Joseph Story and American Equity

subject down to earth. Leaving nothing to chance, he set out to connect the previously illuminated principles with the actual forms of proceedings followed in the courts of equity. Once again, he accurately gauged the needs of the students in his extended classroom. Only two years later, in 1838, a second edition was called for, and subsequent editions followed in 1840, 1844, 1848, 1852, 1865, 1879, and 1892. Clearly, Joseph Story had a major impact on equity jurisprudence in this country. Hence, we must consider the importance he ascribed to the subject, as well as his approach to it. Two points must be borne in mind. First, Story published Commentaries on subjects other than equity. In addition to equity jurisprudence and equity pleadings, he wrote on bailments, the Constitution, conflict of laws, agency, partnership, bills of'exchange, and promissory notes. Second, his interest in equity began very early in his legal career and continued with remarkable persistence for some forty years. As both of these points bear on his decision to publish his treatise on Equity Jurisprudence, a word about each is in order. A. Circumstances Leading to Story's Commentaries In 1829, while still an active member of the United States Supreme Court, Story accepted the newly created Dane Chair in Law at Harvard University. The Chair was endowed by Nathan Dane (1752-1835) from funds he had earned from his own legal publications. Dane made the gift to Harvard contingent upon Story becoming the first incumbent. Undoubtedly, one reason Story accepted the added burden of lecturing while sitting on the Supreme Court was his tremendous intellectual energy. A fast and astonishingly efficient worker, Story, like Justice William 0. Douglas of a later era, simply found that his judicial duties did not keep him fully occupied. There was, however, another more melancholy reason. Story was disturbed by the rising tide of popularism that became ever more evident in Washington during the late 1820s and reached a triumphant peak in 1828 when Jackson won the presidential election. As stated earlier, Story found these roiling circumstances most depressing. The Dane Professorship provided him a welcomed opportunity to spend more time in Cambridge among promising law students. Not surprisingly, therefore, Story returned to Harvard, on a part time basis, the same year Jackson moved into the White House. In his Inaugural Lecture at Harvard, Story noted that "the duties of the Dane Professorship are, in the first instance, to deliver lectures upon the Law of Nature, the Law of Nations, Maritime and Commercial Law, Equity Law, and lastly the Constitution of the United States." And so he did. Between 1832 and 1845 Story faithfully published his professorial lectures in the form of nine treatises which, collectively, make up his celebrated Commentaries on American Law. The subject matter obviously tracked the "duties" Dane imposed upon the incumbent of the Chair he had created. It also reflected the natural law hierarchy to which Story was so deeply committed. 1988] WASHINGTON AND LEE LAW REVIEW [Vol. 45:623 The circumstances surrounding Story's appointment to the Dane Chair raise two immediate questions: Why did Dane wish to endow a law chair at all? and, more particularly, Why did he insist that Story, and only Story, could hold it? These questions deserve brief comment. The answer to the first question is that Dane was keenly aware of the chaotic state of American (and English) law. He knew that the traditional common law mode of reasoning produced an unending array of details about individual cases. He also knew that those very details concealed the basic principles of our law from even the most experienced lawyers. Consequently, law students were poorly trained, lawyers represented their clients inadequately, and judges often failed to do justice to the parties and to the legal system itself. In his view, the promise of American law was being dissipated and lost in the masses of undigested statutes and decisions issuing from the welter of U.S. and English jurisdictions. Dane knew of what he spoke. For some forty years, beginning in 1795, he had been an indefatigible student of American law. Following the tradition of English legal scholarship, he had pursued the subject relentlessly through dozens and dozens of individual cases and statutes, and he had struggled to find in them some kind of order and underlying general principles. Finally, in 1823, he managed to bring his herculean labors to an end: he published, in eight volumes, his General Abridgment and Digest of American Law. A ninth, and final, volume appeared in 1829. Weary from his efforts, Dane knew that he had not solved the problem. He also knew that it would not go away. What was still desperately needed was an overview of the entire legal system, broad in outline and accurate in detail, based on clearly identified principles, with its various parts integrated into a coherent whole. But who had the necessary learning, creative energy, mental discipline, and philosophic outlook to take on such an enterprise? The answer, of course, was Story, a long-time acquaintance of Dane and a fellow worker in the tangled field of legal scholarship. Dane long had admired Story, but the inspiration to name him to the new chair may have come from a review Story published of Dane's Digest in 1826. It was no ordinary review. Rather, it was a critical survey of the traditional forms of Anglo-American legal literature, including commonplace books and abridgments, as well as digests. Story thus discussed Dane's work in the context of a long line of legal scholars (which Story traced back to "the earliest abridgment of the law" by Nicholas Stratham, .c.1468), endeavoring to summarize or restate in systematic form the (unwritten) common law. Dane realized that the author of the article, Story, was sympathetically aware of the problem with which he, Dane, had so long struggled. He must also have sensed that Story was the one man capable of doing for American law what Sir William Blackstone had done for English law. Dane took the necessary steps to make sure that Story did it. As was well known at the time, Blackstone's epoch-making Commentaries on the Laws of England, published between 1765 and 1769, had