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litical principles, dispersed in numerous local charters, constitutions, statutes, and also English books ; many of which laws and principles were to be traced to the free parts of the British system, and even to the ancient Germans, in several cases, and in some to the Hebrews, several of whose laws some of our ancestors early adopted in America. In this state of things, a very important object naturally presented itself to one, who, for several years, had been in a situation highly to appreciate Ainerican principles, especially those of the American revolution, which was, a collected body of American Law, formed with a constant reference to those principles, and to our character and situation. Forty years ago the materials for such a work were but few, in comparison with what they now are; and then it was very useful, and even necessary, to collect them for the lawyer's private use; and to such purpose was the undertaking commenced and pursued many years. The title, “A General Abridgment and Digest of American Law, with occasional Notes and Comments,” is intended to give a clear and concise view of the nature of the work. Formerly the word Digest, in law books, meant much more than an alphabetical arrangement of marginal notes, or of several indexes. But as this seems to be nearly its modern meaning, it applies but to an inconsiderable part of this work, the principal parts of which are described by the other words in the title, to wit., Abridgment, Notes and Comments. The first object has been to abridge and compress cases within narrow limits, but not so as to lose or obscure the law, decided or settled in the.u. Next, on proper occasions, by remarks, notes, and comments, to examine and explain a few obscure points of law, and sometimes to show the law is not, as it has been in some decisions stated to be. The work is calculated to consist of eight royal octavo volumes, of about 700 pages each, to be purely American, and among other things to supply the place generally of the English abridgments and digests, now read, especially by students, very disadvantageously, because in many respects inapplicable to our practice. As every lawyer of experience must have found a common life too short to be well read in the immense mass of law and equity, Federal, State, and Territorial, really applicable to our affairs, it must be, in some degree, a waste of time, especially for students and some others, to spend a large part of their time in reading English law as to-titles, forest, game prerogatives, ancient demesne, advowsons, boroughs, English copy-hold estates, many parts of feudal tenures, most kinds of English courts and customs, modes of punishments and forfeitures, as to English religion, privileges, revenue, stamps, modes of conveying and assuring property, and a vast many other matters peculiar to England. In fact, near half the English and Irish law we buy, at a heavy expense, and read often to the exclusion of reading
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our own laws, so useful, is as inapplicable to our concerns as the laws of Germany or Spain ; and more so than the civil code of France, since it is adopted, in substance, by Louisiana, one of our States.
Having said thus much as to the origin and design of the work, next it is proper, in a few pages, to give an exposition of it; and one made sometime since is preferred, because gentlemen, eminent in the profession, after examining the plan, and a large part of the work, thought it was correct.
THE PLAN AND OBJECTS.
1. Though the work is large and expensive, it is not larger than the state of our laws requires ; and including in it only such moral and political principles as are essential in a proper law work in this country. Though it has not been practicable to include in it local State law, on a arge scale, except as to two States, yet there is included in it enough of such State law, to shew that the several State courts proceed on the same general authorities in deciding general questions, whether federal, at common law, or in equity, or even in applying authorities in the construction of state statutes, and especially of devises, conveyances, &c., made under them.
2. It is, exclusively, calculated to be useful to American lawyers, especially to students, and those of the profession who cannot possess many law books.
3. The object is, to make our American charters and constitutions, statutes and adjudged cases, the ground work, on each subject : and therewith to incorporate that portion of the English law recognized in the United States, beginning with magna charta, and the first charters and statutes in our Colonies. The ground work has been thus viewed, because it is obvious that when constitutions and laws made in our country are not consistent with English law adopted here in practice, the former must prevail and the latter yield. In English law, adopted here, have been included and considered such English principles as have had an influence in our system.
4. Fully to examine such of our laws as are binding on all parts of the Union; to cite some, the most important, verbatim ; and to abridge the others as far as practicable, keeping the work within reasonable bounds.
5. To examine the charters, constitutions, and statutes of the several Colonies and States, of a public nature, and the judicial decisions made in the highest courts in them, and published, so far as to acquire correct ideas of such State law: but so voluminous is it, and so much of it merely local, in small portions of the nation, that it has been deem
ed not practicable, or useful, to include large portions of it in this work, except in regard to a few of the States; and it has been considered that the Judges and Lawyers of any State best understand its local laws; and it will be found that the courts in one State have not often noticed the laws and decisions in other States.
6. This being the case in regard to State law, it was found best to select the State law of some one State, to be included much at large in this work. Accordingly the laws of Massachusetts, in substance including Maine, have been selected for the purpose, and for the following reasons :- 1st, These laws are, in fact, the laws of two large States. 2d, With these the author has long been well acquainted. 3d. As the other New-England States were, at first, peopled from Massachusetts, her laws were the root of theirs. 4th, Her laws, as to the rights of persons, property, &c. were made the root, or germ, of nearly all our territorial law east of the Mississippi, by being made the material parts of the ordinance of Congress passed July 13, 1787, for the government of the United States' territories northwest of the Ohio, and from time to time extended to their other territories, as will appear on examining the ordinance itself. 5th, Much the largest part of the judicial decisjons made in Massachusetts (and Maine) have been made on those principles of law which are common to all the States, except Louisiana. 6th, Many of the statutes of Massachusetts having been copied, or formed in substance, from English statutes; and many others of our Colonies and States having done the same, her statutes, in these respects, are substantially theirs : for instance, Massachusetts, Virginia, &c. nearly copied their statutes of limitations from the statutes of limitations of the 32d Henry viii. ch. 2. and hence, so far, the statutes of one are those of all. However, there is embraced in this work much of the local law of the other States in the Union, in different ways, especially of New York, Virginia, and Kentucky. The State of Louisiana having, by statute, adopted the new French civil code, with some variations, and made it, of course, a part of our Ainerican system, many parts of this code have been taken into this work. In fact, on a careful examination, it will be found that more than four fifths of the decisions made in Massachusetts, New York, and Virginia, stated in this work, have been made on principles and authorities common to twentythree States, and so practised on in all. Though in the statutes of the several States there is a sameness in principle, yet there is a vast variety in words and detail, when not formed from one source, as above; but not a tenth part of the law in a State is found in its statute books; owing to this variety, the statutes of each State must be used somewhat at large, in order to practise on them safely.
