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STATUTORY AND DOCUMENTARY MATERIAL OF INDIANA
from statutory law, and gathered chiefly from the reports of adjudicated cases and the works of commentators.
Constitutional law is that branch of jurisprudence which sets forth those general principles of law that concern the political structure of society; a constitution should embody positive rules of organic law and indicate in a definite manner the legislative enactments necessary for its application. Gen- erally speaking, a constitution, such as Indiana possesses, pre- scribes the limits of the three branches of government, execu- tive, legislative and judicial. For instance, the 1850 Constitu- tion, in speaking of Circuit courts, says: "The Circuit courts shall consist of one judge and shall have such civil and crim- inal jurisdiction as may be prescribed by law."
Statutory law is that provided by legislative enactment and is written law as contradistinguished from unwritten or com- mon law. The statutory law of Indiana consists of the acts of the Governor and Judges (1800-1805), the acts of the General Assembly of Indiana Territory (1805-1816), and the session laws of the State of Indiana issued annually from 1816 to 1852 and biennially since 1852. In addition to the acts of the regular sessions, there have been ten special sessions since 1852, these sessions being called in 1858, 1861, 1869, 1872, 1875, 1877, 1879, 1881, 1885 and 1908. General revisions of the laws by the authority of the General Assembly have been made in 1807, 1818, 1824, 1831, 1838, 1843, 1852 and 1881. A number of other revisions of the laws have been issued as private ventures and as far as their validity is concerned they have, with one exception, been given equal recognition by the courts with those revisions authorized by the Legislature.
The one exception refers to the three-volume edition issued in 1888 and 1892, two volumes being issued in 1888 and a sup- plementary volume four years later. The Legislature author- ized the revision of 1881 and the printer of the two volumes of this Revision issued on his own responsibility two volumes in 1888, adding to the Revision the acts passed in 1883, 1885 and 1887. Apparently this printer (E. B. Meyers & Co., of Chi- cago) had used the same plates in his edition of 1888 which had been used in the 1881 edition. A supplement to the 1888 edition was issued in 1892 and shortly after this the Supreme court handed down a decision in which it stated that these
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COURTS AND LAWYERS OF INDIANA
three volumes of 1888 and 1892 could not be considered as an edition of the statutes of the state. Consequently, they have never been cited in the opinions of the Supreme court or of any other court in the state where questions of moment were at issue. While the law requires the issuance of the decisions of the Supreme and Appellate courts, the Legislature has never authorized any of the many digests of the decisions, all of them having been the work of private parties.
The best summary of the official publications of the Terri- tory and State of Indiana appeared in 1890 as Volume II, No. 5, in the Indiana Historical Society publications. This bro- chure of ninety-five pages was prepared by Daniel Waite Howe, of Indianapolis, and contains a descriptive list of all of the publications issued by and under the authority of the Legisla- ture from 1800 to 1890. The appended bibliography is con- cerned primarily with the publications of legal nature au- thorized by the Legislature, as well as similar publications issued by private parties. The Session laws, Revised statutes, Supreme and Appellate court decisions, Digests of Legislative acts and Supreme and Appellate court decisions, the Journals of Indiana's two Constitutional Conventions and various other works of an official or private nature bearing on the courts of the state, should find a place in every Circuit court library in the state. The bibliography follows :
STATUTORY AND DOCUMENTARY MATERIAL OF INDIANA.
INDIANA TERRITORY (including Illinois, Wisconsin and parts of Ohio, Michigan and Minnesota at different times).
Title of legislative body to July 4, 1805, "The Governor and Judges of the Indiana Territory."
Session laws called "Laws."
Title of legislative body after July 5, 1805, "General Assembly."
Session Laws called "Laws."
STATE.
Title of legislative body "General Assembly."
Session Laws called "Laws."
SESSION LAWS OF INDIANA TERRITORY.
LAW'S FOR THE GOVERNMENT OF THE DISTRICT OF LOUISIANA,
passed by the Governor and Judges of the Indiana Territory, at their 1st session Uegun (sic) and held at Vincennes, on the first day of October 1804. Published by authority.
