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The alterations made in the laws of New York, between 1813 and 1824, and the changes in the general polity of the state introduced by the amended constitution of 1821, having made it necessary to revise the statutes of the state, an act was passed on the 27th of November, 1824, appointing JAMES KENT, ERASTUS Root and BENJAMIN F. BUTLER, to perform that office. One of these persons, JAMES KENT, declined the appointment; the others, together with John DUER, who was appointed by the governor of the state in the place of James Kent, entered on the duties assigned them. The act contemplated a revision of the statutes like the revisions of 1801 and 1813, both of which were confined to a mere re-enactment, in a consolidated form, of statutes relating to the same subject, with occasional amendments suggested by the revisers, or inserted by the legislature. The statutes thus re-enacted, were drawn up in separate acts, and were written in that verbose professional language so long employed in such compositions. They were merely divided into sections, which were often of great length, frequently loaded with provisoes and exceptions, and seldom arranged with any regard to method. A single act sometimes embraced provisions on various subjects having no connection with each other; and as some of the most important statutes were left unrevised, it not unfrequently happened, that subjects which might, with great advantage, have received a separate consideration, were partially treated of in several different acts. A system of written law thus framed, was obviously incapable of any general scientific arrangement; and accordingly no attempt was made, in either of the revisions referred to, towards any such arrangement.
Pursuant to the act of 1824, Mr. Root commenced his labors as a Reviser, on the plan of the former revisions; but it occurred to Messrs. DUER and BUTLER, that valuable improvements might be made in this branch of our jurisprudence, by adopting a new and more scientific method. With a view to ascertain the practicability of such improvements, and to exhibit their character, Mr. Duer prepared a revision of the act of 1801, “concerning the court for the trial of impeachments and the correction of errors," and of the act of 1813, “concerning the court of chancery,” in substantially the form afterwards adopted. At the ensuing session of the legislature, this speci
men was laid before that body, in connection with a correspondence between the chairman of the committee on courts of justice of the house of assembly, and Messrs. DUER and BUTLER. Those gentlemen having been requested to state whether they had entered on the duties of their appointment as Revisers, and if so, what progress they had made therein; and also what alterations, if any, were necessary in the law directing the revision, to attain more effectually the objects for which it was enacted; made the following reply:
· Albany, February 4, 1825. "SIR — We have received your communication of the 28th ult., and in reply to the first inquiry contained in it, we have the honor to state, that we severally entered on the discharge of our duties under the act ‘for revising and publishing the laws of this state,' immediately after our respective appointments.
“With respect to the progress made in the performance of the duties enjoined by the act, although the inquiries of the committee seem to relate more particularly to ourselves, we deem it proper to state, that immediately after the passage of the act, our colleague, Gen. Erastus Root, proposed to one of the undersigned, to take up, on his return home, a portion of the statutes, and to make such preparations for their revision as he might think proper; the whole to be submitted to the Revisers whenever a joint meeting should be had. No objection was made to this suggestion, although the undersigned, to whom it was addressed, expressed his own determination to delay any proceedings of this sort, until it should be ascertained whether all the persons nained in the act accepted their appointments. In consequence of the vacancy which soon after occurred in the commission, he further determined to persist in this delay until such vacancy should be filled. The motives which prompted this resolution, will, he trusts, be sufficiently obvious and satisfactory to the committee, without further explanation.
“Immediately after the filling up of the vacancy referred to, a correspondence ensued between us, and between one of us and our colleagne; the object of which was to fix upon as early a day as circumstances would permit, for a joint meeting of the Revisers, in order to determine the general plan of the work, and make a suitable division of the labor. Such a meeting was accordingly agreed to be held in this city soon after the 10th inst. In the mean time, Gen. Root, as we are informed, has been industriously employed in collating and reviewing the tax laws, and the general and special acts concerning highways.
