so considerable, as may be found in most of the fashionable productions of the English literature of the day. Nor is mere grammatical correctness its sole merit. It is possible, as every scholar knows, that a translation, without violating the sense of a single passage, should amount, after all, to anything but a faithful image of the literary character of the original. The tone of Count de Maistre's mode of writing is one of its great merits, and this is very successfully reproduced by M. de Wallenstein.

ART. XIII.-Report from the Commissioners appointed to Revise the Statute Laws of the State of New York, prepared in Obedience to a Resolution of the Honorable the Assembly. Communicated March 15, 1826. pp. 112. Albany.

THERE are few questions of internal improvement, upon which sound and liberal minds are more divided among us, than upon the expediency and practicability of substituting a general code for the whole mass of common and statute law. We cannot pretend to much consistency in our own pages upon this topic, having already found occasion, as has happened to some lawyers, to argue both sides of the case, before the question is well settled. There is no great evil in this, as respects ourselves or the public, since we do not set up for an inflexible character of individuality; and as in regard to matters of commerce between men, it is more important to the community that the rules of law be plain and certain, than what those rules may be, so upon general questions of policy and morals, it is far more important that they should be well discussed, than that this or that set of opinions should be uniformly maintained in a journal.

The sense of the profession in this country, we think, is against this great scheme of legal reform. Technical jurists are probably less sensitive than others to the alleged inconveniences of the present system; they are at any rate better aware of the difficulties and dangers of the proposed change; and they perhaps feel a more solemn attachment to the venerable fabric of the common law, which has sheltered and protected them and their ancestors for a thousand years. Even from the profession, however, we do not hear an undivided voice. On the contrary, VOL. XXIV.No. 54.

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learned and eminent counsellors are ranged on both sides of the controversy; and in Louisiana, where the task has been entered upon, under the sanction of legislative authority, and is now prosecuting with great zeal, the code has nevertheless been attacked, and is defended with a warmth approaching to bitterness. If we may be allowed to exercise a little of the spirit of prophecy, we think we can perceive in this the coming shadow of a mighty war. The Louisianian controversy we take to be the beginning of a legal feud, which is not to be kept within the narrow pale of a State sovereignty, or bounded by the banks of the Mississippi. Codes are to be proposed, discussed, assailed, defended, throughout the union; and we look to see the day, when codifiers and anticodifiers will wage a war as fierce and interminable, as that which raged of yore between the Doctors of Admiralty and his Majesty's servants of King's Bench. We do not mean to hasten hostilities; and having already given our opinion on each side, we choose now to reserve ourselves for decided measures, until we shall have an opportunity of witnessing the affray, and putting out our strength to some purpose on the best side.

The subject presented to our consideration by the pamphlet before us, is of a very different character, or at least of a more limited extent, presenting a question respecting which, in the abstract, there will doubtless be far less diversity of opinion among professional men. We cannot suggest it to the reader's mind more profitably, than by a short history of the origin of this pamphlet, and a statement of its contents. It will be recollected, that in 1824, the people of New York revised and made some considerable changes in their State constitution; consequently some alterations of their statutes became necessary; and by an act of the legislature passed on the 27th of November, 1824, three commissioners were appointed to prepare a revised edition of the general laws, with such amendments as might be conformable to the new constitutional requisitions. By an additional act passed on the 21st of April, 1825, the powers of these commissioners were much enlarged; they were authorized to consolidate all acts and parts of acts relating to similar subjects; to distribute the revised and consolidated acts methodically under proper titles and divisions; to omit what had been repealed, or had expired, or was repugnant to the constitution; to suggest the best mode of reconciling apparent contradictions, and supplying defects, and amending what needed

amendment; to designate what ought to be repealed as mischievous or useless, and recommend the passage of such new acts as might either be advantageous in themselves, or necessary to the system; and finally to complete the revision in all other respects in such manner as they might think expedient, in order to render the laws more plain and easy to be understood; and they are required moreover to lay portions of the revised and newly arranged acts before the Assembly, from time to time, to be examined, and if approved, to be made laws.

This extensive, and, as some think, dangerous power, was confided to able hands. The commissioners appointed under the first act were Erastus Root and Benjamin Butler, together with the learned exchancellor Kent. This last gentleman having declined the trust, John Duer was appointed in his room. Mr Root afterwards resigned his place at the board, and it was filled by Mr Wheaton, the well known and indefatigable reporter of the Supreme Court of the United States.