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STATUTORY AND DOCUMENTARY MATERIAL OF INDIANA
Printed by E. Stout. 136 + (1) p. 12 mo. Vincennes, (I. T.), 1804. 1st Session, January 1801. (Contained in "Message from the Presi- dent of the United States, transmitting the laws" of the territory from January, 1801, to February, 1802, to Congress, 32 p., 12 mo. Message dated February 13, 1803. A reprint is contained in "Throop and Clark's reprint of laws of Indiana Territory, 1801-06." Sº.)
2nd Session, January, 1802. (Contained in "Message from the Presi- dent of the United States, transmitting the laws" of the territory from January, 1801, to February, 1802, to Congress, 7 p. 12 mo. Message dated February 14, 1803. A reprint is contained in "Throop and Clark's reprint of laws of Indiana Territory, 1801-06." 8º.)
3rd Session, (February, 1803). (Contained in "Message from the President of the United States transmitting the laws" of the territory (1803) to Congress. Message dated December 7, 1803. A reprint is contained in "Throop and Clark's reprint of laws of Indiana Territory, 1801-1806." Sº.)
4th Session, (September 1803-September 1804).
(Contained in "Throop and Clark's reprint of laws of Indiana Terri- tory, 1801-1806." 8°.)
1st General Assembly, 1st Session, July 4, 1805.
(Contained in "Throop and Clark's reprint of laws of Indiana Terri- tory, 1801-1806." 8°.)
1st General Assembly, 2nd Session, November 3, 1906, 30 + (1) p. Folio.
(Contained in "Throop and Clark's reprint of laws of Indiana Terri- tory, 1801-1806." Sº.)
1st Session, August, 1807.
2nd Session, September, 1808.
1st Session, November, 1810.
2nd Session, November, 1811.
1st Session, February. 1813.
2nd Session, December, 1813.
1st Session, August, 1814.
2nd Session, December, 1815.
SESSION LAWS OF THE STATE OF INDIANA.
The Legislature of Indiana had annual sessions from 1816 to 1851 and their Acts are printed annually for this period. The Legislature met each year in December and held over into January of the following year. There is one exception to this statement, namely, in 1824 the Capitol was moved from Corydon to Indianapolis, in December of that year, and the ninth session did not begin until January, 1825.
From 1851 down to the present time the Legislature has met in bien- nial sessions with the exception of special sessions which were called in 1858, 1861, 1869, 1872, 1875, 1877, 1879, 1881, 1885 and 1908.
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COURTS AND LAWYERS OF INDIANA
STATUTES, COMPILATIONS, DIGESTS, CODES, ETC.
LAWS OF THE TERRITORY NORTHWEST, 1791-1802. (1833.) (Com- tains laws of the Governor and Judges, the Maxwell Code and the laws of the three Sessions of the Territorial Legislature.) 1 vol. p. 350 Cincinnati, 1833
REVISION OF LAWS OF INDIANA TERRITORY (1807). Including Illi- nois Territory. By Jones and Johnson. 1 vol. XXVIII p. Vincennes, 1807.
COMPEND OF ACTS (1807-1814) ; G. W. Johnston. Printed by Elihu
Stout.
1 vol. p. 195, iii p. 12 mo. Vincennes, 1817.
REVISED LAWS (1823). Arranged and published by the General As- sembly, eighth session. (Dec. 1823.) 1 vol. p. 438 Corydon, 1824.
REVISED LAWS (1831). Arranged and published by the General Assem- bly, 15th session. (December 1830.)
1 vol. p. 596. 8 mo. Indianapolis, 1831.
REVISED STATUTES (1838). Arranged, compiled and published by authority of the General Assembly. 22nd Session.
1 vol. p. 667. S mo. Indianapolis, 1838.
REVISED STATUTES (1843). By Samuel Bigger and George H. Dunn. Printed and published according to law. 27th session.
1 vol. p. 1114. 8 mo. Indianapolis, 1843. REVISED STATUTES (1852). Printed and published according to law. 36th session.
2 vols. Vol. I .- p. 592. Vol. II-p. 646. 8 mo. Indianapolis, 1852. STATUTES (1862). Edited by Gavin and Hord.
