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ascertain the best mode of abridging, by simplifying our labors; and prepare for submitting their results to the legislature with the least delay, and in a form, which, whilst it would assist their deliberations in matters of detail, would authorize them to pronounce, definitively, on the probable value of a revision, conducted on the principles proposed. It soon appeared, that the arrangement we meditated could not be effected, without a careful analysis of the various subjects embraced within the scope of our public laws. To the formation therefore of a general plan of the work, founded on such an analysis, our attention and thoughts were first directed; with a solicitude heightened by the reflection, that the discovery, in a future stage of our progress, of any material defect in the arrangement, might render useless, to a considerable extent, the labor already performed.
"After mature consideration we came to the conclusion, that the statutes in the proposed revision, ought to be arranged and classified as follows: “I. Those which relate to the territory; the political divisions; the civil polity; and the
internal administration of the state. "II. Those which relate to the acquisition, the enjoyment, and the transmission of property,
real and personal; to the domestic relations; and generally to all matters connected with private rights. “III. Those which relate to the judiciary establishments, and the mode of procedure in civil
“IV. Those which relate to crimes and punishments; to the mode of procedure in criminal
cases; and to prison discipline. “V. Public laws of a local and miscellaneous character; including the laws concerning the
city of New York; acts incorporating cities and villages; and such other acts of incorporation as it may be deemed necessary to publish.
“We were led to this general arrangement, as the most natural, and at the same time the most scientific, of which the subject was capable. It had also the recommendation of suiting, better than any other, the actual state of our jurisprudence: serious alterations having been proposed, in the judiciary establishments, upon which it was desirable to obtain an expression of the sense of the legislature, before the revision of the laws arranged under the third and fourth heads.
"In addition to its advantages in those respects, it possesses others of perhaps greater moment, which it may be proper to enumerate. One of the first objects intended to be effected by the proposed revision of the statutes, was their accommodation to the provisions of the amended constitution. The laws which fall under the first head, have a closer connexion with that instrument, than any others now in force; and it was therefore thought proper to commence our labors with them. On the other hand, as they have grown out of our peculiar form of government, they are for the most part independent of the common law; and have but little connexion with the general civil, or criminal code. When detached from the other statutes, they will form a body of constitutional and administrative law, which is capable of being reduced to the simplest form, and the most orderly arrangement. As they have but rarely been made the subject of judicial decision; and as no general rules of property depend upon them; their phraseology may be improved, without endangering titles to property, or disturbing the rules by which private rights have been governed. It is obvious therefore, that to these statutes our plan of consolidation and amendment, may be applied with greater facility and less hazard, than to any other portion of the written law. This latter consideration was of itself sufficient to govern our decision.
“We trust, therefore, that the proposed classification will meet the approbation of the legislature.
"The general arrangement having been fixed, a careful analysis was made of all the public statutes in force at the close of the last session, in order to select for immediate revision, such of them as fell under the first head. That part of the work was then divided into chapters as follows."
[Here followed an enumeration and analysis of the several Chapters, (nineteen in number,) into which it was then supposed that Part I. would be divided; and which, for the most part, conformed to the arrangement afterwards executed.]
“The revision of the statutes which fall under the first general head, having furnished us sufficient employment, we have not yet attempted an analysis of the other parts of the work; but we have devoted much of our time since the last session of the legislature to the preliminary studies and inquiries which were necessary to a thorough examination of the whole body of the statute law; and shall be prepared, on the completion of the first part, to proceed in the others without delay.
“In the mean time, we have completed a considerable portion of the first part, and would hare presented several Chapters to the legislature for enactment; had we not discovereil, that there was such a connection between its several divisions, that it was essential to the successful execution of our plan, that the whole of this part should be completed, before any portion should be reported for enactment.
"It would have given us great pleasure to have been able to present it entire at the present session. That however we have found to be wholly impracticable. A glance at the numerous and comprehensive subjects embraced within it, will show its great extent. Indeed, after deducting acts of incorporation, and local laws, more than three-fourths of the existing public statutes will fall under this head. It now fills nearly 1200 octavo pages: and though we shall make great reductions by consolidating different acts, and simplifying the language; yet as we shall be obliged to propose many new provisions, for the purpose of supplying omissions, we can not hope to reduce it to less than half its present extent. It will still form an entire volume.
