Article by Rodolfo Batiza
Modern codification of the civil law was a late eighteenth and early nineteenth century European, more specifically French, development which had a profound and lasting influence throughout the western world. In the United States, except for Louisiana which had codified the civil law in 1808 following mainly French and Spanish models, the common-law jurisdictions began to show an interest toward the codification of private law only at a much later date. The report submitted in 1837 by the Commissioners to codify the common law of Massachusetts, drafted by Judge Story, was clearly favorable to codification. The Report stated that one great advantage of a code, which from a practical point of view cannot be overestimated, is that it supersedes the necessity, at least in ordinary cases, of very elaborate researches into other books, and that it often supersedes in all cases, except those of rare occurrence, the necessity of consulting an immense mass of collections and digests of decisions.
A similar interest regarding codification arose in New York about ten years later. Dean Pound explained the reasons for this interest:
Agitation for codification in New York in the first half of the nineteenth century was in part a phase of the legislative reform movement and influenced by the wide attention attracted by the writings of Bentham. In part, however, it grew out of the hostility toward English institutions and English law in the period after the Revolution. . . .
In New York, Field was the prime mover. He urged a general code before the Constitutional Convention in 1846, and largely as a result of his vigorous advocacy the Constitution in 1847 provided for commissioners to reform procedure and codify the law.
Given this constitutional mandate, and despite an active private practice, David Dudley Field worked for almost twenty years (from 1847 to 1865) on drafts for five codes: Political Code, Code of Civil Procedure, Penal Code, Code of Criminal Procedure, and Civil Code.
The unsuitability of the common law for codification stood in contrast to the situations in France, Germany, and Switzerland, where the legal systems were ripe for codification because of centuries of learning and the availability of excellent treatises. Dean Pound made the following observation of Field's undertaking:
One who essayed codification of Anglo-American law in the nineteenth century had no preceding drafts and no such thoroughgoing doctrinal exposition to draw on. The codification Field undertook was pioneer, and the law in New York was not ripe for it. He could not draw a little Blackstone or a little Kent. There were a number of good textbooks on particular subjects, but there was no single systematic doctrinal exposition . . .. Moreover, as a good common-law lawyer he could not merely reduce the textbooks to a system. He was bound to draw the law at first hand from the reported decisions of the courts. . . . Anglo-American common law indeed is still growing and is far from sufficiently systematized and settled to lend itself to codification.
Despite his own dissatisfaction with the state of the common law, Field's principal purpose was to codify the common law, and he represented his drafts as incorporations of the then-existing common law. That Field's codes were what he represented them to be—codifications of the common law—has always been assumed. For example, Professor Reppy explains Field's approach as follows:
As Fields [sic] was not an iconoclast, or a destroyer of past traditions, as he had no desire to destroy the common law, but to preserve it by eliminating its defects and rendering it into language understandable to the people as well as the Bench and Bar, he naturally chose the historical approach, which merely involved the restatement of the existing law, cutting off its excrescences, amending it to meet modern conditions, then making it adaptable, not only in New York, but in the several states of the United States, and among all English-speaking peoples.
Indeed, Field's opponents did not argue that his codes were unfaithful to the common law. Rather, they argued that despite his faithfulness to the common law, Field failed to produce an accurate and scientific representation of the common-law system.
It is the purpose of this article to examine in some detail the sources of inspiration of the Field Civil Code in order to ascertain whether the foregoing statements regarding it as a codification of the common law are correct. As compared to other drafts of civil codes in both Europe and the Americas, the Field Code occupies an intermediate position between the two extremes represented, on the one hand, by those drafts that are entirely silent on the matter, and, on the other hand, those that make a full disclosure of their sources. Field identified the specific sources of about two-thirds of his Civil Code. As will be shown later, most of the identified provisions originated in court decisions; the next largest in number were derived from statutes; and others found inspiration in the works of well-known writers. Finally, and quite unexpectedly in a code that was supposed to have incorporated the common law, a substantial number of provisions were drawn from civil-law codes and commentators. In view of these various origins, the sources of the Field Civil Code may be classified as judicial, statutory, doctrinal, and codal.
About the Author
Rodolfo Batiza. Professor of Latin American Legal Studies, Tulane School of Law; Bachiller en Ciencias Sociales 1935; Licenciado en Derecho 1941, Universidad Nacional Autónoma de México.
Citation
60 Tul. L. Rev. 799 (1986)