DAVID DUDLEY FIELD AND HIS WORK. A paper read at the meeting of the New York State Bar Association by J. NEWTON FIERO IN the rooms of this association, in the Capitol, hang two pictures, presented by David Dudley Field through the writer of this paper. One shows a man of stalwart frame, clear-cut features and apparently in the full maturity of high intellectual powers; the other the same commanding figure, addressing a most distinguished body of men, prominent in the literary, legal, scientific and social world. The first a speaking likeness of Mr. Field at the age of eighty-five; the other as he appeared when presenting his first project of an International Code before the British Social Science Association at Manchester in 1866. These pictures present the man, the lawyer and the law reformer, the three-fold aspect in which I propose to recall his memory and work. On his return from abroad in the early spring of 1894, after a prolonged absence, I had completed and ready for the mail a letter congratulating him on his safe return and requesting him to resume his duties as chairman of the committee on law reform, which I had temporarily filled at his request during his absence, when the telegraph announced his sudden death, at the age of eighty-nine. I was thereupon, as his successor, by the complimentary action of your committee, charged with the duty of paying this tribute to his life and work. Again, "He was a man of strong feelings and passions. Every man of real force is so almost necessarily. He therefore fought for codification and he fought with dauntless courage." Still another speaks of his "gracefulness, elasticity and magnetism," coupled with "perseverance, adroitness and readiness." He occupied a foremost position as a lawyer for a very long period, and was connected with the most notable litigations in the city and State. His confidence in his views of the law, his insistence upon his rights as a lawyer and his disregard of personal considerations when in conflict with his idea of professional duty are aptly illustrated by his vigorous protests against what he regarded as the tyranny of public opinion, in the one instance, and of the bench in the other, in the notable litigations of the Erie Railroad and of the People against Tweed, in both of which he insisted upon the duty of a lawyer to defend to the utmost the rights and interests of his client regardless of consequences to himself. Many of his arguments in the Supreme Court of the United States are preserved in an edition of his works, and may be referred to as models of exhaustive research and forceful argument. Among them is the famous Mulligan case, involving the right to suspend the writ of habeas corpus during the war in States not in rebellion, in which he was associated with Judge Black and General Garfield and opposed by the attorney-general and Benjamin F. Butler. Another is known as the case upon the "Constitutionality of Test Oaths," which arose under the Constitution of Missouri. Still another involved the validity of the Reconstruction Acts, in which Charles O'Conor, Judge Black, Matt Carpenter, Lyman Trumbull and other distinguished counsel were engaged upon either side. In the State of New York v. State of Louisiana, in which was considered the jurisdiction of the Supreme Court over controversies between the States, Mr. Field made an argument for New York. David Dudley Field long seemed to those associated with him to have come down from a former generation," and this impression was not dispelled by the published interview on his return home after an extended absence, two days before his death, in which he spoke of the altered condition of affairs in Italy in 1893 as contrasted with 1837, when he first visited that country. When we recall that he began the agitation for law reform in 1839, and the fact mentioned in Pierce's life of Charles Sumner, that in 1848 he was so actively engaged in political contests as to be a leader in the counsels of his party, we appreciate that he was a man of distinction before the birth of the majority of those now in active life, and this is still more noticeable when it is borne in mind that he was admitted to the bar in 1828 and his four score and ten covered over sixty-gumentative and convincing, learned in law, skilled five years of service in his profession. Mr. Field's appearance and manner is pictured by two of his friends, whom I take the liberty of quoting: "Tall, erect, stalwart, alert and decided in movement, courteous and graceful in bearing, he impressed the observer at once as a man of marked gifts and force. Those who knew him intimately saw an imperious nature, equipped with great intellectual power and restrained by an intuitive appreciation of the amenities of social life." All these cases involved grave questions of constitutional law, and were discussed with the vigor, learning and ability for which he was justly distinguished. As a lawyer, he was bold, aggressive, ar in the practice, cool and sagacious, yielding or insistent, as the occasion demanded. While Mr. Field was famous for many years in the strife of politics, and was a leader at the bar for a period commencing before the civil war and continuing almost up to the time of his death, it is as the champion of law reform that his greatest triumphs were achieved, and as a law-reformer he was best known, most admired and during his life most severely criticised. His labors in the field of