Spine of American Law: Digital Text Analysis and U.S. Legal Practice | The Ameri...

Abstract

In the second half of the nineteenth century, the majority of U.S. states adopted a novel code of legal practice for their civil courts. Legal scholars have long recognized the influence of the New York lawyer David Dudley Field on American legal codification, but tracing the influence of Field’s code of civil procedure with precision across some 50,000 pages of statutes is a daunting task. By adapting methods of digital text analysis to observe text reuse in legal sources, this article provides a methodological guide to show how the evolution of law can be studied at a macro level—across many codes and jurisdictions—and at a micro level—regulation by regulation. Applying these techniques to the Field Code and its emulators, we show that by means of a combination of creditors’ remedies, the code exchanged the rhythms of agriculture for those of merchant capitalism. Archival research confirmed that the spread of the Field Code united the American South and American West in what scholars have taken to calling a “Greater Reconstruction.” But instead of just a national political development centered in Washington, we show that Reconstruction was also a state-level legal development centered on a procedure code from the Empire State of finance capitalism.

At the opening of the first Nevada legislature in 1861, territorial governor James W. Nye instructed the assembly that they would have to forsake their inherited Mormon statutes, which were ill adapted to “the mining interests” of the new territory. “Happily for us,” he said, “a neighboring State whose interests are similar to ours, has established a code of laws” attractive to “capital from abroad.” That neighbor was California, and Nye urged that California’s “Practice Code” be enacted in Nevada, as far as it could “be made applicable.”1 Territorial senator William Morris Stewart, a famed mining lawyer who would lead the U.S. Senate during Reconstruction, followed the instructions perhaps too well. Stewart literally cut and pasted the latest Wood’s Digest version of the California Practice Act into the session bill, crossing out the words “state” and “California” and substituting “territory” and “Nevada.” (See Figure 1.) Stewart copied not just California’s code but also its method of codification, for California had in turn borrowed its code by modifying New York’s.

Nye wrote back to the assembly in disgust. The bill—715 sections long—had reached him late the night before the legislative session was to close. Even in the few hours he had to read it, he counted “many errors in the enrolling of it, numbering probably more than three hundred.” Some of the problems were severe. The code, for example, overwrote the specific jurisdictional boundaries of Nevada’s Organic Act by copying California’s arrangements. Error-riddled and unconstitutional as the bill was, Nye believed that a civil practice code was a “universal necessity and public need,” and he doubted “whether your courts would be able to fulfill the purpose of their creation” without one.2 He signed the code into law.

Nothing like this “universal necessity” existed when Nye began his legal career in New York in the 1840s; rather, it was one of the central developments of American law after the mid-nineteenth century. By 1900, thirty-one American states and territories had adapted the text of a New York code of civil procedure first promulgated in 1848. (See Figure 2.) The code became known as the Field Code, after its chief draftsman, David Dudley Field, a Manhattan trial lawyer.3 When Field’s code appeared in the Colorado assembly in 1876, a Denver newspaper wryly commented, “The scissors and paste-pot we had heretofore confidently believed were implements peculiar to the newspaper sanctum.” To the editor, the cut-and-paste code threatened the foundations of American popular sovereignty. “The bill is a long one; the assembly has not the time to devote to it and to give it the scrutiny that a measure of such importance demands.” Though legislators claimed that the code had been adapted to the needs of the state, the newspaper feared that the legislation was the product of “men who have the welfare of the ‘dear people’ at their tongue’s end always, but never in their hearts.”4

The migration of the Field Code was a central event in Anglo-American legal history, but no historian has traced the extensive borrowings of the Field text in detail or recognized the political furor that greeted the code outside New York.5 Every aspect of a civil justice system, from the rules granting access to courts, to lawyers, and to remedies (whether damages, injunctions, or seizure of property), was covered by the code, making its New York–specific rules politically contentious both inside and outside the Empire State. As the Field Code migrated around the country, commentators in each jurisdiction raised the same complaint: How could legislation borrowed from another state represent the popular will and best interests of this state?

Understanding the history of the Field Code requires not only attention to its political context but also a detailed examination of the substance of what was borrowed and what was revised in each jurisdiction. Exploring these borrowings is a daunting task, however. Procedure codes were long, technical documents. Although each jurisdiction copied large swaths of text, each also modified the text along the way, sometimes substituting a simple “Nevada” for “California,” sometimes making more foundational changes to civil remedies. Stewart’s cut-and-paste code found its way into the archives, but most draft legislation did not, and few codifiers explained in detail how they produced their texts. Traditional close reading or textual criticism of roughly 50,000 pages comprising about 18 million words is simply not a feasible research task for a historian who wishes to track these borrowings.

By turning to the digital analysis of texts, we have resolved this difficulty and tracked how states borrowed their codes of civil practice from one another. We measured and compared the similarity of each regulation within 222 procedure statutes (some 180,000 regulations) to identify borrowings among those statutes. Within the corpus of legislation, computational analysis of texts can reverse-engineer and visualize what the archive revealed for Nevada: which texts were borrowed, which modified, and how extensively. Our method works especially well for legal texts, for reasons we will explain.

The computational analysis of texts is a method that historians can use across the discipline to study many topics. We have used text analysis—specifically, methods to detect text reuse—to show how law migrates through borrowings.6 While we have used a method that discovers borrowings of exact words and phrasings, other forms of digital text analysis can track the diffusion of concepts. Making due allowance for the specific historical questions and sources at hand, computational text analysis is broadly applicable to historical problems that involve the spread of words or ideas. The specific method that we outline could be extended beyond codes of civil procedure to other legal statutes or treatises. Yet it could also be applied to any structured type of text—for instance, to track the spread of hymns in collections of songbooks in religious history, or the reuse of sections of medical textbooks in the history of science.

