The Civil Law and Field’s Civil Code in Common-Law California

The Civil Law and Field’s Civil Code in Common-law California – a Note on What Might Have Been by Bartholomew Lee [5 Western Legal History 13 (1992) [no. 1, Winter/Spring, 1992 – excerpt of the beginning text].

This note is dedicated to the memory of the late Professor Grant Gilmore, in whose legal history seminar it first evolved at the University of Chicago Law School some twenty years ago {in 1972}. Bartholomew Lee has been a member of the California Bar since 1973 and is a professorial lecturer at Golden Gate University, San Francisco.

A California lawyer who consults the civil code is consulting a statute whose structure dates back two millennia to the civil law of Rome. The code’s modern architect, New York’s David Dudley Field, envisioned a civil-law jurisprudence for his code. It was enacted in California in 1872 as a result of the nineteenth-century law-reform movement, with all of its civil-law ambitions. California’s enactment also had considerable help from Stephen Field (later Justice Field of the United States Supreme Court, thanks to his brother’s intervention with President Lincoln). Stephen probably took his brother Dudley’s codes to California with him in his steamer trunk. David Dudley Field financed many years of reform agitation with the fat fees he collected from the robber barons of the day. Perhaps no nineteenth-century lawyer in this country had a more challenging practice for higher stakes; certainly none applied its proceeds more nobly. Despite the thrust of the law-reform movement, no civil-law jurisprudence evolved for the California Civil Code. The common law and its antithetical processes assimilated the code as enacted. The analyses of John Norton Pomeroy in the 1880s neutralized the civil-law import of the civil code in California, leaving it just another statute to be strictly construed.

Field’s civil code stemmed directly from a sustained and nearly successful assault on the judicial process. The powers of the courts – in ascendancy since Lord Coke’s conflicts with royal authority – had to best the challenges of the Jacksonian coalition and the related law-reform movement. These last were, ironically, the later standard-bearers of Coke’s old client, the legislature. In many ways the most successful instrument of those challenges, the civil code, too, failed – of adoption in New York, and in application in the adopting states, especially California. The adoption of Field’s civil code in several western states, an almost accidental high-water mark, remains as the only statutory recognition of nearly a century of debate and controversy [1] about codification of the common law of civil obligation. [2] The enacting western states were the Dakota Territory, in 1865; California, in 1872; Idaho, in 1887; and Montana and Colorado, in 1895.
The nineteenth-century codification movement failed. The codes of this century differ widely in intent and effect. [3] One reason the movement failed was simply that it could only argue in its early days: it had no written code to put forward, but only the proclaimed virtues of codification. By the time it had a code, Field’s New York Draft of 1865, [4] a raging opposition could articulate the persuasive virtues of case-by-case common-law jurisprudence. [5] The legislatures, and in New York two vetoing governors, chose the known and rejected the code. [6]

Perhaps a draft code thirty years earlier might have given the codification movement the weapon needed to win its campaign. A set of nationally adopted codes, before the Civil War, could have made for a different legal world. But Field’s code came too late. Its fitful adoption in five states gave it little effect. What effect it had, in encouraging corporations and confusing domestic relations, cut against its adoption elsewhere. [7]

In one effect Field sought for his code, the engendering of a new European-style civil-law jurisprudence for American law, the enacted codes failed totally. This note will examine this hope of Field’s and the related thrust of the codification movement, and how they came to naught in California. California was a territory knowing only civil law from Spain and Mexico. Yet even in California, the civil law could hold no adherents despite calls from the earliest days for its positive enactment. In December 1849, California’s governor had called upon its first legislature to enact the Civil Code of the State of Louisiana; [8] in January 1850, leading lawyers of San Francisco petitioned the legislature to adopt the civil law. After a report to the contrary, the legislature declined, and instead on April 13 enacted that the common law be the rule of decision in the courts. [9]

Shortly thereafter, Field’s codes, as the fruit of the law-reform movement, fell on seemingly fertile western soil. Still, the civil- law principles of code and codifier never really saw the light of the juristic day. A vigorous thicket of common-law cases over-grew and overs haded them. The twentieth century’s civil and commercial codes cleared the thicket, area by area. [10] Any hope for a civil-law statutory jurisprudence had, however, been dead for fifty to a hundred years.

