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systematically be included in the printed chapter than in any other; and in several cases, valuable improvements, not originally contemplated, have either occurred to the Revisers, or been suggested to them by others.
"In one case, (chapter V,) the new provisions proposed to be introduced, are so important in their character, that it has been thought best to reprint the chapter. In the other cases, notes of the alterations proposed, will be laid before the proper committees.
“The reprint of chapter V and the printing of the remaining chapters and tables of the first part, will be completed in a few days.
“The legislature will perceive from the analysis of the first part, that it contains one very comprehensive chapter, (chapter XVIII,) not included in the outline heretofore presented of that part of the work. Even without this addition, it will be found that the contents of this part, are more extensive than had been calculated by the Revisers in their former reports ; 'and the labor of preparing those parts of it, which were unfinished at the last meeting of the legislature, has been correspondingly increased beyond those calculations.
“In the report of the 14th March, 1826, the Revisers expressed the opinion that the statutes arranged under the first head, 'when detached from the others, would form a complete body of constitutional and administrative law, capable of being reduced to the simplest form, and the most orderly arrangement.' The
accuracy of this opinion has been amply confirmed: a mass of statutes scattered through different volumes, and in no instance drawn up with any view to systematic arrangement, has been reduced to order. This, however, is bnt a small part of the object the Revisers had in view. They were aware that system, however attractive in theory, or useful in practice, was, after all, a minor consideration ; and their great effort has been, to reduce the sections to a moderate length; to supply omissions; to remove ambiguities; and to render the language of the statutes simple and intelligible. To do this, they have been obliged to draft anew every section contained in this portion of their work; a laborious and difficult task, but the execution of which will never be regretted by those who have performed it, if it shall be found to aid the officer and the citizen, in the knowledge of their rights, and the performance of their duties."
In accordance with the course marked out in the rules, the Revisers, who continued their labors during the sitting of the legislature, examined the chapters as they were provisionally passed, and, in returning them to the legislature, proposed, froin time to time, such amendments and additional provisions as they deemed necessary, to carry out the principles settled by that body, and to prevent omissions and discrepancies. The propositions thus made were almost always adopted, and in general without discussion. The like course was pursued at the ensuing session.
On the 2d of November, 1827, the Revisers presented an analysis of the SECOND PART, with the following report :
"The Revisers of the statutes submit herewith, an analysis of the second part of the proposed revision, and one of its chapters, the printing of which is completed. From the analysis it will be perceived that the subjects of the different chapters are entirely distinct, and that any one may be considered without reference to the others. It has accidentally occurred that chapters IV, V, VI, and VII, were ready for the press before the others. They will therefore be first submitted.
* This part of the work has been approached with all the caution and circumspection, which the Revisers, in their report of March 15th, 1826, intimated would be necessary. But they have felt that in this part
, a scientific arrangement of the subjects according to their natural order, could be applied with equal, if not more benefit to the community, than to the first part. The laws in relation to property, are of the highest importance, and in proportion to that importance, is the necessity of rendering them as clear and explicit as the imperfections of human language will admit. This is considered in the act of 1825, which directs the revision as the main object of the work. The Revisers are directed to collect and reduce into one act, the different acts and parts of acts, which from similarity of subject ought, in their judgment, to be arranged and consolidated, distributing the same under such titles, divisions and sections, as they shall think proper, and to complete the revision in such a manner as shall be most useful' to render the said acts more plain and easy to be understood. From the chapters of the first part which have been under the consideration of the legislature, it is presumed the advantages of methodical arrangement have been perceived. By thus bringing together the various provisions on one topic, they elucidate, explain and
give certainty to each other, the respective bearings of each on the others, and their connexion, are distinctly comprehended, as well as their tendency to the common object. Thus, the statute law on that subject, can be viewed as a whole, and its defects at once perceived and supplied. In the course of our labors, we have been surprised at the want of necessary details to carry out a principle, or to provide for its enforcement, which we had never suspected until the effort was made to arrange the statutes upon the plan prescribed in the act of 1825. Numerous instances of such defects have already been presented to the legislature in the first part, and almost every page of the second will furnish evidences of the same kind. The general distribution of the subjects of the whole revision, it will have been perceived, has been made conformably to the admirable system of Judge Blackstone's Commentaries, which is known to have originated with Sir Matthew Hale, and to have been much improved by Dr. Wood in his institutes. It seemed to us, that the same arrangement which had reduced to order and system the floating and complicated principles of the unwritten common law, must necessarily be sufficient to comprehend the written laws, which are in their nature merely supplementary to that common law. We have, accordingly, applied the same system in detail
, to the various acts relating to property, and have therein followed the plan of the commentaries, with entire conviction that, from the very arrangement itself
, no important omission could well occur. It will be seen that the most of the titles of the chapters, and of their subdivisions, are taken from Judge Blackstone's work, and that the arrangement of the text follows, very nearly, the order in which he has treated the subjects included in his first and second volumes. Other subjects, which are entirely of statutory origin, were easily reduced to the same order, and arranged in their proper places. With such high authority, sanctioned as it has been, by the unanimous approbation of all the judges and lawyers in England and in this country, whose opinions have been made public, we felt that we could proceed firmly and securely.