Since historians by and large work with textual sources and increasingly with digitized texts, computational text analysis should be added to the historian’s toolbox. Lara Putnam has recently explained that digitized texts “make words above all available” for historians to search and read, while observing that “computational tools can discipline our term-searching if we ask them to.”7 But historians have been slow to take up text analysis even as the aid to the commonplace searching and reading that Putnam recommends. As we will demonstrate, however, such methods can guide research by revealing patterns inaccessible to traditional historical methods.8

Our work contributes to conversations in both digital methods and the history of law and capitalism in the United States. Our first contribution is to demonstrate our methods as applied to a corpus of nineteenth-century civil procedure codes. We argue that computational digital history is most productive of historical insight when it is combined with and used as a guide for more traditional historical research practices. And so our second contribution is to integrate what we learned from text analysis with political and cultural history to explain why the migration of the Field Code mattered. On the national level, the extent of legislative borrowing followed a pattern that American historians have described as a “Greater Reconstruction” from 1846 to 1877, in which the former Confederate South and the Far West showed a remarkable kinship.9 Scholars have typically described Greater Reconstruction as a federal development, featuring the creation of national citizenship, a national economy, and a larger federal apparatus centered in Washington, D.C. Enabled by our digital text analysis, we show that Greater Reconstruction had its state-level dimensions as well. The uniform practice of law and adjudication of civil remedies was structured not by Washington mandates, but by the anxiety that New York financial capital would follow only New York civil remedies. Our computations trace modifications within code traditions, such as the ways in which western and midwestern codifiers altered New York’s law to accommodate hardening conceptions of racial competencies in the civil courts—and in the markets those courts regulated.

Thus, in addition to traditional legal concerns with jurisdiction, federalism, and the separation of powers, the spread of the Field Code marked a signal event, hitherto unrecognized, in the history of capitalism. Through a combination of provisions on the timing, processes, and execution of creditors’ remedies, the code was perceived—by lawyers, their clients, and their adversaries—to exchange the rhythms of agriculture endemic to common law practice for the quicker transactions and liquidity demanded by merchant finance. Whether this perception was grounded in the realities of legal practice is a topic for further study. For now, the important point is that so mundane a field as civil procedure became a subject of front-page news editorials, town hall meetings, and even popular novels precisely because nineteenth-century Americans understood that their credit, their businesses, and their homes were at stake in the choices the codifiers made. Although this story may appear obvious once it is visualized, these patterns could be revealed only by computational analysis, which then guided further archival research.

Until 1848, civil remedies and trial practice in New York were largely governed by common law traditions loosely categorized as “practice and pleadings.”10 To understand how to file a civil claim or to enforce a judgment, a lawyer had to consult ad hoc statutes from colonial times to the present as well as precedents reported from cases litigated at common law and in chancery. By the 1840s, enterprising practitioners had collated these materials into a half-dozen treatises, but these remained works of private opinion—no court was bound to agree with the treatise writers as to the weight, relevance, or proper interpretation of a legal statement.11 The common law was accordingly known as “unwritten law” despite the proliferation of published texts, because the common law was not precisely determined until a particular case demanded resolution.12 Statutes, on the other hand, were “written law,” prescribing or reforming the rules even before a case put the precise question in issue. Within the realm of written law, codes were the ultimate statutes.13

Codification is, as Lawrence Friedman has written, “one of the set pieces of American legal history.” Law reformers nationwide advocated for a codification of the common law from the earliest days of the republic through the Gilded Age. Efforts ranged from mere compilations of existing statutes to a full European-style codification meant to be an entirely comprehensive and systematic statement of the law.14 Codification proposed that legislative policy ought to be the sole source of law. Law was to be made by democratically responsible legislators in terse, unambiguous statements, not discovered through application and analogy in particular cases by judges.15 Debates over codification thus ranged from the metaphysics of law to political theories of institutional competency and the separation of powers.16

The importance of codification extended far beyond the United States. Napoleonic France promulgated a series of codes in the early nineteenth century, Germans debated the wisdom of codification after Napoleon’s fall, and in the 1860s the British imposed codes on their colonies in India and Singapore. Many American lawyers followed the international development of these codes with interest, viewing codification as the leading edge of modern legal science.17

In New York, these codification debates came to a head at the 1846 constitutional convention, where “the conquerors took all,” as the ambivalent Jacksonian James Fenimore Cooper complained.18 Law reformers abolished the court of chancery, made judges stand for popular election, and required the legislature to appoint commissioners to codify the law and reform the “practice and pleadings” of the civil courts.19

New York codifiers had two models of legislative commissions on which they could draw. Napoleon’s government had appointed five-member commissions to codify French law. When the New York law reformer William Sampson called for codification in a widely noted address to the New-York Historical Society, one of the French commissioners living in exile in upstate New York advised him to “let four or five good heads be united in a commission, to frame in silence the project of a code. [Select from] your best authors as we did with ours, and principally with Pothier’s treatise on Obligations, which we simply converted into articles of our code.” Tellingly, the Frenchman took it as granted that a commission’s code would automatically be promulgated as law.20

The other model came from England. Royal commissions had been employed since before the Revolution of 1688 to advise on a variety of matters. Although by the mid-nineteenth century royal commissions sometimes offered model statutes, Parliament’s exclusive legislative prerogatives forced any recommended bills to pass through the normal politicking and drafting processes.21

After David Dudley Field and two other lawyers were appointed to New York’s procedure commission, their reports made clear that they favored the French model but understood that political realities would hold them to the English model. From 1847 to 1850, the commissioners made five reports to the legislature knowing they had no power to keep legislators from amending their code or voting it down altogether. Each time they reminded legislators that “public opinion had issued its mandate in the most imposing form” of a constitutional decree. The popular will embodied in the new constitution “promised them therefore in advance, so long as they obeyed those instructions, the concurrence and co-operation of all departments of the government.”22 Although the theory of codification made it a democratic enterprise, in practice Jacksonians such as Field insisted that the democratic legislature ought to defer to the expertise of the commissioners.

