AT THE OPENING OF THE FIRST NEVADA LEGISLATURE IN 1861, Territorial Governor James W. Nye, a former New York lawyer, instructed the assembly that they would have to forsake the Mormon statutes of Utah Territory out of which Nevada was carved. Those laws were ill adapted to “the mining interests” of the new territory, but “happily for us, a neighboring State whose interests are similar to ours, has established a code of laws” that could attract “capital from abroad.” That neighbor was California, and Nye urged that California’s procedure code be adopted as far as it could “be made applicable.” Territorial Senator William Morris Stewart, the famed mining lawyer who would become a leading U.S. Senator of Reconstruction, followed the instructions perhaps too well. The senator literally cut and pasted the latest Wood’s Digest of the California Practice Act into a session bill, crossing out “state” and “California” and substituting “territory” and “Nevada” where necessary. Amidst all the work of organizing the territory, the bill did not gain passage until late in the hurried session, when it was sent to Nye for his signature.
Nye wrote back in disgust. The bill—of 715 sections—had reached him along with other legislation late the night before the legislature was to adjourn. Even in the few hours he had to read it, Nye counted “so many errors in the enrolling of it, numbering probably more than three hundred.” Some errors were severe. Nevada’s Organic Act specified the jurisdiction of the district courts and justices of the peace, but the code overwrote these by copying California’s arrangements. Error-riddled and unconstitutional as the bill was, Nye persisted in the conviction that a civil practice code— something that had not existed when Nye began his own legal career—was a “universal necessity and public need.” Nye signed the code into law.
At least Nevada had made an effort at adaptation. When Nebraska Territory organized in 1855, its legislature simply declared the code of Iowa to be in force, leaving its officers to figure out for themselves when “state of Iowa” meant “territory of Nebraska.” “The scissors and paste-pot we had heretofore confidently believed were implements peculiar to the newspaper sanctum,” wrote a Colorado journalist, mocking codification efforts in his state. Oregon legislators, however, featured their paste-pot in an advertisement noting that their procedural code was “taken, word for word, from the New York Code.”
In a way, the cut-and-paste code matched well the cut-and-paste governments adopting it. The Field Code proved especially popular with the nascent territorial governments of the American Far West and the Reconstruction governments of the Deep South. Nevada’s assembly met in borrowed chambers and printed its business on borrowed presses. Why not borrow the laws and even the typesetting from a near neighbor? Moreover, the exigencies facing the Union meant that Nevada’s legislators in 1861—like Carolinas’ in 1868—were in a rush to form a recognizably republican government, one with the trappings of civil justice and procedure that conformed to the model of surrounding states. For aspiring governments in a hurry, a code offered a ready-made civil justice system in a box—or as one leading historian has put it, “off the rack.”
This assumed convenience of a code, however, obscures the significant real costs of borrowing legislation in the mid-nineteenth-century United States. Jurists may blithely speak of an innovative statute being “soon copied in other jurisdictions,” but that phrase papers over a world of labor, patronage, and politics. In every jurisdiction, the code had to be sent out by elite lawyers back in New York, physically imported and reproduced on frontiers where quality publishing could be quite costly, and then enacted by a legislature riven by the partisan battles of the day that ranged from secession to suffrage to silver. And while the American codification debates have long been understood as a struggle over the separation of judges from legislators, the Field Code’s contested migration shows that American-style codification provoked far more unease over the problem of lawmaking by unelected commissioners. Pressed by political demands within the short time horizons of legislative sessions, codifiers faced the dilemma of having to square lawmaking commissions and borrowed legislation with ideals of popular sovereignty and democratic representation.
At one time, most U.S. jurisdictions—including almost all of the eventual Field Code states—had solved this dilemma by brief, often single-paragraph laws “receiving” the common law into force over a new territory. Enacted directly by a legislature, such receptions avoided the problem of delegating lawmaking and left significant room for judges to adapt common law principles to future cases as they arose. Thus in a way, borrowing law had always been a fundamental part of Anglo-American migration. But while receiving an amorphous and adaptable common law might accord with Jeffersonian visions of an expanding “empire of liberty,” the migration of “foreign” codes created by a distant jurist for a distant people appeared to many critics to bring the empire without the liberty.
Nevertheless, the Field Code won its way across the nation. Governor Nye’s preferences for the laws of California over those of Mormon Utah give one clue to how codifiers overcame the charge of imperialism: they embraced it. The imagined expectations of distant capitalists fueled the codifiers’ arguments that New York’s remedial code was necessary to link newly formed governments to networks of wealth and credit flowing from the metropole. In time even Mormon Utah adopted Nevada’s new code, understanding that the code originally derived from “the State of New York—a State which is an empire in itself and whose commercial transactions are far greater than those of any other State in the Union.” By copying its code, Utah could be “rewarded by equal advantages.” On these imaged demands and rewards from the Empire State of capital, codifiers made an idiosyncratic New York law the uniform practice of a nation.
BY NOVEMBER 1851, the Sacramento Daily Union could report that life was settling down in the golden hills of northern California. The booming gold rush population and national compromises with slavery had rushed California from a distant Mexican province to American statehood in less than two years. The editor took heart that civilization had taken root, as evidenced by professional specialization. Early migrants of all vocations washed their own clothes, crafted their own tools, and engaged in the mining frenzy, at least on the side. But now ministers were back to ministering, journalists were printing, and “the accomplished lawyer, now delver and digger in the mines, now trading, now cooking, is again assuming his legitimate place at the bar, re-perusing the huge works of the old guides to the principles and practice of law.” The editor’s mistake was that, in 1851, those huge works of practice were not at all old.
By late 1851 California had already enacted the Field Code twice. Both adaptations came from the sort of multi-vocational lawyers the Daily Union described, men who came at the height of the gold rush to practice law while mining for gold, speculating for land, and running for office. Both codifiers were young New York lawyers, trained in Wall Street law firms, but, having departed New York in 1848, neither had much experience with practice under the code. Both were elected to the state senate and appointed to the judiciary committee, from whence they guided their versions of the code through the legislature without resorting to a commission as New York had. The first to arrive in 1849 was Elisha O. Crosby; the second, in late 1850, was Stephen J. Field, younger brother of David Dudley.
Proud to think of himself as a Jeffersonian agrarian, Crosby would gain notoriety as a staunch defender of Mexican land claims. In his later career, he argued over a hundred cases on behalf of Mexican-descended land claimants at the congressionally established Land Commission and on appeal in the U.S. federal courts. Crosby often criticized the slow and expensive legal proceedings required to confirm land titles, proceedings that frequently enabled well-funded Anglo land speculators to win claims despite the merits of a case. In the first session of the state legislature, however, Crosby counted it his finest achievement to defend traditional common law practice against the request of California’s Hispanic bar—and the directive of the state’s governor—to adopt European-style civilian procedure codes as the law of the state.
