The Green Bag
448
recent times, has done such work as Indeed the rise and development of bar
ably no one in this country had a greater genius for code-making or labored more diligently or for a longer period in that
associations throughout the country has
work than David Dudley Field.
made such private commissions not
not fair to charge to him the huge mass of detail now known as the New York Code of Civil Procedure. But in that
that of these purely private agencies.
merely feasible but highly desirable as means of careful study and scientific drafting of legislation of a non-political character. It would seem therefore, in
view of the difficulties always involved in legislative provision for the expense of public commissions, that the bar associations, through committees or commissions appointed at their instance, are the agencies to which we must look
in practice. On that theory, I propose the following as a second proposition in a practical program of procedural re f0rm:—
II.
A practice act should be drawn
in the first instance by a commission
It is
code as he first drew it, for it was chiefly his work, there proved to be deficiencies of the most serious character; and his later codes have been pronounced by one of the ablest of modern juristic
critics striking examples of misguided ambition.” In this state, however, we have a draft at hand, in Mr. Gilbert's proposed Act in Relation to Courts,
which may well serve as a basis of work for a commission.
No one can read
that proposed act in its final form with out respect and admiration for they industry, learning and practical sense of
or committee appointed under the aus pices of [he State Bar Association, upon which judges, both of appellate and nisi
as a draftsman. But it is no reflection upon any one to insist that important
prius courts, practitioners, law-writers and law-teachers are all represented; the draft drawn by such a body ought to
wisdom of many and must be subjected in advance to criticism from every point
its author and above all for his great skill
legislation must represent the combined
be published and submitted to the bench,
of view from which light may be shed
the bar, the several local bar associations,
upon it. Hence we ought to insist that a practice commission be com
and critical jurists generally, for examina tion and criticism; after a suflicient period of criticism, the results thereof should be compiled, and the draft should be re-examined, in the light of such criticism, section by section, by an enlarged commission or committee, and amended, added to, or redrawn whenever
desirable changes or additions have been suggested. Only the final and perfected draft, so arrived at, upon approval by the State Bar Association, should be submitted to the legislature.
In framing this program, I have tried to devise one which would be practicable
in any of our jurisdictions.
pletely representative. And the work of the late Dean Ames upon the 'pro
posed Uniform Partnership Act and of Professor Williston upon the Uniform Sales Act, at the instance of the Com
missioners on Uniform State Laws, shows the utility of placing writers and teachers upon such committees along with men of action. But, more than anything else in this connection, we ought to insist upon thorough work in the first instance, at the risk of making slow progress, to the end that when done the work shall be done indeed.
Hence I
The New York Code of 1848 was
have assumed that the draft must be the work of more than one man. Prob
'5 Pollock. Law Of Fraud in British India. 122. See also pp. 20, 95. 99.
