(navigation image)
Home American Libraries | Canadian Libraries | Universal Library | Community Texts | Project Gutenberg | Biodiversity Heritage Library | Children's Library | Additional Collections
Search: Advanced Search
Anonymous User (login or join us)
Upload
See other formats

Full text of "Extracts from notices of David Dudley Field"

UC-NRLF 











%%?>$! 

tHi 



CO 

in 
o 
no 



^B 









13* ^ > 



LIBRARY 

OK THE 

UNIVERSITY OF CALIFORNIA. 

OIF"T OF" 



Received 
Accession No. 




Class No 






> :) 






3 

> " > V) 
> > 

X 

> > 



-*^>C 2^6 




s 
r . 



v /; 



> ) 

r^. >> > 

> > > 

> > 7 

) > ^ 



> 
> ^ > ^ 



ff 



?^^j 



^ > ^ 

?^P* 



EXTRACTS FROM NOTICES 



OF 



DAVID DUDLEY FIELD 



; 
7 El. 




INDEX. 



Page. 

Adjournment of New York Legislature, April 13, 
1894, out of respect to the memory of David 

Dudley Field 17 

Address of Mr. Field, at a banquet given to mem 
bers of the Universal Peace Congress, July, 

1890 61 

Abbott, Mr. Austin. On the work of Mr. Field. . 79 
Codes of Civil and Criminal Procedure completed 

in 1850 11 

Dillon, Hon. John F. Paper on the True Profes 
sional Ideal, illustrating in the career of Mr. 

Field several phases of that character 64 

Field, David Dudley 

His remarkable career 7 

Admitted to the bar as attorney in 1828 and 

as counsellor in 1830 9 

His personality 41 

His unobtrusive generosity 57 

Poem by him at eighty-seven 47 

Last tribute. Funeral services at Calvary Church, 

April 15, 1894 48 

Letter of Mr. John E. Parsons, on Mr. Field s love 

of children 55 

Letter of Rev. Dr. Henry van Dyke, the compan 
ion of Mr. Field on his last voyage 56 

Letter of Hon. John Randolph Tucker, on Mr. 
Field s movement for international arbitrament. 61 



Page. 

Minute of a meeting of the Faculty of Washington 
and Lee University, held May 14, 1894, on the 

death of Mr. Field 62 

Political career of Mr. Field 34 

Proceedings on the death of Mr. Field, May 3, 1894, 
by the Association for the Reform and Codifica 
tion of the Law of Nations 59 

Resolution on the death of Mr. Field, May 3, 1894, 
by the International Arbitration and Peace As 
sociation 60 

The New York World on the death of Mr. Field. . 18 
The New York Evangelist on the life and character 

of Mr. Field 41 

The writer of the New York codes of law , 38 

Words of the pouugest brother of Mr. Field in The 
Evangelist, April 26, 1894 49 



EXTRACTS FROM NOTICES 



OF 



DAVID DUDLEY FIELD. 



[From the New York Times of April 14, 1894.] 



DAVID DUDLEY FIELD, the eminent jurist, died at his 
residence, 22 Gramercy Park, at 3.30 o clock yesterday 
morning, April 13. 

Mr. Field was ill only a few hours. His end was 
painless and peaceful. 

He returned from Europe Tuesday, April 11, on the 
steamship Columbia. He went abroad to visit his only 
surviving child, Lady Musgrave, widow of Sir Anthony 
Musgrave, who at the time of his death was Governor 
of Queensland, Australia. Lady Musgrave lives in 
Sussex County, England. After his visit to her, Mr. 
Field went to Italy, whence he came home. It is sup 
posed that he caught cold while crossing the ocean, 
but there were no signs of illness when he landed. 
He was hale and hearty and looked as if he might live 
many years longer. 

Thursday afternoon a slight cough began to trouble 
him, and late in the afternoon his family deemed it 
serious enough to call in a physician. 

Dr. Stephen Burt was summoned, and said that Mr. 



Field had a congestive chill with symptoms of pneu 
monia. He grew worse so rapidly that Dr. Francis 
Delafield, an authority on diseases of the lungs and 
throat, was called in to consult with Dr. Burt. 

At 6 o clock Dr. Delafield left the house. Mr. Field 
appeared to be improving, and Dr. Delafield gave it as 
his opinion that he would recover. 

Although Dr. Burt remained with Mr. Field there 
seemed to be nothing to do to add to his comfort. The 
progress of the disease was apparently checked. The 
patient rested quietly, and slept most of the time. 

But at 3 o clock in the morning it was seen that a 
change was coming over Mr. Field, and the household 
was aroused and gathered in his room. 

Besides Dr. Burt there were present his daughter-in- 
law, Mrs. Dudley Field, Jr.; his niece, Miss Clara Field, 
and several of the family servants. 

Restoratives were applied in vain, and at 3.30 o clock 
Mr. Field passed quietly away. 

When Mr. Field arrived from Europe, the Eev. Henry 
M. Field sent this telegram to Justice Field at Wash 
ington : 

" Dudley arrived this morning in splendid condition." 

In answer he received a letter from Justice Field in 
viting the two brothers to Washington for a visit. 
The reply to this letter was this dispatch sent yester- 



" Our brother passed away early this morning." 

Justice Field arrived from Washington last night. 
The funeral will be held Sunday afternoon at Calvary 



Church, Fourth avenue and Twentieth street. The 
body will be taken to Stockbridge, Mass., for burial. 
Mr. Field s father and mother were buried there. 

The pall-bearers are : Chief Justice Fuller of the 
United States Supreme Court, John Bigelow, Joseph 
PI. Choate, William M. Evarts, Abram S. Hewitt, ex- 
Judge Charles A. Peabody, Chancellor MacCracken, 
Eobert E. Deyo, Kobert M. Gallaway, Charles Butler, 
Judge Charles Andrews, Judge A. E. Lawrence, and 
H. H. Anderson. 

When the news of Mr. Field s death became known 
throughout the city, expressions of regret were heard 
on every hand. Mayor Gilroy ordered the flags on the 
City Hall displayed at half-mast, and the flag over the 
Lawyers Club, in the Equitable Building, was also at 
half-mast. 

Judge Pryor, sitting in Part I. of the Court of Com 
mon Pleas ; Judge Bookstaver, holding a Special Term 
of the Court of Common Pleas, and Judge Giegerich, 
in Part III. of the Court of Common Pleas, adjourned 
court when they heard of Mr. Field s death. 

The journals of the day were filled with notices of 
Mr. Field s life and career. Some of them are here 
reprinted at the suggestion of friends. 



ME. FIELD S EEMAEKABLE CAEEEE. 



ONE OF FOUR BROTHERS, EACH OF WHOM ATTAINED DIS 
TINCTION. 

When four such brothers as David Dudley, Stephen 
J., Cyrus W., and Henry M. Field are born into one 



8 

family, unusual interest attaches to the stock from 
which they sprang. In a republic which recognizes 
the aristocracy of achievement as ranking the preten 
sions of wealth and family, lineage is certainly not 
overvalued, at least in the case of men. But in the 
case of the Field brothers there is conspicuous rein 
forcement and illustration of what Dr. Holmes has 
termed the dynamic force of New England s Brahmin 
blood. 

The Kev. Dr. David Dudley Field, the father of the 
famous brothers, was the son of Captain Timothy Field 
of Guilford, Conn., a soldier in the war of the Kevolu- 
tion. He settled at Haddam, Conn., after being edu 
cated at Yale College, where he was the room-mate of 
Jeremiah Evarts, father of William M. Evarts. He 
received his doctorate from Williams College. Both 
father and mother lived until their first child, David, 
who was born February 13, 1805, was well past fifty 
years of age. In their declining years they reaped an 
ample reward of comfort and pride for their early 
labors. Coming from this clerical and military stock, 
there should be no surprise at the brains and spirit 
which ranked David Dudley Field among the first law 
yers of his time. 

In 1819 his father removed from Haddam, Conn., 
and became pastor of the church in Stockbridge, Mass., 
where his eldest son was educated at the academy 
along with Mark Hopkins, afterwards President of 
Williams College, and his brother Albert, professor of 
astronomy, all of whom entered the college, and their 
personal relations remained through life of the most 
affectionate character. Leaving college in 1825, he 
began the study of law in the office of Harm anus 



9 

Bleecker, at Albany. After a few months he aspired to 
a wider sphere, and came to New York. He travelled 
by river, as there were then no railroads. He boarded 
at 80 Canal street, having for his companions William 
Cullen Bryant and his wife. His new law teachers 
were Henry and Kobert Sedgwick, who hailed from 
Stockbridge. In 1828 he was admitted to the bar as 
an attorney, as was then the custom, and in 1830 as 
counsellor. He was almost immediately admitted to 
partnership with the Sedgwicks, and was at once in the 
full tide of a practice which scarcely slackened for half 
a century. Within a half dozen years he had conceived 
in all its scope and symmetry the idea upon which his 
fame will rest. If his career is nearly unique for its 
mere length, it is no less remarkable that his first work 
was also both the ripest and soundest he ever did, and 
was left incomplete probably never to be completed 
by his death. 

It is no proper part or province of an obituary rec 
ord to discuss the merits of codification of the common 
law. That is a boundless field, full of controversy, and 
with weighty authority on both sides. Moreover, it is 
scarcely a popular subject, being fitter for professional 
journals. But no account of Mr. Field s life would be 
complete without an attempt to indicate to unprofes 
sional readers the scope of his labors as a codifier and 
reformer of the common law. Caligula published his 
laws by inscribing them in small 1 tters at the top of a 
high pillar. But whoever broke the law was never 
excused because he could not read it. The common law 
so far improved upon this precedent that it was wholly 
" unwritten." The only way authoritatively to discover 
it was to take the opinion of a judge upon an actual 



10 

case. " Do you know how judges make the common 
law ? " indignantly asked Jeremy Bentham, and answered 
himself : " Just as a man makes laws for his dog. When 
your dog does anything you want to break him of, you 
wait till he does it and then beat him for it. And this 
is the way the judges make law for you and me." 

In the course of centuries unnumbered thousands of 
such decisions, taken together, composed the body of 
the common law. In one volume of New York Re 
ports 5,037 cases were cited by counsel in arguing one 
hundred and twenty-three cases in a period of only two 
months. None of those lawyers could know the law 
until the judge had spoken, and as for clients, they ex 
perienced the working of Jeremy Bentham s remark, 
even though they never heard of it. The task with 
which David Dudley Field associated himself was to go 
through thousands of volumes containing 

That codeless myriad of precedents, 
That wilderness of single instances, 

and reduce them to form and order. By extracting 
principles, by rejecting superfluous cases, by reconcil 
ing, condensing, and rejecting, Mr. Field contended 
that the law could be compressed into a single book, 
where any man could go for himself and read his rights 
and duties according to the natural measure of his in 
telligence. The most acute and industrious master of 
literature, Macaulay, after personal experience as mem 
ber of the Supreme Council of India, declared codify 
ing the law to be " among the most difficult tasks upon 
which the human mind can be employed." Mr. Field s 
opponents went beyond this. They contended that the 
task was impossible, and that if it were done, it would 



11 

be harmful by introducing inflexible monarchical 
methods into a community which preferred to make its 
law from day to day, as cases arose. 

Seldom, if ever, was there such a legal battle. Mr. 
Field s first formal proposal was outlined in a letter to 
Senator G. C. Verplanck in 1839. From that day for 
half a century he was ready to fight in its behalf at any 
provocation, and he was kept busy most of the time. 
The bar almost as one man protested that he was an 
impracticable visionary. The Bar Association formally 
resolved against him, and retracted the resolution after 
argument in its own halls. But it sent committee after 
committee to appear against him before the Legislature s 
committees, and the field was threshed over almost 
yearly. Sometimes the bill would pass one house, 
sometimes the other, and twice it passed both, only to 
be vetoed and recur again in later years. 

His elaborate " Codes of Civil and Criminal Pro 
cedure " were completed in 1850, and were later adopted 
by the State Legislature. In 1857 Mr. Field was ap 
pointed head of a commission to prepare a political 
and civil code for the State of New York. They were 
completed in 1865. The State only adopted the Penal 
Code. 

Now Mr. Field has gone, leaving the substantive 
common law of New York codified, indeed, but not en 
acted. But the criminal law has been both codified 
and enacted, and so has the law of both civil and crimi 
nal procedure. If this were all, it would be very much ; 
but while his own State was hard-hearted toward the 
codifier and reformer, other States and nations wel 
comed his work with flattering enthusiasm. His entire 
work has been adopted in two States ; the Code of 



12 

Civil Procedure has been adopted to some degree in a 
majority of the States, while seventeen States have 
enacted the Criminal Code. 

Nor is this all. His labors have been effective liter- 
erally around the world. In India and Japan and in 
many British colonies the scheme of law which New 
York rejected at the hands of its own citizen was adopted 
by them from the hands of an alien, and the principles 
he first formulated to remedy century-old abuses now 
enter into the legal system of every English-speaking 
people. 

It was in 1866 that he brought before the British As 
sociation for the Promotion of Social Science a propo 
sal for a general revision and reform of the law of all 
nations similar to that which he had before undertaken 

of the civil and criminal law. A committee of eminent 



jurists of different countries was appointed to draw up an 
international code, which it was hoped would receive the 
approval of, and be adopted by, the Governments rep 
resented as the recognized law of nations. The mem 
bers of the committee found it impossible to agree, and 
Mr. Field took upon his own shoulders the whole work. 
His " Outlines of an International Code," the result of 
seven years hard work, attracted the attention of the 
whole world, and was translated into French and Italian. 
An international association was formed, including in 
its membership jurists, economists, legislators, and pol 
iticians, the object of which was the reform and codi 
fication of the law of nations and the substitution of 
arbitration for war in the settlement of disputes be 
tween nations. 

It is not intended in the least to ignore or belittle the 
labors of Mr. Field s coadjutors, Messrs. Loomis, Gra- 



13 

ham, A. W. Bradford, Noyes, and others. They were 
good assistants, it is true, but no one of them wishes 
to rank with him in this matter. Mr. Field s similar 
scheme for the codification of the law of nations made 
good progress and rests in able hands, being the special 
charge of an international organization of lawyers, of 
which he was president. How far it will proceed re 
mains to be seen. Mr. Field was the incarnation of 
the idea that " the way to codify is to codify." If his 
survivors are likeminded, something may be done in an 
urgent field . But even though he left his tasks unfinished 
he did enough to rank him among the foremost philo 
sophical lawyers, not of his State and nation merely, 
but of his generation. 

In 1884 Messrs. Appleton published two volumes of 
his miscellaneous addresses and arguments which gave 
an excellent idea of the quality of his genius and the 
range of his work.* Prominent among them were his 
argument against military tribunals for civilians, in 
which the friend, admirer, and counselor of Lincoln 
and Stanton checked, nevertheless, their assumption of 
power over human life. In the Cummings case he made 
test oaths odious ; in the McArdle case, although in 
advance of popular sentiment during the trying period 
of reconstruction, he paved the way for abolishing mili 
tary government of the State by establishing its uncon 
stitutionally. The Cruikshank case in 1875, argued 
when he was past the Biblical limit of age, would have 
done credit to a constitutional lawyer in his prime for 
its exposition of the true constitutional theory of State 
rights. 

* A third volume has since been published, and a fourth will be 
added by his surviving brothers, who are his literary executors. 



14: 

Mr. Field s political career calls for scant remark. 
He was first a lawyer, and only accidentally an aspirant 
for public office in order to serve his leading aim. Tims 
he sought to enter the new York Legislature in 1837 to 
advance his codification schemes, but he was defeated 
through the opposition of Bishop Hughes on the edu 
cational issue which still vexes politicians. In 1877 he 
sat in Congress for about two months, being elected to 
fill Smith Ely s unexpired term. He was a Democrat 
of the very rare anti-slavery type. In the former ca 
pacity he helped nominate Van Buren upon a platform 
of no more territory for the ownership of human flesh 
and blood. Even as early as 1847 he cast into the 
Syracuse Convention his " fire-brand-of-freedom " res 
olution, which was adopted as the cry of the Free Soil 
Party, and was long kept standing in the Barnburner 
newspapers. He is credited or debited with devis 
ing the scheme of the Electoral Commission, which, if 
it saved the country bloodshed, did so at the cost of the 
Democratic party and to the nation of the loss of the 
services as President of S. J. Tilden. Whatever view 
be taken of this episode politically, the legal portion 
of it well sustains Mr. Field s repute for the successful 
novelty of his ideas. 