"In addition to the great extent of this part; the intrinsic difficulties of our task, and the course of labor we have adopted, have rendered our progress exceedingly slow. The various enactments applicable to the first general division, are to be separated from the mass of statutes, with which they are now intermixed; they are then to be classified in appropriate Chapters, and arranged in suitable subdivisions. The like process is to be adopted with the contents of each minor division; it being a material, and, as we conceive, a most important part of our plan, to preserve in the distribution of the sections, the same regard to method, at which we aim in the general divisions. In the progress of the work, many changes in the arrangement originally contemplated; frequent transpositions in the order of the subjects; and new divisions and subdivisions of the different parts, became necessary. It is not until successive experiments have been actually made, that it can be satisfactorily ascertained, under what general head the subjects of some of the acts, may most properly be comprised. But the most serious portion of our labor is the drawing up of the text itself
. To reduce the sections to a proper brevity; to distribute them in a suitable manner; and to simplify the language in which they are written; it becomes absolutely necessary to write the whole with our own hands, and often to give our draughts several revisions, before we can so far satisfy ourselves, in regard to arrangement and expression, as to authorize the employment of a copyist. We can, therefore, derive but little aid from clerks or amanuenses; nor have we thought it consistent with the great importance of the trust confided to us, to leave to any one of our number exclusively, the completion of any part of the work, though by such a division of labor, our progress might have been hastened. To preserve uniformity of expression, and to make our performances in every sense of the words, joint and several, we have adopted the plan of allotting to each other, from time to time, convenient portions of the statūtes; of committing the draughts prepared by each to the separate and critical revisal of the others; and then of subjecting them to the joint examination of all. An allusion to these topics seems necessary to impart a just view of the nature of our task, and of the time and labor which are requisite to its successful execution; and it is made for that purpose only.”
[A statement is then made of the reasons which had compelled the Revisers to defer the completion of the First Part, until the legislative session of 1827.]
Opportunity having been afforded us for a farther trial of the plan proposed at the last session, it may be expected that we should express an opinion as to its practicability and advantages. Experience enables us to say, that in our judgment it may be applied to that portion of the statutes, placed under the first general head, with entire success. We think also that the statutes concerning the judiciary establishments, the modes of procedure, and the criminal law, may also be consolidated, revised and arranged after the same model. We may indeed speak with some confidence on this point, as the specimen presented at the last session, contained a partial revision of the acts concerning the courts of justice, and the mode of procedure, and received, though a first effort, the approbation of the legislature. It has also been carefully examined by many of our best lawyers, whose favorable opinions, expressed in some cases, after overcoming prejudices imbibed against the plan without fully understanding it, have given us the greatest encouragement.
"With respect to the class of statutes falling under the second general division, the difficulties to be met, and the caution to be exercised, are much increased by the considerations, that most of those statutes affect titles to property; and that almost every line of them has been the subject of judicial interpretation. Many of our professional brethren, for whose opinions we entertain the highest respect, are averse to any, even the least alteration, in their phraseology or arrangement, lest rules of property should be altered, and decisions over
turned. Objections founded on similar apprehensions, have indeed been urged as applicable to our plan of revision, in its whole extent. Confined to the statutes of which we now speak, we are fully sensible that they deserve to be weighed with great deliberation; but when extended to the laws embraced in the first division of our work, for reasons to which we have already averted; and from the experiments already made, we can not think them entitled to much consideration. When we shall have completed the revision of these laws, it will become our duty, in submitting them to the legislature, to communicate our matured opinions, in relation to the best mode of prosecuting the residue of the work; and our future course will be governed by the directions which we shall then receive.
“As to the first part of the work, we repeat, that in our judgment, there are no difficulties to be encountered in the execution of our plan, which care and labor may not surmount, nor any dangers to be apprehended, from its liberal application. And if we should merely reduce that portion the statutes to order and simplicity, and leave the others as they now stand; or rather revise them after the models of 1801 and 1813; we conceive that a great service will have been rendered to the state.
