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To His Excellency George M° Duffie, Governor of South-Carolina:
Sır-Herewith I transmit the collection of materials meant to form the first volume of the Statutes at Large of South-Carolina. They can easily be arranged for the Printer under my own superintendence and inspection, when the plan of the volume is finally settled by a Committee of the Legislature, and when it is finally decided whether any and what parts of the proposed materials shall be excluded from the volume. They consist of
First, The acts, documents and proceedings of a constitutional character, all of which the Editor considers as expedient to be adopted. The reasons of his opinion are contained in the preface to the work herewith transmitted,
Secondly, The legislative acts of Assembly, as adopted and arranged by Judge Grimke, in his 4th edition of the public Laws, from the year 1694 to 1740. From the condition of the very early acts of Assembly in MS. and the want of present interest in the subjects of them, the Editor has not thought fit to commence earlier.* All the English Statutes declared of force by act of Assembly, or any other reason, or under any other authority, are inserted with the specific reasons for their insertion.
Thirdly, The sections and clauses of acts which Judge Grimke has rejected as obsolete or repealed: these have been copied from the original acts, because it appeared to the Editor desirable that the laws should be presented unmutilated by any private authority; and for the reasons also assigned in his preface. Whatever order shall be finally taken on this part of the collection, the Editor will comply with, and if this supplement to the hitherto mutilated acts as published shall be adopted, the Editor will take care of their due and orderly insertion.
Fourthly. The notes and references of the Editor to such acts as seemed to require illustration and comment. He has inserted to each act, where they were called for, a reference to every other act subsequently passed, relating in whole or in part to the same subject matter : a reference also to every decision thereon, throughout the twenty two volumes of South-Carolina Reports.
The plan of this work cannot be finally and satisfactorily adjusted, till it has been submitted to the inspection of His Excellency the Governor, and through him to the Legislature. When the plan is settled, the Editor will proceed therein with as much despatch as is consistent with accuracy. I have the honor to be, respectfully, sir,
Your obedient servant,
But see the Report of the Judiciary Committee of December 9, 1835, unanimously adopted by the Legislature, inserted at the end of this Preface, directing the present edition to commence with the laws of 1682.
The legislative records of South-Carolina commence in 1682 : from that time to the present, no plan sanctioned by public authority has been formed and executed to collect, revise or digest our written Laws. The acts of Assembly have continued to increase by annual additions, preserved chiefly in loose and fugitive publications, until it has become extremely difficult to make a collection of our laws that shall form the basis of any future revision, condensation, or digest. Of these laws, enacted during a period of more than 150 years, many have been repealed, many have become obsolete, others have been at various times altered and modified, many have been passed without a due reference to former enactments, many British Statutes have been adopted by formal and direct reference, others have been made of force indirectly and as a class of statutory provisions; until the Statute Law of South-Carolina has become a confused mass of legislation, difficult to be collected, and still more difficult to be clearly understood by the citizens who are required to obey its regulations. Revisal, condensation, amalgamation, and something in the form of an intelligible digest, have become absolutely necessary; and every year of neglect adds to the labor and the difficulty of performing this indispensable duty.
It is manifest, that before any step of this kind can be taken for the future, it is necessary to have under our view the whole ground occupied by past legislation. We must know, precisely, what has been done, why it has been done, when it has been done, and how it has been done, before we can go to work to ascertain with reasonable certainty what remains to be done. I have endeavored to supply this want by collecting in a chronological series the whole mass of our public legislation, accompanied with such notes and references, as may tend to elucidate what has been, and facilitate what remains to be accomplished.
A collection of the laws of the Province of South-Carolina was made by Chief Justice Trott, about the year 1736. It was in folio. It comprised all the acts of Assembly then in force, together with the titles of such other acts as had been passed from the first settlement of the country. Judge Trott, a learned and labourious Jurist, and during many years a person of great influence in South-Carolina, died 21st January, 1740, aged 77 years.
Judge Grimke, in the year 1790, published a collection of the laws of a public nature, then deemed in force: with the titles of all the acts passed from the first establishment of civil government in the Province. His collection ends with the Constitution of June 30, 1790. Judge Grimko has excluded all the acts of Assembly that have been repealed, that have expired, or that, under his view of the subject, have become obsolete, These cases of exclusion he has adopted, with a latitude that I dare not follow, and which sometimes has been exercised too loosely in his work. It by no means, therefore, supplied the great desideratum of the Bench and of the Bar—a work that might be fairly called the Statutes at large.