Mr. Tilden had 8,000 majority of the popular vote 
in Louisiana. The Kepublicans, however, claimed the 
electoral vote. The decision of the question which 
then arose was complicated by the fact that the United 
States Senate was Republican and the House of Rep 
resentatives Democratic. A law was then enacted, at 
Mr. Field s suggestion, creating an " Electoral Commis 
sion " of fifteen members five Judges of the Supreme 
Court, five members of the Senate, and five members of 



15 

the House to decide the case. Mr. Field was one of 
the counsel for the Democratic party before the Com 
mission. Mr. Hayes was declared elected by a majority 
of one vote of the Commission. Mr. Field always pro 
tested that Mr. Tilden was wrongfully kept out of the 
White House. 

Although a Democrat, he was so far from being a 
Copperhead that so good a judge as Henry J. Raymond 
allotted to him a share in the nomination of Abraham 
Lincoln by helping to defeat Seward in the convention 
of 1860. After Lincoln s election he strove to avert 
war by heading New York s delegation to the Peace 
Congress at Washington, but after Sumter was fired 
on, he was as ready to fight it out on that line as even 
the great General himself. 

Mr. Field was over six feet in height, not stout, and 
yet he weighed 200 pounds. In some moods there was 
a suggestion of the martial sternness which character 
izes some of the pictures of the burly Bismarck. His 
personal manner was agreeable ; but his professional 
manner was rather easy and cool than elegant. He 
lacked the charm of Depew, or the eloquence of Choate ; 
but there was no lack of conviction, or of convincing 
quality, in the cold but robust manner in which diffi 
culties were not evaded or slurred, but fairly conquered 
by great learning and pitiless logic. He was a maker 
of precedents rather than a respecter of them, and liked 
nothing better than to triumph by establishing sound 
principle against apparent authority. It would be easy 
to recall instances both of something like truculence 
against arbitrary power and of very contrary and much 
more amiable traits. Thus, when Chief Justice Noah 
Davis fined such lawyers as Graham, Fullerton, and 




16 

Bartlett who will scarcely be recognized as weaklings 
they submitted. But when Mr. Field returned from 
the absence which saved him from being their associate 
in judicial censure, instead of doing nothing as he 
very well might he published a contemptuously- 
phrased avowal of equal fault, and challenged the in 
fliction of a like penalty, by which the right and justice 
of the punishment might be tried before the highest 
tribunal. On the other hand, hearing that T. G. Shear 
man, without personal acquaintance, but upon obser 
vation of the facts, had defended him in a company 
where his fidelity to slippery clients was made a re 
proach to his own character, Mr. Field sent for Mr. 
Shearman, and proffered him the rich reward of a part 
nership. 

Although so hard a worker and fighter, and although 
of so large frame, Mr. Field was not in vigorous health 
in early life. Like many others, he almost lost his 
health before he learned to preserve it. As a young 
man, he was not athletic, although with some fondness 
for water sports, and in early manhood he saw signs of 
breaking vigor in severe headaches. The worthlessness 
of gymnasium work and machine exercise was soon ap 
parent, and thereafter he was accustomed to walk to 
and from his residence in Gramercy Park, and after 
wards from Park Avenue, a mile further up town, to 
his office in lower Broadway, a distance of six or seven 
miles, daily. He also rode horseback a great deal, and 
was temperate in eating, using a little wine and no 
tobacco. Mr. Field was thrice widowed, his first wife 
dying as early as 1836. His son and partner died in 
1880, inflicting a severe blow to a fond and appreciative 
father. His daughter married Sir Anthony Musgrave, 



17 

then Governor of British Columbia, who died a few 
years since while Governor of Queensland. She is now 
living in Sussex County, England. Mr. Field was a 
great traveler. His European journeys were frequent, 
giving him an acquaintance abroad equal to that at 
home. Once he journeyed around the world, and it is 
well within the mark to say that his foreign acquaint 
ance and repute were second to those of no other 
American lawyer. 



HOUSE AND SENATE ADJOUBN. 



ALBANY, April 13. Both House and Senate adjourned 
this morning out of respect to the memory of David 
Dudley Field. In the House, Mr. Sulzer made the an 
nouncement of Mr. Field s death, and moved that the 
House adjourn, and that the Speaker appoint a com 
mittee of nine to take suitable action to show the regard 
in which it held Mr. Field. Adjournment was ordered 
until 8.30 o clock Monday night, and the chair appointed 
as the Memorial Committee, Messrs. Fish, Sulzer, Bush, 
Howe, Friday, Kneeland, Foley, Thornton, and Dow- 
ling. 

The announcement to the Senate of Mr. Field s death 
was made by Mr. Coggeshall, who said he voiced the 
universal feeling of the people when he said that the 
news of the death of this great man wakened a feeling 
of profound regret. Mr. Field was a ripe scholar and 
a distinguished lawyer, who died crowned with honor. 
His life was a lesson and an inspiration. 

Senator Saxton made a brief speech of eulogy, refer- 



18 

ring to Mr. Field s services in codifying and simplifying 
the rules of legal procedure, and saying that up to the 
day of his death he took an interest in good legislation. 



[From The World of New York of April 14, 1894.] 

At 3.30 A. M. yesterday, while the last fitful gusts and 
mutterings of the storm that killed him were still sound 
ing around the house, DAVID DUDLEY FIELD, in his 
ninetieth year, died as calmly and peacefully as a little 
child falls asleep. He had come back to his native 
country only two days before, a hale, hearty, vigorous 
old gentleman, to whom death was only a remote pos 
sibility. But the American shore that he greeted with 
so much joy and love gave him an icy welcome, and 
almost his first breath of his native air brought death. 
He died of pneumonia, brought on by the great storm, 
in the height of which he arrived from the glowing 
warmth of the Mediterranean Sea. 

Now that he, the oldest, has followed his famous 
brother, Cyrus West Field, only two of the four great 
brothers who made the name of Field a noble and cher 
ished one are left Stephen Johnson Field, now seventy- 
seven years old, who has been on the bench of the Su 
preme Court of the United States for over thirty-one 
years, and the Kev. Dr. Henry Martyn Field, now sev 
enty-two years old. 

It was this gentle-faced, kindly, white-haired old 
preacher, who, sitting sadly yesterday in the quiet parlor 
of the big house at No. 22 Gramercy Park, with David 
Dudley Field s silent form lying in the room above him, 
told, with an exceeding great love and tenderness, of the 



19 

last hours of the brother of whom he had been so proud. 
He began with an account of the tour abroad, from 
which David Dudley had returned on Wednesday morn 
ing, and, after telling how he had missed meeting his 
brother on the Hamburg line pier, he said : 

" So I drove back to the house here as fast as I could 
go. And when I got in, why, there he was ahead of 
me, the fine, big, dear fellow." The old preacher re 
moved his spectacles and wiped them furtively. He 
had to do it many times. " I heard his ringing, cheery 
voice shouting, How are you, brother Henry ? and I 
found him warming his hands before the big fire, and 
looking wonderfully tall and strong. I never saw the 
dear old man s face shine as it did then. He was full 
of life, and the improvement in his appearance over 
what it was when he went away was delightful to see. 
We went upstairs, and spent an hour or two conversing, 
and it was amazing to find how much he was interested 
in everything that had happened since he went away. 
He spoke, too, of foreign affairs and of the friends and 
others whom he had met abroad, with all the vigor of 
a young man. That indomitable energy had always 
been a feature of his. He was fond of early rising, 
like our whole family, and until a few years ago there 
was no more familiar figure on the avenue than my 
brother Dudley. He preserved his intellectual activity 
to the end. 

"After we had talked for a long time, I left him, but 
came again in the afternoon, when he was still feeling 
well. But about 3 o clock in the morning he awoke in 
a chill and, ringing the electric bell, called his valet, 
Watson, who had been with him for years, and is so 
well trained and experienced that he is competent to 
act as nurse and almost as doctor, and he did every 
thing for my brother until the doctor came." 

Dr. Stephen S. Burt, of No. 37 West Thirty-second 
street, the physician of the Field family, then told how 



20 

he had come early Thursday morning and found Mr. 
Field suffering from a bad chill, together with a fever, 
and showing all signs of a rapid collapse. His old 
heart trouble, from which Dr. Burt said Mr. Field has 
probably not been entirely free any time during the 
last twenty or twenty-five years, naturally asserted itself, 
and the patient grew worse hour after hour. The valet 
told the doctor that there had been some delay at the 
pier after the ship reached it, and that Mr. Field went 
suddenly from a very hot place into the cold air on the 
dock. This, with the excitement consequent on getting 
home, made him, as Dr. Burt expressed it, go all to 
pieces. Before noon Thursday his condition was so 
low that his death was looked for hourly ; but under 
the action of powerful stimulants he rallied and seemed 
to recover. At 7 p. M. Dr. Burt returned to the house 
with Dr. Francis Delafield, of No. 12 West Thirty- 
second street, an expert on heart and lung troubles. 

They found Mr. Field s condition improved. He 
seemed to breathe more freely. But by 10 p. M. his 
breath came in fits and starts, and a warning rattle 
came into his throat. He was apparently unconscious, 
save at intervals, during which he recognized his daugh 
ter-in-law, Mrs. Dudley Field. Meanwhile he suffered 
no pain. At 3. A. M. yesterday the nurse called the 
doctor, and he saw at once that the great lawyer was 
going before the greatest Judge. Without a tremor, 
without a motion or a sigh, he passed away, and within 
half an hour all was over. 

The Rev. Dr. Field had gone home when he heard 
that the patient s condition was improved, and he did 
not know that his brother was dead till he came to the 
house yesterday morning. What the news meant to 



21 

him can be known only by those who know how the 
brothers loved each other. Dr. Field had in his pocket 
a letter from the other brother, Justice Field, written 
in Washington Thursday, in which he acknowledged 
the former s telegram announcing that " Dudley arrived 
this morning in splendid condition," and asked most 
affectionately that Dudley visit him in Washington. 
The writer of this happy letter received the answer by 
wire : " Our brother passed away early this morning." 

Messages were also sent to Lady Musgrave, Mr. 
Field s daughter, and to all friends abroad and in this 
country. Before noon many callers came to the house, 
Joseph H. Choate being among the first, and there was 
a steady procession of carriages all day long. 

SIGNS OF PUBLIC KEGRET. 

The flags on the Federal, State, and municipal build 
ings were half-masted. Both branches of the Legis 
lature in Albany were adjourned. The courts of rec 
ord here made minutes in Mr. Field s honor, and 
Judge Pry or, in adjourning Common Pleas, said : 

" It is eminently proper that this court and every 
court not only of the State of New York, but in the 
United States should concurrently, by every species 
of eulogistic homage, testify their respect to the char 
acter and services of this very eminent American citi 
zen. But not only was Mr. Field in his day, while not 
actively practising, facile princeps at the head of the 
bar, in learning and ability beyond the province and 
compass of any other lawyer in America, but he has 
contributed to promote law reform by imparting to our 
profession the accuracy and symmetry of a progressive 
science. Undoubtedly to-day, in all countries of the 



22 

globe, Europe, Asia, or Africa, where there is one jot of 
civilization, if a subject or resident should be asked 
who is the greatest American lawyer, without hesitation 
he would say, David Dudley Field. And I therefore 
direct the minute to be made upon record ; and, in view 
of the high esteem in which this court holds the mem 
ory of David Dudley Field and its inexpressible sorrow 
at his untimely death, instead of being content with 
this small tribute, I shall direct the court to be ad 
journed." 

A GEAVEYAKD MADE FAMOUS. 

Mr. Field will be buried in the home of his parents, 
Stockbridge, Mass., in the village churchyard. There 
where the chimes ring out every evening from the 
square tower erected by Mr. Field to mark the site of 
the first church, lie his father, the Eev. Dr. David Dud 
ley Field, the country parson who was the father of 
the four great-hearted brothers ; his wife, whose father, 
Captain Noah Dickinson, fought under gruff old Gen 
eral Putnam, and Cyrus West Field, who laid the first 
Atlantic cable. 

There will be no services other than the Episcopal 
committal service at the grave, as the formal funeral 
ceremonies will be held here at 4.30 p. M. to-morrow in 
Calvary Church, at Fourth avenue and Twenty -first 
street. 

David Dudley Field was very proud of his daughter, 
Lady Musgrave, and her three boys, whom he always 
called his trinity. He never tired of telling what sons 
of Anak they were. His pride in them was justifiable, 
for Dudley Field, the eldest, though only twenty-one 
years old, is now a midshipman in the British navy, at 
present being at Bombay. Arthur David, nineteen 



23 

years old, is captain of a British battery at Shoebury- 
ness, and the youngest, Herbert, though only seventeen 
years old, has just passed his examination at Woolwich 
for the army, standing second among 400 applicants. 
It is probable that they will receive the bulk, if not all, 
of Mr. Field s estate. 

The marriage of his daughter to Sir Anthony Mus- 
grave was a most happy one. He was Governor of 
Newfoundland at the time of the laying of the Atlantic 
Cable in 1866, and then became acquainted with Cyrus 
W. Field, whom he afterwards visited in New York, 
where he first met Miss Field. He died about three 
years since, while Governor of Queensland. It was to 
visit this daughter and to attend the celebration of the 
twenty-first birthday of the midshipman that Mr. Field 
went to Europe on November 8. He did it against the 
advice of his friends, as he had not fully recovered 
from his severe illness of about four years ago until 
last summer. He spent Christmas at Lady Musgrave s 
estate in East Grinsted, Sussex, and on January 8 
started for Paris. Cannes was the next point visited, 
and a few days were then spent in Monte Carlo. 

Mentone, Genoa, Naples, and Pompeii were also 
visited, after which he spent a few weeks in Kome, 
where he was surrounded by admirers and friends, who 
were all delighted with the youthfulness of the old gen 
tleman. It was the same in Florence. He sailed from 
Genoa, March 29, on the Hamburg-American line steam 
ship Columbia and arrived here Wednesday morning. 
Daring the exceedingly rough voyage he and one other 
man were the only two passengers who were not sea 
sick or otherwise indisposed. He said then that he 
expected to spend the summer in the Berkshires, and 



24: 

that his one great ambition was to have his law codes 
adopted all over the world. 

HE STARTED LIFE WITH A BIBLE AND ONLY TEN DOLLARS. 

His brother, Dr. Field, said yesterday : 

" In his life there is a great lesson. When he left home 
our dear father took him into his stiKty and kneeled by 
his side and prayed with him. Then he gave him $10 
and a Bible ! That was all he had when he started in 
life, $10, a Bible, and his father s prayers ! When he 
came to New York he met a young man who was earn 
ing $500 a year, and he has often told me that then to 
reach that point was his highest ambition. He was 
an indomitable worker. He would work whole nights 
through until he had finished the task he had set for 
himself. What saved him was that the minute his 
work was done he could lie down, like Napoleon, and 
fall asleep instantly, and sleep soundly. He had won 
derful ambition, and his monuments are the great vol 
umes which contain the results of his earnest work to 
reform the law. 

" He loved little children dearly. Last summer, at 
Stockbridge, he used to drive over to a home which a 
friend had erected to give children the fresh air. When 
he came they would run to him, screaming with joy, 
and would climb all over him, hanging round his neck 
and hugging him, so that it was a delight to see him. 
Then his kind face, all smiles, was good to look upon." 

The white-haired preacher paused, and wiped his 
glasses with a hand that trembled just a little, and con 
cluded, in a low, uncertain voice : "And now and now 
we shall take him Monday to the Berkshire Hills, that 
he loved so well, and lay him to sleep in that beautiful 
valley." 



25 

Sixty-six years ago David Dudley Field was ad 
mitted to the bar, and for half a century he stood in 
the front rank of lawyers, not only of America, but the 
world over. For the course of thirty years his fame as 
a law reformer has been coextensive with the limits of 
civilization. 

Of the quartet of distinguished brothers, David Dud 
ley Field is the second to pass away. Of the other 
who is dead a distinguished statesman once spoke : 
" Columbus once said, Here is one world, let there be 
two ; but Cyrus W. Field said, Here are two worlds, 
let there be one ; and both commands were obeyed." 

Of the brothers who survive, Stephen Johnson Field 
is one of the Justices of the Supreme Court of the 
United States, and Dr. Henry M. Field sits in the edi 
torial chair of a great and influential religious journal. 
The Evangelist. 

The father of these four men, into whose lives, 
stretching into widely diverging paths, so many honors 
and achievements have been crowded, was a New Eng 
land clergyman and a son of a captain in the war of the 
Revolution. Friendly investigators who have searched 
the archives of the English Heraldry Office found that 
the American Fields are sprung from a Norman knight 
who helped William the Conqueror invade England. 
But the Field family are content with their well-estab 
lished descent from the celebrated English astronomer 
John Field, who was the first to introduce the Coperni- 
can system into England. 