In his first address to the legislature, Governor Peter Burnett urged the adoption of Louisiana’s code of practice, which remained substantially as Edward Livingston had drafted it twenty years earlier. Treading carefully, the governor argued that civil law was “a system of the most refined, enlarged, and enlightened principles of equity and justice” so long as it “assumes to regulate” only the commercial “intercourse of men with each other” and “aside from its mere political maxims.” English law should otherwise provide the basis for criminal and constitutional law, Burnett reasoned, reinforcing a distinction between commercial and constitutional law that would become common in future debates. Burnett added that “so great a portion of the cases that will arise in our courts”—implicitly, from Mexican grants—that “must be decided by the principles of the civil law” that the state’s bar might as well accommodate itself to civilian practice, as Louisiana’s bar had. As if to reinforce the point, a memorial soon arrived signed by eighteen lawyers from San Francisco, the majority of Spanish or Mexican descent, urging retention of civilian law as the most practical option for the new state.
In a long report that would be celebrated by the state bar for decades to come, Crosby explained why the state could not import Louisiana’s code. Countering the argument from expediency, Crosby offered practical reasoning of his own: “More than twenty-nine thirtieths of the emigration to this country is from Common Law States; and an equal proportion of the business of our people is now and will continue to be, carried on by Common Law men.” Moreover, most emigrating lawyers read only English; “substitute the Civil for the Common Law, and it will be with great delay and expense, in limited supplies, and in strange tongues, that books can be procured which will be found absolutely necessary for the lawyer and the judge in the intelligent administration of the system.” (Never mind that the daily papers advertised Louisiana’s English procedure code and commentaries in the local book shops.)
The heart of Crosby’s argument was civilizational. It was the works of Mansfield and Marshall, Kent and Story, that forged a “chain of memory which, stretching across the Sierra Nevada, binds [the lawyer] to the land and institutions of his fathers.” The common law sprang from “the reformed religion and enlightened philosophy and literature of England.” Civil law was “based upon the crude laws of a rough, fierce people, whose passion was war” but who had nevertheless descended into “luxurious and effeminate refinement.” Some might argue the common law favored “the landed interest,” but, Crosby pointed out, it was in England and America where the landless laborer, merchant, and artisan contracted for the highest wages. Thus it was in the common law world where one found “the activity, the throng, the tumult of business life” and “the strength in freshness of manhood.” Civilian countries exhibited only “feebleness of intellect, timidity of spirit, and the crouching subservience of slaves.”
Stark as Crosby’s contrast was, it was not unique. In debates over procedure codes, the comparison of civil law and common law frequently turned on the premise that, as an 1855 Maryland commission put it, “as far as their administrative principles and forms of procedure are concerned,” the two systems were “the opposites of each other.” Actual policy differences were rarely elaborated, perhaps supporting Governor Burnett’s premise that practitioners knew few details about one another’s system. Instead, themes of manliness and civilizational destiny abounded. The same Maryland commission argued that adopting civilian law “would rend the spiritual chain which connects us with our forefathers, and would reduce us from a mighty original race . . . to one developing its energies in the obsolete forms of a past civilization, produced by a people inferior to ourselves, and standing behind us in the providential order of history.”
According to common law defenders, the history of a civilization’s legal institutions affected its present liberty and prosperity. To the Maryland commissioners, the common law supported the rule of law through its institutional organization (a limited executive and an independent judiciary) and by its regard for history (the binding force of precedent among the latter branch). The civil law supported only the rule of will through legislative supremacy and unfettered judicial discretion. But, argued the Maryland commissioners, “the notion that human institutions can be created anew . . . without regard to old organizations, is a doctrine of sheer despotism. The notion is founded upon an entirely false philosophy of history.”
Underlying these civilizational claims, especially in the political context of the 1850s, was a lurking fear that legal institutions might reduce even white men to effeminacy and servility. In ranking historical determinants, the Maryland report gave priority to legal systems even over race, arguing that a people’s civilization “is not determined more by peculiarity of race, than it is by the character of the institutions under which a people are developed.” In that case, all Americans of whatever origin were “the Anglo-Saxon race on a grander theatre,” a nation that spread Anglo-American common law over more places and peoples than even England had. In this regard, Crosby’s report to the California legislature was somewhat unusual in the way it discussed actual policy differences between common law and civilian law. Each example illustrated the difference between manly independence and the subordination deemed appropriate to women, children, and slaves. Civil law did not emancipate minor boys until the age of twenty-five (and it committed the opposite sin by failing to regard a wife’s legal identity subsumed by her husband’s). Further, the “Common Law allows parties to make their own bargains, and when they are made, holds them to a strict compliance; whilst the Civil Law looks upon man as incapable of judging for himself, [and] assumes the guardianship over him.” The civil law was overrun with implied warranties; the common law expected contractors to man up and live by the maxim “caveat emptor.”
The abundant civilizational arguments in the codification reports show how a focus on distributional politics can offer too reductive an account of the codification debates. The abhorrence of civil law was not, in many cases, a thin disguise for upholding status quo property rights. Common law property reformers like Crosby were not so much worried about the redistribution of property as they were concerned that they could become property, reduced to servile dependency on a guardian state. Codification, rather than a narrow debate over institutional protection of property, squarely raised the broader problem of what Daniel Ernst calls “Tocqueville’s nightmare.” Alexis de Tocqueville, the French visitor of Jacksonian America, warned that American liberalism might degenerate into a dependency on an administrative “central power” to the point that Americans would lose “little by little the faculty of thinking, feeling, and acting by themselves, and thus . . . gradually falling below the level of humanity.” In Tocqueville’s stark dichotomy, a legal system could establish either emancipation or empire; there was “no other alternative than democratic liberty, or the tyranny of the Caesars.” This was the specter raised by codification. If all law became merely the positivist decree of a legislature, a civilization’s history could be effaced in an instant, its development arrested, its people managed by centralized statutes rather than emancipated to flourish according to local customs.
And yet the same Crosby who denounced civilian codes as the harbinger of imperial subservience readily introduced California to New York’s untested and nontraditional code. After the legislature accepted his anti-civilian report and drew up an act receiving the common law, Crosby submitted an adapted version of New York’s 1849 amended Field Code without comment or report. It passed by a voice vote, presumably on the understanding that this code, unlike Louisiana’s, was not antithetical to the common law. Apparently, the threat of imperial subjugation could sometimes be avoided if the code under discussion was a “mere” procedure code. When Crosby wrote back to New York to announce the code’s success, he spoke only of the code regulating “practice” and “proceedings,” never the law itself.
