hardy plant," and whenever it has once taken root," will scarcely ever perish through the ill culture of men, or the rigour of the seasons,” “ mortal" as every has an "interest in its preservation." History and experience prove, that good laws, and an accurate legal style once established in a nation, preserve their character long after every thing else corrupts and decays. Local feelings and prejudices, are not the only evils we experience; there is another: rapid changes in the laws. In Massachusetts alone,
since the American revolution, there have been three criminal codes in force, as to all the most considerable crimes and offences.
Some, perhaps, will expect to find in this work, more than there is of our political system, and less of ancient law. It has been an object invariably, to state our political principles, as far as they concern in any considerable degree, our courts of law and equity. But it is considered that the Deity has laid the foundation of society in the moral feelings, and in the social inclinations and nature of mankind. On these, every body politic is organized, whenever instituted in wisdom and free choice. The moral and political systems, therefore, in their wide extent, are naturally the subject of a moral and political rather than a law work; and on this distinction, the American materials, copiously collected, have been separated. As to ancient law, found in the books principally used in this work, it will be found to be the sound part of our law, resorted to in well examined causes, by the most eminent judges and lawyers, in England and America; as may be seen in the modern reports. Nor has this ancient been admitted to the exclusion of modern law; but to the enlargement of the work. There has existed another reason for bringing into it much old law. It is still a material part of our legal system, found in numerous books, but a few of which can nineteen judges and lawyers in twenty, ever own or have access to. As to modern books, the case is different; and it is to be presumed that every judge and lawyer will have the statutes and published decisions of his own State. These considerations have had weight. Some seem to think that the Law Registers, Law Journals, local Digests, &c. published in the United States, may supply the place of a work like the present. This is a mistake which will readily appear, on comparing it with them.
Statute Laws of Maine.-In June 1820, and in January, February, and March, 1821, the legislature of Maine revised, or rather re-enacted and new-arranged most of the public statutes of Massachusetts, in one volume, in a series of chapters, from 1 to 180; hence, in citing Maine Statutes, it is sufficient to cite the chapter. These statutes have also been printed by William Hyde in 1822, in one volume, which also contains the constitution of Maine, divided into articles and sections, and an appendix of law, enacted in Massachusetts: this is cited by page. The alterations made by the legislature of Maine, in the Massachusetts statutes, are not many or very material; and principally in conformity to the judicial decisions on those statutes; near all of which are included in this work, and in which the statutes of Maine are referred to. The said 180 acts, the last of which is a long repeating act, are noticed in the following pages.
The laws of Kentucky, are the laws of Virginia, a little varied.