7. There are also included several hundred cases, State and Federal,
reported in manuscripts before 1804, and rather more fully, as probably they will never be found in any other work : these are selections from decisions made, some before 1775, and others after that period to 1804 ; in a large part of which cases the author was counsel, hence was in a situation correctly to understand them. It has been a part of the plan, in considering each subject of importance, first to give a general view of it, under the terms, general principles, illustrated, usually, by rules and cases; then to enter on particulars on the same subject; believing that in this way the parts of a subject are best understood, and their analogies perceived, especially by students. Having treated a subject, or an important case, in its parts, it has been found useful, if not necessary, to inake, in some cases, some remarks, comments, or notes, to explain, not only for the benefit of those who most need explanation, but to caution against admitting judicial decisions as authorities, where the remote principle, on which they are made, is not admitted.
8. It has been another object, to treat a party's right and remedy in connexion; as, in the same chapter, or article, in numerous cases, and wherever his right and title to property, to things in action, to damages or redress, are investigated by his counsel with an immediate view to the suit or remedy. Hence much of the law relating to such rights and titles is found under the proper action; as, account, assumpsit, case, covenant, debt, ejectment, &c.; and when such titles and rights have been of a nature to come under one or another kind of action, the prevailing fitness has been most regarded. The reasons for adopting this course being many, they can be seen but by the work itself.
9. Original authorities have always been preferred, principally relied on and resorted to. Digests and abridgments have been relied on only when found correct, or when deemed to be so, by reason of their agreement with krown and settled law in other cases; but Cruise, Comyns, Bacon, and other digests and abridgments, have been extensively cited, or referred to in the margin, &c. as directing to many good authorities, and as corroborative. Not much reliance has been had on nisi prius cases; nor much on divided opinions.
10 It has been a rule, to abridge, considerably at length, certain leading cases; as Gelston and Hoyt,Bent and Baker, Freeman and Pasley, Liter and Green, &c. because it has been considered that it is of vast importance that such cases be correctly understood :-to be so, the facts, the points, and decisions must be correctly stated : other cases will appear to be so stated, when not so in fact, because it has been a rule not to divide a case so often as is usually done :-instance, Gelston and Hoyt; this case is best understood when the twenty or more material points decided in it are examined together; not when, by an abridger, scattered under twenty or more different heads.
11. It has been another object, to form a general abridgment and digest of American law, calculated to afford a general knowledge of it; and to lead to a more diligent study of it: hence the parts of it are arranged to be studied critically, in connexion with the authorities referred to, as each one may have time and abilities, and most occasion for one division after another; and so to form it to receive additions, without materially disturbing the order of it. For to make such a work permanently useful, law must be added as it shall come into existence, and the plan be so formed as conveniently to receive it. And it is proper that such a work have in it, a material portion of American law on every subject, on which questions in law or equity may arise.
12. It may be understood, that as Massachusetts statutes, State and Colonial, and judicial decisions, occupy their several places in different parts of the work, in relation to Federal law, a lawyer in any other State may, if he choose, substitute the statutes and such decisions of his own State, in the stead and places of those of Massachusetts, when he shall use this work. By Federal law is meant the Federal constitutions, acts of the Federal legislature and of the Federal executive, and judicial decisions thereon ; and, in a broader sense, is meant by Federal law, any law that pervades the whole Federal territory, whether of English or American origin.
THE PARTS OF THE WORK, HOW ARRANGED, &c.
Herein the main object has been to avoid two evils in the entire alphabetical order-Ist, The bringing together to be read, perhaps in the same hour, matters totally disconnected-2d, The entangling the student in his outset, in some of the most abstruse parts of the law. Some parts of the law are connected, either by original principle, or by falling under the same kind of action or remedy, so that they are connected enough to make it some object to read, and especially to study them in connexion, and as forming a division, or branch, of the law of the land.
In the arrangement, it was thought best not to make fewer divisions than 28; as in these, matters fall into one division, connected only by a general principle, as resting on some one kind of contract, or growing out of some one species of torts, or connected only by falling under some sort of remedy or suit; as the action of assumpsit or debt ;-or sometimes connected by both the principle and remedy, as the fifth division, assumpsit. Sometimes the alphabetical order does well enough, as in the order of personal actions, as account, assumpsit, case, covenant, debt, detinue, replevin, and trespass. No doubt some would prefer more divisions, as in that of debt, and make four of it, as the grounds of it would direct; but others may think it connexion enough, if the