The Cambridge History of English and American Literature in 18 Volumes (1907–21).
VOLUME XVI. Early National Literature, Part II; Later National Literature, Part I.
§ 11. James Kent: Commentaries on American Law; Conflict of Laws; Equity Jurisprudence
If Story’s name is associated in our minds with that of Marshall, because Story’s Commentaries carried forward the Marshall tradition, we may also justly associate him with James Kent (1763–1847). Both were judges, both also teachers and writers, and by their published works on various fields of American law they gave it coherence, stability, and strength. Though Marshall has undimmed honour as the founder of constitutional law, we look to these two men as the chief influences in building up other branches of American jurisprudence.
They began their work when there was practically nothing written on American law, and when there was a feeling of opposition to the English common law, even as it was presented in Coke and Blackstone. The times were critical, and the work of these two men in laying the foundations of American law, in seizing upon the principles of the common law and adapting them to American conditions, and in building up, in general, a coherent and usable system was of great importance. A competent author, attributing much to the influence of these men, asserts that the achievements of the seventyfive years before the Civil War compare favourably with those of any period of growth and adjustment in legal history, and declares that the “closest analogy, both in the time taken and the amount and character of the work accomplished, is the classical period in England—the age of Coke.” Kent’s Commentaries on American Law (1826–1830) was of very great effect; it was long read by students of the law and occupied a place of distinction by the side of Blackstone’s famous work. Story, in addition to his work as a teacher of law in Harvard and to his duties on the bench of the Federal Supreme Court, wrote a number of volumes which did perhaps even more than those of Kent to standardize and shape the law. His Conflict of Laws and Equity Jurisprudence were of transcendent value, restating and formulating in convenient form the judge-made law of the past and making it adaptable to American conditions. Of the former treatise it has even been said that “It forthwith systematized, one might almost say, created, a whole branch of the law of England.” Kent’s decisions, when he was chancellor of New York, fashioned and made applicable in America the principles of equity, and Story’s treatise on the same subject had as much or even greater influence in establishing and maintaining the system of equity jurisprudence.
What two men could do in expounding the law, making it intelligible and effective, and showing the strength and reasonableness of fundamental principles, in short, what could be done in fashioning the main lines of a growing jurisprudence for a rapidly growing country, these two men accomplished. The layman commonly thinks of the law as fixed, or as developing only by the addition of statutes passed by some legislative body, but the truth is that law grows, and the common law above all, as questions and problems arise; judges on the bench and writers of text-books who do more than merely chronicle decisions, have great opportunity to direct the law into new channels and to determine the course of its development. Such power and influence naturally belonged in unusual measure to Kent and Story, because of their learning, because they taught and wrote as well as gave opinions from the bench, and above all because the period in which they worked was a formative period in the early life of a nation, during which law, like everything else, had to find expression and formulation.