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 THE REVISION 
 
 OF THE 
 
 STATUTES OF THE STATE OF NEW YORK 
 
 AND 
 
 THE REVISERS. 
 
 AN ADDRESS 
 
 DELIVERED BEFORE THE 
 
 ASSOCIATION OF THE BAR OF THE CITY OF 
 NEW YORK, 
 
 JANUARY 22, 1889. 
 
 BY 
 
 WILLIAM ALLEN BUTLER. 
 
 PUBLISHED FOR THE ASSOCIATION. 
 
 NEW YORK AND ALBANY: 
 BANKS--& BROTHERS, LAW PUBLISHERS. 
 
 1889.
 
 COPYRIGHTED, 1889, 
 
 BY THE ASSOCIATION OF THE BAR 
 
 OF THE CITY OF NEW YORK.
 
 INTRODUCTION. 
 
 THIS volume, commemorative of the Revisers of the Statutes 
 of the State of New York and their work, owes its origin to the fol- 
 lowing correspondence and the action of the Association of the Bar 
 of the City of New York subsequently taken in furtherance of the 
 object to which it relates : 
 
 NEW YORK, March ist, 1888. 
 
 To the Executive Committee of the Association of the Bar of the City 
 of New York. 
 
 GENTLEMEN : 
 
 I have for a long time desired that some suitable and 
 permanent memorial should exist of the Revisers of the Statutes of 
 this State, JOHN DUER, BENJAMIN F. BUTLER and JOHN C. SPENCER. 
 I name them in the order of their appointment. 
 
 The signal services they rendered have been illustrated by the 
 course, during more than half a century, of the administration of 
 government and the progress of jurisprudence, not only in this State 
 but also in the other States where the statutory law has been framed 
 on the model of the Revised Statutes, but as time advances and 
 changes in the law are multiplied the distinctive character of this 
 earlier work is in danger of passing out of view. 
 
 It has occurred to me that portraits of the Revisers, placed side 
 by side on the walls of the Association would be a fitting commemo- 
 ration, and that coupled with the presentation of these portraits a 
 succinct account of the work of the Revision, with sketches of the 
 lives and services of the Revisers, might be prepared and published 
 under the supervision and auspices of the Association so as to form 
 an authentic and permanent addition to the literature of the law. 
 
 With this in-view and with the consent of the representatives of 
 the families of Chief Justice Duer and Mr. Spencer which has been 
 cheerfully accorded, I now propose to present to the Association the
 
 11 
 
 portraits of the Revisers as soon as they can be satisfactorily com- 
 pleted and, if approved by the Executive Committee as works of art, 
 the same shall be received by the Association as its property and 
 placed on its walls, and in connection with their acceptance an 
 historical and biographical memorial, as above indicated, and which 
 I will undertake to prepare, shall, subject to like approval, be 
 published in the Association's annual report or otherwise, as may be 
 determined. 
 
 Awaiting your action on this proposition, I am 
 
 Very truly yours, 
 
 WM. ALLEN BUTLER. 
 
 ASSOCIATION OF THE BAR, 
 
 7 WEST 2pTH STREET. 
 
 April 2d, 1888. 
 WILLIAM ALLEN BUTLER, Esq., 
 
 Dear Sir : 
 
 I have the honor to inform you that at the March meeting 
 of the Executive Committee of this Association, your very liberal and 
 acceptable offer to present to the Association portraits of the distin- 
 guished Revisers of the N. Y. Statutes together with memorial 
 sketches of their lives and services was received, and that the Com- 
 mittee thereupon on motion of Mr. Olney unanimously 
 
 Resolved, That the letter of Mr. Butler be entered on the 
 Minutes, and that the proposition as therein made be accepted 
 with the cordial thanks of the Committee ; that Mr. Butler be 
 requested to prepare the Memorial referred to in his letter, so 
 that it may be read or delivered in the form of an address before 
 the Association at a Special Meeting to be called for that pur- 
 pose, and that it be referred to a Committee consisting of the 
 President of the Association, the Chairman of this Committee 
 and Mr. Holt, with power to carry this resolution into effect. 
 Very respectfully yours, 
 
 S. SIDNEY SMITH, 
 
 Secy Ex. Com.
 
 Ill 
 
 By appointment of the Executive Committee, a Special Meeting 
 of the Association was held on the Evening of January 22, 1889, 
 when the presentation of the portraits of the Revisers to the 
 Association was made in the presence of a number of invited guests. 
 It was accompanied by an address by Mr. Butler embracing a portion 
 of the matter contained in the present volume. The portraits were 
 accepted on behalf of the Association by Mr. Joseph H. Choate its 
 President, and the following minute was adopted : 
 
 At a Special Meeting of the Association of the Bar of the City 
 of New York, held at No. 7 West 2Qth Street, on the 22d day of 
 January, 1889. 
 
 Mr. William Allen Butler presented to the Association portraits 
 in oil of John Duer, Benjamin F. Butler and John C. Spencer, the 
 Revisers of the Statutes of the State of New York ; and delivered 
 an address to the Association on the Revisers and their work. 
 
 Mr. Francis Lynde Stetson presented the following resolution, 
 which was seconded by Mr. Charles A. Peabody : 
 
 Resolved, That the hearty thanks of this Association be 
 tendered to Mr. Butler for the able, instructive and interesting 
 address to which we have just listened, that it be appropriately 
 published under the direction of the Executive Committee, and 
 distributed among the members oi the Association, that there 
 be delivered to Mr. Butler, such number of copies as he may 
 desire ; and that Mr. Butler be respectfully invited to give the 
 Association the manuscript of his address for preservation in 
 its Library. 
 
 Which was unanimously adopted. 
 
 Extract from the Minutes 
 
 S. B. BROWNELL, 
 
 Recording Secretary. 
 
 The Executive Committee having resolved to accompany the 
 work with engravings of the portraits, these have been executed 
 under the supervision of Messrs. Banks & Brothers, whose house has 
 been honorably identified with the Revised Statutes as the publish- 
 ers of every successive edition, since the first edition, and by whom 
 this volume is published for the Association.
 
 THE REVISION 
 
 AND 
 
 THE REVISERS. 
 
 THE awakened interest of the American people in the 
 men and the events of the time preceding the war for the 
 Union has opened for the historian, the annalist and the 
 biographer, new paths in old fields. 
 
 It was natural that with the re-establishment of the 
 National unity, after the stormy period of peril and conflict, 
 there should come, in due season, a great calm, in whose 
 clear atmosphere the whole life of the nation, past and 
 present, would stand out in such sharp outline, and in such 
 varied forms, as to re- invite to its exploration in every part. 
 Especially has the integrity of the Union, as vindicated and 
 made sure by the issue of the great struggle, set in the 
 clearest light the true sovereignty of each State as the or- 
 ganizer and ruler of its own interior social order and devel- 
 opment, and made it more than ever the duty of the citi- 
 zens of each separate commonwealth to make the record of 
 its growth and progress complete and permanent. 
 
 This patriotic service is most of all required of the older 
 States, whose earlier annals embody the beginnings of 
 the systems of government which have now overspread 
 the continent. 
 
 The Revised Statutes of New York, familiar to us all,
 
 as the body of the written law by which, during the last 
 fifty-eight years, under the various constitutions and as from 
 time to time amended, the government of this State has 
 been administered in all its departments, stand as a land- 
 mark of the progress of free government, and the devel- 
 opment of the law as a science within the boundaries of 
 our own State. 
 
 The lapse of time since the first enactment of the Re- 
 vised Statutes, the many additions and changes during 
 nearly three score years of rapid growth and new discovery 
 and invention, and the passing away of two generations of 
 men, have tended to obscure the original work, and to les- 
 sen the number of the witnesses who can attest its great- 
 ness. 
 
 This Association has deemed it fitting that some com. 
 memoration of both the work of the Revision and its au. 
 thors should find a place on these walls and in our records, 
 and it has been for me altogether a privilege, and in part, 
 a filial duty, too long delayed, to provide the portraits of 
 JOHN DUER, BENJAMIN FRANKLIN BUTLER and JOHN 
 CLINTON SPENCER, the three Revisers, for preservation 
 here as a memento of their joint labors in the work which 
 unites their names and memories. 
 
 These portraits speak for themselves. Necessarily, no 
 one of them is from life. They are, however, from the 
 best sources available to me with the aid of the relatives of 
 Chief Justice Duer and of Mr. Spencer. 
 
 The portrait of Chief Justice Duer is an original by Mr. 
 J. Carroll Beckwith, that of Mr. Spencer is also an original 
 by Mr. William M. J. Rice, while the third portrait is a 
 copy by Howard Russell Butler, faithfully reproduced from 
 an original in my possession, by Thomas Hicks. 
 
 They have been approved by the Executive Committee 
 as works of art, worthy of acceptance as the property of 
 the Association. 
 
 The Executive Committee have also intrusted me with 
 the task of preparing a sketch, historical as to the revision, 
 and biographical as to the Revisers, to be published under
 
 the auspices of the Association as a further permanent 
 memorial of both. 
 
 In performing this duty I am reminded that it was ac- 
 cepted more than thirty years ago by the sole surviving 
 Reviser, and its accomplishment prevented by his death 
 shortly afterwards. Mr. Marshall S. Bidwell in his address 
 at the meeting of the Bar held in reference to that event, 
 December 1, 1858, said : 
 
 " Upon the occasion which last convened the members 
 of the Bar the death of Judge Duer Mr. Butler made 
 an address which will be remembered by all those present ; 
 at the conclusion of that meeting, I expressed a wish to 
 him that, as he was the sole survivor of the gentlemen 
 concerned in that labor, he would reduce to writing a 
 statement of the manner in which it was accomplished, 
 and the different parts the Revisers took in it. He ex- 
 pressed his willingness, if it was the desire of the members 
 of the Bar, to do so. On enquiry I found it was, as I an- 
 ticipated, the general desire of the Bar, and I had taken 
 measures to have it accomplished when he was obliged to 
 depart for Europe." 
 
 As the circumstances seem thus to have devolved this 
 duty upon me as a special obligation, its discharge, how- 
 ever inadequate, will, I trust, be accepted as an effort to 
 furnish a record not unworthy of a place in the history and 
 literature of the law. 
 
 The place of ]S"ew York in the Union of the States was 
 originally determined and has been maintained by lawyers. 
 Within her boundaries, on her Bench and at her Bar, there 
 have always been jurists of integrity, ability and patriot- 
 ism, devoted to the task of creating and administering her 
 free government. 
 
 The Dutch colony of New Netherland, dating from 
 1614, and continuing for half a century, adopted the system 
 of townships and magistracies derived from the institu- 
 tions of Holland, whose local municipal system, under the
 
 government of the States General, embodied the theory of 
 Republican Government. Under this system the people 
 were trained in the rudimental ideas of representative 
 government and on the establishment of the English 
 rule in March, 1664, the population, although not then 
 exceeding ten thousand souls, were impatient of external 
 control, and ready to assert and maintain popular rights. 
 
 The English Colonial rule proceeded on the assumption of 
 absolute control in the Crown. No charter was ever granted 
 to the colonists ; the Governor and Colonial Council of 
 seven members, afterwards increased to twelve, were com- 
 missioned by the King, and the General Assembly was 
 chosen by the freeholders of the several counties, but the 
 Governor had an absolute veto on all bills passed by the 
 Assembly and Council, and also the power of proroguing 
 and dissolving the Assembly. All laws passed by the 
 Colonial Legislature were subject to approval or rejection 
 by the King, and if disapproved were void. 
 
 This semblance of a representative government, made 
 more intolerable by the oppression of Parliament, culmi- 
 nating in the Stamp Act, was thrown off by the Revolu- 
 tion, and the State of New York came into existence under 
 the Constitution of April 20, 1777. 
 
 This Constitution, the fifth of the series of Constitutions 
 adopted by the States, was drawn by John Jay, afterwards 
 the first Chief Justice of the Supreme Court of the United 
 States, as chairman of the committee to whom its prepara- 
 tion was intrusted. 
 
 Robert R. Livingston, the first Chancellor, William 
 Smith, one of the ablest jurists of his time, John Sloss Ho- 
 bart and Robert Yates, the first puisne Judges of the 
 Supreme Court, Gouverneur Morris and William Duer, 
 father of the Reviser, were conspicuous members of this 
 committee. 
 
 The Constitution declared that " such parts of the com- 
 mon law of England and of Great Britain and of the acts 
 of the Colonial Legislature as together formed the law of 
 the colony at the breaking out of the Revolution in 1775,
 
 constituted the law of the State, subject to alteration by 
 the Legislature." 
 
 The Colonial Laws from 1691 to 1777, inclusive, had been 
 the subject of several revisions and additions. The Laws 
 of the State were edited and revised in 1789, under 
 the direction of the Legislature, by Samuel Jones and 
 Richard Varick, and later, in 1801, by Chief Justice Kent 
 and Justice Radcliff of the Supreme Court. In 1813, 
 another revision was made by William P. Van Ness and 
 John Wood worth, known as the Revision of 1813. 
 
 None of these so-called revisions was anything more 
 than a mere re-enactment in a consolidated form of the ex- 
 isting statutes as they had been passed from time to time, 
 with some amendments suggested by the Revisers or 
 inserted by the Legislature. They were drawn in separate 
 acts with no attempt at systematic arrangement. 
 
 They were all similar to the earlier revisions made 
 during the Colonial period, first by William Smith and 
 William Livingston in 1762, and afterwards by Peter 
 Van Schaick in 1774. 
 
 Thus the first general statute in the two volumes of the 
 Revised Laws of 1813 is one passed in 1784 in relation to 
 magistrates who may take affidavits, and the last is one 
 passed in 1813 to prevent trespasses on Indian Lands. 
 Between these are inserted, in chronological order, but 
 otherwise without any attempt at classification, the many 
 hundred statutes of the intermediate years as modified by 
 amendments or other changes in the law. 
 
 In 1821 the Constitution was amended and again the lead- 
 ing lawyers of the State controlled the convention. Chan- 
 cellor Kent, Martin Van Buren, Ambrose Spencer, Peter A. 
 Jay, John Duer, Erastus Root and Henry Wheaton were 
 among the members of the body. Radical changes were 
 made in the organic law and in the mode of administering 
 the government,' and soon after the new Constitution went 
 into effect, January 1, 1823, it became evident that these
 
 6 
 
 changes as well as those made by the successive Legislatures 
 since 1813, necessitated a new revision of the statutes. 
 
 Governor Yates had been a Judge of the Supreme Court 
 from 1808 to 1822 and by his judicial experience had 
 become familiar with the defects of the existing statutes. 
 He urged the subject upon the Legislature and an act was 
 passed, November 27, 1824, appointing James Kent, 
 Erastus Root, then Lieutenant- Governor, and Benjamin F. 
 Butler, to revise the statutes of the State. The act required 
 the work to be completed in two years and provided for a 
 compensation of one thousand dollars each for the services 
 to be performed by the Revisers. 
 
 This act contemplated a revision similar to those of 1813 
 and former years. It did not authorize anything beyond 
 the compilation of the existing statutes in the manner 
 pursued in the earlier revisions, much less a remodelling of 
 the statutory law or the reduction to statutory form of the 
 Common Law. 
 
 JAMES KENT, whose name stood at the head of the commis- 
 sion thus constituted, had retired, July 31, 1823, from the 
 office of Chancellor. He had served the State as one of the 
 puisne Judges of the Supreme Court, from his first ap- 
 pointment February 6, 1798, to July 2, 1804, when he be 
 came Chief Justice and so remained until February 25, 
 1814, the date of his appointment as Chancellor. His judicial 
 career had placed him on the roll of great Judges, and 
 the wonderful revolution in the practice and administration 
 of equity accomplished during the nine years of his service 
 as Chancellor is attested by the tributes paid him by the 
 Bar on his retirement and which occupy the concluding 
 pages of the final volume of Johnson's Chancery Reports. 
 This brilliant career on the Bench was cut short at the 
 age of sixty years, by the operation of the provision in the 
 Constitution of 1821, which perpetuated a similar provis- 
 ion in the Constitution of 1777, disqualifying the higher 
 judicial officers from the exercise of their duties after 
 attaining sixty years of age.
 
 The fiYst draft of the judiciary article of the Constitu 
 tion of 1821 extended the tenure of the judicial officers to 
 seventy years of age, but by some sinister influence the un- 
 reasonable limitation of sixty years was substituted by 
 the convention. Denounced in strong terms by Hamilton, 
 in the Federalist, as early as 1778,* its reappearance 
 in the new Constitution was justly declared to be 
 " a satire on the intellect of the Bar and a standing re- 
 proach to the discernment and integrity of the appointing 
 power, f " 
 
 Driven from the Bench at the height of his judicial fame 
 and in the fullness of his judicial capacity, it was incom- 
 patible with the views of the ex- Chancellor, governed as 
 they probably were, by the prevailing ideas of the period, 
 that he should resume practice at the Bar. He said to 
 James I. Roosevelt, then a young man, long afterwards a 
 Judge of the Supreme Court, in our city, " I would rather 
 saw wood." Judge Roosevelt, in relating to me this in- 
 cident, added that he himself suggested to Chancellor Kent 
 the preparation of a work on Equity jurisprudence, an 
 idea amplified and improved upon in the noble task to 
 which he addressed himself, whose splendid issue in the 
 Commentaries on American Law have more than healed the 
 wound inflicted by the blunder or the crime of the Consti- 
 tution makers of 1821. 
 
 Chancellor Kent, in a manner entirely characteristic, 
 declined to act as one of the Revisers. While the question 
 of his acceptance was pending, a rumor was started by the 
 gossip mongers, of whom the political circles were 
 as full then as they are now, that he was unwilling to 
 be associated with the Commissioner whose name was last 
 on the list, because of some strictures he had made in the 
 Court of Errors on one of the Chancellor's decrees, and it 
 was doubtless thought a very probable circumstance, 
 at a time when judges and lawyers were alike partisan and 
 
 * Federalist, No. 79. 
 
 f 7 John's Chy. R., p. 347, note.
 
 8 
 
 prejudiced to an extent we can hardly understand and 
 happily do not emulate, that the antagonism in the 
 political views of the veteran Federalist Chancellor 
 and a young and ardent Republican lawyer, the political 
 associate of Tompkins and Van Buren, might well be an 
 additional obstacle to their serving together on the com- 
 mission. 
 
 It turned out that the Chancellor had been wholly mis- 
 represented as to this supposed ground of reluctance to ac- 
 cept the appointment. He was willing to serve, but he did 
 not want any associate. He wrote under date of November 
 29, 1824, as follows : 
 
 " BENJAMIN F. BUTLEK, Esq., 
 
 Dear Sir. I beg leave to assure you that Mr. C. is 
 wholly mistaken in supposing there is any personal differ- 
 ence between you and me, or that I should for that cause 
 be unwilling to be associated with you. I have the highest 
 confidence in the purity and honor that govern you, and I 
 can scarcely recollect anything of the occurrence which 
 was the foundation of the supposed misunderstanding. I 
 have only a faint recollection of something having been said 
 by yon in the Court of Errors, relative to the errors of one 
 of my Chancery decrees, which as reported to me in the 
 first instance, gave me some pain. But the explanation 
 followed immediately afterwards and was entirely satis- 
 factory, and I have not thought of the matter since. I have 
 no other feeling towards you than those of strong respect 
 and esteem. 
 
 I am your Friend & ob't Ser't 
 
 JAMES KENT." 
 
 A few days later, December 8th, 1824, after having for- 
 mally declined the appointment, he again wrote as follows : 
 " It would have been most convenient to me to have had 
 the duty of revising the laws assigned to me alone, giving 
 me a reasonable time and allowing me a reasonable com-
 
 9 
 
 pensation, but if it was thought best to have an associate 
 that was agreeable to me I should have had no objection 
 and you would have been entirely and perfectly agreeable 
 to me as an associate." 
 
 It was fortunate for the work of the Revision, as finally 
 developed, that Chancellor Kent declined to take part in it. 
 As the sole Reviser, he would have been more than com- 
 petent for the task, which would have been mainly a repe- 
 tition of his earlier work in conjunction with Judge Radcliff, 
 in 1801, but while his long exercise of undivided authority 
 as Chancellor made him averse to working with associates, 
 his still longer exercise of the judicial function had unfitted 
 him for sympathy and co-operation in the bold and novel 
 methods for which the Revision gave the opportunity and 
 which demanded the enthusiasm and courage of men of a 
 new generation. 
 
 A quarter of a century passed on the Bench, in the 
 application of the rules of the English Common Law and 
 the English Court of Chancery to the affairs of a new 
 commonwealth which, while it gloried in its independence 
 as a State, held fast to the systems of law and equity of 
 the mother country, with a tenacity which independence 
 seemed only to strengthen, was an admirable preparation 
 for the task of a commentator whose work is mainly retro- 
 spective, but not for the architect of an improved system 
 of jurisprudence. 
 
 John Duer was appointed by Governor Yates to fill the 
 place vacated by Chancellor Kent. He accepted with alacrity 
 and, as the speedy result of the concurring views of himself 
 and his junior colleague, a bold and radical change was 
 made by them in the whole scheme of the Revision and the 
 methods of its execution. 
 
 By that kind of inspiration which so often waits on true 
 devotion to a high calling, the idea came to them of replac- 
 ing the mass of disconnected statutes they were called 
 upon to collate by a new and complete system of original
 
 10 
 
 laws, regulating every department of government, based 
 upon the old foundations of the common law and the exist- 
 ing statutes, and made serviceable by fundamental and far 
 reaching changes and by a symmetrical and scientific ar- 
 rangement. 
 
 This rare opportunity they seized with that unquestion- 
 ing enthusiasm which, when rightly directed and controlled, 
 is the surest presage of success. 
 
 To set this new movement in operation far greater 
 powers were needed by the Revisers than those conferred 
 by the appointing Act of 1824, and, immediately upon the 
 assembling of the Legislature of 1825, which convened on 
 the fourth day of January, we find the two junior Revisers 
 in communication with the Assembly, stating, very mo- 
 destly but with absolute clearness, the plan they proposed 
 and asking for the needed grant of power for its execu- 
 tion. 
 
 They advanced the proposition that the time had come 
 when the whole written law might be comprised under 
 appropriate titles, classified in natural order and arranged, 
 as to each of its branches, in a clear and scientific method 
 and, while conceding the novelty and difficulty of the pro- 
 ject, declared their readiness to undertake it. 
 
 Their statement was accompanied by a specimen of the 
 new style of statute by which they sought to replace the 
 old and cumbrous system of Revision. This specimen 
 embodied the statutory regulation of the Court of Errors and 
 the Court of Chancery. 
 
 Placed side by side with the existing statutes on the 
 same subject the comparison showed at a glance the vast 
 advantage to be gained by reduction in length, in simplifi- 
 cation of expression and in the scientific co-relation of all 
 the parts to the whole which was the key to the entire sys- 
 tem as proposed. In connection with this profert by way 
 of sample, they urged the importance of redeeming the 
 laws from the uncertainties and obscurities arising from 
 the intricate and obsolete diction in which so many of them, 
 especially those copied from the English acts, had been
 
 11 
 
 written and the advantage of establishing the whole body 
 of the statute law in such permanent form that instead of 
 constantly recurring Revisions, particular amendments and 
 additions could be made as occasion might require, with- 
 out disturbing the other parts of the system. 
 
 They add : 
 
 " 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 inno- 
 vation. In reply DO such a charge, we shall only observe, 
 that the conviction of the practicability and great import- 
 ance of the change which we recommend, has been pro- 
 duced 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 
 tc 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 appre- 
 hended 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 * * * it will be found 
 that we propose to do nothing more than to free our writ- 
 ten 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." 
 
 It will be noticed that General Root did not unite in 
 this communication, nor did he ally himself to the advanced 
 methods of his colleagues. An active and veteran party 
 leader and an able advocate of the older type, he was 
 neither adapted -nor inclined to the work of a pioneer in 
 legal reform. He had already since his appointment done 
 something at his home in Delaware County towards Revis-
 
 12 
 
 ing, in the old fashioned way, the laws relating to taxes 
 and to highways, subjects always interesting to the rural 
 legislator, but the change of plan on which his associates 
 had resolved led to his retirement, and the new bill giving 
 the Revisers ampler powers, substituted Henry Wheatonin 
 his place and provided for a compensation of 8500 to Gen. 
 Root for the services he had rendered. 
 