“ The laws which fall under the first head are of the most general application. They prescribe the duties of our public officers of every grade, and regulate the daily proceedings of our citizens. It is not to be expected that the other branches of the written law, can ever be rendered perfectly intelligible, to any but professional men. But every public officer, and we might almost say, every citizen engaged in active business, is required to act upon these statutes; and frequently under circumstances which render professional advice unattainable. They ought therefore to be made, if human language will permit it, so simple and intelligible, as to be level to the comprehension of all, who are obliged to consult them. These considerations do not seem to have been much attended to by their authors. Many of these statutes have not only been drawn up carelessly and immethodically; but in all of them, numerous propositions are crowded together in the same section, and words multiplied without motive or necessity. These defects we have endeavored to remedy. It has been our study in the Chapters we have commenced, to adopt the most simple arrangement; to confine the sections to short propositions; to omit unnecessary words; and to avoid, as far as practicable, all ambiguities of expression. To illustrate the nature and practicability of our plan, as applicable to this part of the work, we have appended to this report Chapters V. and VII.,* and to facilitate a comparison of their contents, with the existing laws relating to the same subjects, we have also subjoined copies of the latter. It will be seen on such comparison, that those Chapters in their present form, can hardly be called revisions of the existing laws, many changes having been made, and many new provisions introduced. In performing that part of our duty, which requires us to suggest to the legislature such contradictions, omissions or imperfections' as may be found in the acts to be revised, with the mode in which they may be 'reconciled, supplied or amended;' and to recommend the repeal of such acts or parts of acts' as ought in our judgment to be repealed; we have deemed it most expedient to prepare draughts of the statutes, as they will appear, after such contradictions, omissions or imperfections have been remedied, and after the parts proposed to be repealed, have been omitted. It was supposed that the propriety of such alterations would best be explained and understood, by an actual exhibition of the text, as it would stand, after the proposed changes had been made, and in connexion with those provisions of the present laws, that were intended to be retained. This course is the more readily adopted, as, generally speaking, the new parts will form distinct sections, any of which may be omitted by the legislature, at their pleasure. The two Chapters now presented have been prepared in that manner. In compiling them, we are sensible that we have carried to their full extent, the powers given us by the legislature. We have, however, made no changes or additions for which there did not appear sufficient reasons to our minds. In addition to the occasional remarks added to the specimens, we would observe, generally, that in the election law, we have endeavored to supply existing defects or omissions, (particularly as to special elections) - to furnish additional guards against abuses — to render the whole system more simple and consistent- and to secure the regularity, order and solemnity of the proceedings at the poll. In the other Chapter, our great object has been, to render the duties of town officers more plain, and to give something of form to the proceedings of town meetings, which are too important, as we conceive, to be left, as they now are, almost entirely without regulation
“Though we have bestowed great pains upon the chapters herewith presented, yet we feel it due to ourselves to offer them as specimens merely. In the course of our labors they will be carefully revised, for the purpose of detecting such omissions or ambiguities, as yet exist in them.
Chap. V. above mentioned, entitled “Of Elections other than for Town Officers," was afterwards reported and enacted as Chap VI.; and Chap. VII., entitled “ of the Powers, Duties and Privileges of Towns," was reported and enacted as Chap. XI.
“We avail ourselves of the present occasion, to notice some subjects to which our attention has been specially called by the legislature.
“By a resolution of the senate, passed in April last, a bill entitled 'An act for the punishment of certain crimes above the degree of petit larceny,' was referred to us.' The defects of our criminal code were also adverted to by his excellency the governor, in his message to the legislature at the commencement of the present session. That part of the message has been subsequently referred to us, by the senate. The remarks of his excellency in his message, as well as of the committee of the senate in their report on this subject, evidently contemplate the formation of a new and complete code or penal law adapted to the genius of our government, and the enlightened policy of the age. We are not insensible to the force of the considerations by which this measure is recommended. The defects of our criminal laws, as well in the classification and definition of crimes; as in the arbitrary nature of the discretion to which their punishment is intrusted; have long been confessed by all, whose unprejudiced reflections have been directed to the subject; but we are convinced, that an innovation of such magnitude, as the formation of a new system in this or any other branch of the law, was not in the contemplation of the legislature by whom we were appointed. And although we would not shrink from the labors and difficulties of the task, if sufficient time were allowed for its completion; we do not feel authorized to assume the responsibility of its execution, until the intentions of the legislature shall have been more distinctly and fully expressed.
"On this subject, however, it is not now necessary for us to enlarge, nor for the legislature to decide. It will have been perceived, that by the arrangement we have adopted, the revision of the penal statutes is deferred, until nearly the conclusion of our work. Independently of the consideration, that no complete system of penal law can be framed, until those laws which relate to the political establishments and to private rights, are settled; there are other reasons in favor of delay: A great experiment is now making in Louisiana, under the auspices of an accomplished jurist, a native of this state. Extensive reforms in the penal law are also meditated in England, and we look to that country, as well as our sister state, for instruction and examples.
"By a resolution of the assembly, passed at the close of the last session, the petition of George Casey and others, inhabitants of the county of Cayuga, was also referred to us. The petitioners complain that our present system of law, together with the rules and regulations of our courts of record, have been copied from the English practice,' and pray that they may be abolished, and that a system, 'formed on the plain and simple principles of common sense,' less technical and expensive, may be substituted in its stead. They also complain of the enormous bills of costs allowed in the higher courts of this state,' as a grievance which ought to be redressed.
“A petition in the same terms, but signed by other persons, was also presented to the senate at the last session. It was referred by that body to the committee on the judiciary, whose report may be found in the journals of the senate for 1825, at page 320.
"In the opinion of that committee, the subject matter of the petition taken in connexion with its prayer, involved the examination of two questions of great difficulty and importance. 1. Whether the whole body of our laws may not be reduced to a written code or text, and comprised within a moderate compass ? and 2. Whether the existing practice of our courts of law, (which is substantially the English practice with some amendments,) ought not to be reformed and simplified ?