3 vols. Vol. I-p. 828 Indianapolis, 1860
Vol. II-p. 736 Indianapolis, 1862
Vol. III-p. 221 Indianapolis, 1863
REVISED STATUTES (1870). Edited by Gavin and Hord.
2 vols. Vol. I-p. 128 Indianapolis, 1870.
Vol. II-p. 736 Indianapolis, 1870.
Volume III, by E. A. Davis (1870) is a supplement to the two volumes by Gavin and Hord.
(The 1870 edition is a reprint of the two volumes by author of edition of 1862.)
STATUTES (1876), with notes and references to judicial decisions.
2 volumes Vol. I-p. 1066 Vol. II-p. 819 Indianapolis, 1878.
REVISED STATUTES (1881) collated and annotated by James S. Frazer, John H. Stotsenburg and David Turpie. Authorized by act of March 28, 1879. 2 vols. Vol. I-p. 508 Chicago, 1881.
ACTS AND JOINT RESOLUTIONS (1883). S. R. Downey, editor, By authority. xvi 3. "1643-1829" p. 8 mo. Cincinnati, 1883.
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STATUTORY AND DOCUMENTARY MATERIAL OF INDIANA
STATUTORY CONSTRUCTION (1887). W. W. Thornton. 1037 p. S. Indianapolis, 1887. REVISED STATUTES (1SSS), not paged, but arranged by sections from 1 to 2605. Also contains an unpaged index. Printed by E. B. Meyer & Co.
2 Vols. S mo. Chicago, 1888.
SUPPLEMENT (1802) ; A Continuation of Previous Editions, being Vol. III of the Revision of 1SSS.
Vol. III, S mo. Chicago, 1892.
REVISED STATUTES (1889), Elliott's Supplement to the Revised Stat- utes of 1881. Embraces acts from 1883-89, inclusive. 1 vol. p. 846. S mo. Indianapolis, 1889.
REVISED STATUTES (1888-92)
3 vols. S mo.
ANNOTATED STATUTES (1894) ; Harrison Burns.
Indianapolis, 1894. 3 Vols. n. p.
Supplement (1897) being Vol. IV of the set. n. p. Indianapolis, 1897.
REVISED STATUTES (1896). By Frank A. Horner. 2 vols. n. p. S mo. Chicago, 1896.
REVISED STATUTES (1897). W. W. Thornton.
1 vol. p. 2274
Indianapolis, 1897.
ANNOTATED STATUTES (1901) ; Frank A. Horner. 2 vols. 8.
Indianapolis, 1901.
ANNOTATED STATUTES (1901) ; Harrison Burns. 3 vols.
Indianapolis, 1901.
Also general index to Burns' Annotated Statutes.
Vol. 4 of the set was issued in 1905 as a supplement to the 1901 edition.
ANNOTATED STATUTES (1908) ; Harrison Burns. 3 vols. Indianapolis, 1908.
Also general index to Burns' Annotated Statutes.
ANNOTATED STATUTES (1914) ; Harrison Burns.
3 vols. Indianapolis, 1914.
CODES OF INDIANA.
CODE OF LAWS (1818) ; William Hendricks.
ANNOTATED PRACTICE CODE (1889); W. W. Thornton and T. E. Ballard.
PRACTICE CODE (1893) ; W. W. Thornton.
ANNOTATED CIVIL CODE (1907) ; annotated by W. W. Thornton. 2 vols. CRIMINAL CODE (1905). (Authorized by statute aud printed in Acts of 1905).
DIGESTS OF INDIANA COURT DECISIONS.
DIGEST OF DECISIONS OF SUPREME COURT (1858) ; S. E. Perkins. 1 vol. p. 869. Indianapolis, 1858. (32)
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COURTS AND LAWYERS OF INDIANA
DIGEST OF DECISIONS OF SUPREME COURT (1866 and 1870) ; E. A. Davis. This follows the volume of Perkins.
Cincinnati, 1866.
2 vols. I vol. p. 853 II vol. p. 556. Cincinnati, 1870.
DIGEST OF DECISIONS OF SUPREME COURT (1883) ; W. H. Ripley. This contains all decisions from 1817 to 1881.
