DAVID DUDLEY FIELD
Joseph Story could marshal all the arguments against the inutility of a code, but then ask the still-persistent question: “Because we cannot form a perfect system, does it follow that we are to do nothing?” While there were thousands who answered that we could and should do nothing, there were a stubborn band who contended that we could do something, could even do much. As the debate increased in acrimony, the war was waged with verbal violence up to the eve of that war in which violence of arms interrupted the milder hostilities. Yet even that war could not settle the controversy. It behooves us to ask, as the conclusion to our analysis of the prewar legal mind, what actually was the issue? In some respects, as we have seen, the legal mind was amazingly homogeneous; differences between Whigs and Democrats did not sunder it into ideological factions. But united though the profession was on principles of scholarship and in hostility to pettifogging, when it confronted the challenge of codification, a deep division opened. We cannot separate the two proclivities solely on the basis of temperament or of attitudes toward social reform. It is impossible to say that one was radical and the other conservative. We can say, with fair certitude, that the crevasse which opened within the fraternity represented a division between two opposing ideals of America. At bottom, the dispute over codes was a dispute over the identity of the nation.
This division by no means aligns provincial codifiers against cosmopolitan opponents. Many Americans were inflamed against the codes when they learned that Jeremy Bentham had the effrontery to offer President Madison his services to codify American law. At the same time, many of the codifiers were students of the Civil Law and, though of course patriots, were disposed to think more of regularity, harmony —ultimately of “sublimity”—than of Americanism. Furthermore, several gusts of passion swept across the field which had little to do with
the major problem, but which agitated emotions on both sides. Of these, the strongest was the profession's detestation of the overnight scholar, and their readiness (as in Story’s report to Governor Everett) to make sure that if codes were to be adopted, they should be prepared by experts, not by hacks. In America, the issue was further complicated by a perplexity as to the shades of meaning that differentiated Ben- tham and Brougham: some who detested the radicalism of Bentham still found charms in the meliorism of Brougham. Allowing nevertheless for these distractions, we are forced to realize that the noisy debate was basically a contest between nationalism and cosmopolitanism. The moment we thus perceive it, we recognize that it was the American problem—most obviously, as we have seen, in Protestant piety, yet equally pressing in education, in theology, and above all in literature —and sufficiently disturbing even in the fields of science and technology to create difficulties in international communication.
This is not to say that codifiers muted their technical cry that the Common Law was far more complex, more abstruse than necessary, and consequently an uncertain bulwark. One of the most telling indictments, William Price’s Paragraphs on Judicial Reform in Maryland (1846), gladdened many a patriot heart by announcing—^more boldly than any back-country critic had yet ventured to complain—that the Common Law was incoherent because the principles of it are never **allied” to each other. “There is no cohesion among them—each separate postulate stands alone and apart from all the rest.’’ Clearly, Price argued, the only remedy was a written code: “Codification is the only corrective, and sooner or later it must and will be resorted to.”
William Price, being a distinguished lawyer, scored effectively by indicating that this state of confusion forced upon judges the very action which the entire profession had publicly renounced, that of legislating by interpretation rather than by expounding statute. Under the present anarchy—^which men like Hoffman and Story had presented as the perfection of reason—^what it amounted to, according to Price, was simply that “Our lives, our fortunes, our good names, must be trusted to the Judges.’’
This sort of argument supplied sinews to the campaign for codification. Possibly it is a revealing comment on the decade of the 1850’s—that curious decade in which the intellectual momentum of the previous years carried on, sporadically, but in which younger minds seem petrified in anticipation of slaughter—that on all sides jurists conceded that reform of the law was inevitable. Often apologists were vague, and seldom went so far as positively to advocate a code, but almost all agreed that “simplification” was indicated. The Demo-
BOOK two: the legal mentality
cratic Review in 1851 said that the age was gone in which the main end of jurisprudence would be the creation of an abstruse science. “It is now demanded, that the prime object of the law and its ministers, shall be, to mete out speedy and exact justice between man and man; that judges shall disregard the technicalities and crotchets of a scholastic age, and make forms yield to substance." The Law Reporter in 1851, having fought for years against every suggestion of change, admitted defeat by noting that the desire for legal reform had become so strong “among all classes in this country" that the profession itself must now join the movement. The United States Monthly Law Magazine chimed in with this warning: “The anti-reforming lawyer must be prepared to meet with a series of disappointments, as point after point is carried against him," and concluded with what several distinguished men—such as Horace Binney—took to be an epitaph on fifty years of heroic endeavor:
THE INTERESTS OF THE PROFESSION, (that idol to which many a good man has been sacrificed,) are not longer thought to be furthered in leaving the cobwebs of our halls of justice untouched, but in sweeping them away.