“In attaining the object prescribed to us, to collect together the various provisions on the same subject, to introduce in their proper places, the successive alterations which had, from time to time, been made by the legislature, it was obviously impossible to preserve the original language of the statute which was amended, and of the amendments. Parts of sections have been repealed and qualified, and an amendment has again been amended. Enactments are frequently contained in provisoes, and in the haste in which statutes are often drawn, the language frequently does not express the precise intent, or expresses more than was intended. In these cases changes in phraseology were unavoidable. In other cases it became necessary to break up sections containing provisions on distinct subjects, or containing complicated and voluminous details and provisoes, in order to distribute them in their proper places, and arrange them in a natural order. This also unavoidably produced a change in the language. Some statutes which were passed in different years in England, explaining or amending others which preceded them, have been copied into our volumes, with the original acts which were the subjects of amendment, in the very language which had required subsequent legislation. In the same manner, later statutes, which were intended to include prior acts, have been retained with the acts so included. In some instances, by the omission of preambles, a different meaning was given to the statutes. In these cases great changes were indispensable. We have not been able to understand why the language of the written law should defy all attempt at improvement, more than the language of any other science, or upon any other subject. It must be susceptible of emendation by undergoing the process which improves every other production of human skill, and more especially when new interests and new wants arise, which it was not originally intended to embrace. Still, whenever it was practicable and consistent with the general plan of the revision, we have preferred to retain the important words of the present statutes, unless they have received a settled construction which would not at once occur to an attentive reader. In these cases, the language of the courts has been substituted, whenever it appeared more plain and easy to be understood.' In doing so, and in expressing the supposed meaning of various statutes, we have been guided by the decisions of the chancellors and judges of our state, under whose examination almost every statute embraced in this part, has, at intervals, been brought. Those decisions form a body of practical construction and exposition, as honorable to those who made them, as they have been useful. Their utility will be consummated by transferring them into the very body of the statute, which they illustrate and explain. And it is one of the results of the arrangements adopted, which gives us the greatest satisfaction, that it has enabled us to incorporate with the law, the expositions it has received, and thus communicate directly to those who examine the statutes, for information and government, their sense and intent, as understood by the courts. For forty years our statutes have been the subject of professional criticism and judicial exposition. For centuries, those borrowed from England, have been, in like manner, illustrated and expounded. If at this time, a knowledge of their meaning, and of their defects, has not been attained, it probably never can be acquired. But it is believed that a meaning has been affixed to them, that
their discrepancies and incongruities have been ascertained, and that industry and care only, are necessary to comprehend that meaning, and to be apprised of those defects. It will
, therefore, not be a difficult task to determine, whether we have, or have not, faithfully rendered the existing law, whenever we have professed to do so, and whether the imperfections we have supposed to exist, are or are not such, and whether the suggested alterations are or are not necessary or expedient.
“More copious notes, and references to decisions, will be found in the second part, than were deemed necessary in the first. They have been inserted to explain the object and reasons for any new provisions, and to indicate the authority upon which any alteration is proposed. The different chapters of the second part, not now submitted, will be presented as rapidly as will be necessary to supply the legislature with matter for consideration."
In consequence of the difficulty of the subjects embraced in chapter I. of the second part, and of the pressure of their labors during the session of the legislature, the Revisers were unable to complete that chapter to their satisfaction, until the ensuing year.
The special meeting of the legislature terminated on the 4th of December, 1827, on which day a law was passed declaring the times at which the chapters which had been enacted should commence and take effect as laws. (For the substance of this act, see vol. I. p. XIV. note prefixed to the first edition.]
At the first meeting of the legislature of 1828, an analysis of Part III was submitted to the legislature, with a report, for an extract from which see post 665. In the same report, the following remarks were made in relation to Chapter I of Part II:
"The Revisers have availed themselves of the opportunity afforded to mature the preparation of the first chapter of the second part, and it will soon be printed and submitted to the legislature. Its subject being entire and independent, it becomes wholly immaterial, at what stage of the revision, it is considered.”
Some progress was made during this meeting, in the examination of the first chapter of Part III; but a special meeting having again been found necessary, one was appointed to commence on the 9th of September, 1828. During the meeting which commenced on that day, the first chapter of the second part, the residue of the third, and the whole of the fourth, were reported, and together with the portions of Part III, previously submitted, were discussed and enacted. From a report made to the legislature by Messrs. BUTLER and SPENCER, on the 9th of September, 1828, the following is extracted:
"" The undersigned, Revisers of the statutes, respectfully report, that since the adjournment of the legislature, they have completed the remaining chapters of the third part of the Revised Statutes, and they are herewith presented to the consideration of the legislature in a printed form, with the exception of Chapter VII. That chapter has been printed, and may be referred; but its delivery will be delayed, for the purpose of inserting in the last title some provisions which have been suggested, in the course of a rigid re-examination of the existing statutes.