 This new bill was not passed without a struggle. It 
 was at first laid on the table by the Assembly by a vote of 
 54 to 51, and finally passed by a vote of 56 to 38. Nothing 
 which involved a delegation or an exercise of public powers 
 could be accomplished in those days of bitter political con- 
 flict without a struggle between the Clintonians, whose 
 great leader had just been elected Governor, and the Buck- 
 tails, as the Democrats of the day were dubbed. 
 
 In the Senate, John C. Spencer, then a member of that 
 body, afterwards one of the Revisers, moved to amend by 
 striking out Mr. Wheaton's name and committing the 
 whole work to the two acting Revisers, Messrs. Duer and 
 Butler. This was voted down. It was then moved to 
 increase the compensation of General Root, who had been 
 the presiding officer of the preceding Senate, from $500 to 
 $1,000. This was carried and for a time imperiled the whole 
 measure. The Assembly thought $500 ample compensation 
 for a few months work, for which a thousand dollars for 
 two years service was the stipulated price. It refused to 
 concur in the Senate's amendment ; the Senate refused to 
 recede ; finally a conference committee adjusted the differ- 
 ence, the higher measure of compensation was conceded 
 and the bill as finally passed, April 2, 1825, gave the retir- 
 ing Reviser a thousand dollars which must be placed to the 
 debit of the general tax system and the turnpikes and other 
 highways of the State. 
 
 The new Act allowed two years for the completion of the 
 work, and while fixing the same compensation as the 
 former Act, provided that it might be increased by the 
 Legislature. 
 
 Whatever questions had arisen as to the wisdom of
 
 13 
 
 entering on the unexampled movement of reform authorized 
 by the Act of 1825, none had been raised as to the com- 
 petency of the two men who had initiated it and who vol- 
 unteered to carry it to completion. 
 
 JOHK DUER, born at Albany, October 7, 1782, a son of 
 Colonel William Duer, of Revolutionary memory, had, 
 after two years' service in the United States Army, which 
 he joined at the age of sixteen years, entered the office of 
 General Hamilton. The deficiency of his early education 
 he made good by a thorough course of study, particularly 
 in the classics and the modern languages, preparatory to 
 entering on the special study of the law. As early as 1816 
 we find him acting as counsel in the Court of Errors, 
 associated with John V. Henry and opposed by Thomas J. 
 Oakley and Martin Van Buren, in the important case of 
 Jackson vs. DeLancey, reported in 13 Johnson, which 
 involved the title to lands in the city of New York, once 
 the property of his maternal grandfather, William Alex- 
 ander, the Lord Stirling of the revolutionary army. He 
 was at that time practising law in Orange County, and was 
 firmly established in a leading position at the Bar. He 
 came into prominent public life as a delegate from Orange 
 County to the Convention of 1821, in which he distinguished 
 himself by his ability and eloquence. He had acquired a 
 reputation, justly accorded and never impaired during his 
 long and active life, for "great quickness and fertility of 
 intellect, and for a vast amount of acquired knowledge not 
 merely in the learning of his profession, but in kindred 
 sciences and general literature." His mind had a wide 
 range without being weakened by its discursive habit. The 
 more recondite the subjects of legal investigation the more 
 they attracted him, and the remodelling of the law was a 
 task kindred and congenial to his intellect. 
 
 BENJAMIN F? BUTLER, a native of Columbia County, 
 N. Y. , was born December 14, 1795, at Kinderhook Land- 
 ing, on the Hudson, afterwards set off as a separate town
 
 14 
 
 by the name of Stuyvesant. He came of an original Irish, 
 stock, combined with that of the early Puritans by the 
 marriage of his ancestor, Jonathan Butler, with Temper- 
 ance Buckingham, a daughter of one of the first settlers of 
 Connecticut. 
 
 His father, Medad Butler, emigrated from Branford, 
 Connecticut, in 1787, at the age of twenty-two, to the 
 banks of the Hudson, where he established himself in 
 business, and where he lived during the rest of his life of 
 eighty-four years, serving the State during a part of it in 
 the Legislature, and for many years as a county judge of 
 Columbia County. Of a family of twelve children, six of 
 whom died in infancy, the Reviser was the eldest. 
 
 Educational advantages were almost unknown in this 
 State in the earlier part of this century, outside of its more 
 thickly settled portions, and the Dutch settlers of Kinder- 
 hook did not include the schoolmaster in their municipal 
 arrangements. To a native of New England who had 
 enjoyed the benefit of the schools already planted there, 
 the want of like facilities for his children was a sore trial. 
 By a happy accident the need was amply supplied. Two 
 young men, John Freese and Elijah Garfield by name, came 
 from Stockbfidge, Mass., to Kinderhook Landing, bound 
 for New York, and asked for passage on one of Medad 
 Butler's sloops. He found that their voyage was with the 
 intent of establishing themselves as schoolmasters on Long 
 Island, where they hoped to find employment in some of 
 the older settlements. He at once tried to persuade them 
 to tarry at the "Landing" and set up a school there, 
 specially for the benefit of the bright pupil he could 
 furnish in his eldest boy, who had shown a wonderful love 
 of reading and study. The young men were, however, 
 bent on pushing their way southward, but agreed that, in 
 case of the failure of their plan, they would return and 
 accept the offer. Long Island did not prove the land of 
 promise they had looked for, and before many days they 
 re-appeared, and, true to their word, started the school at 
 the " Landing."
 
 15 
 
 Both these men were good teachers, and inspired their 
 young pupil with a love of the classics he never lost. He 
 read Latin as a habit almost daily during his life, carrying 
 in his vest pocket a leaf torn from an old edition of his 
 favorite Horace, employing his spare moments while wait- 
 ing in Court, or at other chance periods of leisure, in read- 
 ing and re-reading, and sometimes turning into English 
 verse, the numbers of the Roman poet. 
 
 Garfield, a type of the old style pedagogue, taught 
 school all his life, and for many years at Middletown, Con- 
 necticut, where he prepared boys for college. After his 
 favorite pupil had fulfilled all his early promise, and risen 
 to the highest rank in his profession and to prominence in 
 public service, he made a visit to the school of his old 
 preceptor, whom he found engaged as of yore in the 
 drudgery of the recitation room. Overjoyed at the appear- 
 ance of his old-time pupil, he threw aside his text book 
 and ferule, dismissed the school, and sent the boys off happy 
 in an unexpected half- holiday. 
 
 On leaving school in 1811, the young student went into 
 the office, at Hudson, of Martin Van Buren, a warm personal 
 friend of his father, who saw such signs of promise in the 
 son that he pressed him into his closest service. Until his 
 marriage in 1818, he was an inmate of Mr. Van Buren' s 
 family, his law partner in Albany from the time of his ad- 
 mission to the Bar in 1817, and the successor, in large 
 measure, of the legal business from which Mr. Van Buren 
 withdrew on his election to the United States Senate in 
 1821. 
 
 Mr. Van Buren' s standing and repute as a lawyer were 
 greater than is generally supposed. His later conspicuous 
 public career, culminating in the Presidency, has obscured 
 his earlier brilliant record as a lawyer. In fact, he was, 
 during his active practice and until his exclusive devotion 
 to public affairs, at the very front of the Bar, succeeding 
 Abraham Van Yechten and preceding Thomas J. Oakley as 
 Attorney- General of the State at a time when leadership in 
 the profession was an essential qualification for the place,
 
 16 
 
 and competing in forensic struggles with the ablest advo- 
 cates. The terse and frank admission of his great rival, 
 Elisha Williams, the incomparable jury lawyer of his time, 
 that, while he got all the verdicts, Van Buren got all the 
 judgments, was only a fair tribute to his ascendency. 
 Tardy justice is being done to Mr. Van Buren as jurist, 
 statesman and patriot, and it is to the honor of our Associa- 
 tion that one of its members, in a recent biography marked 
 by absolute candor, thorough research, and a rare literary 
 skill, has rescued his memory from the disparagement and 
 detraction of prejudiced and superficial writers of opposing 
 political views, and set it in a true historic light. 
 
 Mr. Van Buren had no misgiving in committing to his 
 young partner in the law the care of his clients and their 
 causes. In fact, the junior was already established on his 
 own merits. In illustration of this, I may be permitted to 
 quote from a biographical sketch published in January, 
 1839, fifty years ago, a passage which describes his 
 first appearance in the Court of Errors, which runs as fol- 
 lows : 
 
 "He was the attorney in a cause, with Colonel Burr 
 and Mr. Van Buren, against the celebrated Mr. Henry, 
 then at the head of the Albany Bar, and one of the most 
 eminent lawyers in the State. The case turned on recon- 
 dite questions of black-letter learning, and such was the 
 impression made by Mr. Butler's argument, that neither 
 of his distinguished senior counsel thought it worth 
 while to speak in the cause, which was gained single- 
 handed by the young advocate whose first effort was 
 thus so arduous and so honorable. His first cause in the 
 Court of Errors was also won, in the next year, in a 
 similar single combat with the same powerful antagonist. 
 Mr. Van Buren who had argued it in the Supreme Court 
 below, having, on his withdrawal from practice, advised 
 his client to entrust it to Mr. Butler's hands. This 
 success placed him at once in the front rank of his pro- 
 fession." 
 
 In 1821 he was appointed District Attorney of Albany
 
 17 
 
 County, and was the incumbent of that- office when, most 
 unexpectedly to himself and also to Mr. Duer, as he de- 
 clared in his eulogy on the Chief Justice at the meeting of 
 the Bar of this city, held August 6, 1858, they were ap- 
 pointed Revisers. The casual intimacy they had formed as 
 associates in a cause at the Columbia Circuit, was thus 
 suddenly cemented into a close alliance. 
 
 On his resignation from the office of District Attorney in 
 March, 1825, the Court of Common Pleas, by an entry in 
 its minutes, paid an unusually warm tribute to the fairness 
 as well as the fidelity with which he had discharged his 
 duties as a public prosecutor. 
 
 When appointed Reviser, he lacked seventeen days of 
 being twenty-nine years of age. 
 
 We thus find the task of re-framing the whole statute 
 law of the State upon a new and untried basis, committed 
 mainly, and on their own motion, to two young men who 
 had sprung from the ranks of the people, neither of whom 
 held a college diploma, both of whom had carved their own 
 way to leadership, and who, whiJe their elders shrank from 
 this task, had courted it them selves with that consciousness 
 of strength and mastery which the world of smaller men 
 sometimes calls self-conceit, but which is so often, in the in- 
 dividual aspirant, only the healthy beating of the pulse of 
 genius. 
 
 The Legislature, by the Act of 1825, as we have seen, 
 probably at the suggestion of the two other Revisers, had 
 named Henry Wheaton as their associate. He had been a 
 member, with John Duer, of the Constitutional Convention 
 of 1821, and at the time of his appointment as Reviser was 
 the reporter of the Supreme Court of the United States, an 
 office he held until January, 1827. In April of that year, 
 he was sent as Charge d' Affaires of the United States to 
 Denmark, and ceased to act in the Revision. 
 
 In the correspondence of the Revisers in my possession 
 there is no trace of any considerable work done by Mr.
 
 18 
 
 Wheaton in conjunction with his colleagues, although his 
 name appears with theirs, appended to the Revisers' re- 
 ports to the Legislatures of 1826 and 1827. He prepared 
 one or two of the earlier chapters, but, probably, besides 
 this did little more than to concur in the action of his as- 
 sociates. But, at the outset, he gave to their plan his 
 hearty assent, and while no letters or memoranda by him are 
 included in the papers of the revision, one important docu- 
 ment exists which, by a few words of endorsement in his 
 unmistakable handwriting and phraseology, establishes the 
 authorship and the date of the first written plan of the en- 
 tire work. This paper of eleven pages of the coarse un- 
 ruled foolscap of the time, is entitled "General Arrange- 
 ment," and contains a sketch and outline of all that was 
 afterwards embodied in the Revised Statutes, classifying 
 the entire body of laws for the government of the State, 
 under five leading heads. Prepared immediately after the 
 passage of the Act of April 21, 1825, it brings into outline 
 the work as it lay in the minds of the promoters of that 
 act, and is a summary of the system they sought to esta- 
 blish. 
 
 It starts by dividing under five leading heads, the whole 
 body of the law. 
 
 1. The laws which relate to the government, to the gen- 
 eral policy, and to the internal police of the State. 
 
 2. The laws which relate to the domestic relations, to 
 property, to contracts, and to other matters connected 
 therewith. 
 
 3. The laws which relate to the judiciary establishments, 
 and to the mode of procedure in civil cases. 
 
 4. The laws relating to crimes and punishments, and to 
 the mode of prosecution and punishment. 
 
 6. Local Laws. 
 
 Then follows a subdivision of Chapters, Titles and Arti- 
 cles, giving the particulars of the laws to be classified under 
 each of the five general divisions as proposed, beginning 
 with the boundaries of the State and its territorial divisions,
 
 19 
 
 and the regulation of government of counties and towns, 
 and proceeding to cover the whole subject of governmental 
 control in all its departments, upon the system which, as 
 perfected, was embodied in the Revised Statutes. This 
 paper is endorsed, "Projet of General Plan of Revision 
 handed in by Mr. Butler, May 11, 1825." 
 
 The entire paper is in the handwriting of the Reviser 
 who thus " handed in " and submitted to the judgment of 
 his colleagues what, probably, Mr. Wheaton alone of the 
 New York lawyers of his day would have thought of 
 designating a projet, a word which his habits of study as a 
 civilian and a publicist suggested to him as best descriptive 
 of such novel and far reaching propositions. In this term, 
 and in the marginal suggestions which he made, we find 
 one of those incidental traits which reveal, by a casual 
 touch, the individual character and distinct personality of 
 the writer. Mr. Wheaton' s reputation stands on his earlier 
 work as a reporter of the Supreme Court during the period 
 to which belong the great constitutional arguments and 
 decisions, in the time of Chief Justice Marshall, so fully 
 exhibited in the twelve volumes of his reports, and on his 
 later work as a commentator on International Law. His 
 almost life-long voluntary exile, in a diplomatic service, first 
 at Copenhagen, and then at Berlin, withdrew him from his 
 profession and from the society of his countrymen, to 
 whom he is known only as an author. It would doubtless 
 have been a pleasing anticipation, could he have foreseen 
 that the few words of endorsement traced by his hand on 
 the discolored manuscript now first produced, after the 
 lapse of more than three score years, before a body of 
 lawyers in the chief city of the nation, would identify the 
 earliest recorded effort at a written system of governmental 
 statute law for an English-speaking people. 
 
 While the manuscript, both by the handwriting of the 
 body of the plan and by Mr. Wheaton' s endorsement, 
 shows by whom it was prepared, it must be understood 
 that no claim is made to exclusive originality in the 
 ideas it embodies. On the contrary, the author of the plan
 
 20 
 
 himself in the address already referred to, in commemora- 
 tion of Chief Justice Duer, whose death was within a few 
 months to be followed by his own, generously accorded the 
 merit of the first suggestion of the plan to the friend 
 whom he eulogized. 
 
 Without detracting from the force of this concession, 
 the fact remains that the initial step in the revision, by 
 which form was first given to the idea of a work so unpre- 
 cedented, so delicate and so difficult, is found in this 
 draft, and it is not unworthy of notice that the original 
 conception of his associates, and his own matured views 
 were thus traced by a young lawyer, not then thirty years 
 old, in the first decade of his practice at the Bar, with no 
 other experience than that gained in his native State, and 
 in the face of the adverse sentiment of the profession. 
 
 It is almost impossible for the men of this generation, 
 who have been trained in the system which the Revised 
 Statutes established, and accustomed to the organic law as 
 established by the Constitution of 1846 and subsequent 
 amendments, and the various codes which have been adopted 
 and projected, and who are also accustomed to innovations, 
 experiments and schemes in every department of our many- 
 sided social system, to comprehend the state of things 
 existing on May 11, 1825, the date of the first draft of the 
 plan of the Revised Statutes. 
 
 Not only the so-called "black-letter" lawyers whose 
 professional horizon was limited by the metes and bounds 
 of the Common Law, but the great body of jurists on the 
 Bench and at the Bar were firm in their adhesion to the 
 legal methods of the mother country. They were more 
 than satisfied with the common law as it had been 
 moulded to meet the expanding needs of civilization and 
 commerce by Lord Mansfield and with the system of equity 
 jurisprudence which had been worked out through the 
 long line of eminent Chancellors, of whom Lord Eldon, then 
 on the wool-sack was the last, and in whom the genius of re- 
 form never found a more consistent opponent. Many of
 
 21 
 
 the leading lawyers of New York were by training and 
 family and political association tenacious of established 
 customs and violently opposed to change and to men given 
 to change. The idea of codification, although in compar- 
 ison with the cyclonic proportions it has since assumed, a 
 cloud no bigger than a man's hand, was in the air, a bale- 
 ful portent. Civilians were multiplying in the ranks of 
 jurists in England and in the United States. De Witt 
 Clinton, whose genius was allied to commercial enterprise, 
 favored a code in his message at the opening of the year 
 1825. He declared that " the whole system of our jurispru- 
 dence requires revised arrangement and correction. A 
 complete code founded on the salutary principles of 
 society, adapted to the interests of commerce and the 
 useful arts, the state of society and the nature of our gov- 
 ernment, and embracing those improvements which are en- 
 joyed by enlightened experience, would be a public 
 blessing. It would free our laws from uncertainty, elevate 
 a liberal and honorable profession and utterly destroy 
 judicial legislation, which is fundamentally at war with the 
 principles of representative government." 
 
 While the Tory journals were inveighing against the in- 
 novators who would sacrifice everything that was ancient 
 and venerable on their " shrine of simplicity" and declar- 
 ing that the word "code" had something imperial and 
 arbitrary in its sound which grated on the ears of a disciple 
 of Bracton or Littleton, the Edinburgh Review called atten- 
 tion to the fact that New York had "resumed with in- 
 creasing patience its habitual work of reform ;"* and while 
 the commission appointed by Parliament in 1824 had only 
 recommended some measures of reform for consideration, 
 the Revisers were accomplishing in fact what in England 
 was merely discussed as theory. 
 
 Against these innovating tendencies the whole body of 
 the profession was arrayed. The plan of the Revised 
 Statutes was devised in the presence of a sentiment which 
 
 *Edinburgh Review, March, 1827, p 481.
 
 22 
 
 warned the Revisers that any attempt to import Conti- 
 nental or civil law methods into the jurisprudence of the 
 State, would be an act of treason to the Bench and the Bar. 
 They could hardly escape the suspicion of being at least in- 
 fected with these treasonable projects and with a disposi- 
 tion to give aid and comfort to their abettors. Fortunately 
 they had the spirit of reformers without the rage of icon- 
 oclasts. They publicly declared that their work was not 
 intended to be codification. Their earliest report to the 
 Legislature says that "the practicability and advantages of 
 reducing the Common Law of England to a written code has 
 recently been maintained in that country by several 
 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." To codify the whole law or 
 any branch of it in the sense of substituting positive 
 written definitions and enactments for the law as existing in 
 the common law and equity systems and as interpreted and 
 applied by the Courts, was never the intention or aim of the 
 Revisers, or any one of them. They publicly declared that 
 the work they had in charge "must be carefully distin- 
 guished from codification. * * We have found it neces- 
 sary in our report to exclude this idea which has got abroad 
 and exposed us to much prejudice with those who believe 
 every project of that sort visionary and dangerous." 
 
 To use the formula employed by an inventor in assert- 
 ing and describing, for the purpose of securing a patent, 
 the substance of what he supposes to be new and 
 useful in his invention, what I claim on behalf of the 
 authors of the project of the Revision, as exhibited in 
 the original paper of May 11, 1825, is, that it was the 
 first attempt to create and establish for any commonwealth 
 governed by the English Common Law, and by legislative 
 statutes, after the manner of the English Parliament, of a 
 body of written law, systematically arranged, based on the 
 principles of the law as a science, regulating the exercise
 
 23 
 
 of public and private rights, establishing domestic, prop- 
 erty and contract relations, and covering the administra- 
 tion of every department of the Government, without 
 touching the integrity of the unwritten law, or transcend- 
 ing the proper bounds of legislative control. More than 
 this, it was the first attempt to so organize the statute law 
 of an English-speaking race, as to retain and apply all the 
 great and beneficial principles of the Common Law, while 
 rejecting and casting off those parts of it which were alien 
 to the genius of a State in which the feudal system of 
 England had never taken root, or been transplanted and 
 where free institutions were in revolt against its old abuses. 
 
 The general plan having been settled upon, the Revisers 
 immediately entered on the work of preparing for the 
 coming session of the Legislature. The first installment of 
 their work was intended to present an outline of the entire 
 plan, and to embrace the initial chapters of the Revision. 
 
 During the summer of 1 825, Mr. Duer, who was engaged 
 in New York on Chapter V, relating to Elections, wrote on 
 August 23, to his colleague at Albany, enclosing the 
 chapter, and saying: "In compiling it, I am sensible 
 I have carried, to their full extent, the powers that the 
 Legislature have given us. I have, however, made no 
 changes or additions for which there did not appear a suffi- 
 cient reason to my own mind, but to explain the reasons 
 would require a dissertation, and I prefer leaving the sub- 
 ject without any remarks of my own, to your unprejudiced 
 judgment, and I beg you to examine the whole with care 
 and criticise with freedom. If you are satisfied with the 
 plan and arrangement, then direct your minute attention to 
 the style and diction, and mark every ambiguous, obscure, 
 improper and superfluous sentence, phrase, or word. Let 
 us act and labor under the belief that we are working for 
 posterity, and that great results are dependent (as I am 
 convinced they are) upon our success." He adds that he 
 is going on with -Chapter II, which he says " will give me 
 more occupation than I expected." 
 
 His Albany colleague was meanwhile employed on
 
 24 
 
 Chapter I, which according to the orderly plan of arrange- 
 ment was to treat of the boundaries of the State and its 
 territorial jurisdiction. 
 
 " It is a singular fact," noted by the Revisers, in re- 
 porting this chapter that " no complete account of the 
 bounds of the State, as now established and claimed, is to be 
 found in any printed work or public record." The sources 
 of a correct description of the territory of the State included 
 royal patents and charters, and conventions with neighbor- 
 ing States, and other public documents. With the assist- 
 ance of the Surveyor General, the metes and bounds of 
 the Empire State, as actually in possession of its sovereign 
 people, were for the first time ascertained and defined. 
 
 This formed the initial chapter of the Revised Statutes, 
 an adaptation, to some extent, of the Domesday Acts, and 
 of the descriptions of the possessions of the twelve tribes 
 of Israel given in the Book of Joshua. 
 
 Then followed, by way of exception, a title describing 
 the places ceded by the State of New York to the United 
 States. The second chapter embraced similarly minute 
 descriptions of the civil divisions of the State, the Coun- 
 ties, Senatorial and Congressional districts, towns and 
 cities. Most of these were, however, published as local 
 acts, by way of addition to the third volume of the 
 Statutes, so as not to encumber the main work with formal 
 matters. 
 
 The Legislature of 1826 met on the 3d day of January. 
 The Revisers were alive to the importance of making their 
 first report in such form as to create a favorable impres- 
 sion on the members of both Houses. A letter to Messrs. 
 Duer and Wheaton, from their associate, dated January 18, 
 1826, says : "As the report would be, to us at least, an im- 
 portant document, great pains should be taken in drawing 
 it up. Our best faculties must be put in requisition and I 
 have sketched, and now enclose to you, an outline of the 
 topics to be discussed in it." 
 