Zachariah Field, who came to America in 1632 and 
settled in Northampton, Mass., was a grandson of the 
astronomer, and from him the ancestral chain of the 
Fields is unbroken down to the Rev. David Dudley 



26 

Field, the minister of a Congregational church in Had- 
dam, Conn., from 1804 until 1818. To him was born, 
February 13, 1805, a son to whom he gave his own 
name, whose long life of honor has just closed, ending 
the great career of probably the foremost lawyer of the 
century. 

The salary of the Rev. Mr. Field as pastor of the 
church was only $500 a year, but notwithstanding this 
he determined to give his son a collegiate education. 
He himself had been graduated from Yale, where he 
roomed with Jeremiah Evarts, the father of "William 
M. Evarts. When the youth was nine years old his 
father began to teach him Latin, Greek, and math 
ematics. In 1819 the family removed to Stockbridge, 
Mass., and there he was sent to the academy, over 
which a famous teacher, Jared Curtis, presided. 

When .he was sixteen, Dudley, as he was always 
called by his family and his intimates, entered Wil 
liams College, upon leaving which, four years later, he 
went to Albany, where he read law in the office of Har- 
manus Bleecker, remaining there only three or four 
months, when he removed to New York City and en 
tered the office of Henry and Robert Sedgwick, who 
came from Stockbridge. The Sedgwicks were lawyers 
of ability, with a large practice, and they took an in 
terest in the advancement of the young student. 

In 1828, when he was twenty-three years old, he was 
admitted as an attorney and solicitor, and two years 
later he was made a counsellor. Shortly afterwards 
the elder Sedgwick retired from the firm, and the 
younger brother, Robert, took Mr. Field into partner 
ship. Up to this time his struggle for existence and 
education had been rather severe, but after he entered 



27 

into partnership with Mr. Sedgwick prosperity came to 
him, to endure until the day of his death. The firm of 
Sedgwick & Field lasted until 1835, when Mr. Field 
began to practise on his own account. Immediately 
as many clients as he could desire came to him. He 
was then recognized as one of the ablest young men at 
the bar, and who had a great future before him. 

One of the things which is remembered in connection 
with Mr. Field s career was the part he played in the 
Erie litigations. He was never more severely criticised 
than he was for acting as counsel for the management 
of the road. The newspapers inveighed against him 
for lending the prestige of his name in putting forth 
his great skill and ability in defence of what they de 
nounced. 

Mr. Field s defenders, and they were not few, de 
clared that his idea of professional honor did not per 
mit him to refuse his counsel in important cases com 
ing before court. He held that a lawyer had a duty to 
his clients which he was not at liberty to throw off be 
cause a case was unpopular. To desert a client when 
he had incurred public odium, justly or unjustly, would 
have been an act of cowardice and a professional dis 
grace. Mr. Field drew a broad and deep line between 
his duty as a practitioner and as a law reformer. As 
counsel defending his clients in the Erie suits he used 
the writ of injunction as it had seldom been used, but 
when he was called upon to improve and simplify the 
statutes he condemned the facility with which such a 
writ could be obtained, and urged its restrictions.* 

* Mr. Field thus speaks of professional ethics in his address to the 
graduating class of the Albany Law School, March 23, 1855 : " There 
is no profession, not even the military, which puts in use the senti- 



28 



THE CASE OF TWEED. 

A few days ago there died in this city a man who 
gained great fame by defending William Tweed. John 
Graham had almost passed beyond the public ken. 
David Dudley Field had found additional fame in de 
fending those prosecutions against Tweed, who had 
been convicted upon twelve counts of the indictment 
and sentenced by Judge Davis to one year s imprison 
ment on each of them, making twelve years in all. Mr. 
Field declared that the judge was wrong in pronouncing 
this cumulative sentence, as it was called. 

When Tweed had been a year in prison Mr. Field 
secured a writ of habeas corpus and demanded Tweed s 
release. It was the first time that a writ of habeas 
corpus had been invoked for such a purpose. The 
customary procedure in such a case would have been a 
writ of error. ^The Supreme Court decided against Mr. 

ment of honor more than our own. There are daily intrusted to us 
the property, the reputation, the lives of our clients: yet. when have 
they been betrayed ? The secrets of families are in our keeping, and 
who will complain of their having been divulged ? So far as the re 
lations of the lawyer to his client are alone concerned, nothing could 
be more unexceptional : they are under the safeguard of that honor 
which has never yet failed to regulate and preserve them. And what 
I conceive alone to be wanting is to extend the same sentiment be 
yond the client to the adverse party and his witnesses, and to the 
court. The fundamental error, on this head. I suppose to arise from 
forgetting that the profession of a lawyer is a means to an end, and 
that end the administration of justice. His first duty is undoubtedly 
to his own client, but that is not the only one : there is also a duty to 
the court that it shall be assisted by the advocate : a duty to the ad 
versary not to push an advantage beyond the bounds of equity : a 
duty to truth and right, whose allegiance no human being can re 
nounce : and a duty to the State, that it shall not be corrupted by the 
example of unscrupulous insincerity." 



Field, but the Court of Appeals unanimously reversed 
the decision of the lower court and ordered Tweed 
released. 

The antagonism between Judge Davis and Mr. Field 
during the suit was intensely bitter. Tweed s other 
counsel, Mr. Graham, Mr. Fullerton, and Mr. Bartlett, 
signed a petition requesting Judge Davis not to preside 
at a subsequent trial, on the ground that he had already 
expressed an opinion in the case. Judge Davis called 
these lawyers before him, reprimanded them severely, 
and fined them for contempt of court. 

Mr. Field was in Europe at the time. When he re 
turned he sent an indignant letter to the Albany Law 
Journal, reaffirming in stronger terms all that was said 
in the petition, and challenging Judge Davis to punish 
him for contempt of court. Judge Davis gave no pub 
lic heed to this letter, but he never sat on the bench in 
any of the Tweed suits that followed in which Mr. 
Field appeared.* 



* On this subject the American Law Keview, in its May and June 
number of 1894, observes : 

" He was subjected to much criticism because of having been coun 
sel for William M. Tweed ; but we do not understand that in what he 
did in behalf of Tweed he stepped beyond the bounds of professional 
propriety. Tweed, though an enormous criminal, had a right to 
counsel and to be defended ; and it was the duty of Mr. Field, as his 
counsel, to see that he had his legal rights, and that, if punished, he 
should be punished only according to law. The right of the criminal 
to counsel is equal to the right of the innocent, and the criminal has 
in this right all the rights of the innocent. It cannot be certainly 
known in advance of a judicial inquiry whether a man accused of 
crime is guilty or innocent of that of which he stands accused. It is 
contrary to the genius of our law and unworthy of any civilized com 
munity, that he hould be punished without the opportunity of mak 
ing a competent defence ; and the privilege of counsel is one of the 
means of enabling him to make a competent defence and of making 



30 

The reconstruction policy of the Republican party 
after the war was opposed by Mr. Field, and he was 



the trial an inquisition in which both sides of the controversy are ex 
hibited to the jury, and not an ex parte proceeding in which the gov 
ernment alone is heard." 

On this subject Mr. Field, in addressing the jury in the Tweed 
case, spoke as follows of the rights of parties and the duties of 
counsel : 

" From the time when this suit was brought last spring, down to 
the time of trial, we heard nothing but denunciations of the defence 
for impeding the course of justice. There was, indeed, no real de 
fence, it was said, and repeated so often that they who said it, at first 
in ignorance or bad faith, may have come at last to think they had 
reason to believe it. "We have now reached a decisive trial of the 
merits, if a first trial of a cause so important can ever be thought 
decisive, and, after two months of hard labor, what is the result ? 
Why, that the plaintiffs are already defeated in respect to more than 
two millions of their claim, a sum worth contesting for, to my think 
ing, and we are now coming to you, gentlemen, to decide whether the 
claim shall not be still further reduced or rejected altogether. 

"Above all other things is justice : success is a good thing ; wealth 
is good also ; honoris better; but justice excels them all. It is this 
which raises man above the brute, and brings him into communion 
with his Maker. To be able to stand impartial in judgment, amid 
circumstances which excite the passions, to maintain your equipoise, 
however the surging currents may be around you, is to have reached 
the highest elevation of the intellect and the affections. To have the 
power of forgetting for the time self, friends, interests, relationship, 
and to think only of doing right towards another, a stranger, an 
enemy perhaps, is to have that which man can share only with the 
angels, and with Him who is above men and angels. 

" The part which you are now called to perform in an official act, 
designed to be an act of justice, is unhappily beset with difficulties. 
The just indignation of a betrayed and defrauded people, the abhor 
rence that every true man feels of robbery, public or private, the cry 
for redress, the thirst for vengeance, the suspicions which fall alike 
upon the innocent and the guilty, the corruption of our politics long 
accumulating, and more and more corrupted by the demoralizations 
of the war, the malversations in office, which seem to grow day by 
day, the stories of these wrongs repeated, exaggerated, distorted by 



31 

retained in many of the great cases growing out of the 
legislation of that period, cases which came before the 



a press which lives upon sensatiou, and operating upon a people be 
coming every year less sedate and more impulsive, until it seems 
ready to fall under the reproach once cast upon an ancient race, un 
stable as water, thou shalt not excel all these things have brought 
us into a condition as frightful as it is abnormal, which would almost 
justify for once the language which the greatest of English dramatists 
has used for other turbulent times : Judgment has fled to brutish 
beasts, and men have lost their reason. 

"It is easy to see what act of each of us would commend us most 
to the clamorers of the hour. If the learned judge, who has presided 
with so much dignity and patience, had yesterday announced from 
the bench that the defence is a miserable subterfuge, unworthy of a 
moment s serious consideration, instead of ruling as he did, he would 
have been applauded this morning by half the newspapers of the city 
as a Daniel come to judgment ; if you, gentlemen of the jury, were 
to render a verdict for the whole amount claimed, without leaving 
your seats, you would be greeted with the welcome of good and 
faithful servants ; and if we, who are conducting the defence, with 
what fidelity you may judge, were to betray our client, and suffer 
judgment to pass against him, with only a seeming effort in his behalf, 
we should have the comfort of being informed in the same newspapers 
that we had half redeemed ourselves from the disgrace of defending 
him at all. This might happen to-day. But how would it be ten 
years hence ? If you should then look back to this court-room and 
these surroundings, and read the journals which you read this morn 
ing, and those others which you have read from day to day during 
the trial, what would you say or think ? Are you sure that you would 
then regard most of the comments on this trial which you now see 
printed and spread before your eyes each day as anything better than 
the babblements of idiots ? 

"How will it be with each of us in our judgment of ourselves? 
How will it be with a new question ? What you do, what the judge 
does, what the counsel do, will be thought of for a long time here 
after. There are many other people than those who now surround 
us who will observe, criticise, and judge all our acts without partiality 
and without passion. 

" For myself, personally, this trust has been an occasion of great 
embarrassment. Severe illness in my family during the whole period 



0*" 



* \ Jf 



32 

Supreme Court of the United States. One of these, the 
Milligan case, commanded special attention among 



has caused me anxiety by day and interrupted sleep by night, which 
have, in a measure, unfitted me for the discharge of my whole duty 
to my client. What that duty is, that is to say, what is the duty of an 
advocate to his client, I have had frequent occasion to explain, and 
every day s experience and observation have but served to confirm 
the convictions of my earlier life. The ignorant and the wicked 
always wish to take the law into their own hands. The wise and the 
good get the best judges they can, procure as good laws as they are 
able, and leave the administration of justice to those to whom it is 
confided and who alone are competent to its due performance. 

" In this country we who rejoice that we are the heirs of all the ages 
have, in our own conceit, at least, built on broader foundations than 
our fathers and with stronger walls the defences of human rights, 
and among them all there is not one of greater significance than this, 
that no man shall be deprived of life, liberty, or property without due 
process of law. The people of our State have placed it in their State 
constitution, and since the late troublous times the people of the 
whole country have placed it in the Constitution of the nation. There 
it stands, and will ever stand, so long as either the nation or the State 
remains, Manet et manebit. How idle, then, it is to talk of excluding 
any person whomsoever from defence or opportunity of defence to 
any churge whatever ! In conformity to this fundamental law, a sum 
mons is served upon every defendant to answer a written complaint. 
It is his right to answer. How can he exercise that right without the 
aid of counsel ? Therefore he, whoever he may be, who denies the 
right and duty of counsel to defend any man seeking his aid in de 
fence, denies the right of the man to defend himself, and whoever in 
this country denies the right of any man to defend himself, must be 
accounted either a knave or a fool. 

" I am quite indifferent to the reproaches that out of doors have 
been cast upon me for my defence in this case. When, however, the 
reproaches come into this court-room, and are made as if they could 
affect you, I feel bound for that reason alone to take notice of them, 
so far, and so far only, as to say that I despise them. I prefer the 
judgment of my brethren of the bar. If the press were unanimous, 
which it is not, nor anything like it, the bar is stronger than the press. 
It does not make so much noise, but its influence, though silent, is 
irresistible. Mr. Willis invented the convenient phrase of the upper 



33 

lawyers, as it involved the constitutionality of military 
commissions for the trial of civilians in States where 
the courts were open and in full exercise of their juris 
diction, as the Cummings and Garland cases, both of 
which he argued, involved the constitutionality of the 
test oath. The next year, in 1868, he argued the cele 
brated McArdle case, where the issue was the consti 
tutionality of the Reconstruction act. He appeared 
also in the Cruikshank case, in 1875. Chief Justice 
Chase said of these arguments that they were among 
the ablest on the subject of military rule and recon 
struction that he had heard in or outside the court. 
The State of Georgia against General Grant was another 
famous case in which Mr. Field appeared. 

ten thousand. Using it here, not in relation to general society, but 
to the society of lawyers, I venture to say that the opinion of the 
upper ten thousand of American lawyers will sooner or later become 
the opinion of the American people. I am well aware that in this 
State at least some traces of the irritation may yet remain which a 
lifetime of warfare against legal abuses has engendered. By many of 
my elder brethren I am regarded as one who has overthrown their 
idols and brought their false systems into derision. I do not com 
plain. I have had my reward. The Reformed American System of 
Procedure, as it is called by one of the best legal writers of our time, 
opposed and derided as it was at first, has made its triumphant march 
around the world, and is already written in the laws of half the Eng 
lish-speaking people, and will yet be written in the laws of them all. 
Even now, while I yet speak, they are writing it in the law of Austra 
lasia. But whether any trace of the irritation which this has thus 
occasioned is remaining or not, I am ready to leave my defence of this 
case to the vindication of my brethren throughout the country, con 
fident that they will say I am maintaining, as I have ever maintained 
through a long life, the dignity, honor, and independence of my pro 
fession, my order the order of advocates, to which I am proud to 
belong and in that way, for they are inseparable, the rights of all 
the people." 



34 



HIS POLITICAL CAREER. 

He was never what is known as a politician, bnt he 
exerted a great influence in the moulding and formation 
of political forces, the creation of political principles. 
He refused an appointment to a judgeship of the Su 
preme Court of New York. He was a member of Con 
gress for eight weeks, going there for a specific purpose. 
The only other public office he ever held was that of 
commissioner to codify the laws of New York, which he 
held for two years. 

Mr. Field s political faith was grounded on Jefferso- 
nianism. He made his first political speech more than 
half a century ago in Tammany Hall, when Robert H. 
Myers was a candidate for Mayor. When the Demo 
cratic party soon after began to be used to uphold sla 
very he revolted, and as far back as 1844 he made a 
speech against the admission of Texas. That year Mar 
tin Yan Buren was supplanted by James K. Polk, who 
was nominated on a platform committing the party to 
the annexation of Texas and the extension of the area 
of slavery. Texas came into the Union as a result of 
the Mexican War, and the anti-slavery sentiment of the 
North rose to a higher pitch than ever. The Wilmot 
proviso, adopted by the House, but rejected by the 
Senate, added fuel to the flame. 

" Jtesolved" it read, " That, as an expressed and 
fundamental condition to the acquisition of any terri 
tory from the Republic of Mexico, neither slavery nor 
involuntary servitude shall ever exist in any part of the 
said territory." 