“As to ourselves, we have as yet done little more than to bestow on the subject a very full and deliberate consideration. The necessity of prescribing, upon mutual consultation, the general plan of the work, before any considerable portion of it could, with propriety, be undertaken by any one of the Revisers, and the circumstances which have hitherto prevented the conclusion of such a plan, will readily account for this. As our relative local positions presented facilities of communication with each other, which did not exist with respect to our colleague, we commenced as early as the 28th of December, a correspondence in relation to the mode of performing the revision. The arrival, subsequently, of one of the undersigned at this place, at an earlier day than was originally contemplated, has afforded the opportunity of personal consultation, and has enabled us, so far as we could do so, without the aid of our colleague, to settle the principles, and to mature the plan, upon which, as we think, the revision should be made. In order to meet the inquiry in your letter, as to
the alterations, if any, which may be necessary in the law to attain more effectually the objects for which it was enacted,' we shall be obliged, very briefly, to explain our views to the committee.
“Completely to attain the objects of the legislature, we conceive it indispensable that all the statutes now in force should be carefully revised; and that the persons charged with that duty, should not only reduce all acts relating to the same subject, into one, and conform them, in such particulars as may be necessary, to the provisions of the amended constitution, as specially directed in the act of the 27th of November last; but should also make such other alterations in style, in the length and structure of sentences, and the arrangement of sections, as will render the statutes more concise, perspicuous, and intelligible. We also think that our whole written law should be comprised under appropriate titles; that those titles should be classified in their natural order; and more especially, that the various provisions of each statute should be arranged in the clearest and most scientific method, which the nature of the subject will permit. We are aware that such a revision of the statutes will differ very materially from any heretofore attempted in this state, and will greatly increase the labor and responsibility of the Revisers; but so far as we are intrusted with the performance of this important duty, we are prepared to undertake it on the plan now sug
gested. In order the more fully to indicate its nature and advantages, we have prepared a complete revision of the acts relative to the court for the trial of impeachments and the correction of errors and a partial revision of the acts concerning the court of chancery. These papers we intended to submit to our colleague, on his arrival here, as exhibiting our own views; but as they will explain in a precise and intelligible manner, the real character of our plan, we take the liberty to present them to the consideration of the committee; premising, however, that we do not offer them as now fit to be submitted to the legislature for enactment, but merely as essays which will undoubtedly require, and may ultimately receive, additional improvement.
" It will be perceived by comparing these specimens with the original acts, that we have studiously rejected all words and phrases which could justly be considered as mere expletives or repetitions, and have confined each section to the enacting or declaring of a single proposition. We have also entirely disregarded the order in which the sections were arranged in the original acts, unless such order happened to be methodical, which was rarely found to be the case. Still, it is believed that the substance of the acts revised, has been carefully preserved, and that the sense has in no instance been changed, except where alterations were proper to be submitted to the legislature. The additional provisions have been added for the purpose of remedying imperfections or omissions, as required by the statute under which we act.
“We refrain from an extended exposition of the motives which have led us to the adoption of this plan, and will barely suggest some of the more important advantages which will result from its faithful execution.
"1st. It will reduce the statutes now in force, probably to one-half of their present extent, and in the same proportion the number or price of the volumes in which they shall be contained
"2d. It will in most cases render them so concise, simple, and perspicuous, as to be intelligible, not only to professional men, but to persons of every capacity.
"3d. It will redeem them from the uncertainties and obscurities arising from the long and involved sentences, and from the intricate and obsolete diction, in which so many of them, and more especially those originally copied from the English acts, and not since revised, have been written.
“4th. It will require little additional labor to frame tables and indexes, that shall enable those consulting the statutes, to refer to their various provisions with ease and certainty.
“5th. It will greatly facilitate the acquisition of a knowledge of the law as a science, to those whose profession devotes them to that study.
"6th. Its adoption will supersede the necessity of any future revision of the laws. Should any changes or additions be found necessary or expedient, the legislature enacting them may distribute them into sections upon the model proposed, and direct those sections to be annexed to the proper article and title of the law, to which, from their nature, they may be referable.
“Lastly. The successful execution of the proposed plan, may not only lead to its imitation in our sister states, but it may also lay the foundation of other and still greater improvements. Several of our most enlightened jurists have lately recommended a general code or digest of the law, and the idea of its practicability and importance seems to be gradually gaining ground. If such a work is ever to be attempted, it is obvious that it must be commenced in this manner, and with this branch of our jurisprudence.