international law are little known to the bar of this State, but were by no means the least laborious of his efforts to bring about simplicity, uniformity and certainty in the law and its administration. In this direction he collated the rules accepted by modern authorities and acted upon by governments as the law of nations, in the form of an International Code, covering the principles enunciated by the ablest writers on the subject, and insisted upon arbitration as the method of procedure for their enforcement before resort should be had to the arbitrament of arms. In this great work, he was not content with drafting of rules, and correspondence with the jurists of England and the continent, but delivered addresses on the subject at gatherings of which he was the leading spirit, and before bodies of which he was the honored head, including the International Code committee, the Association for the Reform and Codification of the Law of Nations and the Institute of International Law; in Ireland, Belgium, Switzerland, Holland, Italy, England, France and Germany, in successive years. Never hesitating to cross the Atlantic to further the work of cementing the brotherhood of nations, and devoting himself to bringing about the state of affairs he pictured in this eloquent sentence: "In some happier age, under some more benignant star, there will yet, we would fain believe, be established among men a great Amphictyonic council of the nations, with a wider sway than the Council of Greece, to which nations will submit, as individuals now submit, with unfaltering deference, to a court of honor." His efforts for the codification of the substantive law are better known, but have given rise to the widest difference of opinion and the most bitter controversy. He was most decided and radical in his views on this topic, and but little disposed to reconcile lukewarm friends or brook opposition from the avowed enemies of his views. His agitation of this question took form in 1852, in a demand that the Legislature should provide for carrying on the work of codifying the laws, under the provision of the Constitution of 1846, authorizing a commission for that purpose. He said of the commission which had been appointed, it "failed entirely, and it failed because the men who were appointed to it had no faith in the codification of the common law. They thought only of a new revision of the statutes. We wanted no revision; of the common law. In this he was only measurably successful, in that he lived to see the passage and successful operation of the Penal Code substantially as drafted by him, containing the law relative to crimes and their punishment, together with the Code of Criminal Procedure, regulating the enforcement of the criminal law. He defined the proposed Civil Code as "the law which contains the rules of property and conduct.” It embraced the laws of person il rights and relations, of property, and of obligations, in four general divisions, relating, respectively, to persons, to property, to obligations, and the fourth containing general provisions relating to these different subjects. The method adopted is again stated in his own language: "The commission has endeavored to bring together, and arrange in order, all the general rules known to our law, upon the subjects contained within the scope of such a Code, rejecting those which are obsolete or unsuitable to our present condition, and adding such others as appeared necessary or desirable." His views of the purpose to be subserved by such an enactment is best described in the first report of the commission, in 1858, to be: "The reduction of existing laws into a more accessible form, resolving doubts, removing vexed questions and abolishing useless distinctions, with the introduction of such modifications as are plainly indicated by our own judgment or the experience of others." This compilation of the Substantive Law, passed through many vicissitudes and has been the battle ground of many a hard-fought controversy, at times enacted by one branch of the Legislature and rejected by the other, and again passing both Houses and meeting defeat at the hands of the executive. It has been adopted in California and Dakota. Meanwhile, time and circumstances are solving the problem, and vindicating at the same time, the wisdom of Mr. Field in pointing the way and leading in the work by framing a Code of Civil Law, and his enthusiasm and indomitable perseverance in urging its adoption, and the foresight and sagacity of those who insisted that we must in any event make haste slowly, and that it was unwise at the moment to attempt to embody the entire unwritten law in a single statute. The result has been a middle course, adopted in England, in the enactment of statutes relative to special topics which embrace not only the substance of all previous statutes on the subject, but the wellsettled common law rules applicable thereto, and in this State by statutory enactment covering subIn April, 1857, Mr. Field was appointed chairman stantially the entire topic, most frequently resulting of this commission, and thereafter, for thirty-seven from radical changes of the common law rules. But long years, never faltered in his efforts to procure a single step remains in such case, by way of gatherthe passage of such acts as should codify the bodying together the scattered statutes and collating we wanted codification." them in a single act, with the more important