Elsewhere, codifiers hailed the civilian affinity of Field’s code as its leading virtue, on the same grounds of civilizational pedigree. A committee of Minnesota legislators in 1858 celebrated the code for being “closely analogous in its pleadings and practice to the celebrated civil code of Justinian, the leading principles of which prevail in all the enlightened commercial countries of Europe, except England.” Like California’s Governor Burnett, the committee was careful to distinguish Europe’s dangerously autocratic political and criminal law from the commercial attainments of its civilization, for which “no wiser or better code ever existed.” The civilian-like procedures of chancery courts, admiralty courts, and the courts of Louisiana and Texas proved that civilian commercial remedies could be distinguished from the arbitrary positivism of civilian systems. Hedging its arguments, the Minnesota committee also reaffirmed the idea that a merely procedural code was neither really civilian nor common law, since it did not alter real law at all: “By showing our preference for . . . the New York Code, we in no manner show disrespect to the ‘Common Law.’ The code does not derogate one ‘jot or tittle’ from the common law.”
The code could thus pass as an uncontroversial revision of common law practice or as a total repudiation of that practice in favor of civilian procedure. Until the end of the century, the code would so pass in a remarkable number of jurisdictions, formerly common law, civilian, or the supposed legal wildernesses of the American Far West. Digital text analysis can help us get a handle on just how extensively American jurisdictions borrowed the Field Code. Most U.S. procedure codes averaged nearly 750 sections spanning 200 pages. While one historian at the end of the nineteenth century valiantly attempted to compare all U.S. codes by hand, computational analysis can more quickly and precisely offer an overview of the patterns of borrowing, pictured in the network graph below. New York, as one would expect, sat in the center of the code universe, but not all satellites revolved around it. Rather, there were several regional text families, a couple stemming from midwestern states, and one stemming from California into other states of the Far West.
It may be unsurprising that legislators would borrow from a nearer neighbor, but it is worthwhile to note cases that break from this pattern. Midwestern states drew directly from New York in the early 1850s, when there were few other codes from which to borrow, but that was not the case with the Reconstruction South. There was no southern code family—only direct borrowings from New York. Likewise, although western states drew their texts from California, the strong similarity between California and New York basically rendered the states of the Far West and the Coastal South one big text family, as some commentators noticed at the time. One newspaper expected the Idaho legislature would “report substantially the Nevada code, which is the California code, which is the New York code.” The Lower Midwest and Upper South adopted some New York reforms while dispensing with others, and their reliance on the New York text was relatively slighter. But all along the American periphery, the law of each state conformed closely to the law of New York.
“WHY THE WEST?” Lawrence Friedman has asked about the nearly universal migration of the Field Code to the U.S. frontier. Summarizing the literature, Friedman answers, “In none of the Western states did the bar have a strong vested interest in the continuance of old rules, especially rules of pleading. Codes were a handy way to acquire new law, a way of buying clothes off the rack, so to speak.” The accounts on which Friedman relies make much of the fact that eleven jurisdictions adopted the code in their first year of organization (whether as a state or territory), while six more adopted it at some point in their territorial days. These numbers obscure the fact that a majority of Field Code adopters actually had a long history (at least a decade or more) of common law practice before codification, and many of the early codifiers—such as California’s Elisha Crosby and Stephen Field—had no experience with code practice before introducing the legislation. Taking account of nineteenth-century technologies for transmitting texts and nineteenth-century opposition to commissioner-lawmaking confirms that in the West, as in the South and Midwest, codification was anything but an off-the-rack convenience.
Consider first the drain of codification on state treasuries. Most states that employed commissioners compensated them well. An antebellum commissioner in Iowa was paid $3,000 for revising and printing a code, the second-highest state salary next to the governor and significantly more than any public attorney. In the postbellum period, both of the Carolinas spent more than $10,000 a year on commissioner compensation. These could be significant sums, especially for territories that had not yet established stable revenue streams. As one Colorado newspaper complained, procedural code commissions ranked “in the same category with $6,200 per year governors and $3,500 secretaries of state, which in the course of time we may be able to afford, but which at present we can readily exist without.”
Commissioner salaries were slight compared to the cost of printing the code. Legislatures commonly required 500 to 1,000 copies of proposed legislation, copies that would be amended in the course of the session and then destroyed. Legislators often convened evening or extra sessions to consider (or at least give the appearance of considering) the bulky bills, and critical journalists counted these expenses against a code as well.
Statutes that merely received the common law took up barely a page and then obligated private practitioners to see that their own libraries were well stocked with books of precedent. As public legislation, however, codes required a secretary of state to provide sufficient copies to practitioners for reference—and those copies had to be able to endure daily use. The Iowa legislature accordingly commanded that its code be “printed on good book paper . . . in one volume of royal octavo size, full bound in sheep.” Codes that ran to several hundred pages were thus a major expense and could raise sharp disputes over political patronage. The Iowa commission had to outsource the task to Connecticut printers to fulfill its mandate (not the farthest example of outsourcing—Arizona had its code printed in New York). The commissioners were then accused of self-dealing with the printing contract, a scandal that occupied the legislature and political press through the next two sessions.
Critics of codification never discounted when they balked at the cost of the code, but in most cases, there was not much to discount. If a print run of a code lasted several decades, the annual expense per value might have been more reasonable. The problem was that few codes lasted so long. Not counting New York’s many revisions, seventeen code jurisdictions—a majority of them—recommissioned or re-adopted a substantial revision of the code less than a decade after its initial enactment, incurring the same costs over again. On this point, Iowa was again noteworthy. The state hired a commission for its code from 1848 to 1851, and then hired another commission to re-write the code for three years at the end of the 1850s.
The further west one traveled, the higher off-the-rack prices soared. Mark Twain could joke about the absurdities of carrying the U.S. Statutes at Large overland to Nevada, but his experience was common to the codifiers, who had to import physical copies of the bulky law to consult, copy, and distribute. Nor did codification save practitioners from importing the many volumes of precedential law reports that a reception of the common law would have entailed. Instead, practitioners were encouraged to consult the New York reports to understand what the code meant. As more states adopted the code, the volumes of reports and treatises interpreting it increased, and many of these volumes became necessary companions of code practice. These costs of codification remain invisible to those looking only at the reception of the code in the courts.