Of this proviso there was no more earnest advocate 
than David Dudley Field, and his hand wrote the secret 



35 

circular and joint letter, the direct object of which was 
to rally the anti-slavery Democrats of the North against 
the aggressive pro -slavery of their Southern brethren. 
In the Syracuse Convention, in 1847, when the Dem 
ocratic party of the State was split on the slavery ques 
tion, Mr. Field offered the famous resolution that was 
afterwards known as the corner-stone, and which anti- 
slavery newspapers kept standing at the head of their 
editorial columns. This was the resolution : 

"Resolved, That, while the Democracy of New York 
represented in this convention will faithfully adhere to 
all the compromises of the Constitution and maintain 
all the reserved rights of the States, they declare, since 
the crisis has arrived when the question must be met, 
their uncompromising hostility to the extension of slav 
ery into the territory now free or which may be here 
after acquired by any action of the Government of the 
United States." 

Mr. Field supported Van Buren and Charles Francis 
Adams when they were nominated on the platform which 
declared against the extension of the slavery area. He 
made speeches for them in New York and in New Eng 
land. From that time until Fremont was nominated 
his voice and pen and all the influences he could com 
mand were on the side of freedom. So great was this 
influence that he was charged right and left with dis 
loyalty to Democracy, and this called forth the letter 
of May, 1856, in which he said : 

" Though I have not hitherto acted with the Kepub- 
lican party, my sympathies are, of course, with the 
friends of freedom, wherever they may be found. I 
despise equally the fraud which uses the name of De- 



36 

mocracy to cheat men of their rights, the cowardice 
which retracts this year what it professed and advo 
cated the last, and the falsehood which affects to teach 
the right of a people of a Territory to govern them 
selves, while it imposes on them Federal Governors 
and Judges, and indicts them for treason against the 
Union because they make a constitution and laws which 
they prefer, and collect forces from the neighboring 
States and the Federal Army to compel them to sub 
mission." 

THE NOMINATION OF LINCOLN. 

When the Republican Convention met in Chicago in 
1860, to nominate a President, Mr. Field, though not a 
delegate, (for he was not in favor of the New York can 
didate,) was present and very active in opposing Mr. 
Seward, whose defeat was ascribed by Henry J. Ray 
mond, in a letter to the New York Times, largely, if not 
chiefly, to the determined opposition of Horace Gree- 
ley and David Dudley Field. 

Mr. James A. Briggs, who was long resident in New 
York, and well known among the leaders of the Repub 
lican party, was from Ohio, and as such attended the 
Chicago Convention to urge the claims of Mr. Chase. 
He knew all the parties and saw the inside workings of 
the convention, and was fond of telling how one even 
ing, when the tide seemed to be turning towards Sew 
ard, Greeley came into Mr. Field s room and threw 
himself down in despair, saying that " It was all over, 
and that Mr. Seward would be nominated on the mor 
row ; " to which Mr. Field answered : " No, it is not 
over ; let us up and go to work," and immediately 
started out on a round of the delegations, which he ad 
dressed with the utmost earnestness, and came back at 
midnight, saying, "Lincoln is going to be nominated!" 



37 

With all this in mind, Mr. Briggs always said that 
" Abraham Lincoln owed his nomination to David 
Dudley Field more than to any other man." 

After Mr. Lincoln was inaugurated and the Southern 
States began to secede, a Peace Congress was held in 
Washington to consider the possibility of averting civil 
war. In this congress Mr. Field was at the head of the 
New York delegation, and, while anxious for peace, had 
the courage to declare that he did not believe in the 
abandonment of principles ; and that he thought it was 
wiser to fight the conflict out than to postpone it to a 
future generation. After the war began no man was 
more determined in its vigorous prosecution. 

COUNSEL FOK TILDEN. 

He voted and acted with the Republican party after 
the close of the war, but he did not approve the restora 
tion and reconstruction measures. He voted for Ruth 
erford B. Hayes, but after the election did not hesitate 
to declare that he believed Mr. Tilden had honestly 
won the victory. The election of Smith Ely as Mayor 
of New York made a vacancy in Congress that year, 
and Mr. Field filled out the term. He was at once rec 
ognized by the Democracy all over the country as one 
of their ablest champions in the election contest. The 
upholding of Mr. Tilden s interest in the House devolved 
on him to a greater extent than on any other of the 
Democratic leaders, and he performed this work with 
an ability which won for him the admiration of his op 
ponents. He probed to the very bottom the crooked 
operations of the Returning Board of Louisiana, and 
showed conclusively that the members of it had been 



38 

engaged in a conspiracy to falsify the returns and give 
the vote of the State to the candidate for whom it had 
not been cast. 

In the complication that followed Mr. Field fav 
ored the Electoral Commission bill, and when that 
body assembled he argued before it the case of Mr. 
Tilden with a remarkable degree of ability and skill. 
He fought every step and resisted to the last the count 
ing in of Mr. Hayes. Though he submitted to the de 
cision, he never ceased to maintain that a great fraud 
had been committed, and that a man who had not been 
elected was seated in the President s chair by unscrupu 
lous partisanship. It was after this that Mr. Field re 
turned to the Democratic fold. 

THE WRITER OF OUR CODES. 

But the great work of Mr. Field was neither in poli 
tics nor in his regular practice as a lawyer. The great 
work of his life, and that which gave him the greatest 
fame, were his splendid services in the cause of law re 
form. He laid the foundation of the great monument 
of codification which he erected, more than forty years 
ago in a letter to Gulian C. Verplanck. 

He was defeated in his effort to become a member of 
the Constitutional Convention in 1846, but he made 
himself so effectively heard in it that the convention 
adopted the novel scheme of abolishing the distinction 
between courts of law and courts of equity, and substi 
tuting a code in place of common law practice and 
pleading, and directed the appointment of commission 
ers to prepare codes. He was known to be so radical 
that he was at first refused an appointment on the com- 



39 

mission, but he obtained a place before it began its 
work. From that time until his death he was the un 
disputed leader of law reform. The great work began 
timidly and proceeded slowly. The first instalment of 
the Code of Civil Procedure was reported to the Legis 
lature in February, 1848, and became the law, with 
slight alterations, in July following. This was only the 
beginning. Four different reports, embodying the resi 
due, were made between that date and January, 1850. 

HIS NEW CIVIL CODE. 

In 1865 Mr. Field submitted three other codes to the 
Legislature : the Penal Code, the Code of Criminal 
Procedure, and the Civil Code. The Penal Code was 
adopted in 1882, and the Code of Civil Procedure the 
year before. 

The Civil Code, which Mr. Field had first prepared, 
had been so added to, so changed, that instead of be 
ing contained in one volume, it made three volumes as 
large as a Family Bible. Therefore, Mr. Field sub 
mitted a new Civil Code. It has not yet been adopted. 
The measure has come up repeatedly in the Legisla 
ture, and been passed by one House or the other. 
Twice it passed both Houses, but was vetoed by Gov 
ernor Robinson and Governor Cornell. 

Meanwhile the general code system of New York has 
been adopted by twenty-four States and Territories. 
The Criminal Code has been adopted in eighteen States 
and Territories. Mr. Field substantially rewrote the Civil 
Code eight times, and some parts of it as many as eigh 
teen times. Mr. Field s adopted code work stands as a 
great monument to him, even though it has taken many 



40 

decisions to determine just what some of its sentences 
really mean, and even though on some points adequate 
construction has not yet been reached. 

AN INTERNATIONAL CODE. 

At the meeting of the British Association in Man 
chester in 1866, Mr. Field proposed a revision of the 
entire body of international law. He was appointed 
then a member of a committee of jurists from different 
countries to make a revision that would be acceptable, 
or that should become the basis of a revision. It was 
not possible for the committee to act in concert, and 
Mr. Field took the whole work upon himself. The re 
sult of his labor was a large volume, which he presented 
in 1873 to the Social Science Congress. It was en 
titled " Outlines of an International Code." It at 
tracted the attention of the most eminent jurists in the 
world, and has been translated into French and Italian. 

Mr. Field was thrice married. His first wife was 
Jane Lucinda Hopkins, of Stockbridge, who died in 
1836, a cousin of Mark Hopkins, President of Williams 
College ; his second, Mrs. Harriet Davidson, widow of 
James Davidson, who died in 1864 ; his third, Mrs. 
Mary Elizabeth Carr, widow of Dr. Samuel J. Carr, who 
died in 1876. 

Of his three children only one survives him, a daugh 
ter, who was married in 1870 to Sir Anthony Musgrave, 
who was successively Governor of Newfoundland, Brit 
ish Colombia, Natal, South Australia, Jamaica, and 
Queensland. 

Mr. Field retired from active practice in 1885, but he 
did not give up the law altogether, still acting as coun 
sel for several great corporations. His home was at 



41 

No. 22 Gramercy Park, where he had a valuable law 
library. 

HIS PERSONALITY. 

Mr. Field was six feet two inches tall, broad-chested 
and powerfully made, and walked with an erect figure. 
His forehead was bald and his hair thin. He enjoyed 
almost perfect health up to within two years ago, when 
he began to show signs of failure. Not long ago he 
was asked to what he attributed his remarkable good 
health, and he replied : " First a good constitution, and 
second, hard work." " Hard work," he added, " has 
never killed any one ; idleness has slain thousands. 
Then again exercise has helped me. I have never al 
lowed a day of my life to pass hot, cold, wet, or dry 
without walking several miles in the open air. Cabs 
and street cars I cannot abide. As for eating and drink 
ing, I follow no special rule. I take what I like and 
let the rest alone. I find that course to agree with me." 

For many years Mr. Field, taking his daily exercise, 
was a familiar figure. Always sought after socially, he 
has preferred of late years the quiet and peace of his 
library. The last public honor bestowed upon him was 
the gift of a gold medal containing $100 worth of metal. 
It was one of two struck off in the Philadelphia Mint 
at the order of the American Bar Association. The 
other was given to the Earl of Selborne, better known 
in this country as Sir Eoundell Palmer. 



[From the New York Evangelist, April 19, 1894.] 

The event of the week has been the death of DAVID 
DUDLEY FIELD. While we are writing they are laying 
him to rest in that cemetery in the Berkshire Hills, be- 



4:2 

side his parents and brothers and the wife of his youth, 
the mother of his children. The chimes are ringing 
from the tower that he gave to Stockbridge, his beloved 
summer home, as a lasting memorial to his honored 
parents ; note by note those silvery tongues drop down 
the melody of the hymns he loved so well, the chiming 
hymns that so lately as last summer he delighted to 
listen to, floating upward on the air to his home on the 
hillside, dropping now like angel s tears upon his grave. 
Only one brother the editor of this paper is with 
him as they lay him away to rest ; for the other sur 
viving brother, Justice Stephen J. Field, was not in 
strength to bear the exposure at this season of the year. 
His place is filled by nephews and other relatives and 
by the towns-people of Stockbridge, gathered to pay 
the last honors to him to whom, as a public-spirited 
and generous fellow-citizen, they owe so much. 

The news of his death came upon the community- 
still more upon his family with a terrible shock. 
Only two days before he had landed from Europe in 
high health and spirits, " in splendid condition," as 
Dr. Field telegraphed to Justice Field in Washington. 
A sudden chill, a brief and almost painless illness, and 
he had breathed his life away as calmly and sweetly 
as ever he fell asleep in his mother s arms. It was a 
lovely ending to a noble life, and well might the city 
and the State, and even the nation, cease awhile from 
their activities, in deep respect for such a man. The 
flags were lowered to half-mast as soon as it was known 
that he had passed away ; the Courts of Common Pleas 
adjourned, and both branches of the Legislature at 
Albany. 

His was a life for which no words of appreciation 



43 

can be called too eulogistic, because it was wholly 
dedicated to a noble purpose. The great powers of 
his mind, the deep devotion of his heart, were not 
frittered away upon many minor interests, however im 
portant ; in this his life was as nearly perfect in unity 
of purpose and in continuity of effort as it may be 
given to human life to be. His whole life was a coun 
sel of perfection. From his early manhood he had 
before him one high aim, to free the law from techni 
calities and make justice prevail that divine attribute 
in which are summed up all the virtues, the tender and 
merciful no less than the strenuous and stern. And 
to-day there is not a quarter of the globe that does not 
feel the influence of this life-long purpose. To quote 
from an editorial notice in The Sun : 

" His Code of Civil Procedure, originally adopted in 
New York, was the model of similar codes in a score of 
other States, and has been copied in British colonies in 
all parts of the globe. Its essential features are em 
bodied in the existing system of procedure in the High 
Court of Justice in England. All over the world, 
wherever the prevailing jurisprudence has had its 
origin in the English common law, the form and man 
ner of conducting litigations and transacting the busi 
ness of the courts are due largely to the influence of 
David Dudley Field." 

Civil procedure was not the only department of the 
law to occupy his attention. Eighteen States and Ter 
ritories have adopted his criminal code ; while his 
" Outlines of an International Code," presented to the 
Social Science Congress in 1873, attracted the atten 
tion of all jurists, and has been translated into French 
and Italian. 



44 

The ablest minds of England were glad to own the 
debt they owed to him. Some years ago, as he was on 
the eve of sailing for America, he was invited to attend 
a session of an English Commission created for the 
purpose of revising the laws on the basis of the prin 
ciple to which his life had been given. He went ; 
there were present five men who at one time or another 
had held the office of Lord Chancellor the highest 
legal position in Great Britain. Through a long even 
ing they took counsel together, and when at last the 
session broke up, the then Lord Chancellor thanked 
Mr. Field in the warmest terms for his services to the 
cause of justice in the world. Tributes no less intel 
ligent, if from men less distinguished, it has many a 
time been his fortune to receive. 

In these days just past such tributes have been many 
and most appreciative. A few extracts from the daily 
papers may properly find a place here. The Herald 
said of him : 

" Xo man ever raised a higher standard of the func 
tion of a lawyer or aimed more devotedly to reach it. 
In his own words, * The true function of the lawyer is 
not alone to guide his clients aright, not alone to gain 
lawsuits, not alone to win fame or fortune, but to make 
the law itself better/ On this principle Mr. Field acted 
from the beginning to the end of his remarkably long 
career at the bar. ... It may be a long time yet 
before codification of the law of nations and interna 
tional arbitration are formally adopted by the leading 
powers of the world. But when that era in the prog 
ress of nations is reached, no name will be more glorified 
than that of David Dudley Field, and no country will 
be entitled to higher honors than that of which he was 
a citizen." 



45 

From the Brooklyn Eagle come words which might 
be deemed extravagantly eulogistic, did they not evince 
so true an apprehension of the noble purpose which 
raised this life so far above the level of common lives : 

" He was a very great man. His manly greatness was 
expressed in results which made the world better for his 
living in it, and which will make the world forever bet 
ter because he lived in it. He added signal causes to 
the claim of the nineteenth century to fame, to wonder, 
to gratitude, and to emulation evermore. He made it 
the century of law codification. That should be written 
with steam navigation, telegraphy, the telephone, the 
phonograph, the locomotive, the policy of arbitration, 
the emancipation of the serfs and the freedom of Afro- 
Americans amoag the immortal and invaluable achieve 
ments of this century. 

" He grew to his work. He began at the beginnings 
of law reform. He first sought to reconstitute and re 
organize the judiciary. He found it of less importance 
how courts were made and graded than what the law 
itself should be. So he undertook the completion of 
codes of civil and criminal procedure. . . . 

" It is no matter whether men think his scheme 
utopian or not. On the scale of its projection it may 
have been utopian. . . . The benign scheme and 
purpose David Dudley Field had in view, whether prac 
ticable or not, should write his name among perhaps 
that ten of the human race who will be household 
words around the earth a thousand years from now. 
Shakespeare, Bacon, Cicero, Gesar, Napoleon, Wash 
ington, Lincoln, are perhaps seven out of this possible 
ten. David Dudley Field should, we think, be made 
the eighth, and, we think, will be. The two others may 
be left to speculation and to time. 

" To talk with him was a help. To listen to him was 
instruction. To know him was a liberal education. He 
suffered a little under the fact of being a man devoted 



46 

to one idea, but the idea, whether attainable at the 
present stage of development or not, was as far reach 
ing and as uplifting in its purpose and tendency as any 
ever in the brain and heart of man. . . . David 
Dudley Field s object was to simplify, harmonize, and 
universalize justice. Mankind and not bhe Bar was his 
thought. Humanity and not the Judiciary was his 
solicitude. The identity of litigation with justice was 
his desire. He would have made rights so clearly 
statable that the wrongs infracting them would be as 
odious as obvious. The much he did was a noble 
achievement. The more he sought to do was an even 
nobler dream. If his idea was an error, its spiritual 
quality made it an error to be revered. If his hope in 
his time was an illusion, it is an illusion which, we trust, 
may ere long wrap the world in its angelic form." 

Two men of all who have lived in modern times have 
labored to realize the normal unity of the human race, 
and these two were brothers. Cyrus W. Field bound 
the whole round world in one by his submarine tele 
graph. David Dudley Field sought to make all human 
hearts beat in true harmony through the realization of 
that idea of human justice which is in the mind of God. 