The Field commission sought to blunt criticism by insisting that political concerns about lawmaking did not apply to mere procedure. “The system of procedure by which law is administered, differs from the law itself in this,” the commissioners explained: “the latter is a body of elementary rules founded in the immutable principles of justice, drawing their origin from the obligations which divine wisdom has imposed … ; while the former consists, in its very nature, but of a body of prescribed rules, having no source but the will of those by whom they are laid down.” Substantive law was universal, natural, grounded in divine justice, and therefore entitled to respect and protection from change. But God cared nothing about “the mere machinery by which law is to be administered.” Thus, the commissioners argued, procedure was trivial enough for legislative experimentation but complicated enough that only master practitioners such as they could run the experiment.23

Yet the code’s scope of “procedure” included far more than the “mere machinery” of a lawsuit. The final draft of the code, printed in 1850, spanned nearly 800 pages of 1,885 regulations. The first third of the code covered constitutional topics, specifying the jurisdiction of all state courts and the duties of all state officers (and liabilities for violating those duties). The code deregulated attorney compensation, introducing novel structures of retainers and contingency fees.24 It created summary procedures meant to accelerate debt collection while simultaneously carving out “homestead” exemptions from the sheriff’s reach.25 It concluded by defining who could be an attorney, a juror, and a witness, drawing racial and gendered distinctions regarding who could speak in court.26

Most important, the code defined all the remedies that a civil court could order—from money damages, to partition of property, to injunctive decrees and contempts—and made those remedies available in every lawsuit. In many cases, a legal right was indistinguishable from the remedy that secured that right: the right to possess a particular piece of property and the remedy that seized and delivered that property were, in effect, the same thing. Remedies were thus tightly tied to substantive law. For that reason, neither the French code de procédure civile (1806) nor William Blackstone and Jeremy Bentham’s writings conceived of remedies as purely procedural.27 By codifying remedies, Field invited continual expansion of the category “procedure.” As other states adopted the procedure code, they sometimes included other fields of law that seemed obviously “substantive” yet had such specific procedures or remedies that they were placed in a “code of procedure.” Such fields included the law of wills, corporations, and mortgages.28 After all, argued procedural codifiers in Iowa, what did the famed Married Women’s Property Acts offer besides procedural reform? These acts gave women standing to litigate in their own name and seek remedies in claims of property and contract, and they abolished mandatory rules of joinder (of husbands). Standing, remedies, and joinder were all considered sub-departments of procedure. Thus, one of the most significant changes to the law of property and domestic relations in the century went into that state’s Code of Civil Procedure.29

Field’s arguments that a mere procedure code was democratically unproblematic were not entirely successful in New York. The commission submitted a draft of its main reforms in 1848, emphasizing that this first code was “but a report in part.” New York’s legislators enacted the partial code with little amendment, some even repeating Field’s view that the constitution obligated them to accept the code.30 But when the commissioners submitted an extended draft in 1849, the assembly judiciary committee balked, directly disputing the commissioners’ claims that procedure was merely the machinery of the law. The “provisions for rights and for the mode of pursuing remedies, insensibly run into each other,” the committee reported, complicating legal practice “infinitely more than any machine of human contrivance.” They therefore suspected that the commissioners’ forthcoming code of criminal procedure would include all of the criminal law as well, “as they seem to understand practice and pleadings to include all the law upon a given subject.” That being the case, the committee wondered whether they should “place in [the commissioners] a blind and implicit confidence that shall commit to their discretion the peace and property, the personal liberty and the lives of those who sent us here to make laws for them?”31 Under such relentless criticisms, Field’s final draft was defeated in New York. A central irony of American legal history is that “the New York Code” that dominated the legal practice of so many states was never fully the procedural law of New York itself.

The Field Code encountered similar difficulties in each jurisdiction that adopted it. Even the shortest version of the code was significantly longer than any other state statute before the Progressive legislation of the twentieth century.32 In the states where it was imported, there was no getting around the fact that the code introduced new law, yet legislators were unable to read, critique, and amend the code within the brief period of a legislative session. “It is folly to undertake to pass a code in a sixty day session,” wrote the Montana Post, “and the best way would be for the Assembly to select one from a State or Territory which would come near meeting our wants, and slide it through with the fewest changes possible.”33 Sliding the code through eased the problem of time but exacerbated the problem of local sovereignty. “To be governed by a foreign law, especially when that law is not preknown to the people whose conduct is to be regulated thereby … is something repugnant to the idea of Democratic Republican government,” complained the Miner’s Express in Iowa.34

How, then, did states and territories achieve a politically acceptable balance between efficiency and sovereignty, borrowing law for the sake of time but endowing it with popular legitimacy in each locale? Quite apart from the technicalities of legal practice, the federation of civil government into more than thirty or forty separate jurisdictions (depending on the year) makes it hard to understand a phenomenon that was truly national despite its state-centered enactments. It requires a sense of how much law was borrowed in each location and to what degree innovations were introduced. But precisely because these questions concern codes—texts that comprehensively and systematically cover a given subject—they are ideal sources for the techniques of digital history.35

To discover how the Field Code migrated to other jurisdictions, we compiled a corpus of potentially relevant laws, including separately bound codes of civil procedure as well as codes or statutes appearing within session laws and statutory compilations from around the Atlantic world. The corpus comprises 222 statutes from the nineteenth century, which amounts to about 18 million words organized into about 180,000 regulations. It includes every U.S. code of civil procedure, as well as most other significant American procedure statutes and codes from jurisdictions reputed to have been legally influential, including French and British codes. It does not include every possible nineteenth-century regulation of procedural law.36 While a comprehensive project might be illuminating in its own ways, our specific question of how New York legislation influenced other American jurisdictions permits a more curated corpus, one focused on lengthier, more systematic regulations.

Curating a corpus to answer a specific question is one of two ways in which computational text analysis can proceed. Text analysis—like all historical work—can begin with either a corpus looking for a question or a question looking for a corpus.37 Computational text analysis in digital history is often conceived of as beginning with sources, particularly with large datasets such as the Google Books, HathiTrust, or Chronicling America corpora. These large corpora are sometimes called “big data”—though almost never by digital historians who actually work with them—on which “distant reading” can be practiced.38 It is not apparent, though, that digital historians can readily move from these omnibus corpora to answering the specific research questions that animate various historical fields. While digital historians take a variety of approaches to their work, we have found that these methods are most useful when mixed with more traditional approaches for forming historical questions and reading historical evidence. In this instance, computational methods provide the central evidence for our argument, but that argument is motivated by our knowledge of the central questions in American legal history and nineteenth-century U.S. history, and it also depends for evidence on a close reading of legal texts that was guided by the results of our digital methods.