Yet perhaps the greatest cost of codification, one just as invisible in the case reports, was not to the public or professional fisc, but to American ideals of popular sovereignty. Historians have typically viewed the codification debate as one about the institutional competencies of courts versus legislatures. As David Rabban has illustrated, this was indeed a primary concern for the “historical school” of American jurisprudence that largely resisted late-nineteenth-century efforts towards codification. While many of the adherents of that school were politically progressive, they feared that legislators were more liable to capture by corporate interests than they were receptive to democratic appeals from the poor and working classes. Independent judges, on the other hand, could better adapt the law on the books to evolving social customs of the law in practice. But outside of this intellectual debate, carried on almost exclusively within the Northeast and centered at Harvard Law School, critics of codification recognized that even the most perspicacious provisions of the code required judicial interpretation and that judges were unlikely to lose influence or power under an American code regime. Many critics instead argued that codification undermined the lawmaking authority of the very legislators who passed the codes. The length and technical sophistication of the Field Code meant that few legislators could actually give it any meaningful review, and thus it was the commissioners that adapted and recommended it that were truly the lawmakers. Even the more abstract thinkers in the historical school recognized as much and charged the codifiers with hypocrisy when they hailed codification as democratic legislation against aristocratic judge-made common law. “The complaint,” wrote the stalwart opponent of codification James Coolidge Carter, “really amounts to this, that judges make the law instead of commissioners.”
Criticism based on popular sovereignty greeted the code upon its earliest migrations. In 1851, Iowa, like a few other states, adapted the Field Code while consolidating its other legislation into a comprehensive state code. While other states usually granted their commissions exceptional authority to revise the rules of pleading and practice, Iowa directed its commission to “prepare a complete and perfect code of laws, as nearly as may be, of a general nature only.” The three commissioners understood the command of generality to mean they should leave most private law uncodified to develop in the courts of common law. The 1851 Iowa code nevertheless represented one of the few times a statutory commission was granted broad authority to revise the prior law of a state. In place of the usual substantive limitations on revision and codification, the legislature placed strict procedural requirements on the commission. The commissioners were to meet in regular session, and elect a president who would rule on points of order and break tie votes between the other two commissioners. A journal had to be kept of all proceedings and votes, and no commissioner could be absent without leave. The legislature prescribed a special oath for the commissioners, which bound them to discharge their duties “with an eye single to the good of the people of the State of Iowa.” The commissioners were not popularly elected, but in all these other regards the legislature had done its best to constitute the commission as a mini-legislature that promulgated laws for the public good through transparent, public processes.
Nevertheless, newspapers complained about the delegation. The Miner’s Express remarked that the commission operated against “the general idea of Democracy.” Despite its three year term, the commission cut corners and appropriated significant pieces of legislation—including the procedure code—from other states, but “to be governed by a foreign law, especially when that law is not preknown to the people whose conduct is to be regulated thereby . . . is something repugnant to the idea of Democratic Republican government.” When the legislature debated the printing contract for the code, the paper read more into the decision than mere financial patronage. Printing the code seemed to commit the legislature to actually examine it as any other bill, “whether they should, in this matter, be the Legislators in fact, or a mere approbatory assembly, convened to give a formal sanction to what had been done by a comparatively irresponsible Commission.”
Against these complaints that Iowa’s real legislating was being done “by this trio of Lawyers,” pro-codification papers responded by making the commission’s unrepresentativeness and lack of accountability its main virtue. The three lawyers “were presumed to be . . . familiar with the bearing of all our laws and practice under them” as well as “the wants and interests of our entire population,” explained one. “Otherwise, they never could have been appointed.” The sound judgment and erudition of the commissioners, another argued, stood in stark contrast to the legislators who would review the commission’s work. The paper satirically reported a legislative session amending the code:
The gentleman from “Buncombe” approves of the general sense of the section, but some of the details are a little different from what “they used to was” in the State of Kentucky . . . whar he was born, and he therefore moves to strike out the word “quantity” and insert the words “powerful sight”—the gentleman on his left seconds the motion, and suggests that the words “or smart chance” be inserted after the words “powerful sight.”
The representativeness of the legislature, when it came to Buncombe county, was the problem standing in the way of scientific legal progress. Therefore, another editor explained, “The devil is to get the legislature to let [the code] alone . . . without making ten thousand amendments.” After all, “what was the utility of appointing Messrs. Woodward, Mason, and Hempstead to compile a code of laws if our Legislators possess legal talent so much superior?”
One answer might be that compared to the legislature’s brief sessions, a commission at least could enjoy the luxury of time to compile its code, yet the length and innovation of the Field Code presented a novel problem for American lawmaking. Even the shortest version of the code was significantly longer than any other state statute before the progressive legislation of the twentieth century. Practice codes were far longer than the relatively simple criminal codes of the early republic or the regulatory laws on corporations or railroads passed after the Civil War. Opening with a declaration of novelty, abolishing the hallmarks of prior practice and instituting “hereafter” a new form of action with significant revisions to civil remedies, the Field Code over and again announced itself as an original, and lengthy, new law.
Even multi-year commissions thus proved to be too short-lived to read the code with a critical eye and a revisionist’s pen. Whether sitting as commissioners or legislators, American codifiers constantly complained of a lack of time to give their subject full consideration and to adequately systematize procedural law. In Kentucky, “the Commissioners have not been able to perform all the duties assigned to them.” In Ohio, “they have realized [their task] requires more time and research, than they have been able to bestow.” In Kansas, “the time within which the commissioners were required to perform their labors was too short,” and in Wisconsin “the limited time for completion of the work was very short.” “Recognizing and regretting [the code’s] deficiencies,” the North Carolina commissioners “beg leave only to call attention to the very brief time” they had to craft it. Of course, states that declined to appoint a commission had even shorter time horizons during a single legislative session. “It is folly to undertake to pass a code in a sixty day session,” wrote the Montana Post, “and the best way would be for the Assembly to select one from a State or Territory which would come near meeting our wants, and slide it through with the fewest changes possible.”
Given these time constraints, adopting the code tended to be an all-or-nothing proposition. Once in a while that could work against the code, as it did in Texas, the only western state to reject the Field Code. When “the clerk then proceeded to read the code of civil procedure,” in the Texas Assembly, “there was a general stampede, and the House adjourned, there not being a quorum to transact business.” The code was not taken up again before the session expired. Paired with a close reading of political commentaries on the Field Code, the macroscopic patterns of its borrowing thus intensifies Friedman’s question: Why the West? If codification of legal practice was not a natural convenience, if it provoked widespread complaints about the subversion of popular sovereignty, and if it invited the Tocquevillian nightmare of imperial servility to foreign law, why then did so many jurisdictions copy wholesale a text addressed to the idiosyncrasies of New York procedure and civil remedies? Why not rather follow Texas in its lonely rejection of the code?