of the well-settled legal principles on the subject legislated upon. Thus are accomplished the objects sought by the law reformer and thus are obviated the serious objections of the conservative lawyer. On the one hand, it is a practical concession that the whole body of the common law cannot be conveniently formulated in a single act, and on the other a practical demonstration that much of the common law which is either thoroughly settled or entirely obsolete, may and should be so declared by statutory enactment. Although not accomplished in the manner Mr. Field urged, this method very closely approximates the end he sought, which was "to collect all the existing laws on the different subjects, reconcile what is contradictory, strike out what is superfluous, obsolete, or mischievous, express it in as concise and exact language as possible and arrange the whole in scientific order." The Political Code never met with sufficient favor to become a law in the form in which it was reported, but nevertheless the industry and skill of its author has been recognized by enacting its substance in various statutes drafted by the commission of statutory revision. Not to be forgotten in the work of this great law reformer is the Code of Evidence, intended to state in concise form in its 22 sections, the principal rules of evidence scattered through the statutes and reports. In this compilation Mr. Field endeavored, by broad generalizations, to formulate rules which should embody the entire practice as settled upon this subject, whether at common law, in the equity courts or under statutory regulations. Here again arose a fierce controversy not yet allayed, and here again, in view of the subject and the occasion, I must refrain from the expression of any opinion upon the merits of the question involved, only insisting that the existing statutes on this subject might well be collated in a single statute without objection from any source, and still further, that certain well-settled and unquestioned common law rules might be enacted in the same connection without criticism from the most active opponent of the proposed Code, while it may be conceded that some portions of the Code of Evidence, as drafted and presented, appear somewhat artificial and arbitrary. The work of Bentham was principally in the way of criticism upon the methods in vogue in the English courts, and, while he did not hesitate to suggest remedies, he was essentially a theorist and an iconoclast, and his views never took practical form in anything like a complete system of procedure. Although Livingston, in his draft of the procedure in the courts of Louisana, was far in advance of his time, he yet followed, to a very great extent, the arbitrary rules of the common-law practice, supplemented by the methods in use in the tribunals administering the civil law, so that doubtless the Code of Louisana, being to some extent an adaption from both forms of procedure, was the earliest radical departure from and improvement upon purely common law methods. This, however, was very far from being so great an innovation upon established methods and customs as that suggested and carried through by Mr. Field, to whom must be given the credit for originating and putting in practice a method of procedure almost universally adopted by English speaking people to the exclusion of those forms which had been followed for centuries, and which were finally, even in the mother country, put aside for the reformed procedure. In 1828 Lord Brougham moved in the House of Commons for a commission "to inquire into the defects occasioned by time, and otherwise in the laws of the realm, and into the means necessary for reducing the same," and in 1831, a report signed by leading judges and counsel, pronouncing against the abandonment of the existing forms of action, declared that the rules of pleading then in use made up "a system, the great advantages of which we have elsewhere endeavored to illustrate." At about the same time, in Massachusetts, a most able commission, with Judge Story at its head, reported in favor of reducing procedure to a more simple form and relieving it of some of its cumbrous and inconvenient appendages, but added, "The commissioners are of opinion that it is not advisable at present to codify this branch of our jurisprudence." Such was the condition of affairs when, in 1839, David Dudley Field began the agitation in favor of a radical reform in the administration of remedial justice. It would be a task, beyond the time and patience However, the crowning work of Mr. Field's life, of this body, to fellow step by step, the almost that by which he was, and always will be, best Herculean labors in this direction, to which he deknown and remembered, and which has and will voted himself for many years. It is to be regretted reflect most credit upon his ingenuity, ability, learn- that he did not live to complete the autobiographical ing and inventive genius, is the Code of Procedure. sketch he had expected to prepare, and it is to be The matter of reform in civil procedure began to hoped that a thorough and exhaustive history of be agitated in the early part of the present century the reform of civil procedure in this State will be mainly through the efforts of Bentham and Living-written by some competent hand and submitted to ston. the profession at a very early day. Suffice it to say, that by open letters, communications, essays, addresses, arguments