In the physical and in the moral sphere no one act, 
no one thought of man, can do more than these to real 
ize the prayer we say each day, " Thy kingdom come ; " 
the prayer of our Saviour breathed in His last hours, 
" That they may all be one." 

Now, after eighty-nine years of noble service he 
sleeps well. Two years ago, in the splendid vigor of 
his eighty-seven years, he wrote a simple poem, pub 
lished then in The Independent, which we are glad to 
read again to-day. It tells us what life was to him, as 
full of simple joys as of noble duties ; it tells us what 



47 

death was to him no thing of terror, no messenger of 
dread, but a true and kindly friend. 

DAVID DUDLEY FIELD AT EIGHTY-SEVEN. 

What is it DOW to live ? It is to breathe 

The air of Heaven, behold the pleasant earth, 

The shining rivers, the inconstant sea, 

Sublimity of mountains, wealth of clouds, 

And radiance o er all of countless stars ; 

It is to sit before the cheerful hearth, 

With groups of friends and kindred, store of books, 

Kich heritage from ages past, 

Hold sweet communion, soul with soul, 
On things now past, or present, or to come, 
Or muse alone upon my earlier days, 

Unbind the scroll, whereon is writ 

The story of my busy life ; 
Mistakes too often, but successes more, 

And consciousness of duty done. 
It is to see with laughing eyes the play 

Of children sporting on the lawn, 

Or mark the eager strife of men 

And nation seeking each and all, 

Belike advantage to obtain 

Above their fellows ; such is man ! 
It is to feel the pulses quicken, as I hear 

Of great events near or far, 

Whereon may turn perchance 
The fate of generations ages hence. 
It is to rest with folded arms betimes, 

And so surrounded, so sustained, 

Ponder on what may yet befall 

In that unknown mysterious realm 
Which lies beyond the range of mortal ken. 
Where souls immortal do forever dwell ; 
Think of the loved ones who await me there. 
And without murmuring or inward grief, 

With mind unbroken and no fear, 
Calmly await the coming of the Lord. 



THE LAST TRIBUTE. 



The scene in Calvary Church on Sunday afternoon, 
April 15, was most impressive and most touching. The 
great church was packed, the whole center aisle being 
given up to those who especially mourned his loss and 
delighted to do him honor ; his family, delegates from 
various learned bodies to which he belonged, and mem 
bers of the legal profession. So distinguished a body 
of men is not often seen. Among the pall-bearers 
walked the Chief Justice of the United States and 
many men whose names are known wherever distin 
guished ability is honored ; of the inner circles of those 
who most nearly feel his loss, his own immediate family, 
were two other Justices of that most august judicial 
body in the world, his brother and his nephew. 

There was no funeral sermon, no eulogy of the great 
man who was gone. Far more seemly, more touching, 
more soothing, the sublime words of the burial service, 
the noble resurrection chapter, the sweet processional 
and recessional hymns from many voices of boys and 
men, going to meet the coffin as it entered the church, 
and preceding it to its place in the chancel and again 
to its temporary resting place when the service was 
over. 

On Monday morning the last journey was made to 
the place he loved best on earth, the Stockbridge home, 
the narrow house in the rural God s Acre. 



DAVID DUDLEY FIELD. 



Words of his youngest brother in The Evangelist, April 26, 1894. 



He is gone to the grave! Neither shall he return to 
his house any more ! He hath no more a portion for 
ever in anything that is done under the sun ! 

So quickly has one on whom I have leaned all my 
life vanished out of my sight that I am stunned by the 
blow. But more than any other man that I ever knew, 
he lived while he did live. Even when he had entered 
his ninetieth year he was so full of life, of such vitality, 
that continued until within a few hours of the moment 
when he breathed his last, that I can hardly realize that 
I shall no more feel the warm grasp of his hand or hear 
his cheering voice. 

Such a life cannot end without leaving a great void 
behind it, and it is due both to his memory and to those 
who survive him that they should know something of 
his history and of the influences that made him what 
he was. He was not the child of fortune. He was 
born under the humble roof of a country minister. 
The Hartford Courant (by the pen, we presume, of 
Charles Dudley Warner) says : 

"DAVID DUDLEY FIELD was born in this good old 
State of Connecticut a little more than eighty-nine 
years ago. But for the migration of his father from a 



50 

Connecticut pastorate to a Massachusetts one, he would 
doubtless have followed the parental footprints to the 
doors of Yale ; as it was, Williams had the honor of 
giving him his sheepskin. That was in 1825. Three 
years later he hung out his shingle in the city of New 
York and began the practice of the law. It is worth 
noting that in one of his first cases he appeared as 
counsel for a fugitive slave." 

In this city he lived more than sixty-five years, and 
it is safe to say that there was no man better known by 
sight, if not from personal acquaintance. For many 
years it was his custom to take his morning exercise on 
horseback, and residents up town, who were abroad at 
an early hour, observed him as he rode out to the Cen 
tral Park. Still more familiar was his figure on the 
street. It was his custom to walk from his home in 
Gramercy Park to his office in lower Broadway, and his 
tall, erect figure and quick, firm step gave him a mili 
tary appearance, as he passed on with the stride of a 
grenadier. Indeed he was once mistaken on the Khine 
for a Marshal of France ! 

It was early in life that he rose to the front rank of 
his profession, and for full fifty years it is probable 
that the business of his office was equal to that of any 
in the city. 

But his chief distinction was not in the winning of 
great cases, but in his efforts for the reform of the law, 
which he found encumbered with technicalities, whereby 
litigation was so prolonged that many a man felt that 
it was better to suffer wrong than to attempt to secure 
justice with an issue so doubtful and so remote. But 
in this movement for reform he had to fight, not only 
against old habits and traditions, but against the great 



51 

body of his own profession, who were wedded to the 
old forms, with which they had become familiar. The 
labor was spread over a long succession of years. It 
is just fifty -five years ago (in 1839) that he wrote his 
first letter on the Keform of our Judicial System, and 
then began the agitation which was to occupy him 
nearly forty years. In 1851, while in England, he had 
an interview with Lord Brougham, who commended his 
efforts for the fusion of law and equity, but doubted if 
it could ever be effected in England. He soon changed 
his mind, however ; for a few months after he wrote a 
letter in which he said that sooner or later fusion was 
sure to be adopted in England. 

The next year Mr. Field Avas again abroad, and a 
dinner was given to him in London by the Law Amend 
ment Society, at which Robert Lowe, afterwards Lord 
Sherbrooke (who so distinguished himself in Parlia 
ment, and as Chancellor of the Exchequer under Mr. 
Gladstone), paid him a tribute such as has seldom been 
paid to any legislator, living or dead. Among other 
things he said : 

" He trusted that his honorable friend, Mr. Field, 
would go down to posterity with this glory that he 
had not only essentially served one of the greatest 
States of America, but that he had also provided a 
cheap and satisfactory code of law for every colony 
that bore the English name. Mr. Field, indeed, had 
not squared the circle ; he had not found out any solid 
which answered to more than three denominations ; he 
had not discovered any power more subtle than elec 
tricity, nor one that would bow with more docility to 
the service of man than steam. But he had done 
greater things : he had laid the foundation of peace, 
happiness, and tranquillity, in the establishment of a 



52 

system which would make law a blessing instead of a 
scourge to mankind. He believed that no acquisition 
of modern times if he rightly understood what had 
been done in the State of New York he believed that 
no achievement of the intellect was to be compared to 
that by which Mr. Field had removed the absurdities 
and the technicalities under which New York, in com 
mon with this country and the colonies, had so long 
groaned. While England was debating upon the pro 
priety of some small and paltry reforms in the adminis 
tration of law, a great master in the art of administrative 
reform had risen there in the person of his distinguished 
friend, Mr. Field, and had solved the problem which 
they in England were timidly debating. America had 
a great future before her in the establishment and diffu 
sion of the arts of peace. Let them leave to others 
to absolute governments to have their subjects shot 
down in the streets, rather than wait even for the head 
long injustice of a court-martial ; but let it be the lot of 
England, hand in hand with America, to lead the way 
in the arts of jurisprudence, as well as in other arts 
let them aim at being the legislators and the pacificators 
of the world." 

But that was only the beginning of the herculean task 
which he undertook, while carrying on a large profes 
sional practice, and that extended over many years, till 
one by one appeared five complete Codes : of the Civil 
Law and the Criminal Law ; and of Civil and Criminal 
Procedure ; and a Political Code. 

As the work went on it was watched with great in 
terest in England, where the law was still burdened and 
confused by the innumerable acts of Parliament passed 
through many centuries, which led to the appointment 
of a Parliamentary Committee and of a Crown Com 
mission to consider the whole subject of law reform. 
In 1867 Mr. Field was in London, and was invited to 



53 

meet there English reformers and explain the features 
of the law reform which he had inaugurated in America. 
There were present the most eminent legal authorities 
of the Kingdom, including five Lord Chancellors Lord 
Westbury and Lord Cranwortli ; Sir Page Wood, after 
wards Lord Hatherly ; Sir Hugh Cairns, afterwards 
Lord Cairns ; and Sir Roundell Palmer, now Lord Sel- 
borne. The conference lasted till late into the night, and 
when they arose, Lord Hatherly took him by the hand 
and said : "Mr. Field, the State of New York ought to 
build you a monument of gold /" 

These codes were adopted in part in half the States 
of the Union, and portions of them in England and the 
British colonies, to the most distant parts of the empire. 
It was a moment of triumph for Mr. Field when, travel 
ling round the world, he found under the Southern 
Cross, at Singapore, and again at Hong Kong, the very 
enactments that he had prepared thirty years before in 
America. 

His last great service to civilization was in what he 
contributed to the peaceful intercourse of nations. At 
a meeting of the British Association for the Promotion 
of Social Science in Manchester in 1866, he proposed 
the appointment of a committee to prepare an Inter 
national Code a proposal which was accepted with 
enthusiasm, and a committee appointed of great jurists 
from England, France, Germany, and the United States ; 
but, as usual, the burden fell upon him, and the work 
which appeared some years later was purely his own. 
He was the most earnest and influential advocate on 
either side of the ocean of arbitration as the way of 
settling differences between nations, instead of going to 
war the wisdom of which has been so splendidly illus- 



54 

trated in the settlement of the Alabama Claims and of 
the question of the Bering Sea. 

All this is matter of history. That to which I turn 
in this sad hour is the inner life which was revealed 
only to those who were closest to him. To the world 
he appeared stern and cold ; a great combatant in the 
struggles of the bar ; who never asked for favors from 
any quarter, however formidable ; who took and struck 
tremendous blows. But there was another side to the 
man which none knew but those who saw him in his 
own home a gentleness and sweetness that showed 
itself in a love for children, of which Mr. John E. 
Parsons speaks in the letter printed below ; and in in 
numerable acts of kindness to the humble and the 
poor ; while in his domestic circle he was the most 
affectionate of men ; and those who stood nearest to 
him think, not so much of the great advocate and law 
giver, as of the warm and tender heart that was hidden 
under that iron breast. 

All this came over me like a flood, as I followed him 
to the grave. It was in the old burying ground at 
Stockbridge, where have been laid to rest so many of 
the honored as well as the sainted dead for a hundred 
and fifty years, from the time of John Sargent, the 
apostle to the Indians, who desired to be buried near 
him that they might rise with him at the resurrection. 
There a willow droops over a new-made grave, where 
we laid him down who had just passed from among us, 
and turned away with a feeling of loneliness that will 
remain till we, too, are laid in the same peaceful spot, 
to sleep till the heavens be no more. H. M. F. 



55 
MR. FIELD AMONG THE CHILDEEN. 

During the summer of last year, which Mr. Field 
spent in the Berkshire Hills, his favorite drive was to 
a rural retreat, which had been fitted up for the children 
who are sent from the city to the country to get a life- 
giving and health-giving draft of fresh air. So frequent 
were his visits that all the children knew him, and as 
he took his seat on the porch, would gather about him 
like bees. He would take them on his knees and tell 
them stories, and often pile eight or ten into his large 
carriage and send them off for a drive over the hills. 
It was the frequent occurrence of this sight which has 
called forth the following from Mr. John E. Parsons, 
the creator of that beautiful charity which bears the 
name of a beloved daughter: 

NEW YORK, April 15, 1894. 
DEAR DR. FIELD : 

In a sermon which I heard this morning was told 
this story of Thomas Guthrie : When near his end it 
was proposed to sing to him. He was asked to select 
a hymn. " Sing to me a bairn s song ! " was his reply. 

I have seen your brother Dudley in many of the ex 
periences of his varied career ; in the heat of the fierce 
conflicts of the profession of which he was so distin 
guished a member ; pressing with untiring persistency 
the reforms with which his name will ever be associated ; 
defending himself with matchless courage and vigor, 
and with faith which never wavered against any impu 
tations that he had not adhered to the highest standards 
of personal and professional ethics exalting that pro- 



56 

fession which he honored and which was honored in 
him. But it is not thus that I shall recall him, nor 
even as I have seen him drinking in the invigorating 
air of his Berkshire home, and gazing upon the Berk 
shire Hills which he loved with an abiding passion. 

My memory goes back to the past summer and to 
the daily visits which he made to St. Helen s Home. I 
can see him now, with two or three little city waifs on 
each knee, telling them the stories and repeating the 
verses which he had learned as a little child. Many of 
them are looking forward to the time this summer when 
they may again see their friend. Of all the honors 
which came to him, of all the tributes which will be 
paid to his memory, I doubt if one would be more 
valued by himself than the affection which he had in 
spired in the hearts of these little ones. 

" This is one of the greatest pleasures that I have 

ever known," he said to me one afternoon. In the 

name of his little friends and for them permit me to 

extend sympathy and express sorrow at this great loss. 

Sincerely and respectfully yours, 

JOHN E. PARSONS. 



From Rev. Dr. Henry van E>yke, wlio was Mr. Field s 
companion on his last voyage. 



Dear Dr. Field : It was a great shock and sor 
rowful surprise to hear of your brother s death. He 
was so well on the steamer in which we crossed the 
Atlantic together, so happy, so energetic, such a cheer 
ful and inspiring companion, that in spite of his great 



57 

age he seemed young, and the thought of death was far 
from him. 1 am sure those last days of his life were 
pleasant and profitable ones. He enjoyed them ; and 
he increased the pleasure of others. I shall be glad 
always to think that I was a fellow-traveller of his and 
privileged to listen to much of his wise and cheerful 
conversation. 

To you, my dear Doctor, in your sorrow and loneli 
ness, I offer my sincere sympathy. One after another 
the strong men whom your family has given to 
the world are called home. I know your heart is 
heavy with a brother s grief. But you have the best 
of all consolations, the brightest of all hopes, and your 
sunny faith of a lifetime will shine brightly still, and 
God will maintain and increase your strength accord 
ing to His promise to Christ Jesus our Lord. This is 
the sincere prayer of 

Yours faithfully, HENRY VAN DYKE. 



HIS UNOBTRUSIVE GENEROSITY. 

Mr. Field gave liberally and largely to persons need 
ing assistance within his means, and his gifts were 
various and numerous : to aid young men in their edu 
cation, to encourage improvement in villages, and 
in aid of charities for children of the poor, or for the 
sick or infirm. But of them he never spoke unless in 
answer to inquiries. He never proclaimed his benefac 
tions. He also gave twenty -five thousand dollars to 
Williams College for the professorship of astronomy, 
and ten thousand dollars for erecting the tower in 



58 

Stockbridge on the site of the old church built for the 
Indians. 

A pleasing instance of his unostentatious generosity 
is related by Mr. Irving Browne in the London Law 
Journal : 

" Mr. Field, writes Mr. Browne, was very frugal in 
small matters, but in large matters he was generous. 
A little more than a year ago he wrote me certainly 
with no design of having it heralded, at least in his 
lifetime: It may interest you to know, since I have 
been charged with parsimony, that in my chagrin at 
the failure of the bar of the country to keep its promise, 
made at a meeting in Washington, after the death of 
Chief Justice Taney, to look after his family, I gave to 
the clerk of the Supreme Court my personal bond to 
pay to a daughter of the Chief Justice $500 a year, 
during her life or mine, I forget which ; and that I 
paid this annuity from the date of the bond in 1873 
till the daughter s death in 1891, so that I actually con 
tributed out of my private funds $9,000 to save the 
credit of the bar. I had never seen the two daughters, 
nor the Chief Justice himself, except on the bench, 
and I loathed his decision in the Dred Scott case. 
Mr. Field was an intense optimist, and had the most 
profound religious convictions." 