As in other areas of postbellum study, one may learn a lot about the American West by turning to the American South. In the last decade, scholars of Reconstruction have broadened the scope of their study to include both the American South and the American West as two sites in one “Greater Reconstruction.” These studies have illustrated the ways in which military conquest, rapid industrialization, and the resettlement and education of ethnic minorities developed similarly in each region, guided by economic elites in New York and political administrators in Washington. Twelve of the states and territories that copied the Field Code mostly closely did so during the Civil War and Reconstruction era—four states in the former Confederacy and eight jurisdictions in the Far West. Complaints about imperialism and servility to foreign law unsurprisingly intensified as the New York code appeared in the Reconstruction South. The codifiers’ answer to the charge there would resound across the nation: capital demanded it.
AS RECONSTRUCTION IN NORTH CAROLINA FALTERED IN THE 1870s, and Democrats expected a chance to rewrite the constitution on more favorable terms, many counseled compromise on racial equality but stood fast against the new code of civil procedure. “The conditions upon which the State was restored to the Union, however unjust those conditions were, should not be disturbed,” one partisan paper announced, but “the ‘Civil Code of procedure’ offends and oppresses all.” The state’s speaker of the assembly argued “this child of the carpet baggers” was among the worst impositions of Radical Reconstruction. As the partisan press prepared their wish lists for a new convention, the repeal of the procedure code and the abolition of the code commission topped the lists each time. “One of the greatest curses inflicted upon North Carolina is the new system of laws that Judge Tourgée brought down here from New York,” one such list concluded.
“Judge Tourgée” was Albion W. Tourgée, a New York lawyer and one of the nation’s leading racial egalitarians. Tourgée was a quintessential “carpetbagger,” a northern Republican of modest means (whose whole wealth could fit in a carpetbag, as the name implied) who relocated to the postbellum South hoping to prosper in a region awakening to developing markets and free labor. Tourgée sat on a commission alongside Victor C. Barringer, a leading Democrat and close personal friend of the ex-Confederate President Jefferson Davis (who had hid in Barringer’s house on his unsuccessful flight to Georgia). Filling the third chair was William Blount Rodman, a lawyer with a substantial practice in the eastern part of the state. Although Rodman served in the Confederate Army, he early on discerned the turn of the war and became a devoted Republican, a “scalawag” in the local parlance. Seating an elite Democrat, a Radical Republican, and a southern scalawag, North Carolina’s commission was a virtual microcosm of (at least, white) Reconstruction politics. And as with Reconstruction more broadly in 1868, the Radical had the most influence early on.
As a delegate to North Carolina’s constitutional convention, Tourgée had pressed to entrench procedural reform in the constitution’s text. Indeed, the first borrowing of the Field Code was in the constitution itself, which copied the opening provision that “the distinction between actions at law and suits in equity, and the forms of all such actions and suits shall be abolished, and there shall be in this State but one form of action.” Republicans thus ensured that even if they did not fare well at the forthcoming elections, the legislature would be constitutionally bound to adopt the Field Code, or something very like it. Republicans did fare well in the election, however, as reflected in the composition of the commission. Democrats could complain about the “stranger boy” Tourgée and the traitor to his people Rodman, but they could not muster the votes to defeat their appointment.
As soon as the commission was formed, Tourgée sought to link it to the network of other code states. He wrote to his colleagues that they must “organize immediately and communicate with the officials of the various states which are working under Code Procedure, and get copies of their codes.” Included among Tourgée’s correspondents was David Dudley Field, who had his carpetbagging nephew carry along “several volumes of my codes” to Tourgée. As with other commissions, the workload was divided, but Tourgée assigned the main work of civil procedure to himself. Tourgée’s code closely accorded with Field’s 1850 report, and was drafted quickly. The printed code of 575 sections appeared less than two months after Tourgée’s first letter organizing the commission.
Secure with a constitutional mandate and sympathetic legislature, Tourgée’s first report in 1868 boldly reminded the legislature of its constitutional duty to pass the code. Unlike most codifiers, Tourgée’s report put no reliance on the argument that procedure was an exceptionally benign field open to reform and codification. Rather, it argued, procedure was the ground on which the constitutional reconstruction of race relations would be carried out:
The changes which the last eight years have wrought in the fundamental relations of society, blotting out entirely one of the great classes of personal relations—that of master and slave—opening the ears of justice to those who were before dumb in her presence, and giving parity of right, authority and remedy, to the highest and lowliest; breaking down the barriers of the jury-box, and permitting the landless citizen and the man of African descent to come within its bounds, opening the forum, the bar and the bench, to the honorable competition of the colored man—all these mighty changes in the relations of the great component elements of society, demand equivalent changes in the laws and render the work both of the Legislator and the codifier, one of extreme difficulty and delicacy.
Access to courts, to remedies, to juries, and to the profession—this was the scope Field had given civil procedure, and in Tourgée’s handling, civil procedure would be the tool to upend the law of master and slave. Accordingly, Tourgée “did not hesitate to take the Code of New York as the basis of that to be prepared for this State.” In the following months as disgruntled Democrats insisted they could accept political racial equality but could not abide the code of procedure, they understood they were taking back with their left hand what they seemed to be offering with their right. As one complained, “Tourgée induced the late so-called Convention to do away with . . . pleading, and law and equity. . . . The Supreme Court is now a political, and not a judicial tribunal.” Political, because procedure had become the tool of Reconstruction policy.
Tourgée and his fellow commissioners took some steps to mitigate the sense of imposition. In their report they called for the bench and bar of the state to make the code their own and forward to the commission “such amendments as may occur to them, in practice under it, as necessary or valuable.” Even then, however, they made their authority clear. Significant alterations of the law were to run through them, not through ordinary legislation. They concluded their report by instructing the legislature to pass their code “as it is,” offering for a model “the Code of New York [which] was adopted in 1848 as it come from the hands of the Commissioners.”
Although Republicans had the votes to pass the code without amendment, the native bench and bar were less willing to accommodate Tourgée’s code. “I don’t quite know whether the Code will go from beneath the dark waters or not,” Rodman wrote to Tourgée in the summer of 1869. “[Chief Justice] Pearson is against it and I fear the rest all are.” Two state senators complained that “our present Judicial system is a servile copy of New York, a State less like ours than almost any other in the Union.” Unlike the Californian defenders of the common law, North Carolinians readily conceded that civilian laws and practice codes were best suited for commercial empires, but North Carolina Democrats preferred rustic simplicity to being one more codified jurisdiction in New York’s network. “New York is full of large towns and cities, and her people are extensively engaged in commercial and maritime pursuits. North Carolina is an agricultural State, with a rural people,” the senate report continued. “The New York system was devised upon a model deemed suitable to a dense, commercial community.” But such a system was, as many Democratic newspapers complained, “unadapted to the wants of our people.”