Much of the demand for reform, for codification, carried to further lengths Grimk^’s contention that the law should fall into step with the march of science. This contention had various implications, but for lawyers it meant that, momentarily, they had no capacity to deal with the indisputable fact of the century, that the whole field of human intelligence had lately displayed an unexampled panorama “of beauties and perfections" which had strewn everywhere “practical good to all mankind." Since reform had laid hold of everything “except that which guards and protects our property and rights," was it not entirely logical that law should no longer stand immobile “while every other science known to man is greatly indebted to our enterprize and industry." Yet soon in America it became evident that exhortations of this sort—differing from the orations of Bentham and Brougham in England—came not so much from a conception of scientific clarity as from a national particularism.
Sadly enough, these proclamations increase in number and fervor during the 1850’s—as the nation hovers on the brink of disaster. The Common Law, says one magazine in 1850, is feudal in origin, but in it are combined both Saxon and Norman elements. Hence we must pick and choose: “The republican institutions of America naturally tend to revive with vigor those principles of Saxon law which sustain to the utmost the rights of the individual." So we must repudiate the Norman contributions. Yet even then, since “the Saxon swineherds would
have trembled at the restless spirit of commercial enterprise which characterizes America/' we must redact Saxon bequests in the light of that system called the Civil Law—and this we can do only by codification. In the next year The United States Monthly Law Magazine proclaimed the hope, the only hope jurists could offer, for preservation of the Union: “National, not sectional, in its character, and universal, if not in the obligations it shall impose, at least in the respect it shall win from the civilized world." Could a national code thus transcend sectionalism and hold the Union together, then to it would adhere the greatest of adjectives, which never could properly be applied to the heterogeneous pile of the Common Law:
The task of its accomplishment, will devolve upon those who see, in the science of law, something more than the mere means of acquiring a livelihood, or even wealth; who see in it a profound and sublime philosophy.
This, then, should be the American future, the American accomplishment: a legal “sublime" systematically fashioned out of harmony instead of through contradiction, permanent and stable instead of wracked by doubt and uncertainty. Yet the student gets a whiff of death in these chants about legal sublimity as he does not in the sincerity of Grimk^: there is something artificial, something desperate in the appeals, as though the speakers knew in their secret hearts that the opportunity was fading for America to find its sublime expression in jurisprudence; that it would be in the surge of infantry brigades at Gettysburg.
Until that time, the central battlefield for the legal war was New York. Governor DeWitt Clinton as early as 1825 told the legislature that the whole system of law required revision into a complete code “embracing those improvements which are enjoined by enlightened experience.” Since Clinton was a Jeffersonian (although in the free- for-all politics of the state he was opposed more by Van Buren than by the Federalists), and because he stressed the value of a code as preventing “judicial legislation, which is fundamentally* at war with the genius of representative government," Federalists and Whigs made anticodification a party position. Some Democrats countered by urging Clinton’s cause all the more strongly: Benjamin F. Butler, in his inaugural address at the University of the City of New York, cited as one of the grand conceptions of Bacon “that the common law should be reduced and systematically digested." Since the unregenerate lawyers considered Bacon enlisted on their side, words like these only inflamed passions the more. As a Democrat and a Jackson man in the 1820’s, Gulian Verplanck, in a book on contracts, praised codification so
strongly as to bring abuse upon himself; once he had left Jackson because of the “Bank War/' he discoursed sagely on the evils of codification. “We must not, we cannot/' he said in 1839, “even dream of casting away the meaning of words by the example of things.''