The digest of the Laws published by Judge Brevard, in 3 volumes, 1814, exhibits, perhaps, more sound judgment, as well as more laborious research, than the collection by Judge Grimke: bụt az Judge Brevard's compilation was intended for a manual only, it was not calculated to satisfy the wants of the profession or of the public. From that time to the present, upwards of 20 years, acts of Assembly have been annually heaped on each other, without any adequate means of cautious reference to what has been done precedently. Hence, I have carefully considered the wants of the profession and of the public in this respect, and have determined to submit to the Legislature, through the Governor of the State, a publication that shall fulfil the idea of the Statutes at large; and which shall serve as an adequate basis or platform for future operations by the Legislature, and more satisfactory decisions by the Courts.
The resolution of the Legislature, December, 1834, under which I act, runs as follows:
“ The Committee on the Judiciary, to which was referred the resolution to inquire into the expediency of procuring to be compiled and published the Statute Law of this State, now of force, with a digested index thereto—and also that part of the Governor's Message on the same subject having had the same under consideration, respectfully recommend the adoption of the following resolution, viz:
Resolved, That His Excellency the Governor be authorized and requested to employ some fit and competent person, to compile under his direction the Statute Law of this State, with a digested index thereto ; that he be requested to communicate at the next Session of the Legislature the progress of this work, and the compensation he may deem just and equitable should be paid to the person thus employed : and that the Governor be further authorized to pay from time to time such sum or sumş as upon inspection of the work he may deem equivalent to the labor actually bestowed on the same by the person thus employed."
In considering this resolution, I have thought myself authorized to put such a construction upon it, as would best answer the object intended, and comport with the constitutional power of the Legislaturé.
I am required to compile an edition of the Statute Law of South-Carolina: is it to be an imperfect and mutilated edition of our public Law, or one that will answer the description of the “Statutes at large?” I have preferred the latter : because, it is better to insert somewhat too much than somewhat too little : because, the reasons for a present law, are often derived from, and the law itself elucidated by, the imperfections it is
meant to supercede : because, we cannot understand the former defects, or the progressive improvement of our legislation, unless by a full series of our public Laws placing it under our view : because, rights become vested during the continuance of Laws subsequently repealed, which the courts cannot decide on, without reference to the repealed statute, under which they originated : because, present legislation is enlightened by the reasons that have occasioned former enactments to be rejected. These considerations appeared to me sufficient to justify, in a national work, the insertion of Laws of a public nature, that have been repealed. It is not a manual that is at present in question ; but the body of the Statute law of the State. Nor can any manual worth looking at, be compiled, unless it be based on this full and complete collection of the Statutes at large.
I have not deemed myself authorized under this resolution to decide what
part of our statute law is of force, and what is not of force-what is obsolete and what is yet valid. Because, although ministerial authority may be delegated, legislative authority cannot. I should hold myself sadly wanting in due respect to the Legislature, if I were to conceive myself at liberty, under this resolution, directly or indirectly to abrogate what they have thought fit heretofore to enact; or to declare any thing as law under my own authority. This is a power too great to be intrusted to any individual, even if the constitution did not forbid it. That instrument gives the power of repealing a law, that is the power of declaring it is not in force, to the legislature alone. The 7th article of our Constitution enacts, That all laws of force in this State at the passing of this Constitution, shall so continue until altered or repealed by the Legislature, except where they are temporary, in which case, they shall expire at the times respectively limited for their duration, if not continued by the Legislature. Moreover, it was solemnly decided in 1814, Cohen v. Hoff, 2 Tread. Con. Rep. 657, that the Governor has no discretionary power of appointment to the exercise of judicial functions : he must confine himself in this respect strictly within the constitutional limitations. Farther, in 1817, when the trial by battle was demanded on an appeal of murder, in the case of Abraham Thornton, in the court of King's bench, the Judges were of opinion that they had not the power of declaring this barbarous mode of decision obsolete, either from disuse or its manifest absurdity : they determined that it must be abrogated, not by them but by the Legislature : an act of parliament was accordingly passed, 59 Geo. 3, ch. 46.
An act of Parliament cannot be repealed by non user, White qui tam v. Bott, 2 Term. Rep. 275. Such an opinion may have prevailed at different times in England, but it is unfounded, and has no warrant in our law.Dwarris on Statutes, p. 672. The French law (Discours preliminaire du premier projet du Code Civil,) acknowledges that a law may become obsolete from desuetude by universal consent, but expressly declines laying down any rule or formal provision on the subject, from the danger that might thence arise.