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From this enumeration of the subjects embraced in the code, it will be perceived that it is co-extensive with the whole range of, criminal practice. There is no branch of judicial procedure, which by the common concession of the people of this state, demands at the hands of the legislature, a more searching and thorough examination, or a more complete and effectual reform, than the principles and details of criminal practice. Depending, as society does, for its safety, on the one hand, upon the most rigorous enforcement of the law for the prevention and punishment of crime, and on the other, for a just protection to the life and liberty of the citizen, it will readily be perceived, that the task of adjusting the legislation of the state so as to effectuate the one object without undue prejudice to the other, is one of no easy accomplishment. It will therefore not be attributed to a false profession of diffidence on the part of the Commissioners, to say, that while they have approached the performance of this duty, with a determination, so far as they were able, to attain both these objects, they have at the same time realized the delicacy and difficulty of the work. In the discharge of that duty they have not been unmindful, on the one hand, that the rights of the citizen, in proceedings of a criminal nature, should be most thoroughly protected, while on the other they have not forgotten, that the interests of public justice should be paramount to the observance of the useless forms and unmeaning technicalities, by which it has been so often eluded.

In this code, the Commissioners have departed from the plan of the execution of their duties, as contained in their report of a code of civil procedure. In that report, they do not deem it necessary to go further into the details of the practical steps required in the conduct of a cause, than is essential to the successful carrying out of the principles which they propose. The rules there prescribed, are mainly designed for the government of courts of

civil jurisdiction, embracing a body of intelligence and learning upon which the Commissioners feel a safe reliance may be placed, not merely for a faithful execution of the law, but for an intelligent and discriminating application of its provisions. They are designed also for that class of the profession, whose practice in those courts and whose experience of the rules governing legal procedure, afford, as the Commissioners believe, a just assurance that minuteness of detail would rather tend to confuse than to aid them in the application of principles, which they hope are expressed with sufficient clearness, and which, if that hope be well founded, can be readily and beneficially reduced to practice. Upon that confidence they are willing to rely, so far as the code of civil procedure is concerned; not doubting that when its provisions have become more familiar by practice, and its defects, not peculiar to this more than to any other human undertaking, shall have been remedied either by legislation or by benign judicial construction, it will be found to result in great benefit to the people, and in a still higher degree of moral elevation to the legal profession.

In the code of criminal procedure, however, a more detailed systeu of regulation is indispensable. In the rules which it prescribes, should be found a guide to the citizen, in the performance of the duties which are cast upon him for the preservation of public order, to the unprofessional magistrate, in the exercise of a difficult and delicate discretion,-and to the executive officers of the law, in the performonce' of duties designed for its due enforcement without an unnecessary or oppressive encroachment upon the rights of the citizen. This guide, in which the existing statutes are greatly deficient, and much of which is now furnished by subtle and almost inaccessible rules of the common law, the Commissioners have felt bound to supply, by provisions which, though minute are not unnecessary, and which shall distinctly and plainly

place before all, not merely the duties they may be called upon to perform, but the manner in which they are to be performed. The provisions referred to, constitute no inconsiderable portion of the code; and in their arrangement as well as their style, the study has been to make them as plain and simple as possible. Where warrants have been prescribed or undertakings of bail required or allowed, their form has in every instance been given. In short the object has been to make the code a body of practical directions, intelligible in their character, with the addition of the proper means effectually to carry them out.

In submitting the result of their labors to the legislature, the Commissioners will not pretend to assert, that it is free from omissions and defects; for no human work can be without them. They have spared no effort to render it perfect, and in return, they ask for it the candid consideration of the legislature and the people.

All which is respectfully submitted.

ARPHAXED LOOMIS,
DAVID GRAHAM,

DAVID DUDLEY FIELD.

Albany, December 31, 1849.

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