 Mr. Duer wrote in reply : "the task of preparing our re- 
 port seems to devolve ex -necessitate on yourself." The re-
 
 25 
 
 port was accordingly prepared and submitted March 14,1826. 
 It contains the first public announcement of the plan of the 
 Revision, and gives a clear analysis of the various subjects 
 to be embraced in the scope of a complete system of public 
 Statutory Law, marking out the general division into Parts, 
 and the subdivision into Chapters, and Titles as indicated 
 in outline in the original plan of May 11, 1825, thus 
 placing clearly before the Legislature and the public the 
 idea of a systematic body of Statutory Law, to be perma- 
 nent in its form, and all-embracing in respect to the ad- 
 ministration of the Government in its various departments. 
 The report presented only Chapter V ' ; Of Elections, other 
 than for Town Officers " but with full details of the intended 
 character of the work of which that chapter was a specimen. 
 
 The reception of the report both by the Legislature and 
 the profession was more favorable than the Revisers had 
 dared to anticipate. 
 
 As an indication of this Mr. Duer writes on March 30, 
 1826, that Peter W. Radcliff, an old New York lawyer, 
 ' ' has taken occasion to express to me in strong terms, his 
 approbation of our plan and proceedings. From him this 
 was unexpected and gratifying. I thought him a stickler 
 for the black-letter school." 
 
 That the utmost pains had been taken in the preparation 
 of the initial Chapters is evident from the correspondence. 
 The freest criticism was interchanged between the Revisers. 
 In one of the Albany letters the writer says: "The gen- 
 eral method suggested last Spring, was probably right in 
 principle but in detail exceedingly defective. Perfect method 
 is probably unattainable and I am inclined to think with 
 you that we shall find it necessary, as well for this as on 
 other accounts, to retain the work until the whole is com- 
 pleted. * * You cannot treat of any science, even in the 
 most familiar manner, without employing at the very out- 
 set, terms of art, a full knowledge of which can only be ob- 
 tained by referring to subsequent parts of the work, perhaps 
 not until the whole science be mastered. ' ' The writer goes on 
 to say that he has taken up the Chapter relating to the du-
 
 26 
 
 ties of towns and counties (Chapter XI), and the subject 
 of taxes and assessments, and while admitting the great 
 difficulty of the task, declares his intention of proceeding 
 according to the original design in the effort to bring order 
 out of the existing confused and complicated mass of the 
 Statutes. 
 
 Stimulated, perhaps, by the reception accorded to their 
 labors, the Revisers took heart to proceed. Mr. Wheaton 
 was, however, engrossed with his duties as Reporter and 
 in the completion of his volume of Reports, and Mr. Duer 
 was taken up with his professional engagements in ~New 
 York. He writes on June 10, 1826, to Mr. Butler, stating 
 these interruptions, and closes by saying : "I am resolved 
 to be proud of your labors, as I cannot exult in my own. 
 The truth is (and we both agree), that you are worth a 
 dozen of such lazy fellows as Wheaton and myself." 
 
 At the re-assembling of the Legislature in January, 
 1827, the Revisers reported Chapters I, II and III. Also 
 Chapter IV (substituted for the chapter of that number as 
 originally proposed), containing a re-enactment of the Bill 
 of Rights of 1787, which, they say, ought to have a permanent 
 place in the statute book, and on January 30, 1827, they 
 presented Chapter V " Of the Civil officers of the State" fol- 
 lowed in rapid succession by Chapters VI, VII, VIII, IX, 
 X, XI and XIX. Chapter IX and Chapter XIX related 
 to the whole financial department of the State government. 
 In relation to Chapters V and VI Mr. Butler writes to 
 Mr. Duer : "I send you Chapters V and VI, which were 
 prepared sometime ago, though not copied till lately. In 
 framing the former, you will see that I have drawn liberally 
 on the powers conferred on us and I have added many new 
 provisions." He adds, "I propose next to take up the 
 Highway A cts. I can labor on them without interfering with 
 you or Wheaton." 
 
 By this time the work had advanced sufficiently to at- 
 tract a general interest and to excite the Legislature 
 to effective co-operation. An extra session for the pur-
 
 27 
 
 pose of considering the Revised Statutes was resolved upon 
 and the Legislature adjourned on April 17, 1827, to the 
 second Tuesday of the following September. 
 
 Meanwhile, in March, 1827, Mr. Wheaton had resigned 
 and Mr. Spencer had been appointed, April 21, 1827, to 
 fill the vacancy, and had at once engaged in the work and 
 taken an active part in the preparation of Chapter IX, 
 
 JOHN C. SPENCER, who now became identified with the 
 revision, had enjoyed advantages of early education superior 
 to those of either of his associates. He was born at Hud- 
 son, Columbia County, BT. Y., January 6, 1788. His father, 
 Ambrose Spencer, was Attorney General of this State from 
 1802 to 1804, a Justice of the Supreme Court from 1804 to 
 1819 and its Chief Justice from 1819 to 1823. The son was 
 trained from boyhood for the Bar, and after graduating 
 at Union College with distinction, pursued his law studies in 
 his father's office. During the administration of Governor 
 Tompkins he was his private secretary, a position which 
 gave him an early practical acquaintance with the routine 
 of work in the Executive Department, and great familiarity 
 with legislative proceedings. He was admitted to the Bar 
 at the age of 23, and shortly afterwards removed from 
 Albany to Canandaigua, then a remote village in a new 
 region of the State. Here he soon became both a political 
 and a professional leader. His bold and vigorous ad- 
 vocacy of the policy and measures of Madison, which pre- 
 ceded the war with Great Britain of 1812, made him con- 
 spicuous among the supporters of the President and of 
 Tompkins, the war Governor of that day, but after peace 
 was restored, in the succeeding changes of party relations, 
 he became an ally and friend of DeWitt Clinton. By him 
 he was appointed in 1815 District Attorney for the District 
 embracing the five western counties of the State, and while 
 holding this office, was elected as a representative in the 
 fifteenth Congress, in which he was an active member. His 
 term as representative was signalized by his work as chair-
 
 28 
 
 man of the commission to investigate the United States 
 Bank ; he prepared the adverse report as to the Bank, which 
 was the result of the labors of the commission, and which 
 preceded by fifteen years the final onslaught against the 
 same corporation under the administration of General 
 Jackson. 
 
 In 1820 he was elected a member of the State Legisla- 
 ture, and served as Speaker of the Assembly, to which body 
 he was again returned the following year, but as a member 
 of the minority. In 1824 he was elected to the State Senate 
 and thus became a member of the Court for the Correction 
 of Errors. During his term as Senator, as Chairman of the 
 Committee on Literature and Education, he made an elabo- 
 rate and masterly report on the Common School system and 
 the whole subject of education as connected with the State. 
 Thoroughly furnished with this varied equipment, Mr. 
 Spencer brought to the work of the Revision the qualifica- 
 tions which fitted him to supplement, with the greatest ef- 
 ficiency, the efforts of his colleagues. He was an indefatiga- 
 ble worker, of great power of endurance and matchless 
 assiduity in details. He engaged in the Revision with 
 characteristic ardor and readily assumed a large share of 
 the labor which it imposed. 
 
 During the interval between the adjournment of the 
 regular session and the opening of the extra session of 
 1827, much progress was made. 
 
 Mr. Duer seems to have determined to clear himself from 
 his own imputation of laziness and on May 19th, writes, " I 
 am at work, as the boys say, in real earnest." " I found," 
 he continues, "that, make what resolution I would, so 
 long as I continued to attend the office, I could do noth- 
 ing effectual. My time was not in my own power. I there- 
 fore concluded to shut myself up at home, and have 
 found the course so profitable, that I shall continue 
 to pursue it. * I have finished the Canal Laws. 
 
 They comprise in nine articles about two hundred sec- 
 tions. I have received Spencer's analysis
 
 29 
 
 of the Second Part but have not yet had leisure to consider 
 it as it must be considered. Upon a cursory inspection, the 
 general arrangement appears to me excellent, but the 
 subdivision of chapters far too numerous." Then he says, 
 "I am satisfied that we shall have to work, each of us, on 
 an average eight or ten hours a day, to enable us to com- 
 plete our work. It is impossible that Spencer should do 
 all we have allotted to him, and we must endeavor to have 
 the first part completed before the adjournment of the 
 Court of Errors, if possible, by its meeting, and then assist 
 him in completing the second. In the meantime, I take 
 upon myself the chapters of Public Health, of Incorpora- 
 tions, of Trusts, &c." 
 
 On June 1, 1827, he writes : "I have continued to work 
 very assiduously, of which you will receive as a sufficient 
 proof that, in three days, I have completed the chapter of 
 Public Health, with the exception of a few penalties that 
 remain to be added. It is completely a new law, as well in 
 language as in arrangement. Before I send it to you I 
 shall submit it to the Health Commissioners for examina- 
 tion." 
 
 In reply to this is a letter dated Albany, June 2d, 1827, 
 containing these cheering words : 
 
 "I rejoice in your successful exertions, and feel assured 
 that all will go well. Spencer is vigorously engaged. I 
 have received two letters from him this week, the last to- 
 day. In it he sends me Chapter III of Dower. It is well 
 done, so well that he feels proud of it, and wishes us to ex- 
 amine it immediately, with the view of presenting it to 
 Chancellor Kent. He thinks the Chancellor's approbation 
 worth obtaining, and what is, perhaps, a little enthusiastic, 
 he cannot doubt as to securing it by this chapter. Spencer 
 is evidently heart and soul in the work and will give us all 
 the aid we expected from him." 
 
 Mr. Spencer's letter refers to the apprehensions of some 
 members of the profession which have been excited " from 
 various causes, some unworthy, and others entitled to con- 
 sideration. Among them is Chancellor Kent. I want to
 
 30 
 
 satisfy him, and at the same time commit him to an appro- 
 bation of our plan. With this in view I have had an entire 
 copy made of the chapter that I have revised and prepared 
 of Dower, which I propose submitting to him in manu- 
 script for his advice and opinion. * * It is very possi- 
 ble that like all authors, I have mistaken the nature of this 
 particular chapter, but if I do not deceive myself, it is not 
 discreditable. I am hard at work on the statutes of frauds, 
 13 and 27 Eliz., and 39 and 4 W. and M. I shall conquer 
 them." 
 
 In reply to this, Mr. Butler writes : 
 
 " I agree that the good opinion of Chancellor Kent 
 would be of the greatest service, and without intending an 
 idle compliment, I do verily believe that if any thing could re- 
 move the prejudice with which he is said to regard our labors, 
 your consolidation of the law of Dower would effect that 
 end. After what I have said you may think I do injus- 
 tice to Chancellor Kent, when I add that I have no confi- 
 dence in the success of the proposed reference to him. The 
 grounds of his distrust it would take me too long to explain 
 in writing. Dies indicabit." 
 
 In one of Mr. Duer's letters, in the summer of 1827, he 
 speaks of the encouragement he had received from a visit 
 to his office by Thomas Addis Emmet, then the brilliant 
 and accomplished leader of the New York Bar, who was in 
 full sympathy with the work of the Revisers, and who 
 came to Mr. Duer to fulfil a promise to give him in writing, 
 some suggestions touching the law of Descents. This visit 
 occurred only a short time before Mr. Emmet's sudden 
 death, November 14, 1827, in Court during the trial of the 
 cause in which was involved the title to the lands of the 
 Sailor's Snug Harbor. Mr. Yan Buren, in his autobiogra- 
 phy, a work as yet unpublished, gives a graphic descrip- 
 tion of Mr. Emmet's death, of which he was an eye-wit- 
 ness : 
 
 "In the fall of the year Thomas Addis Emmet was 
 seized with paralysis whilst engaged in the trial of a cause, 
 and died almost immediately. I was one of the opposing 
 counsel in the cause, and as the Court adjourned on the 
 preceding day he expressed to me his surprise that we had
 
 31 
 
 kept our suit, the claim of Bishop Inglis of Xova Scotia 
 to the immense estate called the Sailor's Snug Harbor, on 
 foot so long ; but added that we could not prolong its life 
 beyond twelve o'clock of the next day. When that time 
 arrived, I followed him from the Bar to the stove, whither 
 he had been called by an acquaintance, and said, ' Well, 
 Mr. Emmet, the hour has come, and we are alive yet ! ' 
 ' Yes,' he answered, 'but you cannot live much longer ! ' 
 Immediately after my return to my seat David B. Ogden 
 said to me, ' Look at Emmet ! He is going to have a fit ! ' 
 I looked and replied that it was a mistake. In a few min- 
 utes he repeated the alarm more emphatically. I went to 
 Chief -Justice Thompson, before whom the cause was tried, 
 and informed him of Mr. Ogden 1 s suspicions. The Judge 
 observed Mr. E. closely, and replied pleasantly, ' No ! no ! 
 Ogden is mistaken, his underlip hangs a little lower than 
 usual, but that is natural to him when he is writing ! ' At 
 that instant, and as I turned towards my seat I saw Mr. 
 Emmet reel in his chair, and extend his hand towards a 
 neighboring pillar. I endeavored to intercept his fall, but 
 without success ; he was carried to his house, and died in 
 a few hours." 
 
 Mr. Duer had a lively sense of the necessity of leaving 
 the Legislature as little to do as possible in the task of 
 considering the Revision. 
 
 He writes June 6, 1827, as to the importance of printing 
 at the head of every new chapter an analysis with referen- 
 ces to the former statutes ; "We cannot do too much to facili- 
 tate the examination of the members. Their gratitude will 
 be exactly in proportion to the extent of the labor from 
 which we relieve them, and we shall relieve ourselves from a 
 multitude of objections, such as Brown of Chautauqua made 
 to the chapter of the Militia." 
 
 In a later letter Mr. Duer reports as to the Chapter on 
 Descents, apparently drawn by his Albany colleague, and 
 closes with an expression of personal feeling, which 
 may serve to exhibit the relations which had grown 
 up/ in the course of their labors, between the Re- 
 visers : "This 'letter, which I close with reluctance, 
 is intended, of course, for Mr. Spencer as well as your- 
 self. I do trust that our mutual labors have laid the
 
 32 
 
 foundation of a friendship which is to cheer and con- 
 sole us during life. It will not be in vain that we have 
 passed together so many useful, virtuous and happy hours. 
 We have learned a good deal of our own hearts and of the 
 characters of each other. We have been taught to bear and 
 forbear under very trying circumstances, and have found 
 that the jealousies and irritations of the hour passed away 
 and our mutual confidence and regard became more solid 
 and permanent. Let us continue to be just to each other 
 and true to ourselves and the triple cord that we have twisted 
 will not soon be broken." 
 
 t 
 
 The extra Session of the Legislature convened Septem- 
 ber 11, 1827, and as declared by the resolution appointing 
 it, was held for the sole and only purpose of examining and 
 re-enacting the Revision of the Statute Laws of this State. 
 On the first day of the session the Revisers submitted the 
 whole of the First Part in twenty chapters and during the 
 session these and also all the chapters of the Second Part, 
 except Chapter I, were presented and acted upon. 
 
 The Legislature adopt elaborate joint rules under 
 which the different chapters were referred to joint commit- 
 tees of the two houses, before whom the Revisers were to 
 attend to assist them in their deliberations ; the chapters as 
 reported from the committees were considered by each 
 house and after being passed upon, were referred again to 
 the Revisers for their examination, with power to propose 
 amendments, and under this systematic plan the examina- 
 tion of the work proceeded in the committees and in the 
 two houses, with regularity and ease. The most painstak- 
 ing scrutiny was exercised and the Revisers were enabled 
 by their final supervision, to guard against injudicious 
 alteration by the many amendments proposed in the 
 committees. Their recommendations as they say in the 
 Introduction to the Second Edition "were almost always 
 adopted and in general without discussion." 
 
 \ 
 
 The session lasted from September 12, 1827, to Decem- 
 ber 4, 1827, fifty-three days.
 
 33 
 
 It was characterized, say the Revisers, "by patient 
 research and untiring industry on the part of the members " 
 and resulted in the enactment of the entire First and Sec- 
 ond Parts of the Revised Statutes except Chapter I of the 
 Second Part, which was laid over until the next meeting of 
 the Legislature. 
 
 It was in the Second Part of the proposed system of 
 Administrative Law and especially in the First Chapter, thus 
 postponed by the Legislature, that the Revisers brought the 
 law-making power face to face with the real substance of 
 the reform they proposed. 
 
 The First Part dealt with the territorial limits and divis- 
 ions, the civil polity and internal administration of the State 
 and was concerned with the affairs of municipalities, the 
 regulation of incorporations and of trade, and of the inter- 
 nal police, creating a system which representatives of the 
 people could well understand, with the rudiments of which 
 they were familiar and which, when placed before them in 
 an orderly and perspicuous arrangement, at once attracted 
 their concurrence and acquiescence. 
 
 The Second Part brought them into the intricacies of the 
 law relating to the rights of property, real and personal, 
 their acquisition, descent, enjoyment and transmission, 
 reaching to the root and central stem of the entangled 
 growth of the unwritten law of tenures, uses, trusts and 
 devises. The complexity of the law of real estate, the out- 
 come of the feudal system of tenures gave rise, as Black- 
 stone had said, " to the subtelties and refinements into 
 which, in the course of centuries, they were spun out and 
 subdivided." 
 
 The lawyers and judges of England united in perpetu- 
 ating rules and enforcing methods as to the title to land 
 which it became almost impossible to apply with any cer- 
 tainty or safety. -The evil became so oppressive that in re- 
 spect to this branch of the law, as well as to other branches,
 
 34 
 
 the cry for reform had gone up from the ranks of the pro- 
 fession itself. 
 
 The obscurity of titles, the great hazard and) expense of 
 alienation, the frequent and ruinous litigation in which es- 
 tates were involved, led to those efforts in Parliament in 
 which Brougham and his associates strove with only partial 
 success to attack the abuses of the feudal system as perpetu- 
 ated by the Courts in England. Even to clear and honest 
 minds this task seemed almost too formidable. The vast 
 political considerations it involved, were too momentous. 
 The change of the law of real estate meant the disturbance 
 of the whole framework of society. 
 
 Meanwhile, the law of real property described by Mr. 
 Cruise, one of its most learned commentators, "as the most 
 extensive and abstruse branch of English jurisprudence," 
 remained, as the Revisers say, "very imperfectly under- 
 stood by any of the legal profession who have not made it 
 an object of peculiar study and attention, and so remote 
 are its principles and maxims from ordinary apprehension, 
 that to the mass of the community they seem to be shrouded 
 in impenetrable mystery." 
 
 This whole vast subject, including the law of estates in 
 expectancy, of remainders vested and contingent, of uses 
 and trusts, formal, active and passive, of forfeitures, fines 
 and recovery, of powers appendant and appurtenant, collat- 
 eral or in gross, was enshrined with its cabalistic terms and 
 its ensnaring devices in the chaotic mass of the unwritten 
 Common Law, the undefined powers of Chancery, the dicta 
 of judges, and Acts of Parliament, which as interpreted in 
 Westminster Hall, served only to make the confusion in 
 which the system was involved worse confounded. 
 
 While English Courts were struggling in the network of 
 legal fictions and devices by which the law of the kingdom 
 was to retain the enslaving impress of the feudal system, 
 long after the people had broken down all its other barriers, 
 the Revisers believed that the hindrances to the work of 
 reform in the mother country had no place here. 
 
 True, the whole law of real estate had been, as far as
 
 3o 
 
 possible, transferred to this side of the ocean and was being 
 administered in our Courts by men who delighted in its 
 subtleties and fictions, but the Revisers were bold enough 
 to strike out measures of reform by which, while retaining 
 all that was really serviceable in the existing system, they 
 might break away, once and forever, from the bondage of a 
 barbarous age perpetuated by generations of black-letter 
 judges. 
 
 "Our law of real estate " they say " is not an uniform 
 and consistent system, complex only from the multitude of 
 its rules and the variety of its details ; but it embraces two 
 sets of distinct and opposite maxims, different in origin 
 and hostile in principle. We have first, the rules of the 
 common law connected throughout with the doctrine of 
 tenures, and meant and adapted to maintain the feudal sys- 
 tem in all its rigor ; and we have next, an elaborate system 
 of expedients, very artificial and ingenious, devised in the 
 course of ages by courts and lawyers, with some aid from 
 the legislature, for the express purpose of evading the rules 
 of the Common Law, both in respect to the qualities and 
 the alienation of estates, and to introduce modifications of 
 property before prohibited or unknown. It is the conflict 
 continued through centuries between these hostile systems 
 that has generated that infinity of subtleties and refinements 
 with which this branch of our jurisprudence is overloaded. " 
 
 They laid the axe to the root of the tree of feudal tenures 
 and feudal restrictions. The keynote of their reform was 
 struck in these plain declarations, which, simple and nec- 
 essary as they seem to us, were a new language in the ears 
 of many of their generation, who were accustomed only to 
 receive what had been said by them of old time. 
 
 " The interests of society require that the power of the 
 owner to fetter the alienation and suspend the ownership 
 of an estate by future limitations should be confined within 
 certain limits;" and, after stating the evils and abuses 
 incident to the existing law, they add: "The remedy 
 seems to the Revisers obvious and effectual : it is to abolish 
 all technical rules and distinctions, having no relation to 
 the essential nature of property and the means of its bene- 
 ficial enjoyment, but which, derived from the feudal sys-
 
 36 
 
 tern, rest solely upon feudal reasons. * * The princi- 
 ples by which they have been governed in proposing 
 alterations, may be very briefly stated. If a rule of law is 
 just and wise in itself, apply it universally as far as the 
 reasons upon which it is founded extend, and in no 
 instance permit it to be evaded ; if it is irrational and 
 foolish, or the reasons upon which it is rested are obsolete, 
 abolish it at once." 
 
 They point out, in later sentences, that their proposed 
 provisions, if adopted, " will sweep away an immense mass of 
 useless refinements and distinctions ; will relieve the law 
 of real property to a great extent from its abstruseness and 
 uncertainty, and render it, as a system, intelligible and 
 consistent. " "In England, ' ' they further say ' ' the continu- 
 ance of the landed property in the hands of the aristocracy is 
 the basis upon which the monarchy itself may be said to 
 rest, but, with us, it should never be forgotten that it is the 
 partibility, the frequent division and unchecked alienation 
 of property, that are essential to the health and vigor of 
 our republican institutions. ' ' 
 
 It is impossible for me to go into details, either as to 
 the evils and abuses which the Revisers undertook to 
 cure by their new system of written rules governing this 
 entire field of the law as well as its cognate branches, dealt 
 with in the second part of the Revised Statutes, or as to the 
 character and reasons of the radical and far-reaching rem- 
 edies they created. The student of our law, who would 
 acquaint himself with these particulars, must find them in 
 the volumes of the reports of the Revisers, in which are dis- 
 played a wealth of learning, of research, of careful analysis 
 and discrimination, of painstaking and conscientious appli- 
 cation of the true principles of law and justice to the rights 
 of the people. It is in these reports, and especially in the 
 notes accompanying the statutes as first reported, that the 
 work of the Revision is to be seen in an interior light which 
 reveals the marvelous industry and minute care bestowed 
 upon it. Probably, very few members of our profession 
 have ever had the time, or the inclination, or even the occa-
 
 37 
 
 sion, to pursue this study, and I presume there are not 
 many copies of these reports extant, but they embody a 
 whole commentary on the then existing state of the law. 
 
 The first edition of the Revised Statutes did not contain 
 the Reports or the notes which accompanied them. 
 
 " In these notes," says Judge Edmunds in his edi- 
 tion of the Revised Statutes of 1863, "the profession have 
 felt that they have often found, in the language of Lord 
 Coke, the very lock and key to set open the windows of 
 the Statutes." They were published in the second edition, 
 and will there be found, as well as in Judge Edmunds' 
 later edition, a lasting monument to the research and learn- 
 ing of their authors. 
 
 Nor is it necessary to enquire into the wisdom of the 
 system of the laws of real estate, which the Revisers pro- 
 posed and secured. They had to grapple with difficulties 
 which were inherent in the subject, and which they were 
 required to solve, so as to disturb as little as possible the 
 real foundations of the law as a necessary bulwark of 
 society ; they had to devise new methods, without destroy- 
 ing established rights ; they had to keep the ma media 
 between old abuses and doubtful innovations. It is 
 enough to say that the system they devised has stood the 
 test of time, and remains as little changed as any part of 
 their work, and as little needing change. Perhaps they 
 might have gone further in the direction of reform, but it 
 must be remembered that the changes they proposed are to 
 be viewed in the light of the time in which they lived, sixty 
 years ago, before a railroad had been laid in this hemis- 
 phere, and when the arts and appliances of modern civiliza- 
 tion were in their infancy. It has been well said that 
 ' it is the creative part of the reformer's work which 
 at once shows his skill and produces real fruit. It is the 
 sagacity to devise the scheme of amendment, it is the 
 patience to prosecute it, the caution, the conciliation, the 
 dexterity, the unwearied perseverance to carry it through 
 all difficulties to a practical consummation ; these are the
 
 38 
 
 qualities wanted for the safe and judicious reform of the 
 law." 
 