We demonstrate an alternative to starting with large-scale corpora, an approach that we might unimaginatively label “medium data.” The amount of legislation that governed American civil practice is impressive, since every state amended and reenacted procedure statutes nearly every decade. But while a corpus of procedural legislation requires some computational sophistication, the techniques are less complex than those created for truly big data. We have gathered a large but narrowly constrained corpus centered on solving a well-defined research question.39 This corpus is large enough that digital history methods provide results that a scholar could not obtain through traditional methods, but sufficiently circumscribed so as to directly address a discipline- and field-specific question.40

Because most codes were public statutes, they were widely printed and distributed and therefore found their way into libraries digitized by Google Books. We took texts primarily from Google Books, filling in gaps from other databases as necessary. We used optical character recognition (OCR) software to create plain-text versions of the codes, which we edited lightly, correcting section markers by hand as necessary and writing a script to fix only the most obvious OCR errors.41

The most important step we took in processing the files was to split each section of the code into its own text file. Codes varied in how they were organized, but they all divided specific regulations into sections (or, on occasion, articles). Not only does the discursive form of these texts provide a handy organizational scheme for digital methods, but sections were also the unit by which legislators borrowed their texts. Codifiers took their sources apart by sections, rearranging here, editing, drafting, and recombining there. (Refer again to Figure 1.) Despite the fact that states differed widely on what topics they included in “civil procedure,” sectioning the codes allowed us to assess similarity even among codes of quite different lengths and coverage. For instance, California’s 1851 code was derived from New York’s 1850 code.42 But the New York code is over 150,000 words long, whereas California’s code was just over 50,000 words long. Those disparate lengths mean that comparing all of the California code to all of the New York code is less meaningful than comparing each section in the California code to each section in the New York code, where matching sections will have a similar length.

Having divided the texts according to a historically justified pattern, our next step was to compare each section to every other section and measure the similarity between them. To continue the New York–to–California example, consider the pairs of sections in Figures 3 and 4. The first pair is from the final draft of the New York Field Code. These sections completely abolished prior practice and began to rebuild the procedure system from the ground up. (See Figure 3.) In the theory of Euro-American lawyers, California had no prior practice to abolish, so the code began more simply. (See Figure 4.) The pairs are obviously related to one another, both in terms of their legal force and in terms of the actual words used.

A common method for measuring the similarity of two documents involves dividing texts up into tokens of consecutive words (called n-grams) and calculating a Jaccard similarity score, defined as the ratio of the number of tokens that the two documents have in common to the total number of tokens that appear in both documents. We used five-word tokens and shingled them, meaning that for the New York sections above, the first token was “the distinction between actions at,” the second token was “distinction between actions at law,” and so on. These tokens each contain more meaning than a single word, yet because they are shingled, they are robust to changes in the text or noisy OCR. A Jaccard similarity score will always be in a range between 0 (complete dissimilarity) and 1 (complete similarity).43

Comparing the pair of sections from New York in Figure 3 to the pair of sections in Figure 4 yields the similarity matrix in Table 1. As expected, the first sections (New York § 554 and California § 1) have a score of 0.14, which indicates that they are similar but have significant differences, while the second sections (New York § 555 and California § 2) have a much higher similarity score of 0.41, since only a few words were changed. Just as important, when we compare the first section in New York to the second section in California, we get a score of 0; the two sections have nothing in common.

The aim, then, was to create a triangular matrix like the one above, but with approximately 180,000 rows and 180,000 columns, containing the similarity scores for each possible pair of sections. While this is easy to conceptualize, such a matrix is quite large, containing about 16.2 billion comparisons. A naive computation of all pairwise comparisons would take an unreasonable amount of time, and most comparisons are unnecessary since each section has no relationship to most other sections. We therefore implemented the minhash/locality-sensitive hashing algorithm to detect pairs of possible matches quickly. Instead of comparing all pairs of documents, this algorithm samples tokens from each document to find probable matches, and then Jaccard scores can be calculated for only those candidates, eliminating needless comparisons.44

The result was a similarity matrix from which we removed anachronisms and spurious matches.45 For each section in the corpus, we identified which section of a previous code (if any) it was most likely derived from, identifying about 106,000 such borrowings. In other words, we traced the work of the commissioners’ scissors and paste-pots through the course of their codes.46

The computational evidence that we assembled revealed patterns in how law migrated. These patterns are apparent at several different scales of analysis, as revealed through different methods.47 We used the similarity matrix as the input to three different computational methods: network analysis, visualizations, and clustering.

At the broadest scale of analysis, we aggregated the section-to-section borrowings into a summary of how many sections each code borrowed from each other code. We therefore can show the connections from one code to another. The resulting network graph reveals the genealogy of civil procedure in the United States. (See Figure 5.)

The New York Field Codes, especially the finished draft of 1850, were central to the entire network.48 Variations in the Field drafts meant that different states could borrow different versions of the Field Code. Field’s 1850 draft—which was never actually enacted in New York—was the primary progenitor of several families of codes headed by California, Kentucky, Iowa, and Ohio. The 1851 New York code—a small revision to the original 1848 code—became the progenitor of codes headed by Wisconsin, Florida, North Carolina, and South Carolina. While Field considered the 1850 version to be the definitive, ideal version of the code, all of the New York codes from 1848 to 1873 became models for other jurisdictions. In many cases, the commissions likely used whatever version of the code they had at hand. The Field Code was not a single volume on the shelf, but a series of drafts, any of which might be more accessible in different regions and in different years.

First-generation borrowers in turn became major contributors to the law of neighboring states. For example, as detailed below, California contributed its code to Oregon and Washington, as well as to later versions of its own code. Iowa was a model for Utah, Nebraska, and Tennessee. The codes that constituted a regional family tended to be even more similar to one another than the original borrower was to New York. New York was clearly the center, but the peripheral states developed strong regional traditions.

