Home > Journals > Michigan Law Review > MLR > Volume 17 > Issue 4 (1919)
Judge Story's work appeared at a critical period in Aterican legal history. The bitterness toward England which lingered after the Revolution, intensified by the unhappy war of 182, was no doubt responsible for the hostility toward and suspicion of that peculiarly English institution, the common law.' Evidence is not wanting that our courts were drifting away from the common law doctrines and becoming more -responsive to the appeals of civil law. There was thus furnished a condition favorable to the reception of Roman law through some French form such as the Code Napolion. English equity, in particular, stood in a precarious position. Not alone did it suffer like the common law (in a narrow sense) from suspicion of Britain, but it encountered the prejudices of the Puritan and the Quaker. That compulsion of the person which has been its most striking characteristic, suited ill those who asserted the unfettered freedom of the individual will, while William Penn's collision with the court of chancery (Penn v. Lord Baltimore, z Ves. Sr. 444) accentuated the opposition of his followers. In view of these antagonistic influences it is not a little surprising that American courts should have adopted the fundamental principles of English equity. That they did so is due in large measure to the influence of Story's Commentaries on Equity Jurisprudence* which first appeared in x836. Story catered to the popular enthusiasm for Roman law by copious references to the civilians; yet in fundamentals, equity as he pictured it, is English equity as it took shape in the court of chancery under Lord Eldon. Today one may think that Story overemphasized the influence of Roman law; one may feel that his treatment is too scholastic and therefore unsuited to present conditions. But whatever view one may take of the intrinsic value of Story's work, one cannot forget the tremendous influence which it exercised m America. This influence is now become largely indirect; it is exerted through the older cases, which relied upon Story, rather than through the treatise itself. But as equity has not remained static, his exposition, however valuable for the lawyers and courts of the early nineteenth century, requires complete recasting if it is truly to represent the equity of today.
Willard T. Barbour & Joseph H. Drake,
Mich. L. Rev.
Available at: https://repository.law.umich.edu/mlr/vol17/iss4/6