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 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.