Even later New York codes can be considered a separate family. In 1876, a New York commission produced a new code attempting to consolidate all the case law and statutory amendments subsequent to the 1851 Field Code and in part repudiating some of Field’s central reforms. A count by a “friend” of Field’s found with dismay that only three sentences of his original code had carried over word-for-word into the latest edition. With respect to Mr. Field or his “friend,” we found that the connection between the codes was somewhat stronger than he thought, although his conclusion that the 1876 code did “not appear to be the same thing as before” remains sound.49

Finally, the network identified from our corpus included a number of statutes that stood outside the Field Code tradition, such as Virginia and West Virginia regulations, statutes from Massachusetts and Maine, and southern codes from Georgia to Louisiana. These statutes show that the dominance of the Field Code was not total, and a number of older jurisdictions remained outside its ambit.50 But nearly every jurisdiction established or reconstructed after 1850 became a part of the Field Code network, and no other tradition achieved anywhere near the same coherence across state lines.

In addition to the overview of the relationship between codes, we can also see more detail by visualizing the pattern of borrowings within each code. To illustrate this, we will follow one branch of the Field Code network, beginning with the family started by California’s 1850 and 1851 codes.

California’s 1850 code, enacted in the period when California was entering the Union as a state, was borrowed almost entirely from New York’s 1849 Field Code. (See Figure 6.) The compiler, Elisha Crosby, did lift one portion from the mixed civilian/common law code of Louisiana, the rules for ordering a new trial to revisit an earlier jury’s verdict. New trials were not provided for in the New York code until the finished draft in 1850. Most of the unborrowed sections organized the local courts in ways peculiar to each state. (No jurisdiction copied New York’s byzantine array of county courts, probate courts, and multi-level appellate courts.)

When Stephen Field revised California’s code in 1851, he largely redrafted it from the updated code his brother David Dudley had completed for New York in 1850. (See Figure 7.) This includes the portion of the code on new trials previously borrowed from Louisiana.51 The remainder of the code was borrowed from the 1850 California code. (Many of the non-matching sections are tables of contents or local court organization.) Thus California based the majority of its law of civil remedies entirely on New York’s code not once, but twice. California made few innovations to the Field Code.

The pattern of borrowings in the 1855 Washington code was rather different. (See Figure 8.) The Washington code was in the lineage of the 1851 California code, since it borrowed sections from California’s directly as well as from Oregon’s (which was also derived from California’s). The contiguous bands of borrowings correspond to regulations on judgments borrowed from Oregon and enforcement provisions borrowed from Indiana, a puzzling pattern given that the actual substance of these regulations hardly differed between the two states. But when the lives of the code’s authors are examined, it turns out that one of the Washington code commissioners, Edward Lander, was an Indiana appellate judge from 1850 to 1853, while another commissioner, William Strong, was a justice of the Oregon Supreme Court in the same years. While working on the Washington code, each likely used the law he knew best and the law books he had on the shelf. Even though these diverse sources basically agreed on the content of the law, our method picked up on the slight nuances in wording to reveal the precise division of labor among the commissioners, long after their handwriting has disappeared from the archives.

Finally, we can examine one of the outermost leaves on the Field Code family tree. Washington’s revised code of 1873 was taken from the earlier Washington code with only small amendments. (See Figure 9.) The main exception was probate regulations drawn from California’s 1872 code. Like many of the last-generation codes, the text of the procedure code had stabilized as a local manifestation of a regional tradition. The code was still genuinely a Field Code, with a great deal of similarity to the original New York Field Codes, but its specific form depended on edits and rearrangements that code commissioners from several states had made to the text.

The network and visualizations of borrowings lead to several conclusions. First, despite its common moniker “the Field Code,” the procedure code that emanated from New York to the American periphery was the product of hundreds of commissioners, legislators, and lawyers-turned-lobbyists working out scores of draft codes.52 Second, the modifications and adaptations of the codes showed that change was possible. Not every jurisdiction felt compelled to take the Nevada approach of wholesale borrowing, and in many cases the fact of change makes it possible to discern a reason for the change. Textual evolutions—which we can now trace with precision—tell us about the evolution of ideas. Finally, the data show that in the normal course of codification, jurisdictions tended to import their procedural law almost entirely from outside the state, with few internal traditions remaining part of the jurisdiction’s procedural and remedial law. Only after a state had adapted another jurisdiction’s procedure code did it consistently reenact its own law, only occasionally bringing in external law or substantially reforming its own.

So far we have retained the context of the surrounding sections within a particular code. But since our fundamental unit of comparison is the section, we used a technique called clustering to group sections based on their similarity to one another. For example, take the sections of the New York and California codes above that regulate the form of civil action. (See Figures 3 and 4.) The clustering algorithm groups those two sections along with all other sections derived from them, regardless of which procedure code they come from. Each cluster is a list of all the sections that have a genealogical relationship with one another.53

The result was a set of approximately 6,300 clusters (each with a minimum of five sections). The biggest cluster, which described the difference between law and facts, contained over one hundred sections—that is, over one hundred codes contained the same section on the law-fact distinction, or one substantially like it. Within each cluster, we sorted the sections chronologically, which enabled us to see the development of the law from jurisdiction to jurisdiction over time. This method provides historians with a way of noticing small changes in the wording and substance of the law. Most discussions of algorithmic reading have focused on “distant reading,” or have balanced the claims of distant reading by using it as a means to enable close reading. Our method of clustering, however, is a kind of algorithmic close reading. By deforming the texts—taking them out of the context of the codes and putting them into the context of their particular variations—we are able to pay attention to those variations.54

Take provisions regulating witness testimony as an example. In the common law tradition, parties and interested witnesses were not permitted to testify in their own causes. Field’s Code reversed this rule, expanding witness competency as widely as possible: any person “having organs of sense” was to be admitted as a witness in New York, with only the insane and very young children possibly exempted. As the code migrated west, however, legislators added racial exclusions to Field’s list. The clusters of sections on witness competency show that California’s codifiers grafted earlier prohibitions on African or Native American testimony from midwestern states into Field’s Code. Many other codes then evidenced a remarkable uniformity with California’s text (which later changed only to add “Mongolian” to the list of races).55

