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APPENDIX.

60-VOL. II.

[Being alike applicable to all the Codes there is here inserted :]

PART V.-POLITICAL CODE.

OF THE DEFINITION AND SOURCES OF LAW-EFFECT
AND PUBLICATION OF THE CODES, AND THE EX-
PRESS REPEAL OF STATUTES.

TITLE I. DEFINITION AND SOURCES OF THE LAW.
II. EFFECT OF THE CODES.

III. PUBLICATION OF THE CODES, AND STATUTES

CONTINUED IN FORCE.

IV. EXPRESS REPEAL OF STATUTES.

TITLE I.

DEFINITION AND SOURCES OF THE LAW.

SECTION 4466. Definition of law.

4467. How expressed.

4468. Common law, when rule of decision.

of law.

4466. Law is a solemn expression of the will of Definition the supreme power of the State.

NOTE.-Bouvier, in his Law Dictionary, says of law,
that "in its most general and comprehensive sense it
signifies a rule of action; and this term is applied in-
discriminately to all kinds of action, whether animate
or inanimate, rational or irrational. 1 Black. Com.,
38: In its more confined sense law denotes the rule,
not of actions in general but of human action or con-
duct. The Civil Code of Louisiana, Art. 1, defines law
to be "a solemn expression of the legislative will;

p.

How expressed.

Common law, when rule of decision.

see Tuoll. Dr. Civ. Fr., Tit. Prel., Sec. 1, N.4; 1 Bouv. Inst., N. 1-3. The definition of the text is more in conformity with that of the Louisiana Code than any other. It is intended to define it as emanating from the supreme power-which is the will of the people, the source of all political power-as expressed through their representatives, the legislative department, approved by the executive, and construed to be in conformity with the Constitution by the judicial department of the Government. It would not, under our Constitution and form of Government, answer the purpose to say that it is the expression of the legislative will; for that will is controlled to a certain extent by the executive, in its exercise of the veto power; and in case both these departments concur in an expression which is forbidden by the Constitution the judicial department would not enforce it. Hence the definition of the text is the more truthful and better expression. Besides, the Constitution is the organic law-the compact entered into by all the people to be obedient to such laws of the legislative department only which conform to its provisions; and such conformity is absolutely necessary to make the legislative law obligatory and of binding force.

4467. The will of the supreme power is expressed: 1. By the Constitution;

2. By statutes.

NOTE.-Subd. 1.-See Constitution thoroughly annotated in the Appendix to the Political Code.

Subd. 2.-The statutes are embodied in the Codes and in the public and private Acts of the Legislature.

4468. The common law of England, so far as it is not repugnant to or inconsistent with the Constitution of the United States or the Constitution or laws of this State, is the rule of decision in all the Courts of this State.

NOTE.-Act of April 13th, 1850; Stats. 1850, p. 219. GENERALLY.-"All statutes are to be construed with reference to the provisions of the common law, and provisions in derogation of the common law are held strictly."-Bouv. Law Dict., Vol. 1, p. 338; but see Sec. 4, ante, and referred to, post, in this note. This section is substantially the same as that adopted by the first Legislature of the State, and has been the rule ever since. Its adoption subjected the Courts of the

State to the observance of the provisions of the common law of England in so far as they were not repugnant to the Constitution and laws passed in conformity therewith.-Reed vs. Eldridge, 27 Cal., p. 346. In Thompson vs. Monrow, 2 Cal., p. 100, the Supreme Court say: "According to the well settled doctrine of several of the highest Courts of other States, we must judicially presume that the common law is the rule of decision in the other States, unless the contrary is shown. And in the People vs. Craycroft, id., p. 243, the Court say: "Where a right is given, and a remedy provided by statute, the remedy so provided must be pursued. It is true, if the right existed at common law, the plaintiff' might pursue either remedy, the statutory one being regarded as merely cumulative." Affirmed in Ward vs. Severance, 7 id., p. 126; and People vs. Poulterer, 16 id., p. 526. It was in People vs. Folsom, 5 Cal., p. 373, declared that, "now there is no common law of the United States, as contradistinguished from the individual States, and the Courts of the United States, instead of administering the common law, or any particular system, conform to the law of the States where they are situated." The common law was adopted only so far as it was not repugnant to the Constitution and statutes of the State. When the State has laws on the subject of "fences," ""roads," and the like, the common law rule which required owners of cattle to keep them confined in their own inclosures does not prevail.-Waters vs. Moss, 12 Cal., p. 538. The rule of the common law that statutes in derogation thereof are to be strictly construed, has no application to this Code.-See Sec. 4, ante, and note. In Norris vs. Harris, 15 Cal., p. 252, the Court said: "There is no doubt that the common law is the basis of the laws of those States which were originally colonies of England, or carved out of such colonies.-Kent's Com., Vol. 1, p. 343. In all those States thus having a common origin, formed from colonies which constituted a part of the same empire, and which recognized the common law as the source of their jurisprudence, it must be presumed that such common law exists. It has been so held in repeated instances, and it rests upon parties who assert a different "rule to show that matter by proof. See Inge vs. Murphy, 10 Ala. (N. S.), p. 895. A similar presumption must prevail as to the existence of the common law in those States which have been established in territory acquired since the Revolution, where such territory was not, at the time of its acquisition, occupied by an organized and civilized

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