 The extra session of 1827 settled the question of the 
 acceptability of the general plan of the Revision. No step 
 backward was now to be feared. The interval between the 
 adjournment of the Legislature, December 4, 1827, and its 
 re-assembling for the regular session in January, 1828, was 
 occupied by the Revisers in preparation for the task of 
 carrying through the Legislature the more important and 
 novel portions of their work to which I have referred. 
 
 Their next step forward brought the Revisers them- 
 selves into the sphere of legislation, where, by their voices 
 and their votes they were able to aid in perfecting the 
 reforms they recommended. Mr. Spencer was elected to 
 the Legislature of 1828, as a Senator from the Seventh 
 District, and Mr. Butler as a Member of the Assembly 
 from Albany. Party politics ran high, as always in the 
 Assembly District which includes the State Capital, and 
 the local influences were adverse at the time to the oppo- 
 nents of Governor Clinton, among whom, as a member of 
 the Democratic-Republican party, Mr. Butler was classed ; 
 but it is a striking proof of the popular interest which had 
 been created in the work of the Revision, that the political 
 leaders recognized the importance of aiding the work by 
 the election of one of the Revisers. Mr. Hammond, in his 
 somewhat desultory but entertaining Political History of 
 New York, says : 
 
 "There is no doubt a majority of the electors in Albany 
 were opposed to General Jackson and his party. But I 
 presume many of the electors voted for Mr. Butler, who 
 were against Jackson, because it was known that the Re- 
 vised Statutes would be acted upon by the Assembly then 
 to be chosen, and that the services of Mr. Butler would be 
 highly benencial to the public upon that occasion. I was 
 myself warmly opposed to the Jackson party, and yet 
 voted for Mr. Butler, for the reason I have stated." 
 
 On the floor of the Senate and the Assembly of 1828, 
 the two Revisers were able to maintain and advance their
 
 39 
 
 scheme of reform with the great advantage of their thor- 
 ough knowledge of the subject and their high forensic 
 abilities. They had to meet all objections urged by mem- 
 bers of their own profession who were fellow- members 
 with them in the Legislature, and to defend themselves 
 against the charge of innovation raised here, as in England, 
 by the whole body of old-fashioned lawyers who dreaded 
 change and clung to precedent. In the Assembly Mr. 
 Butler during the regular and extra sessions, made not less 
 than five hundred or six hundred speeches on the separate 
 sections proposed, and in both Houses the result of the 
 discussions was the entire success of the Revision. 
 
 It was during the session of 1828 and on February llth 
 of that year, that DeWitt Clinton, then Governor of the 
 State, died suddenly at Albany, ending a great career and 
 leaving an enduring fame. The presence in the Assembly, 
 as a representative from the Capital, of one of the Revisers, 
 gave him the opportunity of advocating in the Legislature 
 a generous measure on behalf of the family of Governor 
 Clinton, which was all the more appreciated from the 
 fact that it was promoted by a political opponent. The 
 measure, however, failed for want of a two-thirds vote. 
 
 The session closed with the work of the Revision still 
 unfinished, and again an extra session was found necessary. 
 It was appointed for September 9, 1828. 
 
 During the recess the whole energies of the Revisers 
 were bent to the completion of the work. Mr. Duer 
 undertook the final Revision and perfecting of the trouble- 
 some first Chapter of Part II, and devoted himself ex- 
 clusively for six weeks to this delicate task. The severity 
 of the labor, the pressure of his professional duties in the 
 oince of United States District Attorney, to which he had 
 been appointed in 1827, by President Adams, and perhaps 
 the fact that their position as members of the Legislature 
 and given his associates superior facilities in the prosecu- 
 tion of the work, led to the withdrawal of Mr. Duer from 
 further active participation in it. He had no share in the
 
 40 
 
 preparation of the Third or Fourth Parts, and I gather from 
 the documents and reports that with the exception of 
 assisting in the preparation of the First Chapter of Part II 
 he did no more than to give occasional advice upon some of 
 the provisions of the succeeding chapters. 
 
 Mr. Duer's share in the work was thus, as we have seen, 
 specially in the preparation of some of the Chapters of 
 Part I, particularly those relating to Elections, the Public 
 Health and of Incorporations and on Weights and Measures, 
 and in the First Chapter of the Second Part. The other 
 Chapters of the First Part were either the exclusive work 
 of Mr. Butler or were in the first instance prepared by him 
 and submitted to Mr. Duer and to Mr. Wheaton, so long as 
 he was a member of the body, for their Revision. Mr. 
 Spencer had a share in preparing some of the Chapters of 
 the First Part, especially Chapter IX, relating to the 
 Finances of the State, and all of the Second Part except 
 Chapter I, and all the Third and Fourth Parts were the 
 joint work of himself and Mr. Butler. It is impossible to 
 state with absolute accuracy, by whom the different Chap- 
 ters of the Third and Fourth Parts were originally pre- 
 pared. 
 
 Mr. Duer having retired, the remaining Revisers divided 
 the work between themselves, and were in constant and 
 joint labor, chiefly at Albany. Each of them had held the 
 office of District Attorney, and thus were able to co- 
 operate intelligently in the preparation of the Fourth Part, 
 relating to Crimes and their Punishment, but I believe that 
 the main work in the preparation of that part, devolved on 
 Mr. Spencer, while a great portion of the Third Part relat- 
 ing to Courts of Justice, suits and proceedings, were the 
 work of his colleague. 
 
 In the notes to the Fourth Part are many interesting de- 
 tails in reference to the English Criminal Law and to those 
 statutes " written in blood," which inflicted inhuman 
 penalties for comparatively venial offences. 
 
 The radical changes made by the Revisers were a step
 
 41 
 
 forward, but not too far, in the interests of humanity as 
 well as of justice. 
 
 Some of their recommendations as to crimes and their 
 punishment were not adopted by the Legislative. Among 
 them is a proposed section, imposing upon any landlord 
 letting houses for disorderly purposes, a liability as aider 
 and abettor in the unlawful acts of the tenant, which 
 anticipated some provisions subsequently put upon the 
 statute book, as a means of resistance to the aggressions 
 of the forces arrayed against social order. 
 
 The Revisers' note which failed to impress the Legislature 
 of 1827 seems to me inspired by good sense as well as sound 
 morals. 
 
 " If there is any utility whatever in the laws against 
 disorderly houses, they should be made effectual against 
 those who afford the means of violating them. So long as 
 owners of houses shall be permitted to lease them at ex- 
 travagant rents enhanced by the fact that they are to be 
 used for the worst purposes, the laws against such viola- 
 tions of public decency will be ineffectual. * * It is 
 believed that the proposed provision will be more effectual 
 than any existing law." 
 
 The work at Albany, both before and after Mr. Duer's 
 withdrawal, was done in the office of the resident Reviser, 
 No. 109 State street. Mr. Andrew J. Colvin, one of the 
 oldest members of our Bar, and who has served the State 
 as a Senator, was at that time a student at law in the office. 
 He has given me some interesting reminiscences of the work. 
 
 He says : 
 
 " In answer to your inquiry I would say, that in the 
 Revision of the statutes a great deal of the work was done 
 by your father, and John Duer, afterwards Judge of the 
 Superior Court of New York, in the basement office of the 
 house in which you lived. There your father worked and 
 wrote, early and late, as did Mr. Duer also ; my recollec- 
 tion is that the whole revision in regard to uses and trusts 
 and powers was prepared by Mr. Duer ; then copied by me, 
 for I copied a considerable part of the Revision, and that 
 these subjects were then taken up by your father, and by 
 him revised and corrected. They were then discussed and
 
 42 
 
 further amended, and finally copied for the printer. Mr. 
 Duer wrote a shocking hand, and I could make little out 
 of his scrawlings, unless aided by him or your father. 
 
 Your father and John C. Spencer, I think, prepared the 
 entire work on practice, pleadings and criminal law. That 
 portion of it relating to the civil divisions of the State and 
 kindred subjects, such as Boards of Supervisors and Courts 
 of limited jurisdiction, was almost entirely prepared by 
 your father, if my memory is not at fault. 
 
 I was a student in your father's office for about five 
 years. 
 
 After the Revision was fully under way, your father 
 gave almost his whole time to it, and as I was with him 
 early and late, I saw a great deal of him, and learned not 
 only to respect, but to love him. He never spoke to me an 
 unkind word during the whole time I was a student with 
 him. He was one of the most amiable and excellent of 
 men, kind-hearted, gentle and tender ; and yet a man of 
 great capacity and learning, with industry irrepressible, 
 and with a patience in going to the bottom of any point or 
 matter that he was studying, which was untiring. 
 
 To me he was a model man, and since we separated, I 
 do not think a day has passed in which I have not thought 
 of him, and blessed God that the tender, forming years of 
 my life were brought within the influences of his noble pre- 
 cepts and example." 
 
 The extra session of 1828 convened September 9, 1828, 
 and terminated December 10, 1828. Like the former extra 
 session, it was devoted exclusively to the consideration of 
 the Revision, and the presence of the Revisers, made the 
 work thorough and satisfactory. 
 
 In one important particular, the Revisers received most 
 important aid from the Legislature, who, as will be seen, 
 had been educated to a point of reform, at which they took 
 an advance step beyond the proposals of the Revisers and 
 became wiser than their teachers. 
 
 In no department of the law did fiction hold more 
 undisputed sway than, in suits between contesting claim- 
 ants to land. 
 
 By the common law, laud could pass only by actual
 
 43 
 
 change of seisin and possession on the soil. Every 
 transfer of land was required to be open and notorious. 
 
 To avoid the inconvenience which this arbitrary rule 
 created, instead of resorting to the power of Parliament 
 to enact a simple mode of land transfers and of determin- 
 ing disputes about land, the lawyers and judges invented, 
 in the action of ejectment, the most intricate and complex 
 of all the fictions in which the genius of the common law 
 delights. 
 
 Sergeant Warren, in "Ten Thousand a Year," has 
 given a graphic description of this form of action, which 
 he says dates from the close of Edward II. or beginning of 
 Edward III. (A. D. 1327). He explains how it is that when 
 one honest Briton claims a parcel of land of which another 
 honest Briton is in possession, instead of the two parties 
 impleading each other, as in any other action to recover 
 money or property, they are obliged to set up a couple of 
 puppets, John Doe and Richard Roe by name, who fall upon 
 one another in a very quaint fashion, after the manner of 
 Punch and Judy. John Doe pretends to be the real plain- 
 tiff, and Richard Roe the real defendant. John Doe says 
 that the land which Richard Roe has is his, because one 
 Jones gave him a lease of it, and that he came on the 
 premises where he was met by Richard Roe, who ousted 
 him and thus became what was termed in the lingo of the 
 law the " casual ejector." 
 
 The attorney for John Doe, the fictitious plaintiff, an- 
 nexed to his declaration a notice from Richard Roe, the 
 " casual ejector," to the party really in possesion, notifying 
 him to appear within a limited time and defend the suit, or 
 in default of such appearance judgment will go against the 
 casual ejector and the real tenant be turned out of posses- 
 sion. Thereupon the real tenant comes into Court by his 
 attorney and admits as true the whole fictitious narrative 
 of the declaration, denying only the superior title of the 
 real claimant. *' 
 
 When the question of fact was thus in a condition to be 
 tried, the whole frame work of fiction disappeared, having
 
 44 
 
 served its turn to bring the parties into Court. All this, as 
 the little Marchioness in " Old Curiosity Shop " would say, 
 "was making believe very much," but it was a clumsy sort 
 of contrivance which suited the Anglo-Saxon temperament, 
 and which was enshrined as carefully in the Common Law 
 system of the State of New York, as if it had been the 
 corner-stone of the whole fabric. 
 
 This rubbish of fiction, the Revisers proposed utterly to 
 abolish and destroy. They say in their report on this 
 subject, that they had received many applications to do 
 away with these absurd methods, and they took the initia- 
 tive in discarding this particular absurdity. But in respect 
 to another and older method of asserting right to land and 
 compelling a trial of the title, known as " Fine and Recov- 
 ery," dating back beyond the Conquest and adopted in this 
 State from its earliest settlement, they seem to have thought 
 it too deeply rooted in the soil of real estate tenures to war- 
 rant its disturbance, and so they only proposed to modify it. 
 
 A "fine" meant in the jargon of the ancient law not, as 
 now understood, a penalty, but a feoifment (i. e. a deed) 
 upon record, so called because it put an end (finis) to liti- 
 gation : and what was called " levying a fine " was a formal 
 proceeding by which a person claiming title to land took 
 visible possession of it under his claim, made proclamation 
 in open court at four successive terms, advertised in an 
 official paper for a certain time, posted a notice on the 
 Court House door, and placed a deed to somebody on record, 
 which being done, unless the party in possession brought 
 an action within five years after the fine was so levied, his 
 title was barred. 
 
 The Revisers retained this ancient mode of procedure 
 with various simplifications, but also reported several en- 
 tirely new provisions which were so framed, that they 
 might be taken as substitutes for fines and common recov- 
 eries. When these titles were taken up in the Assembly, 
 that body not only approved the views of the Revisers in 
 general, but carried them to a still greater extent, and on 
 September 18, 1828, passed a resolution directing the Re-
 
 45 
 
 visers to report the titles so as to abolish fines and recover- 
 ies, to simplify the action of ejectment and other proceed- 
 ings to compel the determination of claims to real property, 
 and, upon this being done, the Legislature adopted them, 
 and by section 24 of Title 7 of Chapter 4 of Part III of the 
 Revised Statutes it was declared "that all writs of rights, 
 writs of dower, writs of entry and writs of assize, all fines 
 and common recoveries, and all other real actions known to 
 the Common Law, not enumerated and retained in this chap- 
 ter ; and all writs and other process heretofore used in real 
 action, which are not specially retained in this chapter, 
 shall be and they are hereby abolished." 
 
 And thus it came to pass that lines and recoveries, as the 
 Court of Appeals say in McGregor vs. Comstock, 17 N. Y., 
 162, were "with other antiquities abolished and a simpler 
 system substituted." 
 
 It was not until three years later, and after the Revised 
 Statutes had gone into full operation and shown the action 
 of ejectment stripped of its feudal trappings, that England, 
 following the lead of New York, enacted by 3 and 4 Wil- 
 liam IV., c. 74, that no fine or recovery should be levied or 
 suffered after December 31, 1833. But in respect to the 
 action of ejectment the good example of New York bore no 
 fruit in the native soil of John Doe and Richard Roe, until 
 the fifteenth year of Queen Victoria, when by the Practice 
 Act of 1853 they were legislated out of existence as parties 
 in ejectment. 
 
 The extra Session of 1828 ended December 10, having 
 occupied ninety-one days, during which the Legislature 
 and the Revisers accomplished the design of completing 
 their joint work before the end of the year. The entire 
 body of the Revised Statutes was adopted December 10, 
 1828. Those portions which had been enacted at previous 
 sessions and which had already taken effect and gone into 
 operation, consisting of Chapers VI, VIII, IX, X, XIII 
 and XIV, Title II of Chapters XV, and Chapters XVI and 
 XVIII of Part First, which took effect January 1, 1828, and
 
 46 
 
 Chapter XVII of Part First, which took effect May 1, 1828, 
 were declared to have taken effect at those dates respect- 
 ively, and the remaining chapters were directed " to com- 
 mence and take effect as laws on the first day of January, 
 1830." The publication of the entire Revised Statutes in 
 three volumes was committed by the Legislature to the 
 Revisers with very ample powers of alteration to conform 
 the statutes to any changes which might be made by the 
 Legislature after their passage and before the final publica- 
 tion. They were authorized to certify, by any two of their 
 number, to the correctness of the printed statutes. 
 
 The original text of the entire Revised Statutes, supple- 
 mented by the Act of December 10, 1828, above referred to, 
 is contained in a folio volume printed for the Legislature of 
 1828, by Packard & Van Benthuysen. It is a noble specimen 
 of the typographical art, almost rivalling the famous classics 
 of Baskerville. A few copies are extant. One of them, a 
 gift of our learned associate, Judge Edmonds, is in the 
 library of the Association. 
 
 The several volumes were issued as soon as completed ; 
 the official certificate prefixed to the first volume bears 
 date January 31, 1829, that prefixed to the second volume, 
 June 5, 1829, and that prefixed to the third volume, Sep- 
 tember 10, 1830. 
 
 The whole work of preparing the three volumes of the 
 Revised Statutes for publication with the marginal 
 notes and references, and the index, which, as originally 
 published, was a model of accuracy and completeness, 
 was done by Mr. Butler and Mr. Spencer. It involved 
 immense labor, and the closest application, as they were 
 under an absolute responsibility for accuracy to the Legisla- 
 ture and the public, and well knew that the whole profession 
 would scrutinize the work with jealous care. The untiring 
 and indefatigable industry of Mr. Spencer in scrutinizing 
 every line and word and letter of the text and of the index 
 is shown by his many letters, which are marvels of neat- 
 ness, precision and exactitude, alike in their delicate chir- 
 ography and in their minuteness and of detail. A corres-
 
 47 
 
 ponding fidelity in regard to every item of the compli- 
 cated work was shown by his colleague. 
 
 The copyright of the Revised Statutes was the property 
 of the State of New York, and was taken out in the name 
 of Azariah C. Flagg, Secretary of State, in trust, for the 
 benefit of the People of the State of New York. 
 
 This applied, however, only to the first edition, the sub- 
 sequent editions, including the second and third, which 
 were published by the Revisers, were private undertakings, 
 an Act of the Legislature, passed in 1830, having provided 
 that any person might publish the Revised Statutes, and 
 that the work so published might be read in evidence if 
 accompanied with a certificate of the Secretary of State, or 
 two of the Revisers, but all editions are required to be 
 paged in conformity to the first edition. 
 
 To judges and lawyers unaccustomed to Codes, the ap- 
 pearance of the Revised Statutes was an event of the first 
 magnitude. 
 
 It came upon the profession at a time when the earlier 
 agitation of questions of reform in England had demon- 
 strated the need of change and improvement, without in- 
 troducing any new methods to supersede old abuses. 
 
 The fact that a whole system, embracing almost all the 
 projected reforms about which English jurists were debat- 
 ing, had come into being, with the absolute force of law, 
 was almost a surprise, notwithstanding the years of prepar- 
 atory work during which it had been carried on. 
 
 The Revisers had done their part in creating a sound 
 public opinion in favor of their work, by publishing 
 in advance the main portions of the new Statutes. Mr. 
 Spencer, with his accustomed industry, had in a series of 
 articles in the Ontario Messenger, the local journal of his 
 district, given an outline of the proposed changes in the 
 Statutes, and by this and other publications, the profession 
 had been advised'bf the leading features of the work. 
 
 In the main the judges and the lawyers accepted the 
 new system with favor. But, as always, when changes are
 
 48 
 
 inaugurated, some doubted. Judge Roosevelt, to whom I 
 have already ref erred, told me that the old lawyers would 
 not examine the new Statutes with sufficient care to note 
 the alterations they made, and most of them took counsel 
 of their prejudices. As an instance, he related an incident, 
 which I give, in substance, in his own words. An old citizen 
 of New York, named Boardman, who lived on Broadway, 
 next door but one above Park Place, by his last will and tes- 
 tament devised certain real estate to a son, giving him 
 an estate for life with remainder to his heirs. The will was 
 made before the Revised Statutes took effect ; the testator 
 died after they took effect ; the devisee submitted the will 
 to Peter A. Jay for his opinion as to the estate devised. 
 
 Meeting Mr. Jay, and knowing that the will had been 
 submitted to him, Roosevelt asked him if he had given his 
 opinion. " Yes," said he. "And did you give an opinion 
 that the son took an estate in fee ?" " Certainly ; why not, 
 under the rule in Shelley's case f "But," said Roose- 
 velt, "the Revised Statutes have changed all that, and 
 abolished the rule in Shelley's case." "What have the 
 Revised Statutes got to do with a will made before they 
 took effect?" was Mr. Jay's rejoinder, to which Roosevelt 
 said : "If you will look at Section Twenty-eight of the 
 first Chapter of Part Two, you will see that it applies to 
 this will." Mr. Jay went and looked, and found a plain 
 provision changing the English judicial rule of construc- 
 tion, which had been in force ever since the twenty-first 
 year of the reign of Queen Elizabeth. 
 
 Shelley's case grew out of a family quarrel over an in- 
 heritance in which Queen Elizabeth so far intermeddled in 
 her capacity of the " Fountain of all Justice and Life of 
 the Law," as Lord Coke describes her, on the pretext of 
 preventing, as he further says, "long, tedious and charge- 
 able suits between parties near in blood and gentlemen of 
 good and ancient family," as to summon all the Justices 
 of England of the Courts of Queens Bench and the Com- 
 mon Pleas and the Barons of the Exchequer to resolve the 
 question in dispute. This was, simply, whether the estate
 
 49 
 
 in certain lands of Edward Shelley, the common ancestor, 
 and his wife Joan, vested in them with remainder limited 
 to their heirs, was a life estate or a fee. One branch of the 
 Shelley family claimed under a deed made by Edward 
 Shelley after his wife's death, and the other branch claimed 
 by descent from the same Edward, whose deed they sought 
 to avoid because, as they claimed, he took only a life 
 estate. 
 
 After argument and reargument, judgment was finally 
 given, that Edward Shelley and his wife, Joan, took an 
 estate in fee, and the rule which thus passed into the juris- 
 prudence of England as the rule in Shelley's case, deter- 
 mined that, however contrary to the intent of the person 
 creating the estate, a grantee or devisee takes the fee even 
 when given with an express limitation in favor of his 
 heirs. 
 
 This rule operated very often to defeat the intention of 
 grantors and testators, not by a statute, but by a, technical 
 judge-made rule turning on the particular word, " heirs." 
 For if the grant were to a grantee for life, with remainder 
 to his issue, the remainder was good, and he took only a 
 life estate, but if the unlucky testator or grantor, or his 
 conveyancer, used the word "heirs," instead of "issue," 
 he gave a fee. Again, the rule might be evaded by giving 
 an estate for years to the first taker. Thus it was founded 
 on no reason possibly applicable in this State, and yet it 
 had been slavishly followed by our Courts as an integral 
 part of the English Common Law of real property, until 
 swept away by the section to which Mr. Jay was referred 
 by Judge Roosevelt. 
 
 It still remains in full force in England, and is there 
 claimed to be binding as a rule of law not dependent on 
 the construction of the grant or will nor the intent of the 
 grantor or testator. 
 
 Although the end had thus happily crowned the work, 
 it had not been unattended by the anxieties and discour-
 
 60 
 
 agements which never fail to visit the path of earnest toil- 
 ers in unaccustomed fields. The sense of responsibility, 
 the dread of failure, the keen apprehension of unjust criti- 
 cism, and above all, the fear of coming short of the mark 
 which they had themselves set as the standard of a true 
 performance, gave many anxious and foreboding hours to 
 the Revisers, whose disquieting thoughts are expressed in 
 the correspondence, often revealing the deep despondency 
 and anxiety which overclouded all their anticipations of 
 success. 
 
 Time would fail me to point out, in detail, the many im- 
 provements in our law which owe their origin wholly to the 
 work of the Revisers. 
 
 Enough has been said to illustrate its general method, 
 and to indicate with what caution and wisdom the plan of 
 reproducing whatever in the law of England could be 
 simplified and made to accord with our needs was so pur- 
 sued as to leaven the old lump of feudalism with the new 
 leaven of democracy. 
 