addressed to lawyers and the Legislature, he continued the movement in favor of this reform, resulting in the adoption in the Constitution of 1846, of a provision for "the appointment of commissioners to revise, reform, simplify and abridge the rules of practice, pleadings, forms and proceedings of the courts of record." This Constitution took effect on the 1st day of January, 1847, and in February of that year Mr. Field presented to the Legislature a memorial drawn by him and signed by fifty members of the New York bar, reciting "that a radical reform of legal procedure in all its departments is demanded by the interests of justice and by the voice of the people, that a uniform course of procedure in all cases, legal and equitable, is entirely practical and no less expedient, and that a radical reform should aim at such uniformity and at the abolition of all useless forms and proceedings," and praying the Legislature to take proper steps to bring about such result. Very soon after, such a commission was appointed with Mr. Field at its head. It was obliged to devise a new system, to arrange its details and to encounter the opposition of almost the entire bar of the State. However, in February, 1848, it reported a Code, substantially the work of Mr. Field, in 391 sections, which was enacted and went into effect on the 1st day of July, 1848. This is the author's statement of what it accomplished. "Its essential features were the abolition of the forms of action and of the distinction between actions at law and suits in equity and the substitution of one form of action for the enforcement or protection of private rights, and the redress or prevention of private wrongs, in which action should be determined all the rights of the parties, legla or equitable, in respect of the subjects in litigation." Three separate reports were made by this commission, the first in 1848, another in January, 1849, and still another about January 1, 1850. As a result of the second report, a revised code was passed in April, 1849, containing 473 sections, being substantially the code under which many of us began the practice of the law, and which continued in effect until superseded by the Throop Code in 1877. This Code contained certain provisions relative to the organization of the courts, but its distinctive feature was the regulation of procedure in an ordinary civil action treating of limitation, parties, pleadings, personal remedies, executions and appeals, most of which, although stripped of its clear and concise language and clothed in complex phraseology, has happily been retained in the present act regulating the practice. It is a fact but little known, still most important in this connection, and to which I desire to call special attention, that the last report submitted by Messrs. Field, Graham and Loomis as commissioners is a complete Code of Procedure, consisting of 1,885 sections, containing not only a thorough revision of the 473 sections then in force, but treating fully what are now known as "Special Actions" and "Special Proceedings," and devoting over 200 sections to matters of "Evidence." The existence of this work has almost entirely escaped attention, although in 1853 a Code of 1,740 sections, covering substantially the same ground, apparently again carefully revised and condensed by Mr. Field's hand, was presented for enactment in the Assembly. It was divided into four parts, treating of "Courts of Justice," embracing the powers and duties of judicial officers, the admission of attorneys and the jurisdiction and power of the courts, "Civil Actions" regulating the conduct of an action and containing the substance of the old Code, "Special Proceedings," comprising most of those provided for by statute and afterward em braced in the Throop Code, and "Evidence," being a compilation of the statutes on that subject, with some of the common-law rules, which afterward formed the basis of the proposed Code upon that subject. This draft was evidently before the commission which framed the Code of 1877 and of 1880, and to some slight extent was recognized in its work. It was, however, rearranged, rewritten and expanded from 1,740 sections to nearly double that number, although several of the subjects there treated-notably mechanics' liens, and most of the provisions relating to evidence-are omitted. This proposed Field Code might well be adopted to-day as a model of style and arrangement; true, the lapse of more than forty years has rendered many of its provisions obsolete, or even antiquated, since there has been a gradual but strong development of sentiment in favor of abolishing every rule which is merely formal and technical, and which does not tend to aid in arriving at the merits of a controversy, while the gathered experience of these years has shown where many additions and alterations, adapting the work to the demands of the times, could be made by a judicious hand. The part relating to evidence is open to just criticism, and would require careful consideration and the elimination of many of its features. With these limitations, it should be studied and utilized by the draftsman of any revision of the law of remedial justice. By chapter 33 of the Laws of 1870 provision was made for a commission "to revise, simplify, arrange and consolidate all statutes of the State of New York, general and permanent in their nature, which shall be in force at the time such commissioners shall