PROCEEDINGS UPON THE DEATH 

OF 

DAVID DUDLEY FIELD. 



Extract from the Minutes of the Association for the Re 
form and Codification of the Law of Nations Reso 
lution of the International Arbitration and Peace As 
sociation Minute of the Proceedings of the Facidty of 
Washington and Lee University. 



The Association for the Reform and Codification of the 
Law of Nations. 

33 Chancery Lane, W. C., 

LONDON, &th May, 1894. 
To LADY MUSGRAVE. 

My Lady : At the request of the Council of the 
above Association, I beg to forward you the annexed 
copy of a resolution which was adopted at its meeting 
last evening. 

In doing so may I take the liberty of expressing my 
own personal sympathy, and my regard for your late 
esteemed and revered father. It was my honour and 
privilege to be associated with him in the work of the 
London Peace Congress of 1890, and I could not help 
being struck with his extraordinary vigor, ability, and 
force of character which won my warm admiration. 
I am yours, very sincerely, 

W. EVANS DARBY, 

Hon. Sec. pro tern. 



60 

Extract from the Minutes of the Executive Council 
held on Thursday, 3d May, 1894 : 

" The Executive Council of the Association for the 
Reform and Codification of the Law of Nations at this, 
its first meeting since the death of the Hon. David 
Dudley Field, one of the founders and past President 
of the Association, and at the time of his death Hon 
orary Vice-President, desires to express its regret at 
the loss which the Association and the whole civilized 
world has thereby sustained, and respectfully tenders 
its sympathy with his family in their bereavement." 



International Arbitration and Peace Association. 
Offices : 40 and 41, Outer Temple, Strand, 
(Opposite the Royal Courts of Justice.) 

LONDON, W. C., 3d May, 1894. 

MADAM : I am desired by the Committee of this As 
sociation to forward you the enclosed copy of a resolu 
tion adopted by the Committee with reference to the 
death of your distinguished father, Mr. David Dudley 
Field. 

Yours, faithfully, J. FRED K GREEN, 

Secretary. 
LADY MUSGRAVE. 

Copy of Resolution. 
DEATH OF DAVID DUDLEY FIELD. 

Resolved, That this Committee have heard with re 
gret of the death of Mr. David Dudley Field of New 
York, and desire to place on record their sense of the 
great services rendered by him to the cause of interna 
tional unity, both as a jurist in his " Outlines of an In 
ternational Code " and other works, and by his lifelong 
devotion to the principle of International Arbitration. 

The Committee would more especially note the dig- 



61 

nity and ability with which Mr. Field, notwithstanding 
his advanced years, presided over the Second Univer 
sal Peace Congress, held in London in 1890. 

The Committee feel sure that when the substitution 
of Law for War in international affairs shall have be 
come generally established a prospect happily in 
creasing in probability the name of David Dudley 
Field will be honored among the most distinguished of 
the pioneers in promoting the establishment of the 
juridical status among nations as a practical step to 
wards the brotherhood and solidarity of men.* 

* In a letter to a brother of the deceased, the Hon. John Randolph 
Tucker, of Virginia, thus speaks of the movement of Mr. David Dud 
ley Field : 

" What a wonderful projection into the future he has pushed his 
inventive and suggestive thought for the international arbitrament in 
peace of the controversies of nations ! When his ideal is realized, as 
it must be, the world will lay on his tomb the tribute of its homage 
as the bold and intrepid pioneer in making the Prince of Peace the 
arbiter of the international disputes of the world. This, even more 
than his energy and genius in pressing the code procedure, will be the 
solid foundation of his fame." 

At a banquet at the Hotel Metropole in London, in July, 1890, given 
by members of the British Parliament to the members of continental 
Parliaments and other distinguished persons attending the Universal 
Peace Congress, the Eight Hon. Mr. Shaw-Lefevre rose and stated 
that he had been requested to supply the place of Mr. Depew, who, 
to the regret of all, was absent on account of illness, and he then in 
troduced one of the guests of the evening. Mr. David Dudley Field, 
who spoke as follows : 

"My Lords and Gentlemen," began the distinguished American 
jurist, " I am going to preach you a very short sermon upon the text 
proposed by Mr. Shaw-Lefevre an international parliamentary move 
ment. Last week I had the honor of being present at the unofficial 
congress, composed of private individuals of many nations, earnestly 
bent on doing what they might to further the cause of international 
arbitration. To-night I am proud to address a body of parliamentary 
representatives inspired by the same lofty ideal. I hear people de 
clare us visionary enthusiasts, dreamers, and unpractical folk chasing 
after a phantom. 

" But stop a moment! Think a moment! Is it true we are un 
practical ? What is that prayer we hear Sunday after Sunday, Give 
peace in our time, O Lord. What does that mean ? It means that 
we have the consciences of the world with us. Things change as time 



WASHINGTON AND LEE UNIVERSITY, LEXINGTON, 
VIRGINIA. 

At a meeting of the faculty of "Washington and Lee 
University, held May 14, 1894, the following minute 
was adopted : 

The Faculty of Washington and Lee University have 
heard with deep sensibility of the death of Hon. David 
Dudley Field, eminent as lawyer, statesman, and pub 
licist, whose generous gifts to this institution entitle 
him to the gratitude of all who are interested in its 
welfare. 

No American has lived in this generation who has 
taken a more prominent and useful part in the advance 
ment in jurisprudence, municipal and international. 

rolls 011. Suppose the common people in the time of the Plantagenets 
and Tudors had claimed the right to manage the affairs of the nation. 
What would the nobles have said ? And what do the nobles say now ? 
Things have changed, and things will change, and church bells will 
finally be heard ringing peace over all the world. 

" IS THAT UNPRACTICAL ? 

" We are called unpractical, but when the German Emperor de 
mands more battalions for his armies, and a representative of the 
groaning German people rises in the Reichstag and asks with whose 
blood and whose money those battalions are to be paid for is that 
unpractical ? And when the statistician tells you Englishmen that 
during the whole of this century, for every pound of public money 
raised 16s. 3%d. have been spent for war is that unpractical ? And 
when you learn that to-day out of 670 members of the House of Com 
mons there are 234 ready to vote for an arbitration treaty, and that if 
only one hundred members more will join us, the problem is solved 
is that unpractical ? 

" No! we are not unpractical, but the most practical of men, and 
the task we have set ourselves of arousing public opinion against the 
ghastly horrors of war is a noble task. 

" I will conclude with an old stanza which used to be very dear to 
us Americans at the time of our own Civil War : 

For right is right and God is God, 

And right shall surely win ; 
To doubt v/ould be disloyalty, 
To falter would be sin. " 

This spirited response called forth enthusiastic applause. 



63 

In the science of judicial procedure, in the promotion 
of peace among nations by making the law between 
them certain and fixed, and by provision for arbitra 
ment of all difficulties between them, and in his broad 
and unsectional sympathy with his whole country in 
upholding the constitutional principles of the fathers 
as the supreme law for all the States, Mr. Field has 
held an advanced position, which makes his name illus 
trious in our history. 

In grateful memory of his kindness to this University, 
and of his public services, the Faculty place this min 
ute upon their record as their testimonial of esteem for 
his character, of admiration for his career of noble ac 
tivity for the good of mankind, and of appreciation of 
the results of his useful, well-spent, and philanthropic 
life. 

A copy : JOHN L. CAMPBELL, 

Clerk of the Faculty. 



64: 



A paper was read before the American Bar Association, at Saratoga, 
in August, 1894, by Hon. John F. Dillon, on " The True Professional 
Ideal," with the understanding that it should have some relation to 
the subject of legal education, in one or more of its aspects. 

In the article Judge Dillon refers to the career of Mr. David Dudley 
Field, as illustrating several phases of that character. The article was 
published in the Albany Law Journal, and by his permission it is re 
produced here entire, with the exception of the synopsis given of the 
studies pursued at the law school of Harvard University. 



THE TRUE PKOFESSIONAL IDEAL. 
BY HON. JOHN F. DILLON. 



I have been honored with an invitation to read be 
fore the Section on Legal Education a paper on " The 
True Professional Ideal," with the implication, I pre 
sume, that it should have some relation to the subject 
of legal education in one or more of its many aspects. 

The time limit fixed of thirty minutes or less will not 
enable me to do more than to glance hurriedly at one 
or two of the more important questions that might be 
fitly considered under the general title of " The True 
Professional Ideal." It can never, I think, be entirely 
out of place certainly, in my opinion, it is not out of 
place at the present time to impress upon the bar and 
society the essential dignity, worth, nobility, and use 
fulness of the lawyer s calling. The true conception 
ideal, if you please of the lawyer is that of one who 
worthily magnifies the nature and duties of his office, 
who scorns every form of meanness or disreputable 
practice, who by unwearied industry masters the vast 
and complex technical learning and details of his pro- 



65 

fession, but who, not satisfied with this, studies the 
eternal principles of justice as developed and illustrated 
iii the history of the law and in the jurisprudence of 
other times and nations so earnestlj that he falls in love 
with them, and is thenceforward not content unless he 
is endeavoring by every means in his power to be not 
only an ornament but a help unto the laws and juris 
prudence of his State or nation. In his conception, 
every place where a judge sits although the arena be 
a contentious one, where debate runs high and warm 
is yet, over all, a temple where faith, truth, honor, and 
justice abide, and he is one of its ministers. With what 
majestic port may not the lawyer approach that temple 
when he reflects that he enters there not by grace, but 
of right, craving neither mercy nor favor, but demand 
ing justice, to which demand the appointed judicial 
organs of the State must give heed under all circum 
stances and at all times. 

There is, I fear, some decadence in the lofty ideals 
that have characterized the profession in former times. 
There is in our modern life a tendency I have thought 
at times very strongly marked to assimilate the prac 
tice of the law to the conduct of commercial business. 
Between great law firms with their separate depart 
ments and heads and subordinate bureaus and clerks, 
with their staff of assistants, there is much resemblance 
to the business methods of the great mercantile and 
business establishments, situate close by. The true 
lawyer not to say the ideal lawyer is he who be 
grudges no time and toil, however great, needful to the 
thorough mastery of his case in its facts and legal prin 
ciples ; who takes the time and gives the labor neces 
sary to go to its very bottom, and who will not cease 



66 

his study until every detail stands distinct and luminous 
in the intellectual light with which he has surrounded 
it. The temptations and exigencies of a large practice 
make this very difficult, and the result too generally is 
that the case gets only the attention that is convenient 
instead of that which it truly requires. The head of a 
great firm in a metropolitan city, a learned and able 
man, was associated with another in a case of much 
complexity and moment. He expressed warm admira 
tion of the printed argument of his associate counsel, 
which had cost the latter two months of laborious work, 
adding, however, that he could not have given that 
much time to it because, commercially regarded, it would 
not have paid him to do so. 

It is unquestionably the duty of the profession to 
preserve the traditions of the past to maintain lofty 
ideals and to this end to guard against what I may 
perhaps truly describe by calling it the " commercializ 
ing " spirit of the age. The utterance of Him who spake 
with an authority greater than any lawyer or judge, 
" man lives not by bread alone," should never be for 
gotten or unheeded by the lawyer, and will not be by 
any who come within the category of what may be 
termed the " Ideal Lawyer." 

Mr. J. H. Benton, Jr., of the Boston bar, under the 
conviction that few persons, even among those of the 
profession, realized the full extent in which the bar has 
participated in the government of this country and given 
directions to its policies and public affairs, read before 
the Southern New Hampshire Bar Association, in Feb 
ruary of the present year, a most instructive paper on 
the " Influence of the Bar in Our State and Federal 
Government," 



67 

A few of the facts which he has laboriously ascer 
tained and stated may be here briefly mentioned as bear 
ing upon the subject of the present paper. Of the 56 
signers of the Declaration of Independence, 25 were 
lawyers, and so were 30 out of 55 members of the con 
vention which framed the Federal Constitution. Of 
the 3,122 Senators of the United States since 1787, 
2,068 have been lawyers ; of the 11,889 Representatives, 
5,832 have been lawyers. " The average membership 
of lawyers in both branches of Congress from the begin 
ning has been 53 per cent." In the present Constitu 
tional Convention of the State of New York, 133 out of 
the 175 members are members of the bar. Lawyers 
constitute, as nearly as can be ascertained, one in every 
400 of the male population of the United States at the 
present time. The statistics show, with one exception, 
that in the legislatures of all the States the legal pro 
fession has, and always has had, a membership exces 
sively greater in proportion to its number in the popu 
lation of the State. 

Not less marked is the influence of the bar in the 
executive departments of the Federal and State govern 
ments. Of the 24 Presidents, 19 have been lawyers ; 
and Mr. Benton states that " of the 1,157 governors of 
all the States, 578 of the 978 whose occupations I have 
been able to ascertain have been lawyers." 

It is scarcely necessary to mention the fact that the 
entire body of the other co-ordinate department of the 
national and State governments the judiciary have 
been members of -the profession. And in our polity the 
judiciary have a power and are clothed with a duty unique 
in the history of the governments, viz., the power and 
duty to declare legislative enactments and executive acts 



68 

which are in conflict with our written Constitution to be 
for that reason void and of no effect. In this America 
has taught the world the greatest lesson in government 
and law it has ever learned, namely, that law is not 
binding alone upon the subject, and that the conception 
of law never reaches its full development until it attains 
complete supremacy in the form of written constitutions, 
which are the supreme law of the land, since their pro 
visions are obligatory both upon the State and upon 
those subjected to its rule, and equally enforceable 
against both, and therefore law in the strictest sense of 
the term. 

Two forces in society are in constant operation and 
are necessary to its welfare, if not to its very existence : 
the conservative force, to preserve what is worth pre 
serving ; the progressive, without which we would have 
stagnation and death. The character and state of the 
law, as well as the social condition of any people, is the 
result of the conflict between these healthful although 
antagonistic forces. As the ocean keeps itself pure by 
the constant movement and freedom of its waters, so 
the like movement and freedom are necessary to pre 
serve what is good in existing conditions, or to remedy 
what is either bad or inadequate. 

Changes in the law of any living and progressive 
society are therefore absolutely necessary in order to 
make the law answer the current state and necessities 
of the social organism. So far as law is expressed in 
written form, whether in constitution or statutes, it is 
crystallized and almost, although -perhaps never quite, 
stationary. Owing to the doctrine of judicial prece 
dent as it exists in our law, this theoretically makes 
what is adjudged almost, although in practice not quite, 



69 

as stationary as law in written form. True wisdom re 
quires that the law shall with all convenient speed be 
made to harmonize with existing needs. This makes 
law amendment or reform a constant continuing and 
ever existing necessity. 

Nothing is more difficult than the work of law im 
provement. It requires a knowledge of the law both 
theoretical and practical ; scientific, so as to know the 
relation of each department of the law to every other 
department ; practical, so as to appreciate existing de 
fects and the needed remedy. Doctrinaires, jurists, and 
legal scholars may see, indeed are often the first to see, 
or to suggest and urge the required changes, but are, 
generally speaking, incapable of wisely effecting them. 
With the notable exception of the changes wrought in 
the law of evidence, Bentham s vast labors bore almost 
no direct fruit. Austin filled for many years a large 
space in the field of jurisprudence. My own judgment 
is that his legal theories have proved to have little in 
trinsic or permanent value. Though feeling con 
strained to say this, I must also add that in my opin 
ion the world is much indebted to these eminent men 
for their bold and free criticisms of our laws and for 
arousing the attention of the bar to the need of amend 
ing them, and especially for making some portions at 
least of the profession in England and this country feel 
the need of a more scientific jurisprudence. Brougham, 
Mackintosh, Romilly, and Langdale were, in a way, 
their disciples, and labored faithfully in the cause of 
reform in England. But they went about it in the con 
servative and timid manner so characteristic of the 
English mind. Their efforts were confined to single, 
sporadic, specific ameliorations of certain felt griev- 



70 

ances, but their labors proceeded upon no scientific 
plan to effect comprehensive reforms of either substan 
tive law or of the law of procedure. 

Such, roughly sketched, was the general condition of 
law reform when the late David Dudley Field entered 
upon the work of law amendment in this country. It 
seems to me that the career of Mr. Field illustrates several 
phases of the subject under discussion. For this rea 
son, as well as because it is proper that some notice 
should be taken in this body of the labors of this emi 
nent man, at one time the president of this associa 
tion, I shall refer for a few moments to the main work 
of his life, and endeavor to draw from it the lessons it 
teaches. In my judgment no mere doctrinaire or closet 
student of our technical system of law is capable of 
wise and well-directed efforts to amend it. This must 
be the work of practical lawyers. Mr. Field had this 
needed qualification, for he was throughout his long 
career at the bar a busy and active practitioner. 