Overall, fifteen states and territories that adopted the code overwrote Field’s competency rules with racial exclusions.56 The exclusions were one of the greatest subversions of Field’s reforms, which were premised on a theory that any amount of self-interested testimony—even outright perjury—was preferable to excluding evidence that might have some truth value.57 A couple of states sought to mitigate the contradiction between the acceptance of white perjury and the abhorrence of non-white testimony by excluding only “Indians and Negroes who appear incapable of receiving just impressions of the facts respecting which they are examined, or of relating them intelligently and truly.”58 That too was a textual borrowing, but from Field’s exemption of children under ten years old from testifying. On this reasoning, races could be excluded if the chance for truth was minimal because of infantile incapacities. Even racist codifiers such as Governor Sidney Edgerton of Montana recognized this rule as a fiction. In his reading, the racial exclusions conferred a benefit on “the Negro population” because black litigants could offer testimony in their cases against each other, while white litigants wishing to rely on black testimony were deprived of useful evidence—useful because admittedly true in many cases. Edgerton vetoed the entire Code of Civil Procedure for its racial exclusions. “Our Juries and Courts are composed exclusively of white men and I consider the Caucasian race competent to weigh evidence coming from any witness of any race wisely, justly and well,” he concluded. The legislature overrode the veto without comment.59

These racial exclusions show that not all codifiers were willing to take Field’s bargain and prize truth-seeking above all other procedural values, no matter what discomfort it brought to witnesses and juries. But uniformity in the law, as shown through our clusters, is just as instructive as variation. The most significant clusters that we investigated related to the collection of debts. These were clusters that went against the typical pattern we observed. While most clusters exhibited regional variation as they grew more distant from the Field Code, clusters having to do with creditors’ remedies were almost completely uniform across the American West and South. No single section of the code announced a preference for creditors’ rights; rather, the acceleration of creditors’ remedies resulted from the combination of several sections. In New York’s original enacted code from 1848, § 107 required a defendant to answer the complaint within twenty days, instead of at the next court session (which in some cases could have been as far as three months away); § 202 provided for default judgment issued by a clerk without a judicial order if no adequate answer was received within the twenty days; §§ 128–133 abolished fictitious pleadings and required answers to state true facts verified by a defendant’s oath, all so that no trial would delay the enforcement of uncontestable obligations; finally, the code abolished the traditional thirty-day waiting period between issue of judgment and commencement of execution. These provisions dealt with what merchants perceived as an abuse of the common law system, where defendants in cases of debt could stretch out enforcement of debt collection for as long as two years. The Field Code’s summary judgment aimed to bring down the time of debt collection to a matter of weeks.60 The code thus traded the rhythms of agriculture for the rhythms of merchant finance.

Clustering each of these sections reveals that western states along with the former Confederate states of South Carolina, North Carolina, and Florida copied each provision almost exactly. Midwestern and Upper South states that had already developed and maintained commercial ties to Chicago and New Orleans by 1850 varied the New York rules, sometimes by requiring answers only in term time, or permitting only a judge to decree default judgment rather than a clerk, in either case effectively stretching out enforcement and making a formal trial more likely.61 But in the Reconstruction South, and in the West over the same period, regardless of whether a jurisdiction abolished chancery or not, regardless of the racial exclusions it may have placed on witness testimony, the provisions on debt collection remained unchanged.62 When it came to creditors’ remedies, the law of New York became the law of the land—and of the emerging national economy.

The near-uniformity of creditors’ remedies in Field Code states, as demonstrated by clustering, points out the close link between the rise of modern American procedure and modern American capitalism. Westerners and southerners frequently commented on the seeming imperialism of the New York code and its connections to New York capital, but one must turn to the technical debates over procedure to find these anxieties. Twelve of the states and territories that copied the Field Code most closely did so during the Civil War and Reconstruction era—four states in the former Confederacy and eight jurisdictions in the Far West.63 As with other areas of postbellum history, one learns a lot by holding the postbellum American South and American West together.

In the last decade, scholars of Reconstruction have broadened the scope of their study to include both the South and the West as two sites in one “Greater Reconstruction.” These studies have illustrated the similar ways in which military conquest, rapid industrialization, and the resettlement and education of ethnic minorities developed in each region, guided by political elites in Washington.64 In tracing the legal aspects of this Greater Reconstruction, scholars have focused almost entirely on the expansion of federal power or constitutional rights of citizenship and civil equality.65 While the 1860s and 1870s were of course a transformative period in the history of civil rights and the creation of a national state, they were also the decades in which many local legal institutions and practices were transformed not by federal power but by state codification. Naomi Lamoreaux and John Joseph Wallis have recently argued that in the creation of a modern American economy, “the federal government played no role in this process until the Civil War, and even then it played only a bit part.” The history of the Field Code’s migration helps to substantiate this claim. While Lamoreaux and Wallis focus on the development of banking, transportation, and incorporation at the state level, it was the Procedure Code that structured civil remedies to protect these institutions. And procedure codes were creatures of the states.66

The states that adopted the Field Code had other options available to them. Southern states with a civilian code tradition, such as Louisiana and Alabama, offered alternative ways to reform common law practice.67 Illinois, on the other hand, long retained the common law—in later decades lawyers mocked it as a Yellowstone Park of common law pleading. When Colorado was a territory, it imported Illinois common law via statute, a full seventeen years before its legislature considered the Field Code.68

But what codifiers saw when they looked at New York, more so than at Louisiana, Alabama, or Illinois, was the Empire State of commercial capital. The fears, demands, and desires of a personified Capital continually wielded promises—and threats—in the debates over procedural codification. The early Mormon settlers of Utah persistently avoided the mining frenzy as well as codification. By 1870, however, the territory’s governor directed the legislature’s attention to the recent Code of Nevada, a code “for a people whose interests in many respects are similar to our own.” Of course, standing behind the Nevada code was “the State of New York—a State which is an empire in itself and whose commercial transactions are far greater than those of any other State in the Union.” By copying its code, Utah, too, could be “rewarded by equal advantages.”69 Code proponents in Colorado similarly pointed to the fact that the code had been “adopted twenty-nine years ago by the Empire state of the Union,” and they too hoped that the code of the nation’s commercial empire would bring wealth in its wake.70