“We are fully aware of the responsibility that we incur by proposing to the legislature a new mode of conducting a revision of the laws, and are prepared to encounter the charge, so easily preferred, of rash and unnecessary innovation. În reply to such a charge, we shall only observe, that the conviction of the practicability and great importance of the change which we recommend, has been produced in our own minds by slow and careful deliberation, overcoming the prepossessions common to the profession to which we belong. That much care, diligence and research will be requisite to the successful execution of this plan, we freely admit; and it is with a full sense of the difficulties it may impose upon ourselves, that we urge its adoption: yet we trust we may, without presumption, express our belief, that these difficulties may be overcome, the evils which may be apprehended effectually obviated, and the advantages which we have endeavored to indicate, to a considerable extent be secured and realized.
"We solicit a comparison of the acts drawn up by us, with those now in force, of which they are revisions. After such a comparison, we are persuaded that although the praise of superior method and perspicuity should be denied to the specimens we have prepared, we shall
, at least, be acquitted of any material departure from the substance or spirit of the originals. Indeed, on a close examination of our whole scheme, in all its parts and bearings, we trust it will be found that we propose to do nothing more than to free our written code
from the prolixities, uncertainties and confusion, incident to the style and manner in which it has hitherto been framed, and to apply to the elucidation of this branch of the noblest of all sciences, those principles of an enlarged philosophy, which now obtain in every other department of knowledge. And we would respectfully inquire, whether the period has not arrived, in which an effort of this sort is imperiously demanded, by a just regard to the interests and the honor of the first state in the American republic?
“To authorize the complete revision of the laws upon the principles above explained, would require the following additional provisions :
"Ist. The Revisers should be expressly authorized to propose to the legislature, such alterations in the phraseology of the statutes, as they may think necessary and expedient
. From one of the provisions in the first section of the act of the 27th November last, alterations of this sort would seem to be confined, to such as may be rendered necessary by the provisions of the amended constitution. We cannot believe, from an examination of the whole act, that such a restriction was intended by the legislature, especially as the Revisers are authorized to complete the work in such manner as shall seem to them most useful and proper;' but to prevent doubt, it would be satisfactory to have such a provision as we have suggested introduced into the act.
“2d. The act does not expressly authorize the new arrangement and construction of the sections which we have proposed to introduce. As this is, in our judgment, one of the most advantageous and important features of the plan now suggested, we think it advisable that the Revisers should be expressly empowered to exercise their discretion in this respect.
.“ 3d. The Revisers should be authorized to suggest to the legislature the repeal of such whole acts, or parts of acts, now in force, as ought, in their opinion, to be repealed, with their reasons for such suggestion. This authority, it may, for obvious reasons, be useful that they should possess, in addition to the powers already conferred on them by the act.
"4th. The present act is defective in not defining with accuracy the nature of the laws intended to be revised; and in omitting to distinguish between such as are permanent as to duration and general in their provisions, and those which are temporary and partial or local
. This distinction was carefully marked in the act of 1801, and we think it probable was in the contemplation of the legislature by whom the present act was passed; yet if the terms of this law are to be literally construed, it would be the duty of the Revisers to include in the revision, not merely all the public laws without reference to their character, but even such private acts as are still in force. We would respectfully suggest, that the first section of the act ought to be amended by confining the revision there directed, to such public acts as are general and permanent in their nature, and that the third section should be confined to all other public acts, and confer og the Revisers a discretionary power of omitting acts of incorporation and partial or local acts, when they may conceive that the community at large can have no interest in their publication.
“5th. In publishing the revised laws, we think it would be proper expressly to direct the publication of the former constitution of this state, which seems to have been omitted, through mistake; and also the publication of such acts, or parts of acts, of the Colonial Assembly, as remained in force for any time after the revolution. It is frequently necessary, even at this day, to refer to these statutes, and the difficulty of obtaining access to them, will sufficiently demonstrate the propriety of this suggestion.
“It was our intention to have proposed to our colleague, on his arrival here, to unite with us in soliciting from the legislature the adoption of these amendments; and it is only in compliance with the request of the committee, that we yield to the necessity of an earlier communication of our views.
