The Field Code II
Professor William R. Long 10/14/04
Common Law Procedure in a Nutshell
A cause of action was commenced by the filing of a declaration (not complaint) naming plaintiff and defendant which fit the cause of action into one of the pre-existing "forms of action" at common law. Each form of action (at one time there were more than 100 of them) had its own writ (acquired from the Chancery office in common law England) which was a demand to the defendant, served by the sheriff, that he "do justice to" the plaintiff. In 19th century New York you could buy legal forms and fill out the "writ" in this manner. If justice would not be done as indicated in the complaint, then the defendant was required to appear in court to answer [This is the origin of the many "show cause" motions and hearings we have today--the defendant either had to "do justice" or "show cause" why not].
The Common Law Forms of Action
These fell into three types of actions: real, mixed and personal. The real actions were the oldest of the forms of action and were the action for right (title), entry, novel disseisin (where ownership was not at issue, but dispossession was), fine and recovery, dower and partition. Many of these forms of action were spelled out more precisely in statutory form in the New York statutes in 1787 and were either restated or dropped in the statutory revisions of 1829. We will look at the handouts (from the publication "Duely and Constantly," published by the Historical society of the Courts of the State of New York to see how much more detail we want to go into on these forms of action.
Mixed and Personal Forms of Action
The action of ejectment was the usual legal means of recovering possession and testing the title to real property, but I don't thinkn the "Duely and Constantly" explanation of ejectment is particularly clear. The other mixed form of action was nuisance. Personal actions were divided into two categories: ex contractu ("arising from contract") and ex delicto ("arising from tort"). These were the most plentiful; the former consisted of actions for account, covenant, waste, debt and assumpsit, while the latter were trespass, detinue, trespass on the case, replevin and trover. I am sure that you have heard of some of these; indeed, the language of some of them appears in cases and even codes as if it was some kind of fossilized concretion from another age. But, modern statutes, such as Article 9 of the Uniform Commercial Code make much use of some of these categories (such as replevin or trover).
You might notice here that the categories of procedure and substance, which is seemingly a staple of modern law, are not as easily separable at common law as they are today. Indeed, procedure, at common law, was everything or nearly so. As H.W. Maine, the author of the classic Ancient Law (1861) says, "substance was secreted in the interstices of procedure." [What does that mean?]. Indeed, the leading historian of the common law in the 19th and 20th century (F.W. Maitland) spoke of the Forms of Action as if they were the law. Therefore, proper pleading, by defining how the particular alleged offense fit into the form of action, was the key to being a successful common law lawyer. Thus, just as I sometimes wonder about the split in our legal terminology between civil and criminal law or between contract and tort, so one can raise the question whether substance and procedure really are or should be separable or, alternatively, if there is as much "justcie" in procedure as in the substance of law.
The Field Code (Finally)
The reading assignments amply go over the leading provisions of the Field Code and its process of drafting and adoption/revision. The central principle of the code is that "distinctions between actions at law and suits in equity, and the forms of all such actions and suits, heretofore existing, are abolished." It substituted the "one form of action for the enforcement or protection of private rights and the redress of private wrongs, which shall be denominated a civil action."
Space does not permit an overview of the Code or the revision of it in New York or acceptance of it in other states. Suffice it to pose a question here: Is the simplification of pleading, which all agree that the Field Code brought, something that aids in the process of achieving justice? Or, can one argue, that simplification of pleading just eliminates one more uncertainty and then, if this uncertainty can be controlled, the "big corporations" can control other uncertainties by getting statutes passed to their liking, thus assuring that they can fully "control" the legal system? After all, David Dudley Field, in his private legal life, represented big corporate clients, among them some pretty shady characters in the 1860s and 1870s. Was Field's revision a sign of true altruism or really just the attempt to make sure that there would be clearer sailing for his clients?
What this brief foray into forms of action and procedural history has confirmed for me is that the "jurisprudence of procedure" question is actually very difficult. In order to answer it properly, we need to know not simply how the system worked back then, and how it changed but what were the legal and practical effects of the changes that were brought. While "rights talk" and "law and economics" and "postmodern themes" certainly have their place in jurisprudence, I think that procedural reforms, unsexy as they are, illumine our values equally as much.
Copyright © 2004-2007 William R. Long