The Fusion of Law and Equity in the Field Code of Civil Procedure: New York, 1846-1876

In 1848, New York enacted a code of civil procedure that powerfully influenced the common law world. The Field Code, named after one of its drafters, David Dudley Field, systematized New York’s procedural law and combined the previously separate systems of common law and equity. In the following decades, thirty other American states enacted versions of the Code, and English legal reformers studied New York’s experience to inform their efforts at fusion. Although scholars agree on this general outline,[1] they differ regarding what the Code really accomplished. Writing in 1948,[2] Roscoe Pound argued that the characteristics of the modern Federal Rules of Civil Procedure “could have been attained at least eighty years [earlier] if Field’s Code of Civil Procedure had been developed and applied in its spirit instead of the spirit of maintaining historical continuity.”[3] Pound particularly praised the “equitable shortcuts” of the Code.[4] [1] See, e.g., Lawrence Friedman, A History of American Law 293-97 (3d. ed., 2005); Robert W. Millar, Civil Procedure of the Trial Court in Historical Perspective 54-55 (1952). [2] For the centennial of the Field Code, Professor Alison Reppy organized a conference on the Code at New York Law School. See David Dudley Field: Centenary Essays (Alison Reppy ed., 1949) [hereinafter Centenary Essays]. The presentations typically celebrated more than they clarified, however. The presenters frequently relied on Henry Martyn Field’s biography of his brother, Henry Martyn Field, The Life of David Dudley Field (1898) [hereinafter Life of Field], and they occasionally retain Henry’s extreme rhetoric. For instance, Reppy concluded that Field “believed that with righteousness on his side, he would gather strength as he fought the battle to cut a passage through the labyrinth of judicial myth and precept and ‘cast up a highway that should lead straight to the Temple of Justice.’” Alison Reppy, The Field Codification Concept, in Centenary Essays, supra, at 52 (quoting Life of Field, supra, at viii). [3] Roscoe Pound, David Dudley Field: An Appraisal, in Centenary Essays, supra note 2, at 14. [4] Id. The two main drafters of the FRCP, Charles Clark and Edson Sunderland, largely agreed. See Charles E. Clark, Code Pleading and Practice Today, in Centenary Essays, supra note 2, at 55; Edson R. Sunderland, Modern Procedural Devices, in Centenary Essays, supra note 2, at 83