The most comprehensive debate on the issue came at the New York Constitutional Convention of 1846. Campbell P. White introduced the resolutions which expressed the essence of the Democratic contention; a committee on the judiciary should be appointed
to inquire into the expediency of providing in the constitution for a systematic and thorough reform of courts of law and equity—for a simplification and reduction of the antiquated, artificial and ponderous forms of legal and equitable proceedings.
Ultimately, White announced, we must codify the mass of unwritten law in order that litigation may be diminished and—this is what dismayed those who had fought for equity—that there may be “the extension of the right of trial by jury to all practicable questions." In a paradoxical manner which defies historical analysis, those who invoked the Civil Law and equity in their denunciations of the Common Law argued that if their ideas were vindicated in codes, then juries—that is, the democracy—would have more rather than less to say in crucial decisions.
As a step in this direction, the reformers made clear that they wanted to abolish every distinction between law and equity. “We should use some term descriptive of the judicial power generally," they said, meaning that the legislature should discard the vestiges of English practice, and instead supply a purely native wisdom. Today we may not realize how anguished were the cries which arose from the other side of the assembly, the most unhappy being from Ambrose L. Jordan, of Columbia University. The reformers' effort to merge law and equity was, in Jordan’s estimation, a plot against the Common Law—“a system which, since our first existence as a people, has constituted the law of the land—^a system derived from our mother country, venerable for its antiquity, and admirable for its wisdom, and its adaptation to the condition of a free people." Jordan recited all the then-conventional laments that the Civil Law—upon which the codifiers presumed to rest their case—was the creation of despotisms; wherefore he and other opponents advanced the tremulous contention that even though the Common Law had been imported from England, it had become, thanks to its marvelous versatility, an American way of thought. “Theories and abstractions," said The American Jurist, “which rest upon nothing real, are no longer esteemed.” Codifiers,
this argument ran, were theorists, lingering disciples of “the philosophical doctrines of the last half of the eighteenth century." Yet even though few American writers had heard of Savigny and of the historical conception of law as the creation of custom rather than of legislation, before the Civil War there is nothing in the American literature of an out-and-out evolutionary philosophy. Reiterated statements that the Common Law was “malleable" seldom come to explicit histori- cism. On the contrary, opponents of codification planted themselves upon the rational patriotism of an irrational but native development, and so challenged codifiers to wage war with them on the issue of legal allegiance. This the codifiers were more than ready to do. The most eager of them was the man to whom codification became a religion of patriotism, David Dudley Field.
Field was anything but a radical. Like Kent, he was a scion of Connecticut Puritanism who became more of a New Yorker than the New Yorkers. He was, when he put his mind to his practice, a successful lawyer. He cherished the highest standards of legal probity and never could sufficiently condemn the “revolting doctrine" of Brougham that an advocate must carry zeal for his client to the point of forgetting that there is any other person in the world. Nobody, not even Story, more upheld the ideal of scholarship. A true lawyer, Field said, must know the law in all its departments, “he must have comprehended the greatness of the whole, the harmony of its parts, and the infinite diversity of its particulars." He excoriated the apprentice system for training lawyers because it turned out an undisciplined, half- educated creature, “the transcriber of legal formulas, the promoter of neighborhood litigation, the unsafe guide, the hopeless bigot"; he grimly declared that the present eminent men in the profession were not produced by the system but in spite of it.
When he came to the traditional view of the relation of law to property, Field was the most “conservative" of the lot. The primary purpose of the law, he wrote, is to govern property; wherever there appears material capable of appropriation, “whether it be solid earth or flowing water; whether it be the product of the soil, or the workmanship of man's hand, there comes the law, and gives you the rule by which you may take it, use it, and transfer it.” Law as the arbiter of property was, in his view, the foundation of “industry, refinement, liberty, civilization." To begin with. Field’s passion arose out of his rage against the chaotic state of the law: “a system more clumsily devised for the accomplishments of its end, and more inconvenient in practice, could scarcely be imagined." Special pleading especially disgusted him, for it prostituted the noble science to a “paltry learning."
