The book has some examples of old laws not still on the books, and they are weird but not today’s topic. So if you are interested in knowing the maximum number of flutists that were allowed to play at a Roman funeral, for example, you will have to read the book. (Also, you probably need to get out more.) The subject today is old laws that are still in force although they have little or no application in modern times.
The Guano Islands Act is perhaps the most interesting federal example. Passed in 1856 during the administration of Franklin Pierce, the act was designed to address one of the most important problems then facing the nation. Namely, a critical shortage of bird poop.
If you guessed the problem was “escalating tensions over slavery,” you have overestimated the administration of Franklin Pierce.
Guano, which is a more polite term for bird or bat excrement, has long been known to be an excellent fertilizer. Artificial fertilizer was not cost-effective in the 1850s, and with human populations growing quickly, more and more of the natural kind was needed. (I assume our own guano isn’t so good for this purpose, or that problem would have solved itself.) But where to find it?
Small uninhabited tropical islands turn out to be ideal for large undisturbed seabird populations, which, over thousands of years, dropped one hell of a lot of fertilizer. In some places it was over 50 meters deep. Everybody wanted that dung, and Congress was no exception.
The Guano Islands Act provided that if a U.S. citizen discovered guano on “any island, rock, or key” that was uninhabited (by people) and “not within the lawful jurisdiction of any other Government,” and said citizen peacefully occupied the same, “such island, rock, or key may, at the discretion of the President, be considered as appertaining to the United States.” The discoverer had the exclusive right to mine guano and the President was authorized to deploy the armed forces to protect it.
In short, the act allowed any citizen to claim an island on behalf of the United States, as long as that island was uninhabited and covered in bird poop.
Did anyone take advantage of that? They sure did. More than 100 islands around the globe were claimed this way, including Midway Island and about 99 islands you’ve never heard of. (This was a bigger deal than you might think, legally, because the precedent led to the whole concept of “unincorporated territories” or “insular areas” over which the U.S. exercises jurisdiction, but in which the Constitution does not fully apply.) The U.S. has given up any claims on most of those, but it still claims a handful and in fact actively opposes at least one claim by another nation (Haiti).
Can you take advantage of the Guano Islands Act today? You sure can. See 48 U.S.C. § 1411-19. In fact, somebody tried to use it as recently as 1997, trying for some reason to claim Navassa Island (the one near Haiti). But in Warren v. United States, the court held that Navassa has “appertained to” the U.S. since 1857, and the U.S. has never given it up. The real question, why anybody in his right mind would want Navassa Island, a waterless hellhole from which all the dung has already been mined, was not addressed.
Do we need the Guano Islands Act today? No, we do not. The U.S. can take jurisdiction over such places without it, and it does not seem necessary or even desirable to encourage citizens to go out and try to claim them for dung-mining purposes. And yet it remains in the U.S. Code.
The states of course have old laws on the books as well, many of which would appear to be unconstitutional. In Mississippi, it is still a misdemeanor to teach another person about polygamy. You can’t be a polygamist, of course — at least for now — but you’re not supposed to even tell anyone about it. I doubt that’s ever been enforced, but why have it? Kentucky and Tennessee both have anti-dueling laws, which may be constitutional but are also a bit dated. In South Carolina, it’s illegal to refuse to join a posse, and I would guess it’s been a while since that one came up. And plenty of American towns have laws that need updating — one example being Columbus, Georgia, where the code still regulates steamboat captains and prohibits swearing on the telephone.
The oldest written law still on the books, though, at least in the common-law countries, would appear to be the Statute of Marlborough. This was enacted in 1267 — not that long after the Magna Carta — and according to a 2012 report by the U.K.’s Law Commission, four chapters of this law were still in effect 745 years later. (It is also still illegal to wear armor in Parliament, but that only dates back to 1313.)
Do these elderly laws do any harm? Well, again, some of them have been around long enough that they violate our modern understanding of the Constitution. Those should go. And our codes are long and confusing enough without the clutter of statutes that nobody (except maybe me) has read in the last century (or seven). Most likely they persist due to simple inertia and the fact that while legislators can take credit for “doing something” by passing legislation, repeals are less exciting.
But occasionally, someone does take an interest in cleaning up the codes. Wyoming recently repealed a law dealing with “cinematographers,” a term that formerly referred to specialists trained in hand-cranking movie projectors. There just aren’t any of those anymore (even in Wyoming). Minnesota just finished a more comprehensive effort, getting rid of over 1,100 outdated or unnecessary laws, like laws regulating telegraph operators or making it a crime to carry fruit in the wrong-sized container. And in the U.K., the Law Commission’s job is to review periodically all the statutes passed there over the centuries and recommend possible repeals. Congress and the states should have something like that, if they don’t already.
By the way, the Law Commission recommended that two chapters of the Statute of Marlborough be repealed, but somebody wrote in to complain (!), so they kept them. As that shows, getting rid of the old stuff may be harder than it seems, but it is still a worthy effort.