This pamphlet is the first report of the commissioners, prepared in obedience to a resolution of the Assembly, calling upon them to exhibit an account of their progress, and state when they should probably be in readiness for a final report. It contains some account of the labor they have hitherto accomplished, with a partial exhibition of its result. The first steps, of course, were to make a classification of the subjects of the public laws, and a brief analysis or digest of the whole, according to their proposed scheme. A subdivision of the first class of laws into a convenient number of chapters was next effected; and after this the commissioners proceeded to prepare particular chapters at large, subdividing each still farther into convenient articles and sections. A considerable portion of the first great division has been thus prepared in something less than a year from the commencement of their labors, and was ready to be presented to the legislature in March last. But the commissioners justly esteem it important, considering the natural connexion which exists between its chapters, that the whole of this part be completed, before any portion of it shall be reported for consideration and enactment. As a specimen of their work, however, they subjoin two complete chapters; the first, containing the whole proposed statute law, regarding elections other than for town officers;' the second, respecting the powers, duties, and disabilities of towns.' To these are appended a collection of the principal existing laws on those subjects, as they now stand

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in the Statute Book; so that the reader has a fair opportunity of instituting a comparison between the new and the old, and of noting the character of the changes and innovations, which the revisers may have introduced.

That the convenience and utilityof the plan may be more extensively understood, we suppose it may be useful for us to present to our readers, distinctly, a general view of the sources and condition of the existing law of New York, a brief history of her legislation on the subject matter of the proposed code, and a more particular analysis of it as exhibited by the present commissioners.

The law of New York, as of most of the United States, has for its basis the common law of England. By the thirtyfifth article of her Constitution, the Convention of 1777, by the authority of the good people of the State, ordain, determine, and declare, that such parts of the common law of England, and of the statute law of England and Great Britain, and of the acts of the legislature of the Colony of New York, as together did form the law of the said Colony on the 19th of April, 1775, shall be and continue the law of this State, subject to such alterations and provisions as the legislature of this State shall from time to time make concerning the same;' excepting, however, such laws as regarded the ecclesiastical establishment of England, or the preservation of allegiance to the British crown, or such as were otherwise repugnant to the provisions of the Constitution. This was little more than declaring, that the laws of the Colony, whencesoever derived, should continue in force, until altered or abrogated by the legislative will. The statutes enacted by the British Parliament seldom extended in express terms to the plantations, and had consequently no intrinsic authority over them. So much of the statute law of England, as was created before the colonization of America, may, throughout the States, be considered as having been originally imported into the country by our English ancestors. They brought with them for their common law the existing law of the mother country, whether written or unwritten, rejecting only such parts as applied exclusively to a condition of things not known, or incapable of existence on this side of the Atlantic. To these are commonly added those British statutes of later growth, which have been considered declaratory or emendatory of the English common law, and as therefore naturally incorporating themselves into the unwritten law of the Colonies; and a few others, not coming

strictly within this class, may have been adopted with no other sanction than tacit consent and general conformity. Local usages, morever, must have existed in this as in the other Colonies; some of which may have had their origin in the notions of law, which were brought by the Dutch settlers from the continent of Europe, or in obsolete ordinances of the early colonial authorities; and others must naturally have grown out of the condition and circumstances of the people, at different periods of their colonial history. These particular customs, with the vast accession made to the common law of England by the rapid growth of commerce, and consequent adoption in the courts of entire new systems of maritime and commercial jurisprudence, probably completed the body of the common law, existing in New York at the era of the American Revolution. We are not sufficiently conversant with the niceties of local law in New York, to know how extensive was the above supposed infusion of continental law from a Dutch original, or how much of it can still be distinctly traced. The Dutch articles of capitulation of 1664, confirmed by treaty ten years after, expressly provide, among other things, that the Dutch shall enjoy their own customs concerning their inheritances;' but the Charter of Liberties, promulgated by the first colonial assembly, in 1683, settles, that an estate of inheritance in lands shall thenceforward be according to the customs and practice of his Majesty's realm of England; and the Constitution of 1777, before cited, seems to allow no operation to existing usages as a part of the law of the land, excepting such as either appertained to the common law of England, or had received express sanction from colonial legislation. Yet the same act of the people, which admitted the common law of England, itself a curious aggregate of usages, customs, traditions, and adjudications, to prescribe to them their rules of civil conduct, could hardly have excluded, by mere implication, the particular customs of the Colony; and we cannot suppose, that while the traces of this foreign origin are yet distinctly visible in other relations, its impress should have been utterly obliterated from the whole body of the laws of this people.

Such being the condition of the common law of New York at the time of the Revolution, we are not aware that it has since undergone any greater change, than what may be called its natural growth by new combinations and applications of its principles, or else such limited alterations as belong to