As his fury mounted—he was, oddly enough, not an emotional man in the ordinary sense of the word—he acquired a language of invective: the Common Law is artificial, complex, technical, full of obsolete terms, so burdensome as no longer to command the respect of society. Because of its crudity, equity had to be devised, but that in turn has become so artificial as to be equally absurd. Field commenced his agitation in 1839 with an open letter to Verplanck, his theme one which he would not cease to belabor until his death in 1894:
This young State, with scarcely two millions of people, and republican institutions of the most democratical character, administers justice to its citizens with less certainty and promptitude than even the old overburdened kingdom of England, with fifteen millions of people, whose commerce and whose colonies encircle the world.
He early became convinced that the distinction between Common Law and equity was utterly false, “little more than a play upon words.” The simplification which partisans of equity claimed for it was a delusion. Where then was succor to be found? The answer had come to him by 1840: a code was “the natural relief of a people from the burden of an incongruous, obscure, and overloaded jurisprudence.” He appeared so indubitably the advocate in New York that when, following the action of the Constitutional Convention, a commission was appointed to revise procedure, he was inevitably made its head. His Code of Procedure was enacted in 1848, and by January, 1850, he completed codes of civil and criminal procedure. But by this time the opposition was highly vocal. “My life was continual warfare,” Field recollected. “Not only was every obstacle thrown in the way of my work, but I was attacked personally as an agitator and a visionary, in seeking to disturb long settled usage, and thinking to reform the law, in which was embodied the wisdom of ages.” Even so, as chairman of a second commission, appointed in 1857, he produced a massive organization of the whole body of state law, which he submitted in 1865. His enemies in New York were able to block the adoption of his later codes and to prevent acceptance of more than fragments of his great code; but eventually his civil code was enacted in twenty-four states, the criminal one in eighteen; he had an effect in England, Malaya, and India, and in his last decades spoke his dream of putting the laws of all nations into one gigantic international codel
In persuading the Convention of 1846, Field said that the need was for a “radical” reform, going back to first principles, breaking up the present system, and reconstructing the components into “a simple and natural scheme of legal procedure.” Actually, however, as his friend
Judge Edmonds said of Field’s first code, “nothing novel or startling has been introduced,” and above all nothing proposed “that is calculated to impair the rights of property or to interfere with the enjoyment of liberty or the pursuit of happiness.” Field himself pleaded “that none of the changes which I have recommended can prejudice in any respect the rights of the parties,” but would only make the assertion of these rights less dilatory and expensive. To defend his codes, Field used arguments the profession had long since devised. He invoked not only the standard of scholarship but that of comparative study: the average lawyer is the “only man of science who does not look beyond his own commonwealth,” and should be ashamed of himself as he measures himself against the student of comparative anatomy. Field as much as Story believed in the plastic character of the law, and dismissed as contemptible the charge that codes would prove a strait jacket to progress. His program was a simple one: instead of the random maze of rules, “to have these rules collected, arranged, and classified; the contradictions reconciled; the doubts settled; the bad laws eliminated, and the result written in one book, for the instruction and guidance of citizen and magistrate, lawyer and client.” This did not mean sacrificing the wisdom of the ages, or pretending that law was not a growth within specific conditions. Field gladly admitted, “An original system of jurisprudence, founded upon mere theory, without reference to national characteristics, habits, traditions, and usages, would be a failure.” While Field fully comprehended the purport of Savigny, he found therein no reason that a factitious historicity should impede the cause of systematization.
Why then, we ask, did the profession react so vehemently to “the Field Codes”? There are, of course, the reasons which professional colleagues adduced on purely professional grounds. In these, all the stale arguments for the flexibility of the Common Law were paraded. Had the crux of the argument, up to the Civil War, been only a matter of the simplicity of codes versus the malleability of precedents, the entire contentious episode would be only a sad footnote to a period of vigorous intellectual exertion.