make their final report." Under this authority the new commission proceeded with their labors upon the Code to the exclusion of the revision of the general statutes, which was thereby postponed till 1889, and still remains unfinished, and reported a new practice act in place of the one which had been in operation thirty years, to the entire satisfaction of the lawyers of the State, which, together with the additional parts reported in 1850, and revised in 1853, would have completed a reasonably perfect Code of Civil Procedure. It is useless to discuss the question as to whether this work was within the spirit and intent of legislative action; it is but fair to answer, however, that if it had been intended that the practice should be affected to any considerable extent Mr. Field, as the originator and inventor of the reformed procedure, would have had a place at the head of the commission, since he was unquestionably, in every respect, the most competent man living for the prosecution of such a work. The Throop Code was adopted after a bitter controversy and upon the understanding that it should be improved by amendment, Mr. Field expressing his views with regard to its effect in this vigorous manner: "As the Code of Procedure stood from 1848 to 1877 it was a simple, well-known system which everybody understood and which nobody wished to change except a few persons who got up a commission to revise the statutes, and they set to work to change the Code against the remonstrance of its friends. I warned them of its consequences then and I tell them now that they will never have the civil procedure of the State of New York as it should be till they go back to the Code of 1867 and complete it according to the design of its authors." The preparation or revision of a method of legal procedure requires the hand and brain of a lawyer, who either is or has at some recent date been in active practice and has thus become thoroughly familiar with its requirements, who is well acquainted with the principles of the common law practice and the provisions of the reformed procedure wherever they have been adopted in this country and abroad, so as to be able to appropriate all that is best in both systems, who has both special skill and wide experience in the drafting of statutes that he may use apt language to convey his ideas, and who is moreover a believer in and enthusiast about the work he undertakes, so that it shall be done as a labor of love and not performed as an onerous task. All these requisites Mr. Field possessed to a very high degree; how many of these qualities were developed in his successors is best told by the character and quality of their work. It is not amiss to say that their work is not characterized by that close analysis, logical arrangement and clearness of statement which were notable in the act it superseded. I have quoted freely from Mr. Field in this paper for two reasons; first, because he has expressed his views upon subjects which I have attempted to place before you much better than I can do; second, because I wish to call attention to the terse and vigorous English in which he clothed his ideas, as showing his pre-eminent ability as a statutory draftsman of the modern school, and the desirability of adopting his style as a model of clearness, brevity and simplicity. The changes accomplished by and benefits derived from the reformed procedure cannot be measured alone by the fact that it abolished the distinction between law and equity, authorized all parties in interest to be brought in, and nearly all questions in controversy between them to be decided in a single action; that it abolished fictitious methods of pleading, and substituted therefor a plain and concise statement of the cause of action or defense, or that it enabled the common-law courts to require the examination of parties and production of papers, and compelled the oral examination of witnesses on the trial of equity causes; but beyond all this, it marked an era in the history of the administration of the law, in the simplification of legal proceedings by eliminating useless forms and unnecessary verbiage, discouraging technical, useless and troublesome methods, and, above all, by introducing into the practice a liberal and broad-minded spirit, in accordance with modern methods of thought and action. The appreciation in which the Code Practice is held, is, best shown by its adoption in twenty-eight States and territories, by the passage of the English Judicature Act and the rules of the English courts based upon it, to the exclusion of common-law methods, followed by the enactment of its leading features in sixteen of the British colonies and dependencies, all within the life-time of its author. Surely no one man ever accomplished so great results by way of reform of either substantive or adjective law. It is difficult to appreciate to the full extent the work of this indefatigable lawyer. Political addresses, papers for periodicals and reviews, discussions upon taxation, jurisprudence and the science of government were his diversions, arguments upon great constitutional questions, alternated with carefully prepared addresses upon arbitration between nations. In the intervals of an extensive practice, he prepared a complete Code of international law, involving the examination of treatises and treaties in many languages; a Civil Code, calling for a wide knowledge of both the written and the unwritten |