Speculation nonetheless has its uses in history, and the study of what might have been (particularly in California) can also illumine our present. As Grant Gilmore, a close student of the history of the law as well as the law itself, explained, “The historian who shows us that what in fact happened need not have happened at all enriches our understanding of the past and, consequently, puts us in a position where we can deal more rationally with the infinitely complex problems which I confront US.” [11]

The forces that overruled the enacted codes still shape our law today.

The Genesis of Field’s Civil Code in the Codification Movement

“All that is the case,” [12] at least in its most general aspects, varies little over time. A century and a half ago, as now, there were two western legal systems. The common law, with its case-by-case system of precedents, and doctrines of stare decisis, along , with its companion equity system to correct its excesses, prevailed in Anglo-American jurisdictions. The civil law, with its comprehensive, legislated codes of law and theorists of the caliber of Puffendorf and Pothier, prevailed on the Continent. Neither system was without historical lineage of some distinction – the common-law phrase ran “The memory of man runneth not to the contrary,” [13] while the civil law was generally satisfied to trace itself to the Romans and the sixth-century Corpus Juris Civilis, Justinian’s Institutes.[14] Both legal systems sufficed for the day-to-day purposes of resolving cases and controversies, providing normative principles, and generally running their civilizations despite occasional civil wars. As Gilmore once challenged,. “Most cases – perhaps all cases – are sensibly, or even ‘correctly,’ decided as of their own time and place.” [15] Both legal systems gradually changed and adapted themselves to the conditions and complexities of the times. Such changes and adaptations, simplifications and conformities, could and did occur only through the work of thousands of lawyers, judges and scholars. The labors were labored, the cases decided and commented upon, the codes written and redacted. Both this process and its resulting law were sometimes painfully slow, as exemplified by Jarndyce v. Jarndyce, in Charles Dickens’s Bleak House, published in London in 1852. The law on the Continent as well as in England still managed more or less to keep up with social and commercial realities.

Nevertheless, the dichotomy between common law and civil law is real and is reflected in intellectual history as well, as the opposition between the British empiricists (for instance, Berkeley and Hume) and their predecessors such as Aristotle, on the one hand, and the continental system builders (for instance, Plato, Descartes, Kant, and Hegel), on the other. A similar split appears between the English individualist free-market theorists such as Adam Smith and Alfred Marshall and the continental socialists, especially Karl Marx. Isaiah Berlin noted the different ways of thinking in his essay on Tolstoy, The Hedgehog and the Fox, quoting Archilocus: “The fox knows many things, but the hedgehog knows one big thing.”[16] Berlin could have been commenting on the civil law and the common law when he wrote:

“For there exists a great chasm between those, on one side, who relate everything to a single central vision, one system less or more coherent or articulate, in terms of which they understand, think and feel – a single, universal, organizing principle in terms of which alone all that they are and say has significance – and, on the other side, those who pursue many ends, often unrelated and even contradictory, connected, if at all, only in some de facto way … moving on many levels, seizing upon the essence of a vast variety of experiences and objects – for what they are in themselves, without … seeking to fit them into, or exclude them from, anyone unchanging, all-embracing, sometimes self-contradictory and incomplete, at times fanatical, unitary inner vision.” [17]