 The Revisers seem to have had in mind, and to have 
 kept in mind, the wise injunction of Burke, that 4l when the 
 useful parts of an old establishment are kept, and what is 
 superseded is fitted to what is retained, a vigorous mind, 
 steady persevering attention, various powers of compari- 
 son and combination, and the resources of an understand- 
 ing fruitful in expedients, are to be exercised." 
 
 With the exception of the Bill of Rights, every section 
 of the entire work was substantially original in the form in 
 which it appears in the Revised Statutes, and it may be 
 claimed for the Revisers that while Blackstone in his Com- 
 mentaries had presented the great body of the unwritten 
 law of England as an orderly system for the student, and 
 as a guide in the administration of justice, they first gave 
 it form and reality as the supreme rule for every function 
 of the governing power. 
 
 No better summary of the plan and the performance of 
 their work, has been given than that contained in the ad- 
 dress of William Kent, son of the Chancellor, and for some
 
 61 
 
 time a Judge of the Circuit, in this city, in his address at 
 the meeting of the Bar, in memory of his lifelong friend 
 the last survivor of the three co-workers. 
 
 Speaking of the Revised Statutes, Judge Kent said : 
 "You, Mr. Chairman, remember, as I do, the reluctance 
 and apprehension with which those laws were received. All 
 changes in a nation's laws unavoidably produce inconven- 
 ience, and familiarity and study are necessary to produce 
 a general acknowledgment of their benefit. This acknowl- 
 edgment the Revised Statutes have now received from even 
 the seniors of the profession. The principle of the revision 
 was wise and conservative. Acknowledged evils only were 
 removed ; doubts were cleared away ; the doctrines of im- 
 portant decisions were extended ; anomalies were sup- 
 pressed or reconciled ; but still the essence of the old laws 
 was preserved, and even the habits of the lawyers were 
 wisely respected. The peculiarity of the common law it- 
 self appears to have been the guiding rule of the Revisers, 
 and the Statutes were formed, not on the model of an inex- 
 orable and abstract system, but in accordance with the cus- 
 toms and wants of the profession and the nation. This 
 code was not the direct and arbitrary statute, going straight 
 to its object, like the cannon ball, shattering what it reaches 
 and shattering that it may reach, but resembled the vil- 
 lage road described in the beautiful lines in Wallenstein : 
 
 ' The road the human being travels, 
 
 That on which Blessing comes and goes, doth follow 
 The river's course, the valley's playful windings, 
 
 Curves round the cornfield and the hill of vines, 
 Honoring the holy bounds of property.' 
 
 I may be permitted to add what follows : 
 
 "I am not able to make partition of merit among the 
 three distinguished men who performed this great legal 
 work. We know that some of the most important chapters 
 were the production of him (Judge Duer), whose exuberant 
 learning and talents received recently a touching and elo- 
 quent eulogy from Mr. Butler himself, in this vicinity. 
 All who know the hardy genius and indomitable energy of 
 John C. Spencer, will readily believe that his spirit per- 
 vaded the whole work. But judging only from internal 
 evidence, I cannot avoid believing that much of the essen- 
 tial excellence of the Revised Statutes, and more of the 
 labor which adapted them to our general system of juris-
 
 52 
 
 prudence, the plan and order of the work, the correctness 
 of its style, the learning of the notes, the marginal refer- 
 ences, and the admirable index which accompanied it, 
 should be ascribed to the lima labor, the patient touches 
 of unwearied art, bestowed by the skill and matchless assi- 
 duity of Mr. Butler. 
 
 Side by side with this tribute let me place another 
 which has come to me, and in which one of our ablest 
 and most experienced jurists, speaking thirty years later 
 than Judge Kent, gives testimony equally clear and em- 
 phatic as to the work and its authors. 
 
 WASHINGTON, Jan. 17th, 1889. 
 WM. ALLEN BUTLEK, Esq., 
 
 Dear Sir. I regret not to be able to attend the presenta- 
 tion of the portraits of John Duer, Benjamin F. Butler and 
 John C. Spencer to the Bar Association of New York City, 
 on the 22d instant. I have always had the highest admi- 
 ration for those able and accomplished jurists, and owe 
 them personally a large debt of gratitude. In 1828, in 
 December, there was a Special Session of the Legislature 
 for considering the amendments which had been proposed 
 to the Revised Statutes. Mr. Spencer had been elected a 
 member of the Senate for the special purpose of explaining 
 these amendments and carrying them through. I resided 
 at that time in my native place, Bern, Albany County, but 
 happened to be spending some weeks in Albany whilst the 
 Legislature was sitting, and attended every day in the gal- 
 lery to hear the lucid and luminous explanations which 
 Mr. Spencer gave to the various laws. His fluent and ac- 
 curate speech, and far reaching views made a deep impres- 
 sion upon me and gave me the first stimulus in the direction 
 of legal studies. The work accomplished by the Revisers 
 was not only one of great utility in bringing together and 
 harmonizing the various statutes relating to the same sub- 
 ject, over the whole field of statute law, but it exhibited an 
 analytical symmetry and beauty . which are themselves 
 worthy of every student's attention. No better analysis 
 can be framed of the municipal law of a State than that 
 which forms the basis of the Revised Statutes of New York. 
 They are in this, as well as in other respects, worthy to 
 stand by the side of the Revised Statutes of Rome, made
 
 53 
 
 under the auspices of Justitian and usually called the 
 Codex or Code, though having no resemblance to what is 
 understood, in modern times, as a Code. 
 
 I never had any personal acquaintance with Mr. Spencer, 
 and only knew him as the expounder of the Revised Stat- 
 utes. With the other Revisers, it was my good fortune to 
 have some personal intercourse, which I highly valued. I 
 had the honor to be associated with your father (Mr. But- 
 ler), in 1855, in my first argument before the Supreme Court 
 of the United States, in the great case of Murray's Lessee 
 vs. Hoboken Land and Improvement Company, in which 
 the question of due process of law was discussed. Mr. But- 
 ler, of coarse, took the lead and argued the Constitutional 
 question, and argued it with wonderful learning and ability. 
 1 can never forget the kindness and considerate attention 
 which I received from him during our conferences on the 
 case. His wealth of learning and the freedom with which 
 he imparted his views to one so much younger than himself 
 won my sincerest regard. Judge Duer I often met at the 
 house of my brother-in-law, Judge Woodruff, his associate 
 on the Bench of the Superior Court. His learning in the 
 law, his various acquirements, his rich discourse and charm 
 of manner, can never be forgotten by those who have had 
 the opportunity of social intercourse with him. 
 
 I cannot resist the desire of paying my feeble tribute to 
 the memory of those great men. 
 
 Sincerely yours, 
 
 JOSEPH P. BRADLEY. 
 
 At the time the Revised Statutes, as an active system, 
 went into operation, January 1, 1830, the Supreme Court 
 was composed of Chief Justice Savage and Judges Suther- 
 land and Marcy. The Judges of the eight Circuits were, 
 most of them, men of exceptional ability, whose names 
 are familiar to us Ogden Edwards, James Emott the 
 elder, James Vanderpoel, Esek Cowen, Nathan Williams, 
 Samuel Nelson, Daniel Moseley and Addison Gardiner. 
 Greene C. Bronson was Attorney-General of the State. 
 
 The first mention of the Revised Statutes in the Reports 
 is in the case of Watts vs. the Public Administrator, 4 
 Wendell, 168, involving the validity of the will of John G. 
 Leake, a wealthy bachelor and recluse in the city of 
 New York, and a member of the legal profession, who
 
 54 
 
 died in June, 1820, leaving no relatives. A will, in his own 
 handwriting, without date, unsigned and not attested, was 
 found at the bottom of an iron chest. It gave the bulk of 
 his estate to Robert Watts, a son of his friend John Watts, 
 on condition of changing his name to Leake ; in case of 
 his refusal to comply with the condition, or of his dying 
 without issue, the estate was to vest in trustees for the 
 maintenance of an orphan asylum. 
 
 This will was void as to the testator's real estate, situ- 
 ated in several interior counties, which escheated to the 
 State, but it was admitted to probate by the Surrogate of 
 New York as a will of personal property. 
 
 Chancellor Walworth, on appeal, reversed the Surro- 
 gate's decree and ordered letters of administrations to issue 
 to the Public Administrator (1 Paige, 383). The Court of 
 Errors, in turn, reversed the Chancellor by a vote of 
 seventeen to nine (4 Wendell, 168). 
 
 In the meantime the Revisers had taken up the subject 
 of wills of personal property, and finding, as they say in 
 their notes, that " the law and practice of the Ecclesiastical 
 Courts have, until a recent period, been hidden mysteries," 
 they placed the execution of wills of real and personal prop- 
 erty under the same rule and prescribed a like mode of 
 execution and attestation for both. 
 
 England followed this reform by the Statute of Victoria, 
 which took effect in 1838. 
 
 When the Leake will case came to the Court of Errors, 
 where, as appears from the original printed brief for the 
 appellants, in my possession, the counsel were John V. 
 Henry, Peter A. Jay and Benjamin F. Butler, opposed by 
 I. Platt and David B. Ogden, the new provisions of the 
 Revised Statutes were in force, and the Reporter contents 
 himself with saying that "although the case was argued 
 by the counsel with more than usual ability, and the 
 opinions of the Judges evince the fullest consideration of 
 the principles of law applicable to the subject, still the 
 Revised Statutes of this State which went into operation 
 on the 1st January, 1830, having placed wills of personal
 
 property on the same footing with wills of real estate, this 
 case and the decision of it have become more a matter of 
 curious interest, than of practical use." 
 
 The result of the Leake will case was that on the death 
 of Robert Watts, without issue, his father, who was his 
 sole next-of-kin, generously relinquished all right to the 
 estate, and the personal property was applied to the creation 
 of the Leake and Watts Orphan Asylum, a most beneficent 
 institution, which for many years has occupied the com- 
 manding site recently purchased for the proposed cathedral 
 of the Protestant Episcopal Church, the Orphan House 
 trustees having selected a more remote suburban property. 
 
 The State of New York retains in its Common School 
 fund a sum of at least one hundred thousand dollars, the 
 proceeds of the testator's real estate, as an escheat, one of 
 the grounds on which the Legislature has refused repeated 
 applications for its release in aid of the charity for which 
 it was intended, being that, as Leake was a lawyer, he 
 ought to have known better than to make a void will, thus 
 visiting this sin of a childless testator upon the orphans 
 of other fathers for untold generations. 
 
 The first reported case in which the provisions of the 
 Revised Statutes are cited and applied is Curtis vs. Staring, 
 4 Wendell, 198, a question of practice as to the review 
 of a decision by referees. During the same term the new 
 regulations were frequently enforced. 
 
 The earliest case of prominent importance involving a 
 construction of provisions of the Revised Statutes introduc- 
 ing radical changes in the law, arose in 1835 in the well 
 known and leading case of Lorillard vs. Coster (5th Wen- 
 dell, 172, 14 Id., 265.) 
 
 George Lorillard died in September, 1832, a bachelor, 
 possessed of an estate valued at about $3,000,000, most of 
 which was real property in the city of New York, the 
 annual income -being at the time of his death between 
 $80,000 and $100,000. By his will made in October, 1831, 
 after the Revised Statutes had gone into effect, he gave the
 
 56 
 
 bulk of his property to his executors, as trustees, for the 
 benefit of twelve nephews and nieces, who were to enjoy 
 the income, and at the expiration of two years after the 
 death of all of them, the estate was to be divided equally 
 among all their children and grandchildren per stirpes. 
 The provisions of the will as to the trust thus created, set 
 in motion a protracted controversy as to the intent and 
 effect of the new provisions of the Revised Statutes, in 
 reference to the power of the owners of estates to fetter 
 their alienation and suspend their ownership, and also the 
 provisions by which the statutes sought to reach a modified 
 abolition of uses and trusts. 
 
 In this litigation the parties in interest sought the pro- 
 fessional services of the Revisers themselves, all of whom 
 were retained in the cause and took part, on different sides, 
 in the argument. The report of the case in the Court of 
 last resort contains, in the opinions of Chief Justice Savage, 
 Judge Nelson and Senators Mason, Young and Tracy, a 
 splendid encomium on the work of the Revisers in this 
 department of the law. The Court unanimously held that 
 the attempted suspension of the alienation of the trust 
 estate during a period of twelve lives, was wholly void as 
 against the provisions of the Revised Statutes, and estab- 
 lished the principle which has since been invariably applied, 
 that every testamentary disposition since the Revision took 
 effect must be tested by these provisions. Chief Justice 
 Savage, in the course of his opinion, says : 
 
 "It is known to us all, that preparatory to the late Re- 
 vision of the statutes, the work of revising, analyzing, col- 
 lating, composing, and, if there were such a word, codifying, 
 and presenting to the Legislature in a new form the statutes 
 of the State, was committed to three gentlemen, distin- 
 guished for their legal learning, their ability and their in- 
 dustry. The result of their labors is before us in their re- 
 port to the Legislature. Whenever their recommendations 
 have been adopted by the Legislature, and their notes have 
 declared the object in view in plain language, free from all 
 technicality, we may safely pursue that object, and in the 
 path pointed out." 
 
 He then reviews the observations of the Revisers in their
 
 57 
 
 notes npon the sections applicable to the case, and declares 
 that in their effort " to extricate this branch of the law 
 from the perplexity and obscurity in which it was before 
 involved, they have certainly succeeded to a very great ex- 
 tent if not entirely." 
 
 As to uses, trusts and powers characterized by the Re- 
 visers as probably the most intricate department in all our 
 jurisprudence, the Chief Justice approves their course when, 
 as he says : 
 
 "Instead of endeavoring to unravel the mysteries of uses 
 and trusts, or to cast light into the numerous dark and 
 winding passages of the labyrinth of powers, they de- 
 molished the whole. The learned antiquarian will pause 
 and ponder over this vast pile of ruins ; venerable, at 
 least, for their antiquity, the erection of which occupied 
 centuries and put in requisition the labors of kings, eccle- 
 siastics and laymen. Upon these ruins have been erected 
 new edifices a new system of uses and trusts, apparently 
 plain and intelligible, and adapted to the real wants of so- 
 ciety ; but whether it is so in reality is yet to be proved. 
 Instead of the labyrinth of powers, we have a new building 
 of modern architecture, through which I hope we may pass 
 with safety, with such clue as the Revisers have furnished." 
 
 Senator Young, after commenting upon the sections in 
 question, says : 
 
 " The language of these several sections tend to one 
 simple object the entire abrogation, the utter repeal of all 
 Common Law tenures, with all their complicated incidents 
 and appurtenances ; and the substitution in their stead of 
 a new tenure, and new trusts, uses and powers adapted to 
 the simplicity of our institutions. The constitution of this 
 State authorizes the abrogation of the Common Law ; and 
 unless this ancient, complicated and barbarous system exer- 
 cises a power and a thraldom over us, superior to the con- 
 stitution and laws, it is entirely abrogated in relation to the 
 tenure, the acquisition, the enjoyment and the transmission 
 of property, both real and personal. * * But if 
 
 we are not yet emancipated, if we are still afloat on the 
 fathomless abyss of metaphysical subtleties ; if we must 
 steer our devious track among springing and secondary 
 uses, resulting trusts, executory devises and cross remain- 
 ders ; if the statute is subordinate only, and must be sub- 
 jected to the ordeal, to the red hot ploughshares of the
 
 58 
 
 Common Law, we are then in a situation infinitely worse 
 than before the Revision. For if the statute is to be con- 
 strued as in any way subordinate to the old system, there 
 will then be a double conflict of technicalities, the Statute 
 warring against the Common Law, and the Common Law 
 against the Statute ; confusion will be worse confounded ; 
 and every cause involving principles like the present will 
 be an insoluble enigma." 
 
 The determination of the Court of Errors to maintain 
 in its integrity the new system originated by the Revised 
 Statutes in reference to testamentary trusts and the aliena- 
 tion of estates was soon again exhibited in the decision 
 upon the will of William James, of Albany, in the famous 
 case of Hawley vs. James, reported in 5 Wendell, 317, and 
 16 Wendell, 61. 
 
 Here, as in the case of Lorillard's will, the decree of 
 Chancellor Walworth, upholding the will in respect to 
 its general scheme, was reversed and the main trusts 
 declared void, as in violation of the Revised Statutes. 
 Two of the Revisers, Mr. Butler and Mr. Spencer, were 
 among the counsel in this case, and the opinions of the 
 members of the Court are strong and clear in their declara- 
 tions of an intent to give effect to the statutes controlling 
 the case, wholly irrespective of antecedent rules or ideas. 
 
 Judge Bronson says : 
 
 " To give effect to the statute in the spirit in which it 
 was enacted, we must, as far as practicable, eradicate 
 from our minds all that we have learned in relation to the 
 doctrine of trusts as they existed before the late Revision. 
 
 * * * We may resort to the Common Law for definition 
 and rules of construction, where the statute itself is de- 
 ficient. But in attempting to ascertain whether any par- 
 ticular trust can now be created, we cannot resort to the 
 Common Law, for the obvious reason that this light has 
 been extinguished by the Legislature." 
 
 This wise and decisive action of the highest Court of 
 the State gave the best assurance that the work of the Revis- 
 ion was a real reform which in all its essential features 
 was to be permanent and perpetual.
 
 59 
 
 It was accepted in the United States and in England as 
 an expression and embodiment of the vital principles of the 
 Common Law, practically afaapted.to the administration of 
 a free government. It became the model of the Statutory 
 system of other States and the pattern after which their 
 laws were, in a large measure, modelled. 
 
 In the entertaining volume lately published by Walter 
 Besant, entitled " Fifty Years Ago," the concluding chapter 
 on "Law and Justice," prepared, as stated in the preface, 
 by Mr. W. Morris Colles, of the Inner Temple, a graphic 
 summary is given of the vast changes in the law of Eng- 
 land during the Victorian half century. The era of legal 
 reform he dates from the accession of the Queen, during 
 whose reign of fifty years the whole fabric of judicial pro- 
 cedure has been reconstructed and many radical changes 
 made in every department of the law. In 1837, when she 
 came to the throne, there were nearly a thousand causes 
 waiting to be heard in the Court of Chancery. In the sec- 
 ond year of her reign nearly four thousand persons were 
 arrested for debt in London alone, and of these nearly four 
 hundred remained permanently in prison. The barbarism 
 of the criminal law had been only partially mitigated. 
 Practically nothing had been done to carry into effect the 
 recommendations of the Parliamentary Law Reform Com- 
 mission of 1826. 
 
 The Revised Statutes thus preceded by seven years the 
 beginning of the reforms by which the administration of 
 the law of Great Britain has been made to conform to the 
 advance of civilization in other paths of progress. 
 
 The work was thus a guiding and controlling power in 
 all the later movements of reform in the law. 
 
 In the State of New York it was the decisive step which 
 kept her in the forefront of the jurisprudence of the 
 nation, her place by right, to be maintained in the future, as 
 in the past, by an honest and able Bar and a faithful and 
 fearless Judiciary. 
 
 The many additions which have necessarily been 
 engrafted upon the Revised Statutes in the course of the
 
 60 
 
 three score years of amazing progress and development, 
 contained in the seven successive editions through which 
 they have passed since their enactment have not changed 
 the integrity of the original plan, or weakened in any 
 essential part, the main structure. 
 
 The compensation paid by the State to the Revisers in 
 addition to the sum of one thousand dollars'voted to General 
 Root on his retirement from the Commission was as follows : 
 Mr. Wheaton received one thousand dollars, Mr. Duer 
 and Mr. Spencer, each four thousand five hundred dollars. 
 Mr. Butler, the only one of the persons originally appointed 
 who continued to the end of the work received, owing to 
 this circumstance, the larger sum of six thousand five 
 hundred dollars ; a special compensation was allowed the 
 two last named Revisers for preparing the table of contents, 
 marginal notes and index, and superintending the publica- 
 tion of the whole work, in the sum of $1,000 each, and 
 afterwards, for some special services, a further sum of $100 
 each was allowed. 
 
 If their task had been undertaken for its emoluments 
 these would have been wholly inadequate, but the real 
 reward came in the sense of the worthy performance 
 of a momentous public trust and in the assured profes- 
 sional eminence accorded, and without any undue discrimi- 
 nation, to all of them. 
 
 From the work of these important years the Revisers 
 advanced in maturer life to new honors in the profes- 
 sion and to high posts in the public service, State and 
 National. 
 
 Their respective subsequent careers will be traced in the 
 brief biographical sketches supplementing this narrative of 
 the work of the revision, as a kind of Postea to the record 
 now made up. 
 
 It is enough to say here that if the sole work of their 
 lives had been that which we have now recalled, it would 
 suffice to command our admiration and gratitude. 
 
 We may fitly apply to these associates in labors into
 
 61 
 
 which the later toilers in the same fields, and we, in our 
 own professional walks, have all entered, the weighty 
 aphorism of Lord Bacon : 
 
 " If heaps on heaps of laws have swelled into so many 
 volumes, or labor under such confusion, that it becomes 
 necessary to reduce them into a healthy and active body, 
 let this be a permanent concern ; let it be considered an 
 heroic work ; and the authors of such a work should be 
 solemnly and deservedly remembered among the legisla- 
 tors, among the founders of society." 
 
 IN tracing the careers of the Revisers subsequent to the 
 completion of their joint labors, I may be permitted to 
 sketch briefly those of Chief Justice Duerand Mr. Spencer, 
 and to reserve that of their associate for a final and fuller 
 narrative. 
 
 The reasons for greater minuteness of detail in the con- 
 cluding sketch will doubtless be as obvious to the reader as 
 they are obligatory on my sense of duty. If further justifi- 
 cation is needed, it may be found in the fact, already ad- 
 verted to, that he was the sole member of the Commission 
 who continued in it from its original creation in 1824 to the 
 close of its labors in 1830, and who, from his residence dur- 
 ing the entire period at the State capital, was most actively 
 identified with the progress and consummation of the work. 
 
 In the case of his associates the materials for biography 
 at my command are scanty, while the papers and correspond- 
 ence of my father touch at many points not only personal 
 but public affairs of great moment at the time to which they 
 belong and of some historic value, and there is much in my 
 personal recollections to aid in a portrayal of his character. 
 Extended biographical details are, however, excluded by the 
 plan of these commemorative sketches which are intended 
 mainly to perpetuate whatever of interest attaches to their 
 subjects in connection with their labors in the Revision and 
 their services in later life to the State and Nation.
 
 62 
 
 JOHN DUEE, who, as we have seen, retired from the 
 Commission before the completion of its labors, continued 
 to discharge the duties of his office of United States District 
 Attorney until the change of administration in 1828, when 
 he resumed his private practice in the city of New York. 
 
 The versatility of his mind and his love of legal investiga- 
 tion led him to plan and execute, but only in part, an ex- 
 tended work on the law of Marine Insurance, a favorite sub- 
 ject of his study, with which his practice of commercial law 
 had made him specially familiar. 
 
 The student of our earlier reports cannot fail to be 
 struck with the number and importance of the cases argued 
 and decided in the Supreme Court and the Court of Errors, 
 during the time of those reports, involving questions of 
 marine insurance. The leaders of the Bar of this city 
 were masters of this branch of the law, which the 
 growth of American commerce and the many complications 
 arising out of the wars of Europe and our own later 
 hostilities with Great Britain brought into operation 
 in constantly occurring controversies. Mr. Duer's work 
 was undertaken with the intention of covering, in three 
 volumes, the entire subject of marine insurance ; the first 
 two volumes were published, successively, in 1845 and 
 1846. They were full of learning and ability, and were 
 well received by the profession. For the full success of 
 the work it was necessary that it should be completed, 
 but the task of completion was never accomplished. An 
 effort was made in 1848, by his warm friend and associate 
 in the Revision, to ensure the preparation of the third 
 volume by providing, in advance of its publication, 
 a handsome return for the labor of completing the work 
 and the generous manner in which this plan was entered 
 upon by the leading members of the Metropolitan Bar 
 showed the strong hold of Mr. Duer on the regard and af- 
 fection of his fellow-laborers in the profession. In further- 
 ance of this plan the sum of two thousand dollars was pro- 
 vided and paid to Benjamin F. Butler and Jonathan
 
 63 
 
 Prescott Hall, but circumstances hindered the success of 
 the effort and the trust fund reverted to the subscribers. 
 