Such criticisms endured to the end of the century. One 1891 commentary in the inaugural issue of the Yale Law Journal argued “the legal practice of the State was reconstructed by the adoption of the New York Code of Civil Procedure, with all its penalties and high-pressure machinery adapted to the conditions of an alert, eager, pushing commercial community.” Citing this report, Lawrence Friedman has expressed doubt “whether systems of procedure fit particular cultures so snugly” as North Carolinians “seemed to think.” That assessment overlooks the particular procedures that troubled North Carolina jurists, especially the acceleration of debt collection. Like pre-code New York, North Carolina summoned debtors to answer a complaint only when a court was in session, and in many parts of the state, a court sat only for one month out of the year, holding over trials to the next term if too much business had accumulated. By copying Field’s provisions for default judgment, issued within twenty days by clerks in and out of term time, the code dramatically accelerated creditor remedies from around two years to three weeks.
From the code’s accelerated remedies arose the frequent comparisons between “commercial” states like New York and “agricultural” states like North Carolina. Although proceduralists tend to think of a bias toward settlement as a twentieth-century phenomenon, common law lawyers frequently hailed the pressure for out-of-court settlements as a virtue of pre-codified procedure. While trover and assumpsit were creditor remedies, jurists wrote that common law process overall created a debtor’s remedy through the languid pace of enforcement. The length of proceedings encouraged negotiations and settlement among the parties, and settlement almost always favored debtors, who ended up paying less than their strictly legal liabilities, especially by avoiding the court costs and lawyers’ fees that fell on a losing litigant. When protracted proceedings extended beyond a year, they allowed a season or more of harvests to influence these negotiations. North Carolinians thus recognized that their remedial system had undergone a fundamental change of orientation towards creditors and a more liquid mercantile economy.
Tourgée and other codifiers did not wish to deprive debtors entirely of their customary powers of negotiation and settlement, but they sought to locate these powers in substantive law rather than process. The substantive legislation became known as “homestead exemptions,” which arose around the time states were abolishing imprisonment for debt. These laws set a minimum allowance of property—usually one’s home and adjoining land, as well as subsistence farm animals or an artisan’s tools—which creditors could not recover to satisfy a debt. Field was ambivalent about New York’s exemptions. His code repeated New York’s previous exemption of certain farm implements and mechanics’ tools. Whether the exemption should extend to a whole homestead, Field—not usually deferential about reforms he favored—declared it “a high question of public policy, which it is for the legislature alone to entertain.” New York did extend its homestead exemptions in 1850.
Paired with homestead exemptions, the New York code seemed to strike the popular balance for a Radical Republican like Tourgée who sympathized with the plight of freedmen. The code would accelerate the determination of creditors’ rights and remedies, but homestead laws would forbid enforcement against poor smallholders and sharecroppers. Freedmen could be protected while credit could again flow in the state, largely on collections from large landowners who overextended themselves—that is, the white plantation class. It was no coincidence, then, that Democratic lawmakers and journalists offered to trade black political equality for the repeal of the code. The two were vitally linked. Code remedies threatened to break up the source of planters’ political power before they could stabilize their lines of credit and maintain control over the most productive land.
In reaction to the swift denunciation of code remedies, the same legislature that passed the code enacted a simple compromise later in the session: summonses to defendants would be “returnable to the regular term” of a court. Clerks, thereafter, could not issue swift default judgments out of term. When a debtor tried to claim the statute’s protection before Tourgée, who had become a superior court judge, Tourgée struck the statute down for violating the state’s constitution. Not coincidentally, it was Tourgée who had worked at the convention to safeguard the powers of clerks to issue such judgments. On further appeal, Chief Justice Pearson reversed Tourgée, writing that Tourgée “did not fully comprehend” the legislature’s intent “to repeal so much of the Code as confers jurisdiction on the Clerk ‘to give judgments,’ and to restore the old mode of procedure, by which all judgments are rendered in term time.” Pearson concluded that the legislature had put judicial powers back where they belonged. “The Clerk is no longer a subordinate Judge, but is divested of all judicial functions in civil actions, and is simply a Clerk.”
Of course Tourgée fully comprehended the effects of the new law, which is why he had struck it down. Believing that the state’s war-torn economy could recover only if credit began flowing again, Tourgée remained opposed to “any ‘Stay-law,’ ‘Suspension Law,’ ‘Jurisdiction Law,’ or any other legislative humbug” that slowed creditor remedies. Writing to Rodman, Tourgée confided, “I have not got over cursing about” Pearson’s decision more than a month after it was handed down. Rodman, now serving as Pearson’s associate justice on the supreme bench, issued a dissent that focused on the equitable principle that “statutes which oust delay, and are for expedition of justice, shall be benignly construed.” In such a constitutionally doubtful case, Rodman counseled sticking to the original code of procedure and its accelerated remedies.
Although Tourgée hoped to see Pearson reversed by a future court, the commissioners did not have to wait so long. The compromise that had produced the quasi stay law carried its own expiration clause. Despite Pearson’s separation of clerks and judges as a constitutional principle, the original code went back into effect the first day of 1871, reviving complaints against the code and calls for a new constitutional convention. Subsequent reports to the legislature from the code commission dropped the bold tone of the First Report. “For the changes made by the constitution the Commissioners are no wise responsible,” they pleaded in an 1870 report. “We took them as accomplished facts; and our duty was as skillfully and as prudently as we could to bring the law of the State into harmony with them.” The defense was somewhat disingenuous, as the two Republican commissioners, Tourgée and Rodman, had sat on the convention committee that wrote the mandate for codification and practice reform into the constitution’s text. The commissioners’ Second Report no longer argued that procedure would be the vessel through which freedman’s rights would be secured. Rather, it followed the original New York strategy of distinguishing procedure as “the machinery” of the law independent of the law’s “principles,” and it argued for the commissioners’ authority on the basis that “none but those whose profession makes them necessarily familiar” with practice were fit to reform it.
Receiving innumerable letters complaining that under the code, “no one will be benefited, except perhaps some Northern Capitalists,” Rodman undertook an anonymous defense of the new code in The North Carolina Standard. He encouraged the bar to accommodate themselves to change, for “the New York system . . . bids fair to become national.” Putatively offering an overview of the code, Rodman’s articles were almost entirely about credit. “How can we create credit? By punctuality,” he wrote. “And how create punctuality? by law, and by law alone. Let the law enforce punctuality; let the people of North Carolina learn that the great law of business is, that ‘time is of the essence of the contract,’ and incur no debt that they do not expect to meet at maturity.” Under the old system, he argued, “the pleadings were most absurdly required to be made up in term time only,” but under the more certain and speedy remedies of the code, “we may expect that the secret hoards of the frugal among ourselves will be offered to loan, and even that the vaults of the banks of New-York . . . will be open to our industry.” Although they had to compromise over say laws and trim their rhetoric on power of procedural reform, Tourgée and Rodman ultimately secured the adoption of the code on that promise that New York remedies would draw out and secure New York capital.