As part of the process of the law’s change and adaptation, periodic and sometimes related law-reform movements agitated throughout the nineteenth and into the twentieth centuries. One such movement reached its culmination in England in the 1870s with the introduction of procedural reforms that would, it was hoped, make any repetition of a case like Jarndyce v. Jarndyce impossible. On the Continent, an earlier process had led to the adoption of the celebrated Code Napoleon of 1804, working a unification of the customary law of the North of France with the Roman law of the South.
A third such movement occupied the minds of many of America’s best lawyers in the early part of the nineteenth century. It ultimately stemmed from Jeremy Bentham’s 1776 criticism of Blackstone (the “Fragment on Government”). Bentham attacked “judge-made” law as opposed to legislation. The American law- reform movement’s battle cry in many a rhetorical battle was “Codification.” This movement, after Bentham, personified its archenemy as the common law, from its aspect of case-by-case ex-post-facto decision, case-by-case judge-made special legislation. In what the reformers objected to, many saw the special virtue of the common-law process. At a later date, Oliver Wendell Holmes would write (in 1881): “In substance the growth of the law is legislative. …It is legislative in its grounds. The very considerations which judges most rarely mention, and always with an apology, are the sacred root from which the law draws all the juices of life.” [18]

Many of the later opponents of codification, notably James C. Carter of the New York Bar (a leading member of the prevailing historical school of jurisprudence), were of the opinion that only judges, through the common-law process, should make law. [19] Such law would be made as factual situations, sure to re-arise, called it forth from a judiciary skilled in the process. Carter and others, in the debate with Field, occasionally went so far as to doubt the ability of legislatures to provide workable or just rules in advance. [20]

On the right on the issue of codification were the conservatives – Chancellor Kent, Rufus Choate, Carter, and many of the most distinguished lawyers in America. In the early period, Jacksonian democracy had seemed everywhere – “King Andrew” had threatened their culture and the reformers were threatening their law. The reformers wanted a code, by which men could know the law, and by which they could be free of judges and their class. They wanted a code perhaps like Napoleon’s celebrated code, but a code to do away with the mysteries of the common law, and the abuses of the common law. [21] In reaction to the reformers’ hopes for codification on the European model [22] (contrary to some comment, [23] the European model was pervasive), Choate would write:

“Foreign examples, foreign counsel – well or ill meant – the advice of the first foreign understandings, the example of the wisest foreign nations, are worse than useless for us. Even the teachings of history are to be cautiously consulted, or the guide of human life will ) lead us astray. We need reform enough, Heaven knows; ; but it is the reformation of our individual selves, the bettering of our personal natures; it is a more intellectual industry; it is a more diffused and higher culture; it is a wider development of the love and discernment of the beautiful in form, in color, in speech, and in the soul of man-this is what we need-personal, moral mental reform – not civil – not political! No, no! Government, substantially as it is; jurisprudence, substantially as it is; – the general arrangements of liberty, substantially as they are; the Constitution and the Union, exactly as they are-this is to be wise, according to the wisdom of America.” [24]

Of like-minded conservatives, who refused reform, and even of lawyers in general, the Jacksonian “mob” was said to have a simple view: “A successful lawyer is a sort of licensed knave, refined perhaps in his mode of cheating but really little better than a prime minister of Satan or at least a member of his Majesty’s cabinet.” [25] *** [The note continues, see 5 Western Legal History 13 at 21 ff.]


1. The State of Georgia enacted a set of political, penal, practice, and civil codes, unrelated to Field’s, in 1860. With respect to these codes, the Georgia Code commissioners wrote: “[We construed] the Legislative will. requiring a Code, which should embody the great fundamental principles of our jurisprudence from whatever source derived, together with such Legislative enactments of the State, as the wants and circumstances of our people had from time to time, shown to be necessary and proper.” The Code of the State of Georgia, prepared by R. H. Clark, T.R.R. Cobb, and D. Irwin (Atlanta, 18611 [page] iii. But, as the legislative committee report accompanying these codes makes clear, they were essentially a set of revised local statutes, like the revised statutes of almost every other state, along with the statement of general rules. The principle of codification was “to attempt no change or alteration in any well-defined rule of law which had received Legislative sanction or judicial exposition, and to add no principle or policy which had received the condemnation of the former, or was antagonistic to the settled decisions of the latter.” Ibid. at viii, Report of Senator Hines Hold et al. Lawrence M. Friedman’s magisterial History of American Law (New York, 1973) 353-54 [hereafter cited as Friedman, American Law] also presents the Georgia Code, and illumines the social and legal realities of the times. [2009 note: I was surprised to see my research on the Georgia Code etc. in Friedman’s American Law, but then I recalled lending a draft of this paper to a history graduate student circa 1972 during Friedman’s tenure as a visitor at Chicago]. Friedman’s earlier critique of the law-reform movement is necessary to any understanding of law’s history in America: idem, “Law Reform in Historical Perspective,” St. Louis University Law Journal 13 (1969)351. His discussion of “The Civil Law Fringe”(American Law, ch. 2) makes clear how little the indigenous civil law affected legal development in the states south of Georgia and west of Mississippi. More recent scholarship has shown that even California’s community property laws, commonly thought to derive from its civil-law heritage, had little to do with such abstractions, and much more to do with providing incentives to ladies of quality to get on the boats for the Golden Gate. Ray August, “The Spread of Community-Property Law to the Far West,” Western Legal History 3 (1990) 1:34.