2 vols. paged consecutively from 1 to 1878.
DIGEST OF DECISIONS OF SUPREME COURT (1889) ; J. B. Black. This follows Ripley's volumes and covers the period from 1881 to 1889.
1 vol.
NEW INDIANA CITATIONS OF SUPREME COURT (1885) ; J. W. Thompson. 1 vol. Indianapolis, 1885.
A revised edition in 1895 covered all cases from 1817 to 1895.
A supplement to the 1895 edition was issued in 1901, covering Supreme court (136-155) and Appellate court (25-38).
CITATIONS OF SUPREME AND APPELLATE COURTS (1896) ; by W. W. Woollen. This covers the period from 1881 to 1895. 2 vols. Indianapolis, 1896.
DIGEST OF DECISIONS OF SUPREME AND APPELLATE COURTS (1910).
This covers the whole period from 1817 to 1910.
12 vols. Compiled and published by West Publishing Company. A supplement was issued In 1914.
DIGEST OF SUPREME AND APPELLATE COURT REPORTS (1905) ; Harrison Burns.
2 vols. Indianapolis, 1905.
CHARLES F. REMY (1902).
1 vol. Indianapolis, 1902.
CONSTITUTIONAL CONVENTIONS, CONSTITUTIONS, ETC.
1816.
JOURNAL, Corydon, June 2, 1816.
Louisville, 1816. 69 p. S mo.
This Journal is printed entire in the 1912 Proceedings of the Indiana State Bar Association, pp. 139-231.
CONSTITUTION ; a copy of this Constitution is contained in United States Charters and Constitutions, Part I, p. 499, where it is said that this Constitution was "adopted at Corydon, June 29, 1816, by the convention which framed the first Constitution of Indiana."
1850-1851.
JOURNAL OF CONVENTION to amend Constitution. Assembled at Indi- anapolis, October, 1850. 1885 p. 8 mo. Indianapolis, 1851.
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STATUTORY AND DOCUMENTARY MATERIAL OF INDIANA
DEBATES AND PROCEEDINGS of the convention for the revision of the Constitution. H. Fowler, official reporter.
2 vols. (2107 p. continuously). 8 mo.
CONSTITUTION AND ADDRESS of the Constitutional Convention (in German).
32 p. 8. New Albany, 1851.
(In English) 32 p. 8. New Albany, 1851.
CONSTITUTION. A copy of this Constitution is contained in United States Charters and Constitutions, Part I, p. 512. Amended Feb- ruary 18, 1873. A copy of this Constitution is contained in United States Charters and Constitutions, Part I, p. 527.
CONSTITUTION AMENDMENTS. This Constitution has been amended as follows: Amendment adopted February 18, 1873, relating to Wabash and Erie Canal certificates; March 14, 1881, four amend- ments extending suffrage to negroes, etc., amendment regarding township, etc., election : amendment relating to public officers; amendment relating to Superior courts.
PROPOSED CONSTITUTION; Jacob Piatt Dunn. 47 pp .- 8 mo. Indianapolis, 1914. A NEW CONSTITUTION FOR INDIANA; Ernest V. Shockley.
A brief resume of the Constitutional Conventions of 1816 and 1850 and of the amendments to the present constitution. 63 pp-12 mo. Bloomington, 1914.
CHAPTER XX.
LEGAL WRITERS OF INDIANA.
Indiana is known throughout the length and breadth of the Union as a literary state, and its men and women of letters have not confined themselves to the field of romance alone. While it is true that books of fiction predominate, the state is not lacking in writers in other fields. Indiana has produced several writers who have confined their efforts to legal litera- ture, although occasionally, members of the bar have conde- scended to enter the field of romance.
The legal writers may be divided into several different groups, based upon the character of their writings. There are some who make a specialty of compiling digests, codes, etc .; others take some particular subject, as real estate or insurance, and confine their attention to this one field; still others have written general text books on various legal sub- jects, such as bankruptcy, civil and criminal practice, trial evi- dence, agency, etc. Several works have been issued covering the duties of the justice of the peace, the county commission- ers, the sheriffs and other officials. A study of the bibliog- raphy which concludes this chapter bears ample witness to the fact that Indiana has produced an unusually large number of legal writers.