LIKE THEIR SOUTHERN COUNTERPARTS, relatively longtime residents of the American West claimed that agitation for the code had been stirred up by “the carpet-bag crew who came here a few months since” hoping their careers would rise along with the elevation of territories to statehood. Just as North Carolinians had complained the code was ill-adapted to local conditions, western attorneys warned that commissioners might be appointed who “had little or no knowledge of our statutes and practice” and would plunge local practice into “inextricable confusion” Thus, westerners, no less than southerners, could view the code as a foreign imposition.
Codification in the West developed with the significant difference that most jurisdictions sought to bolster local political autonomy by avoiding the use of lawmaking commissions. California, Colorado, the Dakotas, Idaho, Montana, Nebraska, New Mexico, Nevada, Oklahoma, and Wyoming all adopted their procedure codes through judiciary committees without appointing extra-legislative commissions. Often, the choice was explicitly rooted in concerns over popular sovereignty. When a Wyoming judiciary committee reported against a resolution to appoint a code commission, its chairman remonstrated that “the people have selected the different members of this body from their number and have commissioned us to act for them.” If a procedure code served the public good (and the legislature decided later that session that it did), “the duty” to craft it “is upon us and not upon others.”
The same logic militated against a procedure commission in Colorado, a state that especially casts doubt on the notion that codification was an off-the-rack convenience for the West. For seventeen years after its organization as a territory, lawyers in Colorado adhered to the old common law forms of practice—indeed, they did so through a legislative borrowing, importing the practice acts of the staunchly anti-code state of Illinois. Although Colorado adopted the Field Code in its first year of statehood, its territorial history contradicts the notion that western states lacked an entrenched bar interested in maintaining traditional practices or that the Field Code was the only law available for importation.
Both ideas were explicitly contradicted at the time. One lawyer wrote anonymously to the Denver papers that “I should regret very much to see the ‘accumulated wisdom of the ages’ thrown aside for that new fangled abortion of legal quacks, denominated a ‘code.’” If the state had to look elsewhere to update its practice laws, it could with more ease and less expense adopt the briefer and more moderate laws of Massachusetts or even England. Although the rules of common law practice there were scattered across volumes of case reports, New York’s code was not a real alternative: “What constitutes a complaint in the New York code is contained in a definition, comprised in sixteen words. There are in the New York code reports two thousand decisions on these sixteen words. . . . So much for your code simplicity.” Perhaps with an eye to the South, the lawyer concluded that the code had “fastened itself upon states which, were they now free to choose, would gladly go back to the so much deprecated common law practice.”
Other code opponents argued that they did not oppose codification in principle, but they were opposed to this particular code and the manner in which it was rushing through the legislature without due consideration. At a January 1877 meeting in Denver attended by most of the Colorado bar and legislative assembly, common law lawyers rallied behind J. Q. Charles, who concluded that “the strongest argument against the adoption of the code” during the present legislative session “is the want of time to do it well.” Western legislatures often sat for only sixty days every two years. At that pace, deliberative legislation over so vast a topic as civil remedies was impracticable. Sometimes constitutionally bound to put bills through three readings before passage, legislatures scheduled evening sessions for the reading. But in the satirized words of a “Granger” who sat in on one such session, “fifty fellers” were just “settin’ around, some of them smoking, with their heels cocked up on their desks, some of ‘em readin’ newspapers, some of ‘em talkin’ and laughin’,” but “not one of ‘em legislated a bit.”
Code proponents conceded that “it hardly seems to the common mind that an entirely new system of practice can be properly framed and rightly adjusted in the limited time allowed by a single session of the Legislature.” But, they argued, the expertise and experience of other states could avoid the dangers of novel legislation—so long as the text of other states was followed closely. “The code proposed to be adopted,” noted a Colorado lawyer, “is the California code,” and therefore “the time and thought spent upon the code of California by lawyers of that State accrue to the benefit of people of Colorado.” In place of arguments about local concerns and state popular sovereignty, code proponents substituted something of a national popular sovereignty, one rooted in a mobile bar of lawyers whose rules of practice could travel with them and generate similar experiences in different locales.
In Denver, the argument that all due consideration for the code had essentially been outsourced to California did its required work. One of the most vocal legislative opponents of the code, Allison DeFrance, abandoned his criticisms after the code became identified with California law. Whereas earlier in the session, he had cited lack of time as a reason to defeat the code, he now reasoned that “he did not consider that he, or any other member of the General Assembly, with the time he had to examine it, was competent to criticize it. He understood the bill was almost an exact copy of the code of California, which had been framed by some of the ablest men in the land, and he could not criticize their work.” Now that the architect of California’s code, Stephen J. Field, represented the West on the U.S. Supreme Court, it would hardly do to continue calling his code the law of “sciolists, agitators, and revolutionists.”
The ultimate effect of forgoing commissions was that western states that refused to engage in commissioner lawmaking on grounds of popular sovereignty copied the text of New York lawyers even more slavishly than did the postbellum southern commissions. The Denver press complained that Colorado’s legislators “have clipped a section from one code and pasted it with a section from another, and so industriously have they labored that they have been enabled to present the work of their hands to the assembly in the limited space of fifteen or twenty days a complete code of procedure, which . . . has been ‘assimilated,’ as we are informed, ‘to the character and requirements of our people,’ whatever that may mean.”
Considering the universal complaints that time was too short and legislators too inexpert to give the code due consideration, one might expect the code to have failed more often or at least to have faced more competition from other workable statutes. The Louisiana code that California’s governor wished to adopt remained a live option, as did the variety of southern codes that abandoned the common law forms of action. If Euro-Americans believed law had to be imported into the West, Colorado immigrants proved that the common law of Illinois was just as amenable to statutory importation as New York code.
What codifiers saw when they looked at New York, more so than Louisiana, Alabama, or Illinois, was the Empire State of commercial capital. And the putative fears, demands, and desires of a personified Capital continually wielded promises—and threats—in the debates over procedural codification. Code proponents in Colorado parried charges that a code would be a “new-fangled” contrivance by pointing to the fact that it had been “adopted twenty-nine years ago by the Empire state of the Union” as well as “the wealthy and populous states of Ohio, Indiana, Wisconsin and Missouri.” They contended that the code of the nation’s uniquely commercial empire would bring wealth in its wake.