"It will be recollected, that this part of the revision, according to the analysis presented on the 2d of January last, was arranged in thirteen chapters, the first four of which were presented, and partially acted upon at the last meeting. It has been found useful to blend some of the chapters, and in other respects to depart from the arrangement originally proposed. In consequence of these changes, this part of the work as actually prepared, consists of ten chapters, a complete analysis of which is herewith presented.
"The fourth and last part of the statutes proposed to be revised (relating to the criminal. law), is nearly ready for the press, and but for the severe illness of one of the Revisers, would by this time have been completed. The progress already made in the chapters of which this part will consist, is such as to place beyond doubt or hazard their entire completion, in ample season for the present meeting of the legislature.
"A special report, accompanied by an analysis of the three chapters of the fourth part, will soon be presented.
“Chapter I of the second part, entitled 'Of Real Property, and of the nature, qualities and alienation of Estates therein,' the completion of which has for some time been suspended, is now in the press. It is proper to state, that Mr. Duer, one of the commissioners, has been exclusively employed for the last six weeks in revising the drafts of this important chapter, and in maturing its provisions; but that he is not responsible for the execution of the third and fourth parts; his other engagements having (as we stated to the joint committee of the legislature at the last meeting) rendered it impossible for him to do more than to assist in the completion of the first chapter of the second part, and to give occasional advice upon some of the provisions of the other parts.”
In the report accompanying the analysis of Part IV, presented to the legislature on the 15th of October, 1828, by Messrs. BUTLER and SPENCER, they make the following remarks as to this part of the revision:
"In preparing the fourth part of the Revised Statutes, the Revisers have felt a high responsibility and a great anxiety to avoid every thing that could safely be omitted. The defects in our criminal laws, have frequently been the subjects of communications by the different governors of this state, and of propositions in the legislature; m're particularly in 1826, the attention of the legislature was earnestly invited to these defec's, by the message of Governor Clinton. That part of the message was referred, in the senate, to the committee on the judiciary, who reported at some length on the subject. The committee concur in the sentiments expressed by the governor, and point out several gross defects, but decline presenting
any propositions, on the ground that the subject would come under the consideration of the Revisers. They remark, that it will be better to leave it to them (the Revisers), to present a complete system on the subject, than to attempt any partial amendment of that which requires an entirely new arrangement and organization. The report, together with so much of the message as related to the criminal laws, was referred, by a resolution of the senate, to the Revisers. Several bills, introduced at the same session, amending the criminal law, were in like manner referred.
"Under these circumstances, the Revisers have supposed they would neither discharge their duty, nor answer the just expectations of the legislature, unless they presented an entire system, as perfect as the time allowed them, aided by the most extensive and diligent researches, and by some practical knowledge acquired by official experience, would permit. The codes of penal law and of procedure in criminal cases, prepared by Mr. Livingston for the state of Louisiana, have been invaluable guides. But the different state of society, for which our labors were intended, and prevailing sentiments respecting punishments varying essentially from those entertained by the enlightened author of those codes, have prevented the adoption of many provisions suggested by him. Nor has it been our object to form a code of the whole criminal law. In this department of our jurisprudence, the peculiar principles of the common law (especially those respecting the modes of proceeding), which were framed for the protection of personal liberty and private rights, are so well understood, generally so well defined, and the greater part, so well adapted to a free government, that they do not require to be embodied in statutes. But in assigning punishments to offences, the common law has long ceased to be a guide, and from the statutes of England, said to be written in blood,' we turn with disgust. In that country, recent and great efforts have been made to simplify their criminal laws, and to reduce their enormous volume. These efforts and their results, have been before us, and from them we have received great advantages; more particularly, and with great pleasure do we acknowledge our obligations to Anthony Hammond, Esq., a distinguished jurist of the Inner Temple. This gentleman, at an early day, transmitted to us his able and voluminous reports and consolidations, prepared under the employment of the government, for the British parliament. They contain complete digests of the British statutes, respecting crimes, with copious annotations from the reports. They have been of essential service to us, and while we are most grateful for their aid, it is but just to remark, that they were not so generally applicable to this state, as to relieve us from the labor of newly digesting and arranging so much of the law as relates to crimes and their punishments. Many changes are proposed, which were deemed absolutely necessary. Offences which have been punished under some one general and undistinguishing appellation, have been defined and classed. Wherever a crime could fairly be considered as partaking of different degrees of atrocity, different grades have been assigned to the peculiar circumstances evincing greater or less depravity.
“The reasons for the different provisions submitted, and for the changes proposed, will be found in notes to the different sections, or in preliminary notes to the several chapters."
At the close of this meeting, the General Repealing Law, and the act "concerning the Revised Statutes," were reported by the Revisers; and the whole work being completed, the meeting terminated on the 10th of December, 1828.
It has already been stated that Mr. SPENCER was a member of the Senate at the time of his appointment as one of the Revisers. It is proper to add that he continued in the Senate until the end of the year 1828; and that Mr. BUTLER having been elected a member of the House of Assembly from the county of Albany, in November, 1827, sat in that branch of the Legislature during the meetings of the year 1828. Independently of the oral explanations they were enabled to give, and of the part taken by them in the discussion of the chapters as submitted, many of the amendments made by the Legislature were offered by Messrs. SPENCER and BUTLER in their places on the floor.