 At the election for Judges of the Superior Court of the 
 City of New York, held April 10, 1849, under the Act of 
 March 24, 1849, to increase the number of Justices and to 
 extend the jurisdiction of the Court, Mr. Duer was a success- 
 ful candidate on the ticket of the Whig party, and after 
 taking his seat on the Bench on May 2, 1849, all idea of 
 completing his work on marine insurance seems to have been 
 abandoned. 
 
 The election of Judge Duer gave general satisfaction 
 to the profession, and placed him in a secure and agreeable 
 position. The enlarged jurisdiction given to the Court, 
 over which Samuel Jones and Thomas J. Oakley had in 
 succession presided, and to which they and their associates 
 had given the highest repute as a Court of commercial law, 
 drew to it, under its enlarged jurisdiction, a great volume 
 of business and cases of the first importance. To Judge 
 Duer, the new duties he assumed were most congenial, and 
 their discharge was marked by the personal charm of man- 
 ner and the unvarying dignity which were always charac- 
 teristic of him. 
 
 On May 16, 1857, he was elected Chief Justice of the 
 Court, to fill the vacancy caused by the death of Chief 
 Justice Oakley. 
 
 Between the great jurist, to whose place on the Bench 
 he succeeded, and Judge Duer, there were many dissimi- 
 larities of mental traits and of intellect aal tastes and pur- 
 suits, but a close friendship had existed between them, and 
 in their judicial labors they united in upholding the highest 
 standard of the administration of the law. 
 
 By natural constitution and temperament, Chief Justice 
 Oakley was more a judge than an advocate, while Chief 
 Justice Duer was rather an advocate than a judge, and they 
 brought to bear on the hearing and determination of the 
 causes submitted for their determination varied qualities 
 and habits of mind, and very great learning and experience. 
 
 Chief Justice Oakley was terse and concise in his opin-
 
 64 
 
 ions, while his colleague was inclined to be more discursive 
 and rhetorical. 
 
 Chief Justice Bosworth once told me that during the 
 last days of Chief Justice Oakley's participation in the 
 labors of the Court, in some instances he would express 
 himself upon the cases assigned to him, orally, and his 
 views would be reduced to writing by Judge Duer. In 
 reading to him one of the opinions thus prepared, Judge 
 Duer, after a discussion of the doubtful questions 
 involved, came to the expression, "We are constrained 
 to admit" " Strike that out," said the " old Chief," as 
 we were wont to call the veteran Chief Justice. "And 
 what shall I put in its place ?" asked his associate. " Say 
 'We think,'" was the quiet rejoinder, and the more 
 judicial phrase passed into the opinion and the Reports. 
 
 During his term of office as Chief Justice, there were 
 two occasions, one out of Court and one in Court, on which 
 he showed conspicuously his warmth of feeling against 
 what he deemed unwarrantable invasions of propriety. 
 
 In 1851, during the visit of Kossuth, the great Hun- 
 garian leader and orator, he attended a banquet given to 
 this distinguished stranger by members of the Bar of New 
 York. Kossuth, as the guest of the evening, in one of those 
 impassioned speeches by which he roused the sympathies 
 of the American people for the sufferings of the oppressed 
 Hungarians, pushed to an extreme his appeal for interference 
 by our government in their behalf, and easily evoked the 
 after-dinner sympathy which is always available and abun- 
 dant in an equal ratio to its irresponsibility. When the 
 Judiciary came to be toasted, Judge Duer was called 
 upon to respond, and while dealing with the Hungarian 
 patriot in the most courteous and deferential manner, took 
 occasion to denounce his efforts to seduce American citizens 
 from the doctrine of non-interference with the affairs and 
 controversies of foreign nations, inculcated by Washington, 
 as a sowing of the seeds of political heresy and apostacy 
 from the faith of the fathers of the Republic. The protest.
 
 66 
 
 we are told, "was received amid a storm of excitement." 
 The incident caused much comment at the time, but was 
 chiefly of importance as an exhibition of the courage and 
 manliness with which Judge Duer could assert what 
 he believed to be the right view of any great question with- 
 out regard to the opposing feeling of the hour and at any 
 risk of personal unpopularity or adverse criticism. This 
 action of Judge Duer at the Kossuth dinner in New York 
 was akin to a similar protest by Mr. Clay, when the 
 Hungarian liberator sought an interview with him in his 
 sick chamber at Washington, against any interference by 
 the United States in aid of Hungary.* 
 
 The other instance was when a young man of the name 
 of Finn, a lawyer by profession, conceived the idea that 
 under the existing statutes in relation to the Superior 
 Court a vacancy existed in the Bench which could be 
 iilled at a pending election. 
 
 Accordingly he prepared and printed a few ballots 
 with his own name as candidate, distributed them among 
 voters, and there being no opposing aspirant, claimed 
 to have been elected as a Judge of the Court. He then 
 made his appearance in the Court room, and asserted 
 his right to be recognized as a member of the Court. As 
 his claim was based upon the Statute, he supposed himself 
 entitled to be regarded as having a prima facie right to 
 civil treatment, at least, on the part of the Court of which 
 he declared himself an Associate Justice. But Chief Justice 
 Duer, looking upon the " claimant" as attempting to steal 
 a judicial office from the people, as a trespasser ab initio, 
 made short work of his clumsy pretensions. He would 
 not tolerate Finn, or temporize with him or give him a stand- 
 ing in Court, or even a back seat on the Bench and the way 
 in which the unfortunate aspirant for judicial honors vainly 
 tried to maintain some show of a claim to act as a Judge 
 of the Court under the unconcealed contempt and visible, 
 honest indignation of the Chief Justice, was matter of con- 
 
 * Schurz' Life of Henry Clay, Vol. 2, p. 393.
 
 66 
 
 siderable entertainment for the Bar and some activity on 
 the part of the Court officers, and resulted in the utter dis- 
 comfiture of the judicial pretender. 
 
 Chief Justice Duer died in the city of New York, 
 August 8, 1858. The tributes paid to his memory by his 
 brethren of the Bench and the Bar are contained in the 
 sixth Volume of the Reports, published under his name, 
 and exhibit in terms of warm and sincere eulogy the high 
 estimation in which he was held by his associates and con- 
 temporaries. 
 
 Chief Justice Bosworth, his successor in office, a man 
 singularly clear in judgment and cautious in expression, 
 gave this testimony to his character and work as a Judge : 
 
 " No man was more industrious, or labored longer or 
 more faithfully than he. He was so constituted that he 
 could not be inactive. He read much, and probably, no 
 Judge in the State read more promptly or with more care 
 every elementary treatise and every volume of reports, 
 from time to time as they were issued from the press. * * 
 
 No judicial opinions excel his own in clearness, in 
 fullness of illustration, in beauty of style, in the vigor of 
 their logic, or in the richness or variety of learning by 
 which they are supported. However strong may have 
 been the impressions he had formed in the argument of a 
 cause, as the statement and argument of it presented it, 
 if it so happened that these impressions had been formed 
 in the absence from the mind of any fact which should 
 justly affect the result, no one more readily than himself 
 gave it its just effect when presented to his mind or re- 
 called to his attention, and yielded so much of previous 
 convictions as the truth and law of the case required. 
 But when his conclusions were deliberately formed upon a 
 consideration of all the facts and a careful examination of 
 the law, they were, as all would expect, the conclusions 
 of a man of strong mind and great learning should be, so 
 fixed as not to be easily shaken. 
 
 He had another mental habit. I will not say it is pecu- 
 liar, but it is not common, certainly not in the degree it 
 characterized him. He rarely, if ever, attempted to write 
 an opinion until his examination of a case, and of the 
 authorities bearing upon it, had been fully made and com- 
 pleted. The mental process was pursued until no new
 
 67 
 
 thoughts were likely to occur from further reflection before 
 he began to write. Writing was not to him an aid or as- 
 sistant in the comparison of authorities, or in reaching the 
 legal conclusions, which, together, they tended to establish. 
 Hence, most of his opinions, even when delivered at length, 
 were at the time unwritten. Hence, they were delivered 
 with as much precision of language, and in a form nearly, 
 if not quite, as perfect as he wrote. And when he came to 
 write, it was rare that any page of the whole was disfig- 
 ured with an alteration or an interlineation. I think it 
 would surprise all who do not already know this fact, to 
 inspect the manuscripts of his longest and most elaborate 
 opinions. It is a rare occurrence that a word is obliterated, 
 altered or interlined." 
 
 His colleague in the Revision, recalling their early asso- 
 ciation, added these words of personal attachment and 
 glowing eulogy : 
 
 "In the labors and studies with Mr. Duer, to which I 
 have referred, have been spent many of my happiest and 
 most instructive days. For while we investigated, with a 
 single eye to the good of our fellow-citizens and the glory 
 of our profession, the whole body of our written law, and 
 labored, through days and nights of toil, to give fit expres- 
 sion to those parts of it upon which we were employed, 
 we lightened those toils by frequent excursions into other, 
 and some times widely diiferent walks. Considerably my 
 senior in years, and far very far my superior in gifts 
 and knowledge, he was in the law, and in every other de- 
 partment, emphatically 'my guide, philosopher and friend.' 
 Not to speak of his lucid explanations of the ground and 
 reason of the law, and the information he was so well qual- 
 ified to give on legal questions continually coming into 
 discussion in our daily tasks, he delighted to converse, not 
 only on the more general topics of philosophy, politics and 
 letters, but on the momentous questions which grow out of 
 man's immortal nature, and the relations in which he 
 stands to his Creator, Governor, and Judge. How great 
 were his conversational powers ! With what facility and 
 richness he poured forth from the stores of his well-fur- 
 nished mind, and by the aid of his powerful memory, wise 
 and worthy thoughts and suggestions, on subjects which 
 awakened those powers, must be well known to many of 
 those now present ; indeed, to all who have had the oppor- 
 tunity of familiar intercourse with him. And now what
 
 68 
 
 shall I say more ? When I think of the loss which you 
 brethren of the Bench and of the Bar have all sus- 
 tained of the special loss which has fallen upon me and 
 of the far heavier loss which has fallen with crushing 
 weight upon his afflicted family I could almost cry out 
 with one of old 
 
 " ' Quis desiderio sit pudor aut modus, 
 Tam cari capitis.' " 
 
 To these words of merited praise and as a fitting close 
 to this brief memoir, must be added a few sentences from 
 the speech on the same occasion by James T. Brady, the 
 most eloquent and one of the ablest of the advocates of our 
 Bar: 
 
 " He was a man of genius, and the spirit of the advo- 
 cate which had been lighted up by that genius in his early 
 professional career never quitted him, even on the Bench, 
 and it would be flattery to say that this was not one of his 
 characteristics. But he was the high advocate of right, of 
 law, of justice. It is true, that when a case was brought 
 before the Bench to be discussed, and that there was ad- 
 vanced even one thought that seemed to be the precursor of 
 error coming to cloud or confuse the judicial mind, he 
 never hesitated to expose or expel it. It is true that he 
 stood as with a flaming sword, and guarded every entrance 
 by which such error might approach. It is true that his 
 mind caught from the discussion, which elicited sparks of 
 flashing intelligence from the members of the Bar, many a 
 ray of parti-colored light. In that respect the gem set 
 within his soul suggested a close comparison to another 
 jewel highly prized among men. It couM give back all the 
 tints cast upon it ; but it remained still the diamond 
 brilliant in its pure integrity with its singleness of color 
 and its capacity to diffuse more light than its face re- 
 ceived." 
 
 Chief Justice Duer married in 1804, Anne Bedford 
 Bunner, daughter of George Bunner ; she survived her 
 husband and died December 26, 1864.
 
 JOHN C. SPENCER, on the completion of his share in the 
 work of the Revision, was appointed in 1829, by Martin 
 Van Buren, then Governor, the prosecuting officer, on be- 
 half of the State, of the supposed abductors of William 
 Morgan, a bricklayer living at Batavia, Genesee county, N. 
 Y., who had been taken by a body of men in September, 
 1826, from the jail at Canandaigua and carried thence to 
 the Niagara river, in whose waters he was believed to have 
 been drowned by his captors, all in revenge for his alleged 
 disclosures of secrets of the Masonic order. 
 
 Morgan's case and the prosecution of the persons 
 charged with complicity in his taking off were controlling 
 elements in the political struggles of the time in which they 
 happened. The rise, progress and extinction of the Anti- 
 Masonic party belong to the curiosities of political history. 
 It seems strange to us, in the retrospect, that hostility to a 
 private society should have become the basis of a State 
 party and ultimately of a National party attaining such 
 proportions as to induce this deliberate statement by John 
 Quincy Adams in one of the innumerable entries in his 
 diary: "The dissolution of the Masonic institution in the 
 United States I believe to be more important to us and our 
 posterity than the question whether Mr. Clay or General 
 Jackson shall be President." 
 
 William Wirt, the brilliant and versatile Attorney-Gen- 
 eral, first appointed by Mr. Monroe in 1819 and continued 
 in office by Mr. Adams, was nominated for the Presidency 
 in 1828 as an Anti-Masonic candidate, and as the result of 
 what he himself called "a political scrape," and what 
 seems in the retrospect almost a senseless escapade, earned 
 a single State, Vermont, General Jackson being elected 
 President by 219 electoral votes over Mr. Clay, who re- 
 ceived only 49 votes. , 
 
 Mr. Spencer's efforts as prosecuting officer against the 
 Masonic ringleaders were honest and fearless but with no 
 very marked results. Their conspiracy had been only too 
 well contrived and executed. He espoused the Anti- 
 Masonic cause as a politician as well as an attorney, per-
 
 70 
 
 haps to show that he was as sincere in his desire to destroy 
 the influence of the Masonic order as he was to convict the 
 perpetrators of the crime which had made it obnoxious. 
 He supported Wirfc for the Presidency, was on the Anti- 
 Masonic electoral ticket in New York and suffered defeat 
 with his party. 
 
 The Whig party rose on the ruins of the Anti-Masonic 
 movement and rapidly consolidated the varying elements 
 of opposition to the administration of General Jackson, 
 whose strong and aggressive policy coerced the minority 
 into cohesion and organized opposition under their ablest 
 leaders. Mr. Spencer gave in his adhesion, but remained 
 in private life until 1838, when William H. Seward was 
 elected Governor, and Mr. Spencer, having in 1837 removed 
 his residence to Albany, was elected, on the same ticket, as 
 Secretary of State. Being ex-officio Superintendent of 
 Common Schools, he took up anew the subject of education 
 as connected with the State and by a masterly report ex- 
 hibited his thorough acquaintance with the whole subject 
 of public instruction. 
 
 In the succession of Mr. Tyler to the presidency after 
 General Harrison's death, in April, 1841, Mr. Spencer became 
 a member of his Cabinet as Secretary of War, and later was 
 appointed Secretary of the Treasury. His adhesion to 
 President Tyler's political fortunes cost him his position as 
 a leader of the Whig party, and when his name was sent to 
 the Senate by the President, as the nominee for the vacant 
 place on the bench of the Supreme Court, caused by the 
 death of Justice Smith Thompson, his rejection was the 
 logical consequence of the hostility engendered by his close 
 relations with the President. 
 
 Mr. Spencer's political career closed with his retirement 
 from the Treasury and his declared opposition to the an- 
 nexation of Texas. The remaining years of his life were 
 spent in the practice of the law at Albany, where he died 
 May 20, 1854. He had married, May 20, 1809, Elizabeth 
 Scott Smith, who survived him and who died October 10, 
 1869.
 
 71 
 
 Mr. Spencer's death closed a serviceable and patriotic 
 career, meriting even higher recognition than has been 
 accorded it. But he was less fortunate in forming 
 political alliances than in the exercise of his native 
 gifts. Probably no member of the Bar of this State ever 
 brought to the work of the profession greater faculties of 
 insight and endurance. His mind has been fitly charact- 
 erized as " gigantic in its comprehension and microscopic 
 in its accuracy." Of this class of intellects a conspicuous 
 example in our own later time was furnished by Charles 
 O' Conor, a man who in many of his intellectual traits and 
 in some of his idiosyncrasies of political opinion re- 
 sembJed Mr. Spencer, of whom he was a great admirer. He 
 specially praised his method of argument and his rare 
 power of coming at once and with absolute precision to 
 " the real point of the case." 
 
 Mr. Spencer was a man of the deepest convictions, stern, 
 sometimes repulsive in his assertion of them, tenacious and 
 fearless alike in the friendships, and in the antagonisms of 
 life, strong, resolute and iron-willed, and yet kindly and 
 sympathetic in his nature. 
 
 The general judgment of the profession was summed up 
 in the brief sentence of a journalist who characterized his 
 " singular capacity to labor without fatigue as only equalled 
 by the extent and variety of the professional services he 
 performed." 
 
 BENJAMIN F. BUTLER, who survived both his associates 
 in the work of the Revision, and who alone had been iden- 
 tified with it from its earliest inception to its close, 
 was justly accorded a large share of the professional 
 repute which accrued to its authors. 
 
 His residence at Albany and his connection with the 
 leaders of the political party then firmly established in 
 power both in the State of New York and in the Federal
 
 72 
 
 government, as well as his assured professional rank, com- 
 bined to place him at the front of the Bar. 
 
 In the Court of Errors he was constantly employed 
 in the most important causes. At the session held 
 in New York in 1833, of the whole number of eighteen 
 cases reported in the llth volume of Wendell's Reports, 
 he was counsel in nine, including the well known case 
 of Grover vs. Wakeman establishing the right of an 
 insolvent debtor to make preferences, in good faith, 
 in an assignment for creditors, and the leading case of 
 Allen vs. Addington establishing the liability of a third 
 party making representations by means of which a pur- 
 chaser obtains credit from a vendor. 
 
 I find a home-letter written during his attendance at 
 this term of the Court of Errors, in which he says that he 
 is glad to have an associate counsel in one of his many 
 cases, as he fears the Court will weary of hearing con- 
 tinuous arguments by himself. 
 
 His relations at this time to the Bench and the Bar of 
 the State were particularly agreeable. The means of access 
 to the capital from remote and interior points and, during 
 the winter season, even from New York, were so inadequate 
 in comparison with those now existing, that a journey to 
 Albany was a serious affair, and at the sessions of the 
 courts held there the employment of local counsel was far 
 more frequent than now. Of the practice thus created he 
 enjoyed a very large share. He occupied, while he re- 
 mained at Albany, a position in this regard similar 
 to that afterwards enjoyed by Nicholas Hill, one of the 
 brightest ornaments of the Bar of this State and its most 
 conspicuous leader in the court of last resort. 
 
 In February, 1833, on the retirement from the United 
 States Senate of William L. Marcy to assume the office of 
 Governor of the State of New York, the vacant place in 
 the Senate was urgently pressed on Mr. Butler, and Mr. 
 Van Buren, then Vice -President and the presumptive can- 
 didate for the Presidency in 1836, desired him to accept it.
 
 73 
 
 But he was firm is his resolution to take no office which 
 would withdraw him from his professional pursuits. 
 
 Governor Marcy afterwards desired to appoint him to 
 the Bench of the Supreme Court, as the successor of Judge 
 Sutherland. Chief Justice Savage, who presided in the 
 Court during the whole period of the Revision, and for six 
 years after its completion, wrote him a letter communicat- 
 ing the oifer, and urging its acceptance in these words of 
 warm personal friendship 
 
 u The office of Judge, permit me to say, is one to which 
 you are well adapted ; and in which you can render as 
 great service to your native State as any other. It is one 
 in which you will probably enjoy as much human happi- 
 ness as any other, and in which you will have as much 
 leisure for literary pursuits, perhaps, as in the duties of an 
 arduous profession ; and supposing you to have, as all 
 members of the profession ought to have, a laudable ambi- 
 tion for an elevated standing as a jurist and scholar, in 
 which of the walks of learning can you have a better field 
 for the exercise of your powers ? This is a subject on which 
 I need not attempt to persuade you ; you must act as your 
 judgment directs. I will only remark farther, that should 
 you accept the office, there is every probability that in a 
 few years at farthest you will preside in the Court. And I 
 need not inform you that, in my estimation, that station is 
 as honorable as "any in our State, and is surpassed by but 
 few in the United States." 
 
 But the Chief Justice, with the candor and fairness 
 which characterized him, did not fail to point out to his 
 friend that unless he already had money in his purse 
 sufficient for his future wants, the judicial office was to be 
 shunned. The want of a proper compensation for his ser- 
 vices had driven Judge Sutherland from the Bench which 
 he adorned, and the Chief Justice, referring to this 
 circumstance, says, "the cause of that resignation is rather 
 calculated to deter those who are most competent to fill 
 the vacancy from accepting the station. Indeed, if a man
 
 74 
 
 wishes to be rich, he should become so before he ascends 
 the Bench." 
 
 The meagre pittance then allowed by the State to our 
 Supreme Court Judges was of itself a bar to the judicial 
 office to a man with a large family and an ample professional 
 practice, and the place on the Bench was declined. Fortu- 
 nately for the State, an incumbent was found so situated 
 as to be able to accept the vacant seat, and so endowed 
 with rare judicial qualities as to make his long and con- 
 spicuous career in the Supreme Court of the State, and 
 afterwards is the Supreme Court of the United States, one 
 of the most noted examples of eminence and fidelity in 
 the annals of the American judiciary. 
 
 In February, 1883, Peter A. Jay and Benjamin F. But- 
 ler, of New York, were appointed, with Theodore Freling- 
 huysen, of New Jersey, a commission to settle the long- 
 disputed controversy of half a century's duration as to the 
 boundary line between the two States, a service resulting 
 in the convention which has ever since controlled the juris- 
 diction and rights of these States as respects their bound- 
 ary line. 
 
 Meanwhile, repeated overtures came to Mr. Butler from 
 Washington, through Mr. Van Buren, looking to his ac- 
 ceptance of office in the Administration of General Jackson. 
 These were declined as often as they were renewed until, 
 in the great political crisis caused by the struggle between 
 the national administration and the Bank of the United 
 States, the summons to Washington seemed so imperative 
 that it could not be refused without apparently placing 
 personal considerations above public duty. 
 
 Up to this time the whole tenor of his life had been un- 
 disturbed by any influences foreign to his position as a 
 leader of the Bar of his native State and to an active inter- 
 est in the stirring public questions of the time. His friend- 
 ship for Mr. Van Buren had kept him in close alliance with 
 the political party of which his former partner was the 
 acknowledged head, and in co-operation with Governor 
 Marcy, Edwin Croswell, Azariah C. Flagg, Silas Wright,
 
 75 
 
 John A. Dixand the other leading public men of the Capitol, 
 who, from their union in political action, had acquired the 
 sobriquet of the "Albany Regency." 
 
 This union, though generally supposed to be for 
 the advancement of party objects, was, in fact, largely 
 due to a community of views on what the men who formed 
 it regarded the true principles of free democratic govern- 
 ment. Their unselfish and undeviating personal regard for 
 Mr. Yan Buren was something remarkable and rare in polit- 
 ical fellowships. His high gift and faculty of attaching to 
 himself, by strong ties of friendship, able and upright men, 
 has been well cited by his latest biographer as a proof of 
 the intrinsic worth of his character. 
 
 To those persons who imagine that the chief aim 
 of men who by nature and association incline to active par- 
 ticipation in public affairs, is the possession of place and 
 power, the letters which passed between Mr. Van Buren and 
 his former pupil and devoted friend touching the accept- 
 ance by the latter of high office in the National Govern- 
 ment, would go far toward correcting such an impression. 
 It needed every argument and appeal which the older man 
 was able to present to the younger to overcome his reluct- 
 ance to leave his private professional life for a more public 
 career. 
 
 Devoted to the pursuits of a student, he delighted in 
 nothing so much as in scholarly habits and in imparting to 
 others the knowledge he had acquired, reminding me in 
 these traits of the ardent love of research so conspicuous in 
 Sir William Jones, whom he greatly resembled in character 
 and whose expressed desire was to retire, at the close of his 
 professional life, to the retreat of his beloved University, 
 there to pursue without interruption the studies which 
 were his chief enjoyment. 
 