When a Colorado legislator scoffed at the idea that capitalists could possibly care about the difference between old common law and modern code remedies, his adversaries rebuked him. “Mr. Hamill replied that he knew of one California company of capitalists who were deterred from investing in mining property here wholly on account of the practice of the courts in mining cases. If we had had this code years ago, Colorado would now have a larger amount of California capital in her mines.” Codifiers argued that, in attracting capital, procedure was at least as important as the substantive rules of property and contract, because procedure secured the remedies that actually protected investments. “Men of capital and enterprise will not make investments and devote their time and energies to those works of internal improvement so necessary for the speedy development of our natural resources, and for the settlement and building up the country,” Nebraska’s governor reasoned, “unless ample protection is afforded them, by legal enactment, for the capital invested and labor employed.” Therefore he urged swift passage of the Field Code. On the same understanding, another western lawyer succinctly summarized the difference between the code and the common law as “whether a merchant had better try to collect a $500 note or burn it up.”
The creditors’ remedies in the code gave the codifiers their leading argument against criticisms rooted in the ideology of popular sovereignty. “There is no doubt but the people are in favor of anything that promises to hurry up that proverbially slow and blind old female called Justice, and they will go for the old code,” one Colorado newspaper announced. New York’s “code practice is the best in excellence,” stated another, “and when I say best I do not mean best for lawyers only, but best for the people—the commonwealth.” If the People favored economic progress, certainty of remedy, and efficiency in proceedings, then they favored the New York code, no matter whether they understood or cared about technical rules of pleading and joinder. Thus, in their arguments codifiers imagined themselves champions of popular sovereignty, for it was they who accomplished what the People actually desired. Since legislative commissions and committees sought the proper end of the People’s good, codifiers downplayed the legislative shortcuts they used, arguing that “as long as the mass of the people represented by the non-legal portion of the legislature are in favor of a code, it matters little how much dust of ages the anti-code lawyers and their [newspaper] organs kick up.”
A central irony in the migration of the New York code, premised on the demands of New York capital, was that the migrating code was not in fact the law of New York. The version of Field’s code that was copied the most was the 1850 draft—the one never enacted in New York. In 1876, just as Colorado was debating the code, New York replaced what remained of Field’s original draft with a new code framed by a commission under the leadership of Montgomery Throop. A count by a “friend” of Field’s found that only three sentences of the Field Code had carried over word-for-word into the Throop Code. Hardly a line of the Throop Code appears in any of the post-1870s procedure codes or revisions of other states, however.
Thus by the end of Reconstruction, New York’s domestic empire of capital and creditors’ remedies bore a remarkable resemblance to the international empire administered by the British. Both jurisdictions, while reforming the practice of law, largely rejected codification within their own borders but encouraged it among their economic dependents. The English Parliament commissioned a full codification of law for India and colonies in Singapore, while further codifications produced by Field in New York covering civil and penal law were adopted in California and other western jurisdictions but defeated in Field’s home state. In both places, leading arguments against codification were again civilizational: Advanced societies could not codify their law, for to do so would be to freeze the progress of legal science. What appeared to some to be a hopeless mass of confusion was to common law defenders the sign of true legal sophistication. Science was, after all, sophisticated. The Throop Code came in for censure, both in its first year and in following decades, precisely for trying to capture all the sophistication of the New York legal system within an unwieldy 3,300 rules. Codification, however, could help developing societies along law’s frontier take a progressive leap forward. As India’s chief codifier Thomas Macaulay explained, codification “cannot be well performed in an age of barbarism,” but also “cannot without great difficulty be performed in an age of freedom.” As India balanced between the two, however, “it is the work which especially belongs to a government like that of India—to an enlightened and paternal despotism.”
In the United States, Macaulay’s tool of enlightened despotism spread with the anxiety that capital from the nation’s economic center would remain scarce without a code of remedies that, if not in fact the law of New York, was at least prescribed by New York lawyers and their monied clients. In the two most populous and commercially advanced western states, Texas and Illinois, New York capital failed to move state legislators to adopt the code at the expense of popular sovereignty (although there were concerted efforts in both jurisdictions). Lacking the self-sufficiency of those two jurisdictions, the other states of Greater Reconstruction adopted a foreign code, at times through extra-legislative means; but lawyers, legislators, and their supporters claimed the endorsement of popular sovereignty in doing so. Even in North Carolina, whose Democratic newspapers daily called for the repeal of the code as an imperial imposition from New York, Republican editors proclaimed that “the movement” towards procedural codification “comes from the people, from the instinctive logic by which an unprejudiced mind grasps the advantages of the system.”
The history of codification on the American periphery challenges cherished notions about American federalism. On the one hand, those suspicious of centralized power and critical of national governance since the New Deal have relied on narratives that tout the equality of sovereign states to set their own policies, foster local diversity, and “experiment” with legislative solutions to local issues. But the history of legal practice and civil remedies is one in which the localism fostered by common law practice rapidly gave way to uniform regulations transmitted by a network of New York lawyers without the slightest interference of a centralized federal government. On the other hand, scholars who support the legitimacy of New Deal governance have recently produced an abundant literature unearthing a long tradition of “administrative” law at the state level well before the twentieth century. These accounts have focused on administrative adjudication or discretionary regulation within a narrow domain, such as customs houses, but have so far neglected the most widespread and significant instance of nineteenth-century administrative lawmaking in America—the spread of the Field Code through extra-legislative commissions. While these histories have sought to demonstrate that nineteenth-century Americans could be quite comfortable with administrative law, accepting it as a normal part of the constitutional order, this chapter has shown how lawmaking by commission generated significant political controversy and raised grave questions about popular sovereignty that over time were merely dodged rather than answered.
The notion that lawyers were trading in a false populism to serve their own interests frequently followed the Field Code during its cross-country migration. The claim of public good, one Colorado lawyer wrote, “comes from a half-dozen or less of lawyers, who demand in the name of the people, that which these lawyers want for themselves. In other words, these lawyers want a ‘code’ and forthwith they shout ‘vox populi.’” In the view of this common law lawyer, the People “do not pretend to understand the principles of practice and pleading at law, any more than they pretend to understand the principles of any other particular science.” Although he may have been just as professionally interested in maintaining his accustomed practice, the lawyer’s criticism at least had the merit of accurate observation. In both the West and the South, codifiers transmuted democratic theory into support for a remedial code that elected legislators had neither the time nor inclination to read. Popular support for commercial development was taken to indicate popular support for New York’s civil remedies, especially the cheapened and accelerated collection of debts.
While the quickening pace of economic time created pressures to adopt New York’s creditor remedies, and while the brief spasms of legislative time spurred the wholesale adoption of Field’s code, the cadences of professional legal time eventually helped to entrench what had entered so many U.S. jurisdictions in a rush. In the same North Carolina papers that hoped to overturn the code appeared a news item on December 16, 1870: The bar exam was coming up. The first day would cover real property; the second day, the code of civil procedure.