The greater portion of the legal literature of the state is the product of the last half century, very few volumes appear- ing before the Civil War. It is not known definitely when the first volume pertaining to the legal profession appeared in Indiana. Of course, the laws of the Territorial Legislature (1800-1816) were printed and during this same period, in 1807, Jones & Johnson issued the Revised Laws of Indiana Territory. It is probable that the first effort to issue a law book of any kind in the state with the pecuniary idea in view was made by General W. Johnston in 1817. The issues of the Vincennes Western Sun carried his advertisement during
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LEGAL WRITERS OF INDIANA
1815-16, for what he chose to call a "Compend of Acts, 1807- 1814". This was purely a private venture, the Revision of 1807 being authorized by the Territorial Legislature. This volume is very rare at the present time, and one book would bring more now than Johnston received for his whole edition in 1817. No other attempts were made by private parties to issue revisions of the statutes prior to 1852.
During the period of the old Constitution (1816-52) there were at least (so far as is now known) but two works of a legal nature issued, in addition to the Supreme court decisions. The first was a so-called officers' guide of 424 pages, which bore the lengthy title of "The Officers' Guide, and Farmers' Manual; containing a Comprehensive Collection of Judicial and Business forms, Adapted to the Jurisprudence of Indiana, with an Explanation of Law Phrases and Technical Terms, Both Latin and French; to which are appended A Concise Treatise On the Law of Evidence and Partnership, and Tables of Interest, Calculated at six per cent. per annum". The only clue as to its authorship is a statement made by the publishers, William Stacy & Company, Indianapolis, to the effect that it was "Revised by a Member of the Bar". The edition from which the above title is taken states that it was the third edi- tion published, and it bears the date of 1841. This third edi- tion also contains a preface to the first edition, but no mention is made in this as to whom the author might be. The other work spoken of above was a small manual for justices of the peace and constables, which was compiled by William W. Wick and Lucian Barbour in 1846. J. F. Conover compiled the first digest of Supreme court decisions in Indiana, his one volume being cited as "1 Blackf.", which covers the period from 1817 to 1826. This same volume also contains the decisions of the Supreme court of Ohio (1821-32) and those of Illinois (1819-31).
In this connection reference should be made to the Revi- sions of 1818, 1824, 1831, 1838 and 1843. The acts of the first Legislature, which sat from November 4, 1816, to January 3, 1817, were published in the latter year as the "Acts of 1817". The second Legislature (December 1, 1817-January 29, 1818) passed a large number of acts and they are sometimes cited as "Revised Statutes of 1818". The citation is really a misnomer,
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COURTS AND LAWYERS OF INDIANA
since the volume contains only the acts passed by the legisla- ture in 1817-18. Under the old Constitution there was a large amount of what was known as special legislation and it be- came the custom to issue two separate volumes, one of general and the other of special laws. In 1818 it was provided "That nothing herein contained shall be so construed as to authorize the public printer to print an act passed at the present ses- sion, entitled 'An Act to Regulate the Militia'". However, in the Laws of 1819 (p. 151) a statement under the heading "Er- rata of the Act Regulating the Militia" indicates that the mili- tia act of 1818 was really printed despite the prohibition of the Legislature which passed the act.
The Revision of 1824 was authorized by the act of Decem- ber 31, 1822, and the act providing for the revision specified that Benjamin Parke should do the work, conferring on him "Full power to revise, alter, amend, abridge, enlarge and model the statute laws" of the state, "so as to produce a com- prehensive and systematic code, best fitted in his opinion to subserve the public interest and happiness." The Legislature was to allow him one thousand dollars for his work. How- ever, when Parke, who was then United States District Judge of Indiana, was interviewed by the Legislature in regard to the work, he declined to assume the responsibility, on the ground that his health would not permit him to undertake the work. Consequently, it was necessary to look elsewhere to find some one qualified for the undertaking. Strange as it may seem, it was no other person than Governor William Hen- dricks himself who was chosen by the legislative committee. Still stranger was the fact that the Governor refused to ac- cept the thousand dollars set aside by the Legislature as com- pensation for the work. The volume of 438 pages shows that Governor Hendricks did his work carefully and conscientiously and with the idea of conforming to the recommendation set forth in the act providing for the revision.