 He had already given thought to the plan of a Law 
 School and always preferred the task of studying and 
 teaching the law, as a science, to any other pursuit. 
 With these views he had steadily put aside all offers of 
 public office, greatly strengthened in this course of action
 
 76 
 
 by the strong repugnance of his wife to the society and life 
 of the Federal Capital. 
 
 He had married in 1818, just after his admssion to the 
 Bar, Harriet Allen, the daughter of Howard and Lydia 
 Allen, who were among the Nantucket Colony which 
 founded the city of Hudson, N. Y., and whose son, 
 William Howard Allen, after a brilliant career in the United 
 States Navy, distinguishing himself in the engagement be- 
 tween the Argus and the Pelican in the war of 1812, had 
 been killed in the service while attacking a piratical vessel 
 in the West India seas. 
 
 His name has been immortalized by the Muse of Hal- 
 leek. 
 
 I cannot forbear citing here one of Mr. Van Buren's let- 
 ters as an illustration of his friendship and consideration, 
 and of the tone and temper in which he treated the per- 
 sonal, local and moral aspects of the subject he discussed. 
 Written at a moment when he was himself the sub- 
 ject of coarse ridicule and vituperation, based on inces- 
 sant charges of the selfish and sinister motives which the 
 political opponents who envied his success and plotted for 
 his defeat never wearied of imputing to him, it shows the 
 exercise of qualities as far removed from the duplicity of 
 political intrigue as his pure personal character and fidelity 
 to duty were alien to the low instincts of his traducers. 
 
 WASHINGTON, November, 8, 1833. 
 MY DEAR SIR : 
 
 I bespeak for the proposition I am about to make yours 
 and Mrs. Butler's most deliberate consideration, before you 
 conclude to reject it. I say Mrs. B's, because in whatever 
 relates so essentially to your future welfare, she ought of 
 right to be consulted ; and she has on a former occasion 
 shown herself so much wiser than we were, that it would be 
 a positive injustice to refuse to take her into counsel now. 
 
 The appointment of Mr. Daniel to the office of Attorney- 
 General was published by mistake, before his positive 
 acceptance had been ascertained. He has been with us, and 
 after a full and frank conversation with the President, has 
 decided not to accept it. With the reasons for that decis-
 
 77 
 
 ion, which he came to with the greatest pain and reluctance, 
 it is unnecessary, now, to trouble you. Mr. Daniel is a gen- 
 tleman of the very highest character, and very respectable 
 talents, but does not entertain that confidence in them which 
 his friends think would be justifiable ; and there were urgent 
 family and personal obstacles. The President thought, as 
 I informed you, that he ought to go South for this appoint- 
 ment, and having in good faith done so, he will now regard 
 the accidental circumstance of the publication of Mr. 
 Daniel's appointment a fortunate incident, if it shall, as he 
 hopes, enable him to bring into his cabinet one who every 
 member of it would be delighted to see here, and that is 
 yourself. Before this had occurred, I would not myself 
 nave proposed it to you, had the matter been at my dis- 
 posal. Now, I think it free from difficulty or objection. 
 The President will with the greatest pleasure confer the 
 appointment upon you, and I am as solicitous as I could 
 possibly be upon any subject that you shall accept it. Inde- 
 pendent of the public considerations which are amply suffi- 
 cient to justify this solicitude, I feel that if not indispens- 
 able, (though extremely important,) for the present,^it is, in 
 reference to a possible future, most fitting as it respects my- 
 self that you should be here in some such a situation. Not 
 one word is necessary, I know, to satisfy you that I would 
 not press my personal solicitude upon you, as I for the first 
 time freely do, if I were not entirely satisfied, that what I 
 ask of you will promote your own interests, and those of 
 your family ; or at the least that it will certainly not prej- 
 udice them. I think so in respect to all the points, which, 
 in such a case arise for consideration, and I will briefly 
 assign my reasons. Although you will recollect, I readily 
 concurred in your objection to taking the place of Senator, 
 I have ever since been impressed with the belief that it was 
 a sacrifice which you might with propriety have made. I 
 gave in to your views, partly because I feared that from 
 your gentlemanly and pacific disposition (although not 
 wanting in spirit when its exhibition is necessary), the 
 rough and tumble of the Senate might not please you ; but 
 principally, because I was apprehensive that it might affect 
 the interests of your family in a pecuniary point of view. 
 That now presented steers entirely clear of these objections, 
 and has advantages which ought not to be lightly over- 
 looked. Although you are not the slave of mad ambition, 
 you are, as you ought to be, tenacious of your professional 
 standing. That cannot be increased at home, and can only
 
 78 
 
 be made National, by becoming identified with National 
 concerns. Depend upon it, my dear sir, that this is so. 
 The fact presses itself upon my observation almost daily, 
 when I find how little is known, or cared, abroad, about 
 you who are at the very top of the ladder at home. Mr. 
 Wirt, Mr. Webster, Mr. Pinkney and Mr. Taney, although 
 possessing the same talents, would not have gone beyond a 
 passing observation out of their own States, if they had not 
 entered upon the National theatre. You recollect to have 
 merely heard of Mr. Taney, whilst at the Washington Bar, 
 now, although the same man, he is known and respected as 
 a man of talents throughout the Union. The reason why 
 it is so, it is unnecessary to go into ; the fact is sufficient 
 and undeniable, that the great body of the people, 
 will only look for the great men of the Nation amongst 
 those who are actually engaged in its service. Although 
 you are too wise to be craving for a distinction of 
 this sort, you are at the same time too wise to be indiffer- 
 ent to it. Providence has cut you out for its acquisition in 
 this very place, and you have no right to turn your back 
 upon the occasion, which presents it to you in so honorable 
 and entirely unexceptionable a manner. In a pecuniary 
 point of view, it cannot, I deliberately think, be other- 
 wise than beneficial. The salary is $4,500, besides office, 
 messenger, clerks, &c., and occasional compensation from 
 the Government for services which do not necessarily ap- 
 pertain to the office. You can enter upon the business of 
 the Supreme Court of the U. S. with advantages, which, 
 if not immediately equal to those of Webster (who makes 
 his thousands not to say tens of thousands by it), very 
 soon would be ; and the President says it will be compe- 
 tent for you, without prejudice to the public interest, to 
 attend the higher Courts at New York and Albany. All 
 previous Atty. Genls., who desired it, have done so in re- 
 spect to their own States. To the former place you will, 
 next season, be able to go in 15 hours, and to the latter in 
 a day and a night. What, then, is there to prevent you 
 from increasing your provision for your children, which I 
 admit to be obligatory on you ? Nothing that I can see. 
 You can live as cheap here as in N. York. Your manner 
 of living can be regulated by your own taste, and as every- 
 body knows that you are not a man of pleasure, or parade, 
 nobody will gossip about you. By taking this course, you 
 will accomplish what you are all so anxious about viz., 
 that you can be more with your family than heretofore.
 
 79 
 
 The only exception need be, your visits to N. York during 
 the sittings of the Courts, when you can take your family 
 with you, without stopping between this and N. Y., espe- 
 cially when the railroad, the making of which is now under 
 full operation, is completed. I recollect when the subject 
 was before contingently discussed, and when you con- 
 cluded that you could not take it, that Mrs. Butler did not 
 like the idea of bringing her daughters up here. Upon 
 reflection, I think she will find that objection not so well 
 founded as she then supposed. Mr. McLean, Mr. Taney, 
 Mr. Woodbury and Gov. Cass have each a houseful of 
 little girls of the very finest character, and I am quite sure 
 that the society for Mrs. B. and the children would be at 
 least as good here as in N". York ; and if she cannot pos- 
 sibly do without hearing something more upon the subject 
 of temperance, she can count upon Gov. Cass as a never- 
 failing source. He has as much of the true spirit in him 
 as Norton and Delavan combined, and Mr. Van Vechten 
 and Courtland Van Rensselaer to boot. But to return 
 from this digression, you must come. I tell you frankly 
 that I have made up my mind so decidedly that it is best 
 for the public, for you and yours, for myself, and that you 
 will prove to be useful and acceptable to the President, 
 that I cannot think of a declension with composure. As 
 you were willing, in the exuberance of friendship, to come 
 with me in 1829 as Under Secretary, and give up the finest 
 professional prospects man ever had, I shall think you 
 must have undergone some strange metamorphosis, if you 
 now refuse to come into the Cabinet with those profes- 
 sional prospects enhanced instead of abandoned. This must 
 in the first instance be strictly confined to Mr. and Mrs. 
 Flagg, Croswell, Dix and John, with whom I wish you to 
 advise. If, contrary to my earnest hope, you determine to 
 decline, not a word must be said upon the subject. If you 
 act the wiser part, you may, as is usual in such cases, con- 
 sult with your friends generally after your mind is made 
 up. I have not included the Governor, because he is, I 
 suppose, busy with his message, but you may speak to 
 him, of course, if you wish it. Tell Mrs. B. I shall 
 never forgive her if she throws any obstacles in the way. 
 I intend to be in N". York on Wednesday of next week, and 
 hope you will meet me there. 
 
 It will, in case of acceptance, be necessary that you. 
 should come down immediately, for a day or two only, to 
 sign some patents which are waiting the Atty. Gen'l's
 
 80 
 
 signature, and there is no authority to appoint an acting 
 Atty. After that, you may return and make your arrange- 
 ments for the winter. If you conclude, as you ought to do, 
 I wish you would write at once to the President, as he is 
 very anxious to have the matter closed. 
 
 Remember me very kindly to Mrs. B. and the children, 
 and believe me, 
 
 Very truly yours, 
 
 M. VAN BUEEN. 
 To 
 
 B. F. BUTLEE, Esq. 
 
 P. S. The President has read this letter, and approves 
 it. He does not write you himself because I have told him 
 that it is not necessary at this time. 
 
 M. V. B." 
 
 The appeal thus made could not be withstood and a 
 letter was written to President Jackson, accepting the office 
 of Attorney- General, on the duties of which the new incum- 
 bent immediately entered. 
 
 The hold which he had upon the community in which his 
 lot had been cast, is shown by the letter written to him on 
 his leaving Albany, signed by leading citizens of all 
 pursuits and parties. It is dated November 26, 1833, and 
 bears eighty-nine signatures, the names including many of 
 the most eminent citizens of the State, familiar in its history 
 as statesmen, judges, lawyers, divines, physicians and men 
 of note in various walks, and testifies to their estimate of 
 his worth, their personal friendship and their regret at 
 losing him from their social circles and from active 
 co-operation in the interests of the city. 
 
 In Albany he had been foremost in every good work, 
 and especially enthusiastic in the cause of Temperance, at a 
 time when organized efforts in its behalf were in their 
 earliest stage. Edward C. Delavan, whose long and active 
 career as a Temperance leader, has given him a high place 
 as a philanthropist, was a co-worker with him in a crusade 
 against the use of ardent spirits, an evil unfortunately
 
 81 
 
 conspicuous at Albany, especially during the Legislative 
 sessions, and a prolific source of painful public and private 
 scandals. 
 
 The presence of strong drink in the form of New 
 England rum and Holland gin, on sideboards and dining 
 tables, and the almost universal habit of tippling in private 
 houses as well as taverns, sanctioned by the Common Law 
 of hospitality derived from both the English and Dutch 
 ancestors of the good people of Albany, was thoroughly 
 established. Against this dangerous and destructive habit, 
 a few reformers took their stand and set on foot an 
 energetic movement, which developed into the concerted 
 action of State and National societies. 
 
 Mr. Delavan, who was able to give an almost exclusive 
 devotion to the reform he had so much at heart, went to an 
 extreme in its advocacy by asserting abstinence, and not 
 temperance, as the rule of social duty and even as a neces- 
 sary canon of Christian practice. With characteristic ardor 
 he emptied the contents of his wine cellar into the gutter 
 of Washington street, in front of his homestead, as a liba- 
 tion on the altar of his new found faith, an offering as 
 sincere as it was eccentric. 
 
 At this point the co-reformers parted company. At 
 Albany and afterwards at Washington, while Mr. Delavan 
 was pushing the cause of total abstinence, his former 
 associate advocated that of temperance, holding to the end 
 of his life the views he had matured in his earlier study of 
 the subject, to which he had given the same thorough and 
 conscientious research which he brought to every topic 
 engaging his attention. 
 
 Mr. Delavan, in his desire to bring his friend into 
 unison with his extreme views, placed in his hands a work 
 by an English clergyman, in which the scriptural argument 
 for abstinence was mainly grounded on the difference 
 between the Hebrew words employed in the Old Testament 
 to denote "wine" or "strong drink," where the use was 
 commended, and the words employed where the use was 
 condemned, the former words referring to unfermented
 
 82 
 
 or non-intoxicating juice of the grape, and the latter to 
 intoxicating drinks. The author came to this country and 
 made a visit to Mr. Delavan, who, in advance of his arrival, 
 notified Mr. Butler of his coming, and arranged that an 
 interview should take place between them. To this inter- 
 view he looked forward with certain anticipation of the 
 conversion of his friend to his own views. 
 
 During the interval, the latter subjected the book and 
 its argument to the most thorough examination. Bible in 
 hand, he scrutinized every passage in the Old Testament in 
 which, in the authorized version, the words "wine" or 
 " strong drink" occur, and prepared a complete "brief," 
 as to the use of the word in the English translation, a task 
 which I well remember occupied the leisure of the Sundays 
 of a summer vacation. 
 
 The author arrived, and the interview which Mr. Dela- 
 van had arranged took place at his office in Albany. The 
 sequel may be best told in his own words, taken rom a 
 letter which he wrote me after my father' s death, in refer- 
 ence to this episode in the course of their long and un- 
 broken friendship. He says : 
 
 "The meeting of these two learned Christian men 
 was to me of the deepest interest, for I saw that if Dr. 
 James could be sustained, the cause would be placed on 
 the most impregnable basis, on God's Word, and nothing 
 could overthrow it. For some time it appeared that all 
 things were going on smoothly to sustain Dr. James, but 
 all at once your father came to a text where Yayin was in- 
 troduced. 'Now tell me, Dr. James,' said your father, 
 ' does Yayin here mean intoxicating wine ?' I saw, at 
 once, my friend Dr. James appeared to be confused, if not 
 confounded, the blood mounted to his face, and he declined 
 to answer to your father' s satisfaction, who at once rolled 
 up his papers and left the office, and I have no doubt he 
 then made up his mind that we must look elsewhere than 
 to the Bible as authority for total abstinence as a duty." 
 
 Mr. Delavan, while conceding that the argument of his 
 author did not stand the test of thorough investigation, 
 was always unwilling to admit that the untoward result 
 described in his letter was due to anything else than an
 
 83 
 
 unwillingness on the part of Dr. James to acknowledge an 
 error which was capable of explanation, and which, as Mr. 
 Delavan further on in the letter from which I have quoted, 
 and in conversation, insisted, was by no means fatal to the 
 Scriptural argument. But the Bible study in preparation 
 for the discussion, perhaps more than the discussion itself, 
 the result of whicli so disappointed Mr. Delavan, led to 
 settled convictions on the part of his friend, and confirmed 
 him in the habit of temperance, pursued with a strictness 
 which, while rejecting compulsory extremes, was so con- 
 sistent and absolute as to entitle him to the tribute of 
 another life-long friend, that he exemplified the lines of 
 Dryden, and 
 
 " Refined himself to soul, to curb the sense, 
 And almost made a sin of abstinence." 
 
 In a letter in my possession, written by General Jack- 
 son to Mr. Van Buren, he says that the new Attorney- 
 General has made a visit to Washington and produced a 
 very favorable impression. 
 
 The first impression thus recorded deepened into the 
 warmest friendship. The intimacy between the President 
 and the Attorney-General became close and familiar, and 
 seemed to be nourished and strengthened by the absolute 
 dissimilarity of their training and characteristics. The old 
 soldier of the frontier and the wilderness choleric and self- 
 willed, violent in opinion and prejudice, but sound in sense 
 and in the principles he held, patriotic to the core, and fear- 
 less of any foe had a sympathetic side to his rough-hewn 
 nature which only revealed itself at the magic touch of a 
 true and loyal friendship. Such a friendship was soon 
 formed between the youngest member of the Cabinet and 
 the veteran President. The most unreserved confidence 
 and personal attachment existed between them. The polit- 
 ical gossip which affixed to the duties of the Attorn ey- 
 General that of the President's "conscience-keeper" 
 while meant for a partisan sneer was not wholly a mis- 
 nomer, for the function of conscience was neither out of
 
 84 
 
 place nor out of use in the sharp conflicts of that political 
 era. 
 
 Whatever may be the final judgment as to the right or 
 wrong of the opposing views and the contending parties of 
 the time, the men who rallied to the support of Jackson 
 against Nullification, against the domination of the United 
 States Bank and the diversion of the Government from the 
 simple province of governing, will suffer nothing by com- 
 parison with their opponents, either as to purity of private 
 character or patriotism in the discharge of public duty. 
 
 Necessarily, to a man accustomed by long habit and 
 native choice to do more work than duty required, the la- 
 bors of the office of Attorney-General did not wholly suffice. 
 It had not, at that time, reached the proportions of 
 the present Department of Justice, and the salary was 
 wholly inadequate to the expenses of a life in Wash- 
 ington. But, while preparing and arguing, without aid, 
 all the Government causes and discharging all the other 
 duties of the office, these were supplemented by a con- 
 tinued private practice in the higher Courts, State and 
 Federal. 
 
 At the close of the Seminole War, in 1836, when Gen- 
 eral Cass left the War Department for the mission to 
 France, President Jackson, anticipating the election of 
 Mr. Van Buren to the Presidency, and wishing to leave 
 him free to select the successor of General Cass, insisted, 
 in a personal letter, that, for the remainder of the term, 
 the Attorney- General should assume the duties of the 
 vacant office. 
 
 He wrote as follows : 
 
 "WASHINGTON, Oct. 4, 1836. 
 
 My DEAR SIR : Governor Cass has this day handed me his 
 resignation and I have appointed Mr. Harris to act as Sec- 
 retary of War until another is appointed. 
 
 From the conversation I had with you on this subject I 
 rely upon your taking charge of that Department until the 
 4th of March next. This combined with your duty as At- 
 torney-General will be onerous, still I know your capacity
 
 85 
 
 and indefatigable industry, competent to both, and as far as 
 my abilities and health will permit, the burden shall be 
 lightened. 
 
 Please present me kindly to your amiable lady and fam- 
 ily and accept the assurance of my continued respect, con- 
 fidence and esteem. 
 
 ANDBEW JACKSON." 
 
 The office of Secretary of War was accordingly accepted 
 and its duties discharged until the close of President Jack- 
 son' s term. 
 
 It was during this short incumbency that the sole in- 
 stance of conflict between the Cabinet officer and the Ex- 
 ecutive occurred. A West Point cadet had been dismissed 
 from the Academy, on sufficient grounds, by the Superin- 
 tendent of the post and the case was before the Secretary 
 of War for his action. Some personal friends of the of- 
 fender went to President Jackson and made so strong an 
 appeal to him, that he yielded good naturedly to their in- 
 tercession and made an order reinstating the dismissed 
 cadet. The Secretary of War at once insisted that this 
 order was an interference with his proper duties, calling 
 for his resignation, if not promptly withdrawn. The Presi- 
 dent saw his mistake and revoked his order. 
 
 On the accession of Mr. VanBuren to the Presidency, he 
 was more than ready to place his old pupil and steadfast 
 friend at the head of any Department of the Government 
 he might prefer and would not listen to his request for re- 
 tirement. The favorite project of a Law School retained its 
 hold on his sympathies and he had already made an en- 
 gagement to undertake the establishment of a Law Depart- 
 ment in the University of the City of ISTew York, whose lib- 
 eral charter granted by the Legislature of 1833 gave it power 
 to embrace a course of legal studies in its various branches 
 of instruction. Adhering to his determination to accept no 
 position which was non-professional, he yielded to Mr. Yan 
 Buren' s wishes by agreeing to retain the office of Attorney 
 General for a year, a period afterwards lengthened by six
 
 86 
 
 months, and on September 15, 1838, his resignation was re- 
 luctantly accepted by the President, whose letter accepting 
 it is marked by the same kindness and consideration as 
 that already given to the reader. He says: "However 
 deep my regret at parting with you, I am nevertheless too 
 well satisfied that justice to yourself and your family, re- 
 quire this step on your part, to hesitate in complying with 
 your wishes." 
 
 The commercial disasters of 1836 and 1837 and the con- 
 sequent period of financial disorder and distress had caused 
 wide -spread embarrassments from which professional men 
 were not wholly exempt and public office with its attendant 
 burden of expense was undesirable and in fact impossible 
 in comparison with the advantages of a leading professional 
 position in New York. Before his retirement from the Cab- 
 inet of Mr. Van Buren, the Attorney- General had settled his 
 f araily in New York and on his return to private life he en- 
 tered at once into active practice at the Metropolitan Bar. 
 
 At the same time he undertook the execution of his 
 long cherished plan of a Law School. 
 
 William Kent, then high in professional eminence and 
 David Graham, Jr., one of the most brilliant members of 
 the New York Bar, a man of the highest repute for his 
 success before juries both in the civil and criminal courts, 
 and author of a standard work on Practice, associated them- 
 selves with him in the work. 
 
 Doctor James M. Matthews, a prominent divine and a 
 man of great executive capacity and unbounded confidence 
 in the success of the extended plans he had formed for the 
 University of which he was a main promoter and the first 
 Chancellor, had succeeded in enlisting the co-operation of 
 many leading men in the organization of an institution, 
 which was intended to found in the great commercial and 
 business centre of the nation, a true University, embracing 
 courses of instruction in every department of art and science, 
 with the great advantages to be derived from the constantly 
 growing resources of the metropolis and a broad and free
 
 87 
 
 system of management and control, suited to the com- 
 mercial genius as well as the political methods of the people. 
 
 The experiment of a Law School undertaken with many 
 auspices of success was environed by some insuperable 
 obstacles. 
 
 Like many of the enterprises of that period, full of grand 
 schemes hindered by the financial misfortunes which had 
 overspread the country, a long period of patient waiting 
 and working was required to bring to a successful issue 
 the plans of its founders. 
 
 The Law Department was inauguarated by addresses 
 delivered by the three professors early in 1838, and a com- 
 plete course of instruction was marked out, most admirable 
 in its conception and details, and some students were at 
 once attracted to the courses of instruction. But this ex- 
 periment of conducting a School of Law by lectures to be 
 delivered by lawyers in full practice at the Bar, and to be 
 listened to by students in law offices, was, at the time it was 
 tried, premature and impossible of success. 
 
 The co-workers in this earliest effort to establish a School 
 of Law, could only lay the foundations on which in after 
 years their successors have been able, with ampler sources 
 of success, to build with honor and profit. 
 
 Shortly after Mr. Butler's return to New York, the 
 sudden death by his own hand, of William M. Price, the 
 District Attorney for the Southern District of New York, 
 startled the profession and alarmed the Government. 
 President Yan Buren, who wished to place the office in 
 strong and safe hands, immediately asked the ex- Attorney 
 General to accept it. It was an office at that time pecu- 
 liarly representative of the Government. John Duer, 
 his Associate Reviser, had held it under Mr. Adams. 
 It did not preclude private practice in the Courts, and 
 was liberally compensated by the fees allowed by 
 law in lieu of salary, and was regarded by the profes- 
 sion as a post of high distinction. This office he held dur- 
 ing the whole of Mr. Yan Buren' s term, being succeeded by
 
 88 
 
 Ogden Hoffman on the accession of General Harrison, 
 March 4th, 1841. 
 
 Mr. Van Buren's defeat at the Presidential election of 
 1840, did not in the least dampen the ardor of his political 
 friends in New York, and they looked forward with cer- 
 tainty to his continued leadership of the Democratic party, 
 and to his candidacy in ] 844. 
 
 In the Convention, held at Baltimore, in May, 1844, Mr. 
 Bntler as the nearest personal friend of Mr. Van Buren and 
 his immediate political representative, headed the opposi- 
 tion to the scheme by which, under the imposition of the 
 rule requiring a two-thirds vote to nominate the candidate, 
 the clear majority pledged to Mr. Van Buren, in ad- 
 vance of the Convention, was rendered wholly ineffectual. 
 