When a Colorado legislator scoffed at the idea that capitalists could possibly care about the difference between old common law and modern code remedies, his adversaries rebuked him. “Mr. Hamill replied that he knew of one California company of capitalists who were deterred from investing in mining property here wholly on account of the practice of the courts in mining cases. If we had had this code years ago, Colorado would now have a larger amount of California capital in her mines.”71 Codifiers argued that in attracting capital, procedure was at least as important as the substantive rules of property and contract, because procedure secured the remedies that actually protected investments. “Men of capital and enterprise will not make investments and devote their time and energies to those works of internal improvement,” Nebraska’s governor reasoned, “unless ample protection is afforded them, by legal enactment, for the capital invested and the labor employed.” He therefore urged swift passage of the Field Code.72

Receiving innumerable letters complaining that under the code, “no one will be benefited, except perhaps some Northern Capitalists,” a North Carolina commissioner undertook an anonymous defense of the new code in the Weekly Standard. He encouraged the bar to accommodate themselves to change, for “the New York system … bids fair to become national.” Purporting to give an overview of the code, the articles were almost entirely about credit. “How can we create credit? By punctuality,” the commissioner wrote. “And how create punctuality? by law, and by law alone. Let the law enforce punctuality; let the people of North Carolina learn that the great law of business is, that ‘time is of the essence of the contract.’” Under the more certain and speedy remedies of the code, “we may expect … even that the vaults of the banks of New-York … will be open to our industry.”73

As in postbellum North Carolina, establishing a flow of credit through the remedial system became a leading priority for western lawyers. While the new western history has shed significant light on neglected topics of Native American dispossession and environmental management, it has often done so by leaving out of view matters of political economy, a staple of the old western history. As one work in that older tradition argued, “Debt collection was the central part of law practice for the [western] bar and remained a key part of private practice throughout the century.”74 On that understanding, one Colorado lawyer succinctly summarized the difference between the code and the common law as “whether a merchant had better try to collect a $500 note or burn it up.” Tiring of all the focus on creditors’ remedies, one Colorado legislator observed that he “never knew one of these professionals who undertook to write up the beauties of the New York code, … that he did not also break out somewhere with ‘take for instance the case of an action on a promissory note,’ as though the collection of notes was about all there could be any law needed for.”75

The creditors’ remedies in the code gave the codifiers their leading argument against criticisms rooted in the ideology of popular sovereignty. “There is no doubt but the people are in favor of anything that promises to hurry up … Justice, and they will go for the old code,” one Colorado newspaper announced.76 New York’s “code practice is the best in excellence,” stated another, “and when I say best I do not mean best for lawyers only, but best for the people—the commonwealth.”77 If the people favored economic progress, certainty of remedy, and efficiency in proceedings, then they favored the New York code, no matter whether they understood or cared about technical rules of pleading and remedies. In their arguments, the codifiers imagined themselves the champions of popular sovereignty, for it was they who accomplished what the people actually desired.

Thus by the end of Reconstruction, New York’s domestic empire of capital and creditors’ remedies bore a remarkable resemblance to the international empire administered by England. Both jurisdictions, while reforming the practice of law, remained ambivalent about codification within their own borders but encouraged it among their economic dependents. The English commissioned codes for India and Singapore, while Field’s additional codes covering New York’s civil and penal law—ignored in his home state—were adopted in California and other western jurisdictions.78 In both England and New York, leading arguments against codification carried a civilizational logic of empire: advanced metropoles could not codify their law, for to do so would be to freeze the progress of legal science. What appeared to some to be a hopeless mass of confusion was to common law defenders a sign of true legal sophistication. Science was, after all, complex.79 The later editions of the New York Procedure Code came in for censure precisely for trying to capture all the sophistication of the New York legal system within an unwieldy 3,300 rules.80 Codification, however, could help developing societies along law’s frontier take a progressive leap forward. As India’s chief codifier, Thomas Macaulay, explained, codification “cannot be well performed in an age of barbarism,” but also “cannot without great difficulty be performed in an age of freedom.” As India balanced between the two, however, “it is the work which especially belongs to a government like that of India—to an enlightened and paternal despotism.”81

In America, Macaulay’s tool of enlightened despotism spread with the anxiety that capital from the nation’s economic center would remain scarce without a code of remedies that, if not in fact the law of New York, was at least prescribed by New York lawyers and their corporate clients. The states of Greater Reconstruction in America adopted a foreign code, but lawyers, legislators, and their supporters claimed the endorsement of popular sovereignty in doing so. Even in North Carolina, whose Democratic newspapers called daily for the repeal of “this child of the carpet baggers,” Republican editors proclaimed that “the movement” toward procedural codification “comes from the people, from the instinctive logic by which an unprejudiced mind grasps the advantages of the system.”82

Our narrative of the spread of the Field Code is congruent with recent articles and monographs on the rise of western capitalism, but our digital methods have enabled some important changes and corrections.83 The spread of the Field Code shows the ways in which central economic power was diffused through local networks of elite agents. Changing conceptions about what mercantile, metropolitan capital required manifested in the concrete details of legal processes that secured capital and remedied violations of the contracts, trusts, and agencies it produced. Conventional accounts hold that state procedures were almost always more debtor-friendly, running up against and causing frequent tension with a federal insistence on creditors’ rights.84 But in the migration of the Field Code, creditor-friendly regulations flowed not from a source of federal power but from a supposedly coequal state jurisdiction, albeit one with outsized financial might.

Our revisions to the history of law and capitalism depend on our digital methods. Our account relies largely on commentary from Colorado in 1876 and North Carolina in 1868. How did we know to look in those places, at those times? It is not because the sources were abundant or readily available. Colorado’s legislative journals for 1876 are in fact lost, completely missing from the archives. North Carolina’s are nearly as scarce. But refer back to the network graph showing the relationship between procedure codes. (See Figure 5.) It shows that Colorado from its very beginning borrowed its procedural law from Illinois, a common law state. Only well after a decade into its history as a territory did Colorado adopt a Field Code. Colorado’s history runs contrary to the conventional account, which holds that western states adopted codes as a matter of convenience early in their history.85 Another peculiarity of the graph is that most states borrow, naturally, it seems, from a near neighbor. But North Carolina, South Carolina, and Florida all borrowed directly from the latest New York code. Why is it that the center of the West was California, the center of the Midwest was evenly spread from Ohio to Kentucky to Iowa, yet the center of the South was New York? Answering these questions is what sent us to western and southern archives despite the paucity of easily accessible legislative material.

