Published doesn’t mean adopted

The Legal Genealogist recently got a request for research assistance that was absolutely perfectly right up the proverbial alley.

A request for help in locating specific laws on a specific topic in several jurisdictions.

It was fun.

And in one particular respect it was absolutely frustrating.

Because of the law that never was.

The case in point: The Revised Code of the District of Columbia, 1857.¹

Now… every single thing about this volume looks official. It says on the front cover, for example, that it was “Prepared Under the Authority of an Act of Congress” — and of course Congress had ultimate authority for the laws of the federal district.²

Leafing through the volume, virtually, it looks like every other codified set of laws you’d ever need to consult. Organized by topic, it begins with the structure of the local government, and proceeds through the matters of concern to the citizens of the time: the militia, mills, mill dams and ferries, religion, church property, trade, corporations, police and more. It has a section on the enslaved, an entire part on property, inheritance and “other matters connected with private rights” and separate parts on courts and crimes.

It is in every respect just what you’d think to consult to find the laws of the District of Columbia in and after 1857.

Except for one minor little problem.

The federal law that allowed for the revised code — “An Act to improve the Laws of the District of Columbia, and to codify the same”³ — had one unexpected provision among all the expected provisions.

The expected provisions were things like providing for “two persons, learned in the law, to revise, simplify, digest, and codify the laws of said District” and that “said code shall be constructed according to a simple method, and be expressed in language concise and plain, and, far as possible, be made level to the understanding of a person of ordinary intelligence and education” and that the code was to be approved by the local city authorities and “shall be adopted, and become the law of said District, as hereinafter provided.”⁴

It even provided that the code was to be

published in a neat and convenient form, and to be substantially bound ; and … to be printed and bound as may be necessary for the amplest distribution of the same among the people of said District, and for the preservation of said code ; and a copy thereof shall be furnished to every justice of the peace, and every judge, to each court, to each clerk of said court, to each coroner, to said levy court, to each public school, to each public library, to each public department of government, and to the mayors and each of the councils of Washington and Georgetown, to be by them kept and carefully preserved, and transferred to their several successors in office. And the said code, so deposited with said clerks of courts and justices of the peace, shall at all times be open in their several offices, for the inspection and information of the people of said District, and others who may desire to consult the same.⁵

And then the provision I at least didn’t expect: “And when the said code shall be printed and distributed, the President of the United States shall, by his proclamation, appoint a time and places in the said District for taking the sense of the citizens thereof, for or against the adoption of the said code…”⁶

Uh oh.

A public vote.

And you can guess the rest of the story, right?

According to the newspapers of the day, the vote was overwhelming against the code — by better than a two-to-one margin, in fact: 3660 to 1576.⁷

And so there we have it… the law that never was.

Which — sigh — provides another lesson to be learned: the fact that we find a set of laws that are published doesn’t mean those laws have been adopted.

Cite/link to this post: Judy G. Russell, “The law that never was,” The Legal Genealogist (https://www.legalgenealogist.com/blog : posted 18 Mar 2021).

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