Something more was involved, something which from the beginning we have seen haunting the jurists even when they were strenuously endeavoring to talk law as pure law, and not let it become contaminated by the nativistic resistance of a Natty Bumppo. David Field during the 1840’s was a close associate of a group of New York litterateurs who styled themselves “Young America.” The most important pupil of this fraternity, which in the main made more noise than sense, proved to be Herman Melville, though the little band also
had an effect upon Whitman. They were all Democrats and nationalists; yet being learned in European literature—at least in contemporaneous Romantic writers—they were not Know-Nothings. Field proclaimed his alliance with them by publishing, in The New York Re‘ view for April, 1841, a discussion of the works of one of their revered prophets (now forgotten), William Leggett. Field’s notice, though of course nothing so strident as Whitman’s “Preface,” throws at least some light on the sources of his codifying impulse. Americans, he said, continue still to write like Englishmen; but eventually writers such as Leggett will show that our political condition must recast our ideas about government—even more, “that it will modify our tastes, enlarge our sympathies, and in no inconsiderable degree remodel our social condition.” Field’^s extracurricular writings—if so they may be called —are rare enough to make each word resounding, and it may be that because of his friendship with Evert Duyckinck and Cornelius Matthews he struck the patriotic pose with a bit more bravado than he really felt. Still, he pointed an accurate finger at what in literary creation—not to mention in religion, science, and the law—was the predicament of the American: “Not being provided with a literature of his own, the American is subjected to two opposite systems of training; one from books, the other from the life he sees around him.” Field may have derived some inspiration from Bentham, even more from Brougham, but he preferred to insist that his zeal for the codes arose out of an empirical use of his own eyes, regarding the American scene as it actually existed. Whoever wishes to speak to the American people a language they can understand. Field continued about Leggett, “must have studied much that the schools of Europe do not teach.” In literature a bold spirit was required, a readiness to receive any truth, to search for it in hidden places, and a strong sympathy for all other citizens. “Why,” he asked—and here we do get a foreshadowing of Melville and Whitman—“should we disregard the obvious and necessary consequence of this new state of things in the economy of the world? why persist in applying here the customs and maxims which belong to Europe?”
This transplanted New Englander would not have written this way in New York, at the age of thirty-six, unless the virus of intellectual nationalism—or at least of independence—had entered his veins. From the insight afforded by the review of Leggett one can perceive that Field s passion for simplicity was not merely the desire of an efficient lawyer to have things tidied up: it was his way of fulfilling the promise of the Republic. To him the Common Law was as much a foreign levy
upon the pristine continent as were for Whitman the academic “rhymes and rhymers." It was, Field declared,
a most artificial system of procedure, conceived in the midnight of the dark ages, established in those scholastic times when chancellors were ecclesiastics and logic was taught by monks, and perfected in a later and more venal period, with a view to the multiplication of offices and the increase of fees, was imposed upon the banks of the Hudson and the quiet valley of the Mohawk.
This lofty language shows what was working in David Field’s heart: the Hudson and the Mohawk—the realm of Natty Bumppo—versus the dark ages, scholastic times, monks, venal England. Men like Robert Baird were no longer apologizing to Europeans for the voluntary system as creating a shambles among our churches but were proudly exhibiting it as an original contribution of American genius; so the age was ripe “for a code of the whole of our American law. The materials are about us in abundance, derived from many ages and nations; and we must now have a system of our own, symmetrical, eclectic, framed on purpose.” In monarchies, for obvious reasons, a special class, a guarded elite, arrogates to itself all interpretation of the laws; but here the people are sovereign, elect all officers (“even the Judges themselves,” Field could note with satisfaction) so that the creation of a lawyer class, bullying the democracy into submission by the bedazzlements of their erudition—“that this should happen in a republic, where all the citizens both legislate and obey, is one of those anomalies which, however susceptible of explanation, seem at first sight incredible.”