When Mr. Field commenced his work of law im 
provement, the gap between the law as it existed and 
what the welfare of the community required, especially 
in the law of procedure, was very wide. The system 
of pleading and procedure had grown to be so techni 
cal as to defeat in many cases the cause of justice. 
This was eminently true of the common law system of 
pleading and procedure, and even the system of equity 
was equally open to the reproach of undue technicality 
and of intolerable delays. The need for a cheaper, 
simpler, and more expeditious procedure at law and in 
equity had become a crying want. Mr. Field, if he did 
not originate the idea, clearly put himself at the head 
of the movement to remedy the evil. This he did at an 



71 

early stage in his professional life, and to this as well 
as to the codification, looking to improvement in crim 
inal law and procedure, as well as in substantive law 
he gave without ceasing, being instant in season and 
out of season, more than fifty years of his active career, 
He advocated the principle of codification everywhere. 
He was a man of strong feelings and passions. Every 
man of real force is so, almost necessarily. He, there 
fore, fought for codification ; and he fought with daunt 
less courage everybody who opposed him. We may 
think that he unduly estimated the scope, the value, 
and the beneficence of codification. He may have done 
so. Effective and true reformers are apt to go too far. 
But this detracts not the least from the estimation in 
which he is justly entitled to be held by the bar and 
public. I do not wish to surround him with a haze of 
golden panegyric. He does not need it. Look at his 
public labors in municipal and international law, ex 
tending from 1839 to 1894, and what lawyer in this 
country, dead or living, has ever dedicated half as many 
years as he to conscientious efforts to improve our laws 
and jurisprudence. In this view he stands without a 
peer. Consider the success which has crowned his 
work in this country and in England and in the English 
colonies, and his career is strikingly distinctive. True, 
some of his schemes of law amendment failed of adop 
tion, those more especially relating to the codification 
of the common law, but he seized upon one principle 
which he made eminently successful, and which in turn 
made him famous, and justly so, namely, the simplifica 
tion of the law of procedure. The New York Code of 
1848, in substance or principle, Mr. Field lived to see 
adopted in a large majority of the States and Territories 



rr:^ 

jf 1J 

IVBIU.r? 

"UiTOBSi^ 




72 

of the Union and in the Judicature Act of 1873 of the 
British Parliament. 

Mr Field had lofty professional ideals of the lawyer s 
duty toward the law. Love of the pecuniary gains of 
his calling, though he was not insensible to them, was 
yet ever subordinate in his regard to those public labors 
which he felt that he owed to his profession and the 
law. Although in active practice in a great metropol 
itan center for over sixty years, he accumulated no 
more than some contemporary men at the English bar, 
and perhaps some in the same city have done in less 
than a tenth of the same period. But it may be said 
that he w r as ambitious, that his ambition was boundless, 
and that this was his incentive. Be it so. So, doubt 
less, it was. Exercised for worthy ends, this, so far 
from being the last infirmity, is the highest quality of 
noble minds. Nor had official place, either for the 
conspicuousuess which attracted and was flattered by 
the public gaze, or for the power which men of lower 
aims who live only in the present, love to wield, any 
controlling charms for him. His eye was lifted higher 
and was fixed chiefly on the generations who should 
come after him. Of the present he regarded himself, 
if I may so phrase it, as a tenant for life, but with a 
reversion in fee in the limitless future. Cheerful in the 
prolonged autumn of his days, he had for nearly a gen 
eration seen the "leaves fall over the roots of the tree 
of life," but this as he looked above only gave to his 
vision a freer and more unobstructed view of the past 
and future. With great felicity of expression, Sir 
Walter Scott makes Kemble, on finally leaving the 
Edinburgh stage, say he hoped to enjoy 



73 

" Some space between the theatre and the grave : 
That like the Koman in the Capitol, 
I may adjust my mantle ere I fall." 

Such, too, was Mr. Field s hope, doomed however to 
disappointment. On his return from Europe, only three 
or four days before he passed beyond the range of our 
mortal vision, he was reported to have said, in answer 
to the question what he intended to do, that he expected 
to spend the coming summer in the Berkshires at work 
on his autobiography, and that his one great ambition 
was to have his codes adopted all over the English- 
speaking world. All old men live in the past, and to 
this Mr. Field, who had crossed the Delectable Moun 
tains arid was already in the country of Beulah, was no 
exception. It was natural that he should love to sur 
vey, in the serene evening of his days, the toils and 
labors which had marked his active life and the suc 
cesses with which these had been rewarded. But only 
men of the higher type can turn, as turn he did, to the 
future, see it spread itself out before their enraptured 
gaze, feel themselves fanned by its intoxicating breezes, 
behold its sunlit heights and proudly feel that it, too, 
is their inheritance. 

With this let us contrast the life and professional 
career of an eminent English contemporary of Mr. 
Field s earlier life. I refer to Sir William Follett, who 
in his day was as distinctly the leader of the bar as was 
Lord Erskine in his. The picture has been drawn by 
Sir William s own friend, the accomplished Talfourd, 
who, in his " Vacation Rambles," tells us that there 
was brought to him in 1846, when on his journey 
through Italy, the usual register of visitors, and that, 
turning over its pages, he was startled by the name of 



74 

Sir William Follett written in tremulous characters just 
before his death, which had occurred but a short time 
before Talfourd saw his signature. After reviewing 
Follett s professional career, usually pronounced so 
brilliant, Talfourd mournfully inquired, "What re 
mains ? " And he answered, "A name dear to the 
affections of a few friends ; a waning image of a 
modest and earnest speaker, though decidedly the head 
of the common law bar ; and the splendid example of 
a success embodied in a fortune of 200,000 acquired 
in ten years, the labors of which hastened the extinc 
tion of his life ; these," he added, " these are all the 
world possesses of Sir William Follett. To mankind, 
to his country, to his profession, he left nothing ; not a 
measure conceived, not a danger averted, not a prin 
ciple vindicated ; not a speech intrinsically worth 
preservation ; not a striking image, nor an affecting 
sentiment ; in his death the power of mortality is su 
preme. How strange how sadly strange that a 
course so splendid should end in darkness so obscure." 

Follett did not discharge the debt he owed to his pro 
fession, and therefore did not answer to the completest 
professional ideal of the lawyers. Mr. Field not only 
paid the debt due to his profession, but overpaid it and 
thus became its creditor, and in this answered more 
fully than lawyers like Follett the professional ideal. 

In the report on legal education before mentioned it 
appears that there are over fifty law schools in the 
United States, having a membership of more than six 
thousand students the committee not having the means 
of ascertaining the number of students who were pur 
suing their studies in private offices outside of the law 
schools. I fully concur in the following observations 



75 

of the committee. Their soundness will not be ques 
tioned, I think, by any one who hears me : " The mind 
of the lawyer is the essential part of the machinery of 
justice ; no progress or reforms can be made until the 
lawyers are ready. Their influence at the bar, on the 
bench, and in legislation is practically omnipotent." 

The following observation seems to me to be specially 
weighty and important : " The progress of the law 
means the progress of the lawyer, not of a few talented 
men who are on the outposts of legal thought, but the 
great army of the commonplace who contribute the ma 
jority of every occupation. What the lawyers do not 
understand, or what they pronounce visionary or im 
practicable, will not be accepted by the legislatures or 
courts of the country." 

It is no part of my purpose to offer any observations 
upon the methods of law instruction, much less upon 
the different or competing methods of such instruction 
Doubtless the method of teaching law or how it can 
best be taught is an important subject, but it is not all 
important. It is wise to discuss and consider it, but it 
would not be wise to let it engross our whole or even 
chief attention. What Pope said of forms of govern 
ment may, I think, be said with much more justness of 
methods of teaching : " That which is best administered 
is best." The man whom nature designed to be a 
teacher of law will, despite theories, teach it after his 
own manner. He will impress his own personality upon 
his work. It is the man, not the method, that tells. 
The crucial test is whether the teacher can inspire a 
living interest in the student and get from him the best 
work that in him lies ; for, after all, the student must 
himself do the work and the thinking which shall ac- 



76 

complish him in the learning of his profession. Vastly 
more important therefore than the methods of teaching 
is the course of instruction or the branches to be 
taught. 

This general subject is very fully, and, I need not say, 
ably discussed in the report of the committee on legal 
education of this association, submitted in 1892. After 
reviewing the course of instruction in the law schools 
of this country (and it is substantially the same in all 
of them) the committee say : 

" It is evident that the course of study, with a very 
few exceptions, is confined to the branches of practi 
cal private law which a student finds of use in the first 
years of his practice. It is a technical or philosophic 
view of the law which is taught. It may be said of all 
our law schools that the instruction is too technical. 
It is not elementary enough. The view of the law 
presented to the student is technical, rather than 
scientific or philosophical." 

What is meant by the course of instruction being 
confined to private law which the student will find of 
practical use in the earlier years of his practice, may be 
illustrated by the course of instruction in what is justly 
regarded as one of the very foremost law schools of 
this country, that of Harvard University. I select it 
for illustration because of the deserved eminence of 
the school and because it covers all the students em 
braced in a three years term. 

The subjects taught and the books used show more 
clearly than any general description the intensely tech 
nical and practical character of the course of instruc 
tion. This may stand, as I think, as the general model 
or even the highest type of legal instruction in this 
country. 



77 

I agree in the main with the spirit of the criticisms 
of the committee which I have quoted above, but I 
would phrase my own views in somewhat different 
language. I insist, for I believe it to be true, that the 
stereotyped course of legal instruction in this country 
is defective, not so much for what it contains as for 
what it omits. It is defective in that no adequate pro 
vision is made for instruction in historical and com 
parative jurisprudence, and in the literature, science, 
and philosophy of the law in what may perhaps be 
compendiously expressed as "general jurisprudence." 
If this is what the committee means by the expression 
that the course of instruction is too technical, I agree 
to it. But it is to be remembered that it is of the es 
sence of our legal systems that they are in their histor 
ical development and nature technical, and so far as 
they are so, instruction, to be adequate and thorough, 
must itself be technical, and in an important sense it 
is not predicable of it that it is too technical. Having 
in view the circumstances which surround the subject 
of legal education in this country, I approve the wis 
dom of the general course of instruction in our law 
schools, so far as it gives chief attention to the usual 
and enumerated branches of practical private law. 
But I still insist that it is defective in the want of ade 
quate instruction in the history and the literature of 
the law and in what I call for short "general jurispru 
dence." 

Great lawyers like Coke and Blackstone, and Eldon 
may be made by the current methods ; but the growth 
of greater lawyers like Hale, Bacon, and Mansfield, 
who in their day wisely amended and improved the 
law, and who represent the higher professional ideals, 



78 

is not adequately promoted or encouraged by the exist 
ing course or methods of law instruction in the law 
schools in this country. 

I fully realize that to set up an impracticable stand 
ard defeats the object sought. Nevertheless I insist 
that it is entirely practicable for our law schools to en 
large and liberalize the scope of their instruction by 
requiring at least one hundred hours of the course to 
be given specifically to the subjects which I have above 
ventured to indicate as essential to any well-ordered 
course of instruction that makes any just claim to being 
adequate or complete. 

And this view is the sole practical point of this paper 
to urge and enforce, to the end that the generations of 
lawyers who shall come after us may be adorned more 
abundantly than else had been with examples of the 
highest and truest professional ideals. And to this end, 
moreover, I should be glad to see the members of the 
section on legal education take the initiative by recom 
mending the American Bar Association to adopt a reso 
lution in substance that in its judgment adequate in 
struction in historical, comparative and general juris 
prudence is an essential part of a thorough course of 
legal education, and that accordingly it recommends to 
all of the law schools of the country that such instruc 
tion should be made a distinct and specific branch of 
the course of required study therein. 



79 



In May, 1894, Mr. Austin Abbott, LL. D., Dean of the Law School 
of the University of the City of New York, wrote an exceedingly in 
teresting and appreciative essay on the work of Mr. David Dudley 
Field. It was published and COPYRIGHTED by the Review of Reviews 
Co. in the same month. By the courtesy and kindness of Mr. Albert 
Shaw, the editor of that magazine, permission is given to use the 
article, and the following is accordingly here reprinted : 



THE WORK OF DAVID DUDLEY FIELD. 



BY AUSTIN ABBOTT. 

For at least a third of a century David Dudley Field 
was the most commanding figure at the American bar. 
Tall, erect, stalwart, alert, and decided in movement, 
courteous and graceful in bearing, he impressed the 
observer at once as a man of marked gifts and force. 
This impression every advance in acquaintance deep 
ened. Those who knew him intimately saw an imperious 
nature, equipped with great intellectual power, and re 
strained by an intuitive appreciation of the amenities of 
social life. 

Other men at the bar have perhaps had a more pro 
found knowledge of the technical details of law, but 
none have seen the law more truly in its immediate re 
lation to public welfare. Other men have been more 
devoted to research and gathered richer stores of erudi 
tion to throw light upon the law, but few, if any, have 
known so well how to inspire others in research, or 
with such good judgment to select from its fruits that 
which was of prime importance to his purpose. There 
have been other men more given to close and sustained 



80 

reasoning, but few able to put such a forceful person 
ality into the presentation of legal reasoning. There 
have been other lawyers with more notable gifts of wit, 
humor, satire, and invective, but few, if any, whose 
prepossessing presence and keen- minded powers, in a 
personal controversy, delivered harder blows or sharper 
thrusts, yet with so much respect for forensic and 
parliamentary proprieties. Others have been more 
eloquent to the popular appreciation, but few have had 
such a vigorous grasp of thought, or such convincing 
power in forcing hesitating minds to a firm conclusion. 

The public, however, are interested not" only in the 
professional service of this remarkable man, but also in 
the greater service which he rendered to the profession, 
and through the profession to the country at large, in 
improving the law itself. 

Notwithstanding all the badinage which is expended 
upon lawj^ers, the obvious truth is unobscured that the 
administration of justice has been built up by what they 
have done, and that its maintenance is due to them ; 
and that all the community enjoys of the security of 
law and the suppression of social violence and wrong 
is owing to the success with which the bar and the 
bench, in their professional functions, maintain that 
justice which Daniel Webster well said "is the great 
interest of man upon earth." Mr. Field, in the midst of 
arduous duties of private practice and antagonisms into 
which he, to a degree beyond most practitioners, was 
occasionally drawn, labored persistently for about half 
a century, and with large success, to improve the con 
dition of the law itself, and the procedure by which it 
is applied to the controversies of men. 

At the time Mr. Field commenced his career as a law 



81 

reformer many antiquated forms of procedure, handed 
down to us from the English law, had, in the great ad 
vance in general intelligence and judicial ability, become 
useless incumbrances to the prompt and inexpensive 

administration of justice. 

****### 

There had grown up in the mediaeval history of the 
law of England two classes of judges, the common law 
and the chancery. Volumes have been written on the 
origin of this distinction and the reasons for its per 
petuation. For the present purpose it may be well 
characterized as the distinction between routine and 
discretion. We see to-day essentially the same dis 
tinction between inflexible rules and a power to dis 
pense with such rules in almost all organized arrange 
ments that involve delegation of power. The reason 
that led the King and the English Parliament to sup 
port two distinct systems, one of common law judges 
who were bound to follow the law, another of chancery 
with power to administer equity beyond the law, and 
even to restrain any particular person from enforcing 
the law, when injustice would result, was in its nature 
the same as that which leads a great railroad company 
to maintain in its principal passenger station a ticket 
office where the official has power to sell tickets but no 
discretion as to their use, and upstairs an official who 
has no power to sell tickets but a discretion as to their 
use. If a ticket holder lets the day pass and desires to 
use his ticket on a later day than the date it bears, the 
ticket agent must refuse the application. His is the 
office of routine. lie must enforce the contract. The 
applicant is sent thence to the superintendent upstairs, 
where he may state his case and rind a discretionary 



82 

power which can interfere with routine and redress the 
complaint. If a customer of a bank wishing to with 
draw paper which he has left with the discount clerk, 
and which has been passed upon by the board, applies 
to the discount clerk to have it returned and the entry 
cancelled, he will be turned away from that wicket ; he 
must make his application over again to the cashier 
or president or some officer with discretionary powers. 
For the same reason the common law judges were 
compelled by penalties and punishments, often inflicted 
upon them in early times, to adhere to the routine of 
the law, and administer with all practicable uniformity 
" the laws and customs of England ; " and yet at the 
same time, appointed by and responsible to the same 
government, was the Court of Chancery, standing nearer 
to the King as the fountain of justice, and acting as his 
immediate representative, clothed with discretionary 
power to hear complaints that routine could not enter 
tain, and to redress unusual grievances even to the ex 
tent of compelling one who was doing unjustly, in a 
case where was no law, to make redress, and even to 
compel one who was using the routine of the law in an 
unconscionable manner to cease. The details of pro 
cedure were all arranged to fit this double system. If 
a suitor prevailed at law, he was entitled absolutely to 
costs as matter of right. If a suitor prevailed in chan 
cery, it was in the discretion of the court to make him 
pay the costs as a condition of obtaining relief, or to 
impose costs on the defendant as if he had been sued 
at law. If the debtor concealed his property so that 
the sheriff could not enforce execution, chancery could 
compel him to produce and surrender it. If a man 
preferred to break his contract rather than perform it, 



83 

and the law only allowed damages as a redress, chan 
cery could compel him to perform it or go to prison, 
instead of allowing him to pay the legal price he pre 
ferred to pay for the liberty of refusal. And so on 
through the entire circuit of rights and duties which 
the conscience of statesmen recognized outside of the 
old limits which the routine of common law had de 
nned. 