2. See note 21 infra.

3. See generally Grant Gilmore, “On Statutory Obsolescence,” University of Colorado Law Review 39 (19671461 [hereafter cited as Gilmore, “Statutory Obsolescence”].

4. See note 53 infra.

5. See note 19 infra.

6. See text at note 51 infra.

7. For example, see the note by Mark DeWolf Howe, ed., Readings in American Legal History (Boston, 1949) 523 [hereafter cited as Howe, Legal History), to the effect that the California Civil Code had permitted an enormous growth in the power of corporations, resulting in an undesirable popular reaction. Howe also reprints a hilarious account from the Los Angeles Weekly Express (December 18, 1873) of some tangled marital relations caused by the civil code, as reflected in The People v. Oades. This was reprinted in the American Law Review 20 (1886) 764, as part of a campaign against codification. The newspaper account, and the story behind it, appear in Stuart B. Walzer, “A Strange Story,” Western Legal History 4 (1991) 265.

8. Journal of the Senate of the State of California at their first Session begun and held at the puebla de San Jose on the Fifteenth of December, 1849 (San Jose, California, 1850) 30,33.

9. California Laws, ch. 95. See generally Richard R. Powell’s thorough history of law in California, Compromise of Conflicting Claims (Dobbs Ferry, 1977) 87ff. Powell reproduces the handwritten petition as Appendix D, with the Report, which appears at California Reports (San Francisco, 1850) 1:588-604. The Senate Journal of 1850 also prints the Report [of Mr. Crosby] on Civil and Common Law, at 459. Another interesting history of California law touching on these subjects is in the pamphlet by William J. Palmer and Paul P. Selvin, The Development of Law in California (St. Paul, 1983). 10. See Gilmore, “Statutory Obsolescence,” supra note 3 at 4, on the role of Article Nine of the Uniform Commercial Code: “to cut away the tangle of underbrush and reveal the unified structure of security law that had already grown up.”

11. Grant Gilmore, “The Age of Antiquarius: On Legal History in a Time of Troubles,” University of Chicago Law Review 39 (1972) 487.

12. Cf. Ludwig Wittgenstein, Tractatus Logico-Philosophicus (London, 1963) 7.

13. William Blackstone, Commentaries on the Laws of England, 4 vols. (Oxford, 1768) 1:67.

14. The Roman jurist Gaius (A.D. ca. 110 – ca. 180) and his Institutes preceded Justinian by several hundred years, but Justinian ordered destroyed all the predecessors of his code, according to a tradition correctly doubted by Gibbon. See Leo Deuel, Testaments of Time (Baltimore, 1965) 47.