“ Although the consideration of the former of these questions is not within the scope of our labors, which relate exclusively to that portion of our law, already reduced to writing, we have given to it a careful examination.
“The practicability and advantages of reducing the common law of England to a written code, have recently been maintained in that country, by several able writers. In this country also, similar opinions have been advanced by some of our ablest jurists; and we think those opinions are gradually gaining ground in both countries. On the other hand, a majority of the legal profession in each, is averse to the scheme. The arguments on both sides have been so fully exhibited, in the great literary journals of the age, and in various cotemporary publications, that we do not think it useful to engage in the discussion. At the same time, in order to comply with the requirements of the reference, and to avail ourselves of such knowledge on kindred topics, as might facilitate the performance of our primary duties, we have sought for information from those countries, in which similar experiments have been made, and shall endeavor, on some future occasion, to lay the results before the legislature.
“The other topic comes more properly within the range of our inquiries; many parts of the practice being regulated by statutory provisions. We fully concur with the committee of the senate, in the opinion, that very important reforms may be made in the practical administration of the law. It is not to be denied, that the practice of our courts of record, is incumbered by many unnecessary forms, and attended with many fictions, which tend to
the accumulation of costs, and to the discredit of the law and its practitioners. When we reach the third general division of our work, we propose to extend the statutes already passed, for the reformation of the English practice, to such other cases as may be safely embraced within them; and to present, in detail, our views on this interesting subject, to the consideration of the legislature.
“We desire, in conclusion, to bespeak the patience of the legislature, and of our fellow citizens. We have devoted, and we intend to devote, our best faculties to the performance of the great work, with which we have been honored; but we have so high a sense of its responsibility and importance, that we dare not attempt it hastily. If our progress has not been as rapid as may have been anticipated by the public, we hope it will be seen, to have been as rapid as circumstances would allow. Whilst on this subject, candor requires the acknowledgment, that neither of us has been able to devote bis whole time to this labor. It is known to the legislature that each of us is actively engaged in professional pursuits ; and though we have made considerable sacrifices for the purpose of performing the duties assigned to us; we have not supposed that the legislature would expect or desire, that our time and thoughts should be exclusively devoted to those duties. Nor can we believe that the public good would be advanced by such a course. On the contrary, if we may be allowed to express an opinion on this point, we would unhesitatingly say, that in our judgment, it is of the utmost importance, that the work be executed with much deliberation, and that time should be allowed between the enactment of the different parts, for such publie discussion, as may be necessary to form and to enlighten, that public opinion by which we are desirous to be governed. As to ourselves, we entertain a decided opinion, that our continued participation in the active scenes of professional duty, will enable us to bring to our task a greater share of valuable knowledge, improved by experience, than could ever be gained from solitary study; and that a character of practical utility will thus be imparted to our labors, which the speculations of retired individuals rarely attain.'
At the meeting of the legislature which commenced in January, 1827, the first ten chapters of the first part, together with chapter XIX., were submitted to the legislature by Messrs. DUER, BUTLER and WHEATON, and portions of them were partially discussed at that meeting. In April, 1827, Mr. WHEATON, who had been appointed charge-d'affaires of the United States to the court of Denmark, resigned his place as Reviser, and JOHN C. SPENCER, then a member of the state senate, was appointed by Governor CLINTON to fill the vacancy, and immediately entered on the duty assigned him. During the same month, the legislature having found it impracticable, at an ordinary meeting, to examine and discuss the chapters submitted by the Revisers, resolved to hold a special meeting, to commence on the 11th of September, 1827, for the “sole and only purpose of examining and re-enacting the revision of the statute laws of this state.” At the meeting so held, the whole of the first part, and all the chapters of the second part, except chapter I., were considered and passed.
A report was submitted to the legislature, by the Revisers, Messrs. DUER, BUTLER and SPENCER, on the 11th of September from which the following remarks on the FIRST PART, are extracted :
“ The first part, as finally arranged, consists of twenty chapters; an analysis of which is herewith submitted.
" The first ten chapters, together with the nineteenth, were presented to the legislature at its former meeting, and with the exception of the ninth chapter, were printed before the adjournment.
“ Under the authority conferred in the act of the 14th of April last, there have been printed during the recess, chapters IX, XI, XII, XIII, XIV and XV, which are herewith presented.
"To aid the legislature in the task of examination and reference, the Revisers have prefixed to all the chapters printed during the recess, copious tables of contents. They have also prepared similar tables to all the chapters presented at the last meeting, except chapters III and IV, which were too brief to need such a table.
“In some instances the Revisers have discovered, after the printing of a chapter, that provisions originally intended to be referred to some other part of the work, could more