 His speech at Baltimore in opposition to the two-thirds 
 rule, I think he regarded as the most important oratorical 
 effort of his life. Always a graceful and persuasive speaker, 
 he was, when aroused by a special subject or occasion, im- 
 passioned and eloquent. In this instance, the discovery of 
 what he deemed a plot contrived to defraud its victim of an 
 ascertained majority vote by making the vote itself instru- 
 mental to destroy its efficacy as a controlling force, coupled 
 with his strong personal attachment to the chief whose 
 downfall this treachery was meant to compass, gave to his 
 effort the daring of a brave soldier caught, with his leader, 
 in a traitorous ambuscade, and fighting for a life dearer than 
 his own. All descriptions of the scene concur in giving this 
 impression of his bold, vigorous but unavailing defense 
 of the right of the majority. 
 
 The claims of Mr. Van Buren to the continued leader- 
 ship of his party were inconsistent with the plans of the 
 managers of the Southern Democracy. These had been 
 thoroughly matured, and they admitted of no candidacy 
 which was not in full sympathy with the demand for the 
 annexation of Texas, to which Mr. Van Buren had re- 
 fused his concurrence, at the risk of losing the nomina- 
 tion for the Presidency. The Southern leaders succeeded 
 in that part of their scheme which called for the defeat
 
 of Van Buren, but failed in that part of it which called for 
 the nomination of the candidate they opposed to him. 
 A letter from Mr. Van Buren to Mr. Butler withdrawing his 
 name was followed by the capture of the Convention for 
 a nominee to whom the Yan Buren men transferred their 
 votes, James K. Polk, who had been favored by 
 them as a candidate for the Vice-Presidency, and whose 
 friends, finding him available to unite the requisite two- 
 thirds of the convention, eagerly fell in with his nomi- 
 nation for the higher office, which was followed by his 
 election, in November, 1844. 
 
 Mr. Polk pressed upon Mr. Butler a seat in his Cabi- 
 net, and the leading friends of Mr. Van Buren urged 
 him to accept it, but he had no disposition to return to 
 Washington, especially as the associations of his former 
 residence could not be renewed, and he contented himself 
 with resuming, at the President's solicitation, the District 
 Attorneyship in New York, a position which he occupied 
 until the Spring of 1848, when the growing aggressions of 
 the Slave Power and the subserviency of the national ad- 
 ministration to its demands aroused his indignation, severed 
 his long relations with the Democratic party and brought 
 him into open hostility to the Administration and its 
 measures. 
 
 The Free- Soil Convention, held at Buffalo in August, 
 1848, marked the uprising of the spirit of genuine resist- 
 ance on the part of the North to the domination of the Slave 
 Power. It was a movement wholly within the lines of 
 the Constitution, uninfluenced and uncontrolled by men of 
 extreme views, and having for its real, as well as its de- 
 clared purpose, the reassertion in principle and in the prac- 
 tical administration of the government of the nationality of 
 freedom and the sectionalism of slavery, by its absolute 
 exclusion from the Territories and from the new States. 
 "No more slave States, and no slave Territory," was a plain 
 declaration, and while it violated no constitutional guar- 
 anty or right, it was the death knell of the supremacy of
 
 90 
 
 the Southern oligarchy which sought to rule the nation. 
 Into this movement Mr. Butler entered with all the enthu- 
 siasm of his earlier days, and with entire unselfishness and 
 patriotism. 
 
 He was largely instrumental in bringing about the 
 candidacy of Van Buren and Adams for President and 
 Vice-President upon the Free- Soil platform of 1848, a 
 candidacy consistent with the faith of the fathers and 
 founders of the Democratic party, and the only possible 
 protest on the part of those who, while holding its 
 principles of government, had never entered into alliance 
 with the propagandism of slavery. 
 
 The defeat of the Democratic ticket, the election of 
 General Taylor, and the exclusion of slavery from Cali- 
 fornia and New Mexico followed, with the seeming pacifi- 
 cation of the slavery agitation by the compromises of 1850, 
 effected by the powerful aid of Mr. Webster, for himself, 
 however patriotic in intent, a fatal lapse, and for the 
 country a delusive truce. 
 
 In July, 1849, Governor Fish sent Mr. Butler an appoint- 
 ment as ' 'Commissioner of the Code, ' ' requesting his co-oper- 
 ation in the work of codification then in progress, but this was 
 declined and his whole time was given to his private practice 
 and to the philanthropic objects in which he was interested. 
 The nomination for the Presidency, in 1852, of Franklin 
 Pierce, a native of New Hampshire, gave to the Free- Soil 
 Democrats of 1848 some ground of hope for an administra- 
 tion on a patriotic basis. The compromise measures had 
 taken effect as a kind of stay of proceedings to prevent ex- 
 treme action by either party and there was no emergency to 
 arouse the spirit of the North to renewed activity against 
 the Slave Power. The Democratic Free-Soil leaders 
 deemed it safer to adhere to the old party than to venture on 
 the extreme and doubtful ground occupied by the promot- 
 ers of the candidacy of Hale and Julian. Salmon P. Chase, 
 in an open letter to Mr. Butler appealed to him to oppose 
 the Democratic ticket, but he replied, August 7, 1852, by a 
 letter in which he reviewed the whole political situation,
 
 91 
 
 declared his adhesion to the principles of the Free- Soil 
 Convention, and avowed his intention of supporting Pierce 
 and King, as representing sound Democratic doctrines 
 and whose election under the existing state of things he 
 believed would place the whole responsibility of the 
 government in the hands of the Democratic party, who, 
 if they should lend themselves to a crusade against 
 Freedom would soon be justly overthrown. 
 
 Personal attachment to General Pierce had something to do 
 with this adhesion to him as a candidate. He had been a Rep- 
 resentative in Congress from New Hampshire during General 
 Jackson's administration, and a warm friendship, based on 
 identity of literary tastes, had sprung up between him 
 and the Attorney-General. I well remember the even- 
 ing on which the latter, on joining the family circle, pro- 
 duced a small volume which he said his friend Mr. Pierce 
 had just given him, as the work of a young author in whom 
 he took a special interest and in whose future he had 
 great faith. It was the Twice Told Tales of Nathaniel 
 Hawthorne. 
 
 President Pierce speedily and thoroughly disappointed 
 the hopes of his old. friend and of all the Northern Demo- 
 crats who had taken part in the Free-Soil movement of 
 1848. His congratulations to the country in his first 
 Annual Message, December 5, 1853, on the repose and 
 security in the public mind created by the compromise 
 measures, coupled with the declaration that " this repose is 
 to suffer no shock during my official term, if I have power 
 to avert it," were followed, before the end of the same 
 month, by the measure introduced in the Senate as a part of 
 the Kansas-Nebraska bill, to repeal the Missouri com- 
 promise of 1820, a bold and concerted plan by which the 
 leaders of the Democratic party, South and North, declared 
 their deliberate adhesion to the Slave Power and its aggres- 
 sive policy. The shock of thi s traitorous blow at the compact 
 by which slavery had been restricted from the territory 
 now about to be embraced in the Union, ended all further
 
 92 
 
 repose on compromises, earlier or later, awoke as with 
 a trumpet blast the free spirit of the North, and heralded 
 the opening of the final struggle between sectionalism and 
 the Nation. 
 
 At the great meeting of citizens held in the City Hall 
 Park, May 15, 1854, to protest, on the eve of its final pas- 
 sage, against the bill repealing the Missouri compromise, 
 the principal speech was made by Mr. Butler, who though 
 enfeebled by recent illness, spoke, in the open air, to five 
 thousand people, with all his wonted vigor and fire, striking 
 the key-note of the speedy harmony and united action 
 which welded together in the Republican party all the 
 opposing forces rallied against slavery extension, when he 
 declared that the issue must be joined upon this attempted 
 subversion of the ancient ordinance of freedom, and that 
 if for example, Stephen Arnold Douglas, its leading North- 
 ern promoter, "were a candidate for President to-day, 
 nominated by a Baltimore Convention, and William 
 H. Seward or any other honest man were the candidate of 
 the opponents of this bill, he should vote for William H. 
 Seward if it were the last thing he had to do in this sublu- 
 nary sphere." 
 
 The force of this declaration, received with wild enthusi- 
 asm, was well understood at the time and nothing could 
 more forcibly express the breaking up of all old party 
 issues and alliances in the new emergency which rallied 
 men, hitherto widely apart in political opinion, to the stand- 
 ard of revolt against the invasions of the Slave Power. 
 
 From that time, he was constant and conspicuous in his 
 efforts against the steady aggressions and outrages of the 
 slavery propagandists. He voted for Fremont in 1856, and 
 by voice as well as vote denounced the frauds and crimes 
 involved in the effort to fasten slavery upon the people of 
 Kansas. Still, with many other men of those troublous 
 times, he did not anticipate a violent issue of the conflict, but 
 hoped to the end of his life for a peaceful solution by con- 
 stitutional methods. "Never despair of the right. Tyrants
 
 93 
 
 and apostates may attempt what they please. They may 
 endeavor to bear down the rights of the people, but all 
 their assaults will be in vain in the presence of a free, intel- 
 ligent people like those of the Free States." These words 
 spoken in the Park in 1854, were prophetic of results 
 reached in a way he did not foresee. He was not 
 spared to witness their complete fulfillment, but had the 
 scriptural portion accorded to the good man ' ' taken away 
 from the evil to come." 
 
 The later years of his professional life were largely given 
 to a litigation of great magnitude which grew out of the 
 attempt of the representatives of an insolvent corporation, 
 the Xorth American Trust and Banking Company, one of 
 the speculative enterprises of which the financial history of 
 New York has presented so many specimens, to defeat the 
 claims of its secured creditors, chiefly English capitalists. 
 
 The amounts involved in the various suits which arose 
 in the cause of this litigation and which during many years 
 were pending in the courts of this State, do not, in these 
 later days of gigantic corporate obligations appear as start- 
 ling as they did in that earlier time. The validity of 
 trusts, one known as the Million Trust, and others as 
 the Half Million Trusts were the main subjects of dis- 
 pute, but the complexity of the facts, the novelty and im- 
 portance of the questions involved and the singular zeal 
 and ability with which the opposition to the creditors was 
 conducted, combined to make the various suits almost unpa- 
 ralleled in their number and in the methods by which they 
 were promoted. On the opposing sides of these cases the 
 ablest lawyers in the State were ranged against each other. 
 As leading counsel for the English creditors, among whom 
 were the Bank of England and other capitalists in London, 
 Mr. Butler had the largest share of the labor and responsi- 
 bility of the contest and this, at a time when he was broken 
 in heart and spirit by the death, in the summer of 1853, of 
 his wife, a blew from which he never recovered and which,
 
 94 
 
 with his arduous self-imposed professional task, broke down 
 his vigorous constitution. 
 
 Of one instance of his labors in these causes Judge Kent 
 says : 
 
 " In this case which for voluminous and complicated 
 pleadings and proofs was perhaps unparalleled in our 
 Courts, it was deemed necessary that a condensed state- 
 ment of the evidence of the whole case and legal 
 points, with minute references to the proofs and au- 
 thorities affecting every point, should be prepared for the 
 Court of Appeals. Two of the associated lawyers were pre- 
 vented by other engagements from undertaking the work ; 
 I shrunk from it as utterly beyond my powers and it fell to 
 the self-sacrificing industry of Mr. Butler. Our conferences 
 in relation to it were of daily occurrence, and I observed, 
 with alarm, its gradual effect upon his health. Often have 
 I left him bending over his desk, late of a July night, and 
 found him the next morning in the same posture, which 
 had been varied, in the interval, by only a brief period of 
 intermission, in which he has told me that sleep was often 
 sought in vain. I remonstrated often, seriously almost 
 angrily. I remember his once answering me by repeating 
 Wordsworth's ' Ode to Duty.' It was impossible to with- 
 draw him from his work ; and thus health was wasted at 
 the midnight taper life itself consumed in the severe 
 labors of his office and when his task was finished to the 
 admiration of his associates and opponents, the anxious 
 eye of friendship saw too surely that the stamina of 
 his constitution was gone. It enhances our idea 
 of his energy, to know that this too protracted labor was 
 in part performed while mourning a bereavement, the most 
 afflicting that could occur to a man of his domestic affec- 
 tions. I have no right, even in the spirit of panegyric, to 
 invade the privacy of his domestic affections ; but it is not 
 improper to say that the loss of the beloved and honored 
 partner of his life gave additional effect to his fatal labor, 
 while our admiration is increased when we think that he 
 carried on his work, enduring in silence and composure a 
 heartfelt wound which had touched a nerve where ' ' agony 
 resided." 
 
 Such was the importance of the case to which Judge 
 Kent refers, that the Court of Appeals gave to its hearing 
 an entire term. Probably no such forensic contest ever
 
 95 
 
 occurred in this State, or is likely to occur in the future, as 
 that whose result is embodied in the first^two hundred and 
 ninety-seven pages of the fifteenth volume of the New York 
 Reports. Greene C. Bronson and Samuel Beardsley, two 
 of the foremost jurists in the State, only lately retired from 
 the Bench of the Supreme Court, and Nicholas Hill, in 
 many respects the best equipped lawyer at the Bar, were 
 opposed to Benjamin F. Butler, Charles O' Conor, William 
 Kent and William Curtis Noyes. Besides these noted 
 names which appear in the report, other able lawyers had 
 been concerned in the management and preparation of the 
 case, and no subject of controversy was ever more skilfully 
 or completely presented to a Court of Justice. 
 
 The fourteen resolutions of the Court disposing of the 
 question involved in favor of the English creditors was a 
 signal victory for their counsel and a crowning professional 
 triumph for their senior, who was well satisfied to associate 
 with the close of his long professional career, a success in 
 the interest of justice, against what he regarded as a scheme 
 of repudiation and wrong. 
 
 In spite of exhausted strength and failing health he 
 was induced to enter upon another, and as it proved a 
 final, professional contest, in which his personal sympa- 
 thies and his sense of justice were enlisted in behalf of a 
 client whose cause he espoused as if it were his own. 
 
 Uriah P. Levy, a captain in the United States Navy, 
 who had risen in the service by his gallantry and efficiency, 
 had been a comrade in the war of 1812 of Lieut. William 
 Howard Allen, of whom mention has already been made. 
 A fellow prisoner with him at one time, it was a tradition 
 of their captivity that they were given the privilege of 
 walking from their place of confinement as far as a certain 
 mile-stone on the road leading into the interior country. 
 Taking advantage of the solitude or the darkness in one of 
 their walks, they dug up the mile-stone and removed it to a 
 considerable distance inland, thus securing a substantial 
 enlargement of the jail liberties.
 
 96 
 
 This fellowship of suffering and adventure with one 
 whom my father had loved and mourned as a brother, made 
 Captain Levy a welcome guest at his house, and was deemed 
 to entitle him to the self-sacrificing service which lie in- 
 voked to secure redress against the oppression and injustice 
 of the government to which he had devoted his life. 
 
 Levy was an Israelite. His personal bearing was not 
 agreeable to his fellow-officers. They objected to him on 
 the ground of his race and his manners, and occasions of 
 complaint and provocation arose whereever he was placed 
 on duty. He had been arraigned before six several courts 
 martial for improprieties of conduct, most of them trivial, 
 and had received and submitted to several sentences, com- 
 paratively light, until, by the judgment of the sixth court 
 martial, he was dismissed from the service of the United 
 States. Upon a review, this harsh sentence was disap- 
 proved by President Tyler and Commodore Levy retained 
 his command and rank, but such was the prejudicy 
 against him that he was unable to induce the Navy 
 Department to assign him to any post of duty. Finally, 
 under the operation of an Act of Congress, passed in 1855, 
 "to promote the efficiency of the Navy," a Board of fif- 
 teen officers reported him to the Secretary of the Navy for 
 dismissal, and his name was stricken from the roll. This 
 action was without notice to Levy or opportunity of hear- 
 ing, and was based mainly on the records of the six courts 
 martial of which he had been the subject, although the last 
 of these had taken place, and its sentence had been an- 
 nulled, nearly fifteen years before the action of the Board, 
 and although he was in full vigor of mind and body, 
 and competent for every duty of his captaincy. 
 
 Smarting under this injustice, and after having appealed 
 in vain to the Navy Department, Levy, who was possessed 
 of ample means and of untiring energy, devoted himself to 
 the task of procuring redress by legal methods, and, after 
 ong and patient effort, succeeded in procuring, as a neces- 
 sary basis for a review of his case, the passage, in January, 
 1857, of an Act of Congress establishing a Court of Inquire
 
 97 
 
 to investigate the case of any officer dismissed by the Board 
 of Fifteen, and to report thereon. 
 
 A day in court being thus accorded, Levy, with the aid 
 of his counsel, made good his claim for a thorough investi- 
 gation. All the records of the previous courts affecting 
 him were ransacked, his whole career was made the subject 
 of scrutiny and evidence, and, after a long and arduous 
 trial, the overwhelming mass of testimony compelled a 
 finding by the Court in his favor, and a report that he ought 
 to be restored to the active list with the grade of Captain. 
 The President having approved this finding, he was nomi- 
 nated to the Senate, and confirmed by that body, as Cap- 
 tain, from the 29th of March, 1844, a restoration to rank 
 and vindication of character, as complete as it was unique, 
 in the history of the Naval Service. 
 
 Nothing short of the most painstaking and thorough 
 efforts could possibly have sufficed to overcome the deeply 
 rooted prejudices which had been the foundation of this 
 long and active persecution directed against a competent 
 and faithful officer. The defense of Captain Levy as pre- 
 pared and published with the annexed proceedings and tes- 
 timony, was the last important work done by his friend and 
 counsel, and is a signal illustration of what may be accom- 
 plished, by patience and skill, in reversing wrong judg- 
 ments and vindicating right principles. 
 
 After the completion of this final work, on October 16, 
 1858, my father sailed from New York in the steamer 
 " Arago," accompanied by his two youngest daughters, and 
 intending to spend two years in travel and residence in 
 Europe. He arrived at Havre October 29th, and after a 
 short stay at Rouen, reached Paris, where he was taken ill 
 almost immediately, and where he died at the Hotel du 
 Louvre, November 8, 1858, aged sixty-two years, ten 
 months and twenty-five days. 
 
 At the meeting of American citizens in Paris on the oc- 
 casion of his djeath, John Y. Mason of Virginia, then United 
 States Minister to France, afterwards conspicuous in the 
 memorable Mason and Slidell incident of the Rebellion, pre-
 
 98 
 
 sided, and Hamilton Fish, already eminent in public 
 life, and in later years the wise and efficient administrator 
 of the State Department, presented the resolutions. On the 
 eve of their bitter struggle the North and South united by 
 leading representatives of each section in a tribute of respect to 
 a man justly eulogized by both for his services to his 
 native State and to the whole country. 
 
 At home the tributes of the Bar, at the meeting held De- 
 cember 1, 1858, to which reference has been already made 
 in the sketch of the Revision and at the funeral services 
 December 2, 1858, were of a remarkable character, both as 
 to the speakers and the words they spoke. Mr. Justice 
 Nelson of the Supreme Court of the United States, long 
 our ideal in bearing, manner and every element of judicial 
 fitness, was the presiding officer of the meeting of the Bar. 
 Samuel J. Tilden, conspicuous then and always for his clear 
 insight and great professional and political sagacity ; Judge 
 Kent, a man of rare accomplishments and the finest sympa- 
 thies ; Marshall S. Bidwell, a jurist affluent in learning and 
 of high Christian character ; Judge Edmonds, noted for his 
 fearlessness in the discharge of duty, and his enthusiasm 
 in every cause he deemed a righteous one ; Daniel Lord, 
 the type and fit exemplar of the commercial lawyer in the 
 highest sense, a representative of all that was best in the 
 great metropolis of the Nation, united in terms of eulogy 
 which would seem extravagant and overcolored if their 
 truth were not attested by the strong, unmistakable per- 
 sonal emotion which marked their utterances. When 
 Judge Kent, in his address, unexcelled for beauty and 
 grace by any effort of the class to which it belongs, said in 
 closing: "If, to a stranger, this imperfect sketch of the 
 friend we mourn shall appear to be too unmingled a eulogy, I 
 can only say that I believe I have been attempting to describe 
 a man in whom I knew no fault, ' ' --he spoke in full memory of 
 the many years during which he had been in close contact 
 with that friend in many sharp and bitter contests, in all of 
 which the scrutiny of unbiased and manly observers found
 
 99 
 
 him always sincere in friendship, loyal in duty, pure in life 
 and unselfish in purpose. 
 
 The religious side of his character which was marked by 
 the same thoroughness and fidelity which belonged to his 
 professional career was emphasized almost as fully by the 
 judges and lawyers I have named as by the clergymen who 
 spoke at his burial. Doctor William B. Sprague of Albany, 
 a divine of national reputation ; Doctor Thomas H. Skinner 
 long the revered pastor of the Mercer Street Church in New 
 York ; Doctor William Adams the learned and beloved min- 
 ister of the Madison Square Presbyterian Church, later the 
 head of the Union Theological Seminary, and George W. 
 Bethune, foremost in the pulpit of the Reformed Church 
 for eloquence and ability, and no stranger to platforms 
 where public questions of the hour needed his ringing, stir- 
 ring tones, all spoke in words prompted by long associa- 
 tion and close friendship, alike in commendation although 
 very various in expression and illustration. 
 
 These, in their turn, might seem overstrained were 
 it not for the warmth and vividness which made them the 
 testimony not only of willing but of truthful witnesses. 
 "He was a man," said Doctor Bethune, in the single pas- 
 sage I transcribe from these memorial addresses, "whose 
 piety was his life. My dear mother said to me, once, of a 
 person I had spoken well of ; ' My son, he puts on his polite- 
 ness as he does his best coat. Give me a man whose polite- 
 ness is in his skin!' So it was in Mr. Butler's religion. 
 It was part of himself. There was no affectation about it. 
 No one ever supposed there was. It shone out of that 
 bright eye, can it be that bright eye will never shine on us 
 again ? It beamed from his countenance, it came from his 
 heart, it was a transfiguration from within that made his 
 life so beautiful in all the grace and kindness of a Christian 
 gentleman." 
 
 To these testimonies I need hardly add my own. 
 The record I have traced barely indicates the wide and 
 varied character of the labors of the life to which it relates,
 
 100 
 
 and wholly fails to exhibit the personal traits which gave 
 to every aspect of that life and work their own peculiar 
 charm. 
 
 Few men were ever more fully and constantly occupied 
 in weighty matters of private and public concern, or more 
 keenly sensitive to the responsibilities they imposed. This 
 made him habitually serious, but never disturbed the even 
 cheerfulness which was his habit of mind, or deprived him 
 of the pleasure to be gained by turning from the drudgery 
 of his daily tasks to the delights of home, the recrea- 
 tions of literature, the society of friends, or the com- 
 panionship of Nature. His rare liberality and catho- 
 licity of spirit and the regard for the rights of all 
 men, religious, social and political, which he carried 
 into practice with a rare consistency and consideration, 
 kept him singularly free from personal asperities even in 
 the heated party conflicts in which he sometimes found 
 himself opposed to friends and associates ; and he harbored 
 no resentments against men who had done him cruel and 
 malicious wrong. This nobility of character was a trait 
 which endeared him to a host of true friends in different 
 walks of life and of widely divergent views and beliefs. 
 
 He was deeply and sincerely religious ; a rare specimen 
 of true piety without a trace of bigotry or even of sec- 
 tarianism, for he was as catholic in his faith as he was 
 humane in his sympathies. I cannot exaggerate or over- 
 state my sense of his virtues, which were the fruit and 
 flower of divine grace working in a nature which seemed 
 responsive to its heavenly touch to a degree seldom seen in 
 the sons of men. 
 
 His grave is at Woodlawn Cemetery, and on the stone 
 which marks it are carved, according to his own direction, 
 beside the Scripture text which attests his Christian faith 
 and trust, and a record of his services in the Cabinets of 
 Jackson and Van Buren, these words, commemorative of 
 his share in the greatest work of his life : "A COMMIS- 
 SIONER TO REVISE THE STATUTE LAWS OF THE STATE OF 
 NEW YORK."

 
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