Roscoe Pound paid tribute to Kent, Story, and their allies for having held the fort for the Common Law so long and so valiantly that by the time of Field it had become the bastion of American jurisprudence, that by then not even Field could raze it, even in California. They saved us from premature codification which in Pound’s view would have become a shirt of Nessus. Of course, for Dean Pound the Common Law was as much a religion as codification was for Field. And since the problem of systematizing our statutes is still with us, if only as a matter of convenience, we can hardly assert that Field lost his cause entirely, though I suppose most legal thinkers would now agree that his ideal is not realizable in its total sweep. For the story of America in the 1850’s these later considerations are matters of technique. They no longer pertain, unless by accident, to what for Field and his opponents was the major concern, which was nothing more or less than the establishment of an identity for the nation. Field was, for
BOOK two: the legal mentality
instance, prepared in 1844 to fight for Oregon. In a quarter of a century, he said, there will be populous cities around Puget Sound, which will trade with the Orient, awaken the Asiatic mind, open Japan to modern civilization. There is no evidence that Field ever essayed to write poetry, or that he set any store upon Whitman, but when he made his appeals for the codes, thematically he anticipated Whitman. “Your canals, your railways, your incalculable wealth, your ships cutting the foam of every sea, the enterprise of your merchants, the skill of your artisans, the fame of your ancestors”—all these David Field would invoke to persuade the Republic that its destiny depended, not upon these forces, but upon an ordering of them within the codes. The codes, "instinct with the free spirit of our institutions, should become the guide and example for all nations bearing the tie of our common language.”
Because after the Civil War Field dedicated himself to the cause of international law, it is difficult to label him merely a nationalist. Yet the spirit in which he approached the global problem was like that of Mark Twain’s Yankee in Camelot—he wanted to “fix up” a messy European confusion. On one level he generally writes in so plebeian, so flat, a style that the modern student becomes wearied, and prefers the sounding periods of Kent, the flourishes of Story. Yet occasionally Field shows the dedication within him, and then the grandeur of his vision emerges. Hence it seems more than coincidence that in 1855, the year of Leaves of Grass, Field should so slough off his Yankee reserve as to write,
a CODE American, not insular but continental, as simple as so vast a work can be made, free in its spirit, catholic in its principles; and that work will go with our ships, our travelers and our armies; it will march with the language, it will move with every emigration, and make itself a home in the farthest portion of our own continent, in the vast Australian lands, and in the islands of the southern and western seas.
Practitioners of the Common Law considered themselves as thoroughly American as anybody; yet it was consistent with the patriotism of such a gentleman as Story—or of Longfellow and Lowell, for that matter—that America acknowledge her relation to the mother country by gradually adapting to local situations the English skills, either in the Common Law or in prosody. Only thus did they believe America could become a civilization, by remaining within the context of an international culture, certainly not by seeking for a phantasmagorical personality within its own undisciplined bosom. Let the world admire Natty Bumppo as a dream of individualism, but let him remain a
CODIFICATION
dream. The great fact about David Field is that, in his often pedestrian way, he entertained the dream with deadly seriousness. Everything in our government and our society, he said, proceeds from the idea of equality. “Would to Heaven," he exclaimed, “that there might arise some master-spirit," who would teach this mighty doctrine as it ought to be taught, showing the people how it abases none but elevates all, “how this equality, not of strength, nor of genius, nor of external circumstances, but in rights and essential attributes, is the peculiar doctrine of the American people, their ornament, their glory, the foundation of their strength, and the chief source of their prosperity."
Here, as the nation stumbled into Civil War, seemed to be the one debatable issue in the law. After that war, it appeared suddenly to have become merely a matter for round-table discussions among lawyers, and the glory had departed. Possibly it was already departing in the 1850's, and men like Field and Theodore Sedgwick were striving to create a sublime idea from which sublimity had already been subtracted by the progress of technology. Compared with the palatial steamboats, the roaring railroads, the Atlantic cable (which David Field’s brother laid in 1858), wherein was the majesty of a code, or even of the Common Law? Among the many respects in which the Civil War brought down upon the American drama a violent curtain, the way in which it terminated a stupendous era of legal thinking is one of its poignant tragedies, if not indeed its most poignant.
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