“We are, very respectfully,
.6 JOHN DUER,
“ BENJ. F. BUTLER. “ The Hon. SAMUEL J. WILKIN, Chairman, &c."
The specimen accompanying the foregoing letter, may be found at length in the Journal of the house of assembly, for the year 1825, appendix D.
In conformity with the plan thus submitted, the committee soon after reported a bill “to authorize a revision of the statutes of this state,” which, having passed both houses, was approved by the
governor on the 21st of April, 1825. The first four sections of this law, were in the following words:
“I. Be it enacted by the People of the State of New York, represented in Senate and Assembly, That John DUER, BENJAMIN F. BUTLER and HENRY WHEATON, be and they are hereby authorized to collate and revise all such public acts of the legislature of this state, which shall be in force at the close of the present session, as are general and permanent in their nature; and that in the performance of such duty, they shall carefully collect and reduce into one act the different acts and parts of acts which, from similarity of subject, ought, in their judgment, to be so arranged and consolidated, distributing the same under such titles, divisions and sections, as they shall think proper, and omitting all such acts or parts of acts before passed, as shall have been repealed, or have expired by their own limitation, or be repugnant to the present constitution of this state; and that in every other respect, they shall complete the said revision in such manner as to them shall seem most useful and proper, to render the said acts more plain and easy to be understood; and that, from time to time, they shall lay before the legislature the acts so revised and arranged by them, to be reenacted, if the legislature shall so determine: Provided, That no change shall be made by the said revisers, in the phraseology or distribution of the sections of any statute that has been the subject of judicial decision, by which the construction thereof as established by such decision, shall or can be affected or impaired.
“II. And be it further enacted, That when the said acts shall be so presented to the legislature for re-enactment, the said revisers shall also suggest to the legislature such contradictions, omissions or imperfections, as may appear in the acts so to be revised, and the mode in which the same may be reconciled, supplied or amended; and may also designate such acts or parts of acts, if any, as, in their judgment, ought to be repealed, with their reasons for advising such repeal; and may also recommend the passage of such new acts or parts of acts, as such repeal may, in their judgment, render necessary,
“III. And be it further enacted, That the said revisers shall also collate, revise, and reduce to proper form, under such titles, and in such order, as to them shall seem most convenient, all other the public acts or parts of acts of the legislature of this state, which shall be in force at the present session, omitting such acts of incorporation, and acts or parts of acts, partial or local in their nature, as, in their judgment, ought not to be included in the publication of the laws so to be revised.
“IV. And be it further enacted, That the said revisers shall, from time to time, lay before the legislature the acts or parts of acts last mentioned to be collated and revised by them, to be re-enacted if the legislature shall so determine; and shall also present to the legislature the titles of such acts of incorporation, and acts partial or local in their nature, as they shall have deemed it inexpedient to revise, that the legislature may direct the same to be printed with the revised laws, if they shall deem proper.
The remaining provisions related to the printing and publication of the statutes when revised and enacted, the pay of the Revisers, &c.; and repealed the act of the 27th of November, 1824, with an allowance to Mr. Root for his services under that law. The act of 1825 allowed the Revisers two years to complete the duties assigned them; but was continued by the acts of 1827, chap. 242, and 1828, chap. 321, until the actual completion of the work.
The course adopted by Messrs. DUER, BUTLER and WHEATON under the act of 1825, and the progress made by them, during the first year of their labors, will appear by the following extracts from their report to the House of Assembly, made on the 15th of March, 1826. After stating the material provisions of the act of the 21st of April, 1825, they proceed as follows:
"Immediately after our appointment, we entered upon the performance of our duties, with a deep conviction of the great importance and responsibility of the trust confided to us, and with an earnest desire to realize the hopes, and justify the confidence of the legislature.
"It was obvious that we could not enter on the labor of actual revision, with any satisfaction to ourselves, or much prospect of utility to the public, until the statutes meant to be revised, had been arranged and classified. It was thús only that we could be enabled to trace with accuracy and precision, the outlines of the scheme which we hoped to complete;