15. In Grant Gilmore’s discussion of the celebrated case of the Bezoar stone, Chandelor v. Lopus, 79 Eng. Rep. 3 (Ex. 1625), he concludes that “most cases – perhaps all cases – are sensibly, or even ‘correctly,’ decided as of their own time and place.” Idem, “Products Liability: A Comment,” University of Chicago Law Review 38(1970) 107. A Bezoar stone was an animal’s gut stone, thought to have restorative powers. Robert Burton, The Anatomy of Melancholy (London, 1621), Pt. 2, sec. 5, Memb. 1, Subs. 5. On the Continent and in England, the practical business of the day has always required occasional adjudication. A body of law that came to pervade both the English and continental systems arose among traders and seafarers; it is known as the Law Merchant. From it, today’s sales law, insurance law, Admiralty, and the law of negotiable instruments all derive. As a modern scholar concludes: “Spontaneity allowed the system to adapt to different commercial and political circumstances and facilitated legal changes in accordance with merchant practice. Deliberate planning was avoided because it would have interfered with the market’s fluctuating supplies and changing prices.” Leon F. Trackman, “Law Merchant,” Humane Studies Review 2 (1984)2:1,3.

16. Isaiah Berlin, The Hedgehog and the Fox (New York, 1965) 1.

17. Ibid. at 1-2.

18. Oliver Wendell Holmes, The Common Law (Boston, 1881135. For Justice Cardozo, both the legislator and the judge must legislate: “Each indeed is legislating within the limits of his competence. No doubt the limits for the judge are narrower. He legislates only between the gaps. He fills the open spaces in the law.” Benjamin H. Cardozo, The Nature of the Judicial Process (New Haven, 1921 0 113-14. ln 1928 the dean of the legal realists, Karl N. Llewellyn, summarized thus the constraints of the judicial process, however legislative: “Four rules. ..form the basis of American case law procedure. 1. The court must decide the legal dispute that is before it. 2. The court can decide nothing but the legal dispute before it. 3. All cases must be decided on a rule of law of general applicability. .. 4. Everything, but everything, said in an opinion is to be read and understood only in relation to the actual case before the court.” Idem, The Case Law System in America (Chicago, 1989) 14.

19. See Roscoe Pound’s summary of Carter’s views in Alison Reppy, ed., David Dudley Field Centenary Essays (New York, 194917 [hereafter cited as Reppy, Field Essays]; see also James C. Carter, Law: Its Origin, Growth and Function (New York and London, 1907) 118, 204 [hereafter cited as Carter, Law: Its Origin], where he calls legislation, in its impact on private law, “a mere fringe.”

20. Carter, Law: Its Origin, supra note 19 at 118 and 204.

21. For the flavor of the debates of this and related legal issues of the early nineteenth century, see generally Perry Miller, ed., The Legal Mind in America (Ithaca, 1962) [hereafter cited as Miller, Legal Mind], and Howe, Legal History, supra note 7 at 433 ff.

22. As this paper will show, Field himself structured his code on the Louisiana Code of 1825, which in turn had been based on the 1804 Code Napoleon. To this day, calls to implement some civil-law approach persist; see, e.g., Charles Maechling, Jr., “Truth in Prosecuting: Borrowing From Europe’s Civil Law Tradition,” American Bar Association Journal (January 1991) 59. Dudley Field’s career itself has also been seen as a call for law reform by the lawyers of today: John Steele Gordon, “Reforming the Law,” American Heritage Magazine (September 1991) 18. It should, however, be remembered that Field defended not only the robber barons but Boss Tweed himself; see Phillip J. Bergan, Owen M. Fiss, and Charles W. McCurdy, The Fields and the Law (San Francisco and New York, 1986). 23. “Comment, Swift v. Tyson Exhumed,” Yale Law Journal 79 (1971) 298 [hereafter cited as “Comment”].

24. Rufus Choate, “The Position and Function of the American Bar” (1845), in Miller, Legal Mind, supra note 21 at 263; Works of Rufus Choate (Boston, 1862) 1:419.

25. From James Jackson, “Law and Lawyers” (1846), in Miller, Legal Mind, supra, note 21 at 275; cf. James MacCrate, “Populist and Elitist Conceptions of the Bar,” American Law Institute – American Bar Association Continuing Legal Education Review 5 (March 1, 1974) 4 [hereafter cited as MacCrate, “Populist and Elitist Conceptions”]. ***