The Revision of 1831, a volume of 596 pages, was the work of the General Assembly, the title page saying that it was "Arranged, and Published by Authority of the General Assem- bly." This volume contained all the laws in force at the time of its publication, and all statutes previously passed, not con- tained within the volume, were repealed, except a few certain
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LEGAL WRITERS OF INDIANA
acts which were designated by title. The Revision of 1838, known as the Revised Statutes of Indiana, was "Arranged, Compiled and Published by the Authority of the General As- sembly," and not intrusted to any one person. The last revi- sion of the laws of the state under the old Constitution was authorized by the act of February 4, 1841. This act selected Samuel Bigger, who was "authorized to prepare a compilation and revision of the general statute laws of the state and to suggest such amendments and alterations in any of said stat- utes and to prepare such additions as he might deem proper with a view to the adoption and enactment by the Legislature of the full and complete general laws." Evidently Bigger found the problem of revising the laws a larger one than he contemplated and he asked the Legislature to authorize George H. Dunn to assist him in his labors. The Legislature complied with the request of Bigger by passing the act of January 18, 1842. It provided that Dunn should be associated with Bigger in the work of revision. These two lawyers proceeded with their work and by the time the Legislature opened in the fall of 1842 they had it ready to submit to that body. For some reason, the Revision of 1843 did not meet with popular favor throughout the state and the reason is to be found in the fact that the revisers made such radical changes from the three former revisions-that is, those issued in 1824, 1831 and 1838. The Legislature printed ten thousand copies of this re- vision and put them on sale at four dollars a volume. The sale was so slow that the price was soon reduced to two dollars, then to one dollar, and, finally, so tradition says, they were offered to anyone who would carry them away. This com- pletes the legal writings prior to 1852, when the new Consti- tution went into operation.
With the adoption of the Constitution of 1852 it was neces- sary to revise all the laws of the state and this was done by three men, known as commissioners by the act providing for the revision. These men were Walter March, George W. Carr and Lucien Barbour. Jonathan A. Lester had been originally appointed by the Legislature as one of the commissioners and when he declined to serve, Barbour was appointed in his stead. These three commissioners wrote both the Civil and the Crim- inal codes and submitted them to the Legislature for their ap-
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COURTS AND LAWYERS OF INDIANA
proval. The secretary of state had general charge of the print- ing, while James S. Hester prepared the annotations which accompanied the two volumes. Fifteen thousand were printed in English and one thousand in German. Although there have been several revisions since 1852, the state has authorized only one general revision of the statutes. The General Assembly of 1879 passed an act providing for a board of revision, "to prepare a compilation and revision of the general statute laws of this state and to suggest such amendments and alterations in any of the said statutes and to prepare such additional ones as they may deem proper with a view to the adoption and en- actment by the General Assembly of a full and complete code of laws; such, however, to be completed, if possible, by Sep- tember 1, 1880, and be reported to the General Assembly at its next session." This one act provided that the Supreme court should appoint the board of commissioners who were to have charge of the revisions and that body selected John H. Stot- senburg, of New Albany, David Turpie, of Indianapolis, and James S. Frazer, of Warsaw. When the work of revision was completed twelve thousand volumes were printed and the Legislature fixed a price of three dollars and twenty cents a volume. Each member of the board of revision was paid $3,500 for his services. This is the last general revision which has been published by the authority of the General Assembly. By reference to the Bibliography on Documentary and Statu- tory Material at the end of this chapter, all other revisions of the laws may be found listed.
The most prolific legal writer in Indiana is William W. Thornton, now Judge of Superior court, Room 1, Marion county. For thirty years he had been engaged in legal liter- ary work and during that time has issued more than thirty volumes. These cover a wide range of topics and may be found in every Circuit court library in the state and in every state law library in the Union. It is not the province of this chapter to discuss the respective merits of the various legal publications of Indiana jurists, but rather to indicate, in a general way, in bibliographic fashion, their contributions to the legal literature of the state and nation.
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