The qualitative discoveries in these archives then fed back into the analysis of the digital data. If we return to the map in Figure 2, we see that the eastern seaboard, Illinois, and certain states in the South may have adopted some reforms to common law practice, but they largely ignored the Field Code. The uniform adoption of creditor remedies by the code states, and the political anxieties surrounding their adoption, help to make sense of these apparent exceptions: jurisdictions with rival metropoles of capital faced less intense pressure to adopt the creditor practices of New York. Non-code states cluster around the alternative trade outlets of Boston, Chicago, and New Orleans.86 In the two most populous and commercially advanced western states, Texas and Illinois, the need for New York capital failed to move state legislators to adopt the code at the expense of popular sovereignty (despite concerted efforts in both jurisdictions).87 Although, as Noam Maggor has recently shown, Boston capitalists wielded broad influence over development in the West, it was not the law of the Brahmins that protected their investments.88 That task fell to the remedial law of the self-proclaimed Empire State.89

By addressing our historical questions to a sufficiently large but narrowly defined corpus of sources, we benefited from a symbiosis of traditional and digital historical methods. Our computational methods produced useful historical knowledge because they were carefully tailored to what we knew about the data from traditional historical work. We knew that code commissioners worked with “the scissors and paste-pot,” as critics complained, and we examined codes in the archives that showed how commissions literally marked up the legislation of other states. While we think that one of the most useful things about digital history is its ability to start with large corpora and then figure out what is worth asking about the past on its own terms, we have shown that digital history can also operate by starting with specific historical questions rather than particular sources. We have shown that a collection of methods from computer science can be used to good effect in tracking changes in the law. Finally, we have shown that it is possible to work on different scales, using network analysis, visualization, and algorithmic close reading, and thus to gain both a broad overview of the law’s migration and a highly detailed view of the changes in the law. Our methods of identifying text reuse are especially useful for studying the law, given its discursive structure, but they can be adapted to study other historical domains where texts borrowed language from one another. The broader point, however, is that emerging methods in text analysis can be useful for historical research as long as the researcher carefully matches the method to the question.90

The history of codification on the American periphery challenges foundational assumptions about American federalism. Scholars commonly speak of regulating at “the state level,” imagining an equality between state sovereignties that exists in tension only with “the federal level.” But the history of legal practice and civil remedies is one in which the localism fostered by common law practice rapidly gave way to uniform regulations promulgated by New York trial lawyers without the slightest interference of the federal government.91 The history of the code also has important implications for recent scholarship seeking to unearth a long tradition of “administrative law” among the states before the twentieth century. These accounts have largely focused on administrative adjudication or discretionary regulation within a narrow domain, such as customs houses, but have so far neglected the most widespread and significant instance of nineteenth-century administrative lawmaking in America—the spread of remedial codes through extra-legislative commissions.92 While these histories have sought to demonstrate that nineteenth-century Americans could be quite comfortable with administrative law, accepting it as a normal part of the constitutional order, we have shown here how lawmaking by commission generated significant political controversy and raised grave questions about popular sovereignty that over time were merely dodged rather than answered.

In the economically developing West and the redeveloping South, anxieties over the lack of capital joined with arguments about civilization and progress to spur many jurisdictions to copy the text of the code of New York, the Empire State of capital. The short legislative sessions of American lawmaking limited the options available for reimagining or re-crafting what could become the law of remedies and legal practice. And in the economically underdeveloped parts of the country, periods of opportunity could be short indeed. Capital might quickly pass over one region and favor another, and each month more lawyers arrived hoping to make a start in a jurisdiction where economic progress was just about to take off.

A twenty-first-century method thus gets at the heart of nineteenth-century lawmaking in U.S. history. Our computers have reconstructed the work of scissors and paste-pots that spurred lawyers and judges, politicians and newspaper editors to debate whether codes that were drafted by commissioners and borrowed wholesale from beyond a jurisdiction’s borders were actually democratic. Codifiers responded by transmuting democratic theory into support for a remedial code that elected legislators had neither the time nor the inclination to read. Popular support for commercial development was taken to indicate popular support for New York’s system of civil remedies and the capital it could attract. By digitally analyzing the code’s many iterations, we, like Nevada’s Senator Stewart, have unbound, chopped up, reconfigured, and traced the spine of modern American legal practice.

Supplementary Information

Full-color versions of the figures in this article and an appendix of supplementary information are available at https://academic.oup.com/ahr/article-lookup/doi/10.1093/ahr/123.1.132#supplementary-data. This appendix includes the two R packages created for this article, “textreuse” and “tokenizers,” as well as the repository of code used to analyze the data and create the visualizations. Two versions of our dataset are available: one containing the OCR text of each code or statute in a separate text file, and the second containing those codes and statutes split into sections. A data table provides a list of all the matches between sections that we found, and another data table contains what we determined to be the best match for each section of the code. A set of text files provides the clusters of related sections.

Kellen Funk is a law clerk to the Honorable Stephen F. Williams, Senior Judge of the D.C. Circuit Court of Appeals. He previously clerked for the Honorable Lee H. Rosenthal, Chief Judge of the U.S. District Court for the Southern District of Texas. He is completing a dissertation at Princeton University titled “The Lawyers’ Code: The Transformation of American Legal Practice,” and he holds a law degree from Yale Law School.

Lincoln A. Mullen is an Assistant Professor in the Department of History and Art History at George Mason University, where he has taught American religious history, digital history, and nineteenth-century U.S. history since 2014. He is the author of The Chance of Salvation: A History of Conversion in America (Harvard University Press, 2017). He is currently working on a text analysis project titled America’s Public Bible: Biblical Quotations in U.S. Newspapers (http://americaspublicbible.org/), forthcoming as a digital monograph from Stanford University Press.

The authors wish to thank Hendrik Hartog, Daniel T. Rodgers, Amalia D. Kessler, Stephen Robertson, Jason Heppler, Eric Nystrom, and the anonymous peer reviewers for commenting on drafts of this article, and Jane Lyle for carefully editing the manuscript and for help in preparing the figures for publication.

Notes