* * * # * * * 

When our American governments were established a 
Supreme Court (being a court of common law only) and 
a Court of Chancery were founded in New York upon 
the English system, and the same complex double pro 
cedure continued down to 1846. In the formation of 
our Federal government powers of the common law 
courts and powers of a court of chancery were both 
conferred upon the United States Circuit Court, but to 
be separately exercised by the same judge, sitting in the 
same court-room, and he was, therefore, bound by the 
old rules of routine law in one class of cases, but 
clothed with the discretionary powers of a chancellor 
whenever those were invoked by a bill of complaint 

addressed to him as if he were a chancellor. 

******* 

Mr. Field proposed that the judge having the com 
mon law jurisdiction be vested with the powers of a 
chancellor, and might exercise them in a common law 
case in the simple manner of an order on motion on a 
few days notice. 

There were other artificial distinctions in procedure 
besides this duplex system of courts, which had become 
similarly cumbrous and unnecessary. 

The professional reader and perhaps some others 



84 

may be interested in a few words relating to the chief 
of these. 

It is a principal function of the lawyer to know in 
what cases an action will lie to redress a wrong, and in 
what cases it \vill not ; and in the effort to systematize 
our knowledge upon such a question it is necessary, as 
it is in every branch of science, to deal with classes of 
cases, and perceive by a process of generalization what 
are the elements essential to each class. Of course as 
the complexity of human relations and transactions 
giving rise to controversy increased, the classes of cases 
might be expected to increase. This process of classi 
fication of rights of action came very early to be of great 
importance in the administration of justice, because the 
writ to be issued to bring the defendant before the 
court was required to state or at least indicate to him 
what kind of an action he would have to respond to, 
whether an action to compel him to pay a debt, or to 
pay damages for breaking a covenant, or to answer for 
a trespass on land, or a trespass on the person or on 
personal property, and also in cases of trespass whether 
it was a direct trespass by force, or a matter of negli 
gence, and the like. 

Some centuries ago, after the clerks of court had by 
issuing successive writs in a great many cases developed 
a considerable number of classes of cases, Parliament, 
thinking to check the growth of litigation, interposed 
and forbade the invention of new writs, and allowed 
them to be issued only in such cases as those in which 
they had been previously issued, or in like cases. The 
ingenuity of the bar and of the clerks of court was 
thereafter exercised with some effect in devising writs 
for new cases which were not too different from any- 



85 

thing previously known to be called " like cases, "but the 
result of this legislation was to crystallize pre-existing 
forms, to emphasize the necessity that each new action 
should be described as within some pre-existing class. 
Another effect was to increase vastly the number of 
applications to the chancellor by bills of complaint to 
get redress in new kinds of grievance where there was 
no adequate remedy at law, because no allowable writ. 
The ingenuity of men in doing injustice in new forms 
went on developing, but Parliament had put a check 
on the ingenuity of the common lawyers to devise cor 
responding writs. 

This intervention of the legislative power thus had, 
in course of time, these two great effects, both probably 
unanticipated : 1, the arrest of the development of the 
full adaptation of common law to the needs of society ; 
and, 2, the acceleration of the development of a more 
discreet and equitable system of justice through resort 
to chancery. 

The question at once occurs to the progressive- 
minded reader of the present day, how could an ar 
rangement ideally so absurd as two systems of courts 
and of law for the same people and the same contro 
versies hold its place for centuries as the means for 
administering civil justice among so practical people as 
the English and Americans ? 

Two reasons may be suggested to the reflective reader 
as we pass this interesting question : 1, the lack of men 
in the profession fitted to master and administer both 
kinds of law ; and, 2, the reluctance of lawyers who 
feel proper responsibility for the interests of clients to 
accept a new and untried system in place of that which 
is settled and to which all their clients affairs have been 



86 

adjusted. The first of these hindrances perpetuated 
the double judicial system long after the causes of the 
division ceased. Just as there are men in the pro 
fession admirably fitted by temperament or training or 
both to serve as advocates, but not to serve as judges, 
and others sure of success and usefulness as judges and 
of failure as advocates, so there have been many ex 
cellently equipped for the common law bar or bench, 
but poor material for chancellors and solicitors. 
Whether this has been for lack of training I will not 
undertake to say ; but the profession, even since the 
merger of the two systems, are every-day observers of 
the fact that some judges give better satisfaction to the 
sense of justice of the bar while sitting with a jury in 
actions for debt or damages, and others uniformly give 
better satisfaction while sitting to determine according 
to an equitable discretion controversies which inflexible 
rules are not so well adapted to settle. Whatever we 
may think of the cause of the long persistence of this 
antiquated division of judicial labor, we need not be 
surprised that the Americans should become ready to 
abolish it before the English did, nor that among 
Americans the great State of New York, where enter 
prise and conservatism combine in the strongest forms 
for safe progress, should be the jurisdiction in which 
the experiment was tried. 

Mr. Field was admitted to the New York bar in 1828. 
He devoted himself to the thorough study of the prac 
tice both in the common law courts and in chancery. 
His method of dealing with procedure in his subse 
quent code shows that his antagonism to the old sys 
tems did not spring from ignorance of them but from 
a complete mastery of both, a just appreciation of the 



87 

best features of each, and a comparison of them with 
procedure in other States, especially Massachusetts, 
which had no chancery, and with continental European 
systems founded on the civil law. To this technical 
knowledge of existing methods was joined a statesman 
like appreciation of the real function of litigation in 
superseding private controversy, and of the consequent 
necessity that remedial justice should be expeditious, 
simple, and inexpensive. 

The then existing system was imbedded beyond legis 
lative power in the constitution of 1821. Mr. Field 
commenced in 1839 to agitate the subject of reform. 
Five years afterward the constitutional convention was 
held, which formulated the provisions that cleared the 
way for the reform that Mr. Field desired to carry out. 
The majority of the Judiciary Committee reported a 
plan embodying Mr. Field s suggestion of a single court 
having general jurisdiction both in law and equity. 
Charles O Conor, the leading member of the convention 
from the New York bar, proposed a plan different in 
detail, but if anything more radical than Mr. Field s in 
this respect, for his proposal did not mention law and 
equity as if different functions vested in the same court, 
but simply declared the " judicial power of the State " 
to be vested in the one court, subject to appeal. 

Mr. Field was not a member of the convention, but 
was active in suggesting and advocating the change, 
and his memorial to the succeeding legislature led to 
the appointment of a commission to prepare an act to 
simplify the procedure. It is said that he was not at 
first appointed on this commission because he was re 
garded as too radical, but upon the occurrence of the 
first vacancy the legislature appointed him in place of 



88 

the retiring member, and he immediately devoted him 
self to the practical part of the task he had undertaken. 

The genius of Bentham, who had given years of time 
and volumes of writing to criticising and satirizing 
English legal institutions, may fairly be said to have 
been only destructive. The mediaeval absurdities which 
lingered in the " perfection of human reason " he dis 
sected with great skill and power ; but his suggestions 
as to details of what ought to be in place of what was, 
have never to any considerable degree commended 
themselves to men concerned with maintaining practical 
justice. Mr. Field s genius was essentially constructive. 
He conceived the simple, well proportioned system that 
the country needed, and his attack on what was, he 
carried on simply to make way among the old law for 
the introduction of the new. 

The foundation of the new structure was laid in the 
declaration that the Supreme Court has general juris 
diction in law and in equity, and that all the forms of 
action heretofore existing are abolished. 

The main pillars of the superstructure were the fol 
lowing regulations : 

1. Pleadings are to state facts, and state them truth 
fully, as it is proposed to prove them on the trial. 

2. Equitable defences and counter-claims are avail 
able in all actions, so that one who formerly had to 
bring a new suit in chancery to enjoin an inequitable 
use of process at law could now state Jris objection as 
a defence to the action brought against him. 

3. The power exercised by the chancellor in equity 
suits to compel parties to testify and to produce their 
books and papers was conferred on the court for all 
actions. 



89 

4. If the evidence at the trial (which now must be 
taken there openly in all actions, instead of the secret 
method of exparte examinations allowed in equity) varies 
from the pleading, the action should be dismissed only 
where it made a different case (for then the adverse 
party could fairly say that he had not received fair 
warning of what facts he was to try) ; and that any 
variance short of that might be either disregarded or 
be cured by amending the pleading, according to the 
seriousness of the discrepancy, and that the court might 
allow amendment to supply an omitted allegation. 

The Code of Procedure embodying these principles 
and carrying them out by readjusting the mechanism 
of an action accordingly, made in the form first adopted 
a statute of 371 sections, filling less than seventy pages. 

Then ensued a contest bet ween the conservatives and 
fossils of the bar on the one hand and the progressives 
and young men on the other which lasted for years. 
Before the objurgations against the new procedure died 
out the code had been adopted in some twenty-four 
States and Territories, and in other apparently con 
servative States, where the name of code is not spoken, 
these four leading principles have been adopted in 
statutes designated as Practice Acts, &c.; and in some 
of these instances the terse, vigorous, and untechnical 
language in which Mr. Field expressed them is copied 
word for word. The extent of the adoption of the code 
as such does not measure the influence of his work. It 
is not too much to say that, with a few local and unim 
portant exceptions, the main features of the new pro 
cedure have been accepted throughout the country, and 
have been accepted in other respects even where the 
distinctive tribunals and the contrast between suits at 
law and in equity survive. 



90 

Mr. Field s reform of judicial organization and pro 
cedure was only the first step in a scheme of general 
improvement in both the form and substance of the 
law. His conception was noble in its breadth and 
simplicity, admirable in its clearness. Its feasibility, 
or the usefulness of any practicable execution of it, is 
the great question which divides professional opinion 
to-day. 

His conception was, all law reduced to the form of a 
statute, so that a man could carry in his hand the printed 
record of all that the State ordained for the regulation 
of human conduct. 

The basis of his arrangement of the law was : 1, a 
Political Code, to contain all that part of the law which 
public officers and citizens having to do with public 
officers need to know ; 2, a Civil Code, to contain all of 
the law that members of the community need to know 
in regard to their civil rights, duties, and responsibilities 
in respect both to personal relations, property, and ob 
ligations ; 3, a Code of Procedure (already spoken of) 
which should contain all of the law that courts and 
lawyers engaged in the administration of civil remedies 
need ; 4, a Code of Criminal Procedure for the courts 
and bar engaged in criminal cases ; and, 5, a Penal 
Code, to contain the law of crimes and the correspond 
ing punishments. 

The success and the finally conceded usefulness of 
the Code of Procedure led to the adoption after some 
years of the Code of Criminal Procedure and the Penal 
Code. The great contest not yet concluded has been 
waged over the Civil Code. The ablest, most experi 
enced, most learned, and most fit experts in the pro 
fession are divided in opinion both as to the desira- 



91 

bleness of reducing the law to the form of a statute 
and as to the success of this particular effort in that 
direction. 

It appears to me probable that the Civil Code would 
long since have been adopted in the State of New York, 
as jt already has been in several other States, were it 
not for two reasons, which, if I am not mistaken, have 
thus far turned the scale against it. 

In the first place, it contains many new provisions 
changing the existing law. 

Another cause of the delay to adopt the code I think 
may be seen in the general want of confidence in legis 
lation as compared with the work of the courts. If 
our legislators were as faithful in their public services 
as our judges, the community would be more ready to 
accept at their hands a body of law reduced to the form 
of a statute. But such a code the legislature would be 
likely to amend every year, as they do other work of 
their own, according to the pressure brought to bear 
upon them ; and the distrust of the legislative power 
which recent times have aroused has been very unfav 
orable to the progress of codification. 

The last great work undertaken by Mr. Field was the 
International Code, of which Mr. Abbott says it is the 
crowning work of his life.* Here, with an energy and 

* It is stated in one of the notices printed above : 

"At the meeting of the British Association in Manchester in 1866, 
Mr. Field proposed a revision of the entire body of international law. 
He was appointed then a member of a committee of jurists from dif 
ferent countries to make a revision that would be acceptable, or that 
should become the basis of a revision. It was not possible for the 
committee to act in concert, aud Mr. Field took the whole work upon 
himself. The result of his labor was a large volume, which he pre 
sented in 1873 to the Social Science Congress. It was entitled Out 
lines of an International Code. It attracted the attention of the 
most eminent jurists in the world, and has been translated into French 
and Italian." 



>-*- 




TJSITBH 



industry which left all the other members of the com 
mittee behind, he formulated the great principle of the 
external policy of nations in their relations with each 
other, in a clear and systematic arrangement. This 
statement of international law embodies all the rules of 
general acceptance found in the writings of jurists whose 
authority is recognized at the present day, and it in 
cludes also a codification of all the conventional pro 
visions common to many treaties between different 
nations, now in force ; so that it may be truly said to 
embody a consensus of opinion on the whole field of 
the law between nations. Its close adaptation to ex 
isting law has made it already an accepted authority 
often cited by writers on international law, although it 
has not yet received governmental adoption. 

The admirable qualifications of Mr. Field for the 
great task which he accomplished would not have been 
complete without his advanced conception of the law 
itself. He was not a "case lawyer." He appeared to 
survey law in the direct relation which the whole and 
each part bears to public welfare. Without discussing 
the metaphysics of the subject, he seemed to regard the 
law as a system of partly developed principles ; a few 
of which are familiar to all intelligent men ; some of 
which have been through long discussion reduced to 
clear and concise statement capable of being under 
stood by all intelligent men ; and others of which are 
yet involved in uncertainty and controversial discussion, 
but which he held must be reduced to the same form. 
He dealt with the law as a system of principles. I can 
not remember in our conferences a single instance in 
which he mentioned a case as an authority, save in con 
sultations in which he was simply preparing to argue a 



93 

case in court. Conflict and confusion in authority were 
no obstacle. He wished to know if they existed, to 
take the measure of the doubt, and to clear it up by a 
statement of the principle. His labors in codification 
were in the knowledge of the relative value and place 
of great principles, the discernment of certainty in the 
midst of others doubt or dissension, the organizing 
faculty which saw these principles in a scientific rela 
tion and expressed them systematically as a harmonious 
whole. 

His work will never be forgotten, because it forms a 
conspicuous part of the progress of man himself toward 
that intelligent regulation of life which is the object of 
all law. 



THIS BOOK IS DUE ON THE LAST DATE 
STAMPED BELOW 



AN INITIAL FINE OF 25 CENTS 

WILL BE; ASSESSED FOR FAILURE TO RETURN 
THIS, B*OOK ON THE DATE DUE. THE PENALTY 
WILL INCREASE TO SO CENTS ON THE FOURTH 
DAY AND TO $I.OO ON THE SEVENTH DAY 
OVERDUE. 




JUNO 8 1999 



< * <. 

C < CC 



LD 21-50m-l, 3 



CCICCC f C 



&x 



50581 



, i< c <c 

" C< C C 

* \*il 

v .C C . ^ 

co C< c- C 

c ^ < < 



C 

cl 

- < 



cc.ccc 

C C .CO 



<LtC C< O C- 

< c c < c ( OC c - 

< <: f.C c C cf 

c <" < ^ cr / <-- 
XCC^^ k (Cv 



r ^c c 

C "< C C 

c rccc 

C < C.C..C 



c c 

< c C 

c <- C 



X(x<c, 
^^( ^M 
. cCs 



CCCCC C i c 

^ (C C CC C 

ca c<r c c < c 

< i C C <t c C 

acXvC ^< ^ 



vC*C <. C < 
o<C <^ C 






A 



it 



WTL 



*n 



V s **? 



AW 



- ,