succession; the restrictions on alienation and accumulation, the conditions and qualifications of ownership; uses and powers; the making, interpretation and execution of wills, and various special provisions relating to corporations, copyright, shipping, and the rules of navigation. The third division embraces the whole subject of obligations, whether arising from contract or the operation of law, their definition, interpretation, transfer and extinction, whether by performance, offer of performance, prevention of performance or otherwise; the object and consideration of contracts, the parties thereto and their consent, whether freely given or obtained by duress, menace, fraud, undue influence or mistake; and after these general subjects, the particular subjects are considered of sale, exchange, deposit, loan, hiring, employment, service, carriage, trust, agency, partnership, insurance, indemnity, suretyship pledge, mortgage, lien and commercial paper. The fourth division specifies the different kinds of relief afforded for the violation of private rights, and the means of securing their observance, whether compensatory, specific, or preventive, and the measure of damages when compensation is the rule. This division contains, also, provisions concerning the special relations of debtor and creditor, and concerning nuisances, and enumerates and explains various maxims of jurisprudence. In all this immense range of subjects, while it has been the general purpose of the Commissioners to give the law as it now exists, they have kept in mind the injunction of the Constitution to "specify such alterations and amendments therein as they shall deem proper." In obedience to this command of the organic law, they have specified various alterations and amendments which they consider proper to be adopted. These are mentioned in the notes to the different sections, where the reasons for recommending them are generally given. For all these the Commissioners beg leave to refer to the notes themselves. To detail them here would swell this report to an inconvenient length, and, therefore, three only will be mentioned. In the first division the Commissioners have endeavored to secure the equal rights of married women in respect to their children and their property, abolishing at the same time both dower and curtesy, and they have introduced an article on adoption, by which they have provided that the substituted parent may have all the rights and be subject to all the responsibilities of the real one, who, having once voluntarily renounced his parental rights, should not be permitted to resume them when the affections have grown into the new relation. In the second division the Commissioners have aimed at an assimilation to the utmost extent possible of the laws of real and personal property, by reducing the law of real estate to the simplicity of personal, wherever it could be done without the disturbance of existing rights, establishing for both the same rules of succession. The Commissioners will not presume to think that in the preparation of the Codes they have foreseen all the cases which can arise in the multifarious affairs of men, or that they have even collected all the general rules which have been announced from the bench in the past history of our law. Some may have been overlooked, some may have been omitted from a mistaken belief that they were obsolete or inapplicable to our present condition, or were contrary to other rules of greater importance that ought to be retained. All that the Commissioners profess is, that they have endeavored to collect those general rules known to our law which are applicable to our present circumstances, and ought to be continued. They trust that they have arranged these rules in a manner which will be approved by the scientific student, while it will help the lawyer and the citizen to an easier if not a better knowledge of the law. And they flatter themselves that for the unforeseen cases which are certain to arise, there are general principles, rules of interpretation and analogies which will serve as guides for judicial decision. The question whether a Code is desirable is simply a question between written and unwritten law. That this was ever debatable is one of the most remarkable facts in the history of jurisprudence. If the law is a thing to be obeyed, it is a thing to be known, and if it is to be known, there can be no better, not to say no other, method of making it known than of writing and publishing it. If a written constitution is desirable, so are written laws. The same rea sons which affect the one, affect also the other. There may be countries where the conflicts between the different orders in a state render a written definition of their relative rights a difficult or an impossible task, and there, of course, a written constitution is not likely to be attempted; and because a written constitution is not thought desirable, written laws are supposed to be undesirable. These reasons have no application to this country. We have no orders in the state; no classes of society clashing with each other. The will of the people is the supreme law; that will is fitly expressed by their written constitution and their written laws. It should seem indeed to have no other fit expression. There are those who argue that an unwritten law is more favorable to liberty than a written one. The contrary should seem to be more consonant with reason. It can scarcely be thought favorable to the liberty of the citizen that he should be governed by laws of which he is ignorant, and it can as little be thought that his knowledge of the laws is promoted by their being kept from print or from authentic statement in a written form. Whatever is known to the judge or to the lawyer can be written, and whatever has been written in the treatises of lawyers or the opinions of judges, can be written in a systematic Code. It is no answer to say that nothing can be written which will not be susceptible of different interpretations. That may be true. But it is no more susceptible of different interpretations when written in a code than when written in the reports. On the contrary, when expressed with care, for the very purpose of stating a rule which is to govern all cases alike, there is more likelihood of precision in language than when expressed with reference to a particular case. For these eight years the Commissioners have been engaged in the preparation of the Codes with which they were charged by the Legislature of 1857. The task which they undertook was untried and difficult. No code of the common law of America or of England had ever before been attempted. How they have acquitted themselves it is not for them to say. Their work is before the Legislature and the people. If it shall effect half the good which the Commissioners have ventured to hope from it, and the thought of which has cheered them through their long task, they will be rewarded. The Codes which the Commissioners have thus prepared, together with the Codes of Civil and Criminal Procedure heretofore submitted by the Commissioners on Practice and Pleadings, complete that work of codification which was contemplated by the Constitution of 1846; and, when the same shall have been considered and sanctioned by the Legislature, the people of New York will have the whole body of their laws in a written and systematic form, as full, at least, the Commissioners venture to think, as the code of any other people. In the last months of their service, when their task was well nigh ended, and while the sheets of the Civil Code were passing through the press, one of the members of the Commission was taken away by death. On the 25th of December, 1864, after an illness of two days, Mr. NOYES died, to the inexpressible grief of his associates; having been suddenly struck down in the fullness of life, leaving to the surviving Commissioners the mournful duty of signing their names, without his, to this last report of their common labors. All which is respectfully submitted. DAVID DUDLEY FIELD. NEW YORK, February 13th, 1865. B |