The Indiana State sentinel. [volume] (Indianapolis) 1868-1895, 1874-04-28
AMERICAN LAW
A suocINcT sTArEMESr-RByIEw OF CHAN.
CKLLoR KENT


CKLLoR KENT.
The North American Review for April.
contains q review of Kent's Commentaries
from which the following striking points are
epitomized; There is probably no lawyer,
not otherwise conspicuous. whose name is
more widely known and respected among
the public at large in this country, than that
OF chancellor Kent. Professional merit
must, In general, find its only lasting reward
in the applause Of the profession. The rep-
utation Of judicial learning and forensic slo-
quence extends but little beyond centempo-
raries, often hardly beyond personal ac-
quaintance; while more permanent work.
embodied in written judgments and treat
ises, however great and enduring its effect
may be, gains no credit for its authors, ex-
cept among those whose business obliges
them 20 study it. Happy, indeed, is the
Judge or commentator who is known and
appreciated even by more than small Sec
ton of what is called by courtesy, learned
profession. The fate of Kent in this respect.
mas, however, been exceptional His book
mas made him reputation which -four
ishes, vaguely enough, to be sure.
among thousands who never heard of LORD
Hardwicke or Chief Justice Marshall, and it
is cited and reverenced as an oracle by hum
dreds of lawyers throughout the frnitad
STATES VINO would doubtless agree with King
James profane comparison of Coke's writ
ings 10 the peace of God, which passeth all
understanding. What is the reason of this
popularity 1t is to be found. not so much
III the aDillty OF the writer, though that was
great; nor in his style, for that is dry to the
ISst degree; but in his good fortune in the
choice of subject. The -
AMERICAN LAW Is BASED.
as every one knows, upon the English: and
Until the revolution 1t was, so far as it went.
nearly the same; nor, after that time. was
the departure very rapid at first. Justice
continued to be administered under the
same forms and by the same rules as before:
and In the absence of precedents OF their own
TO govern them, the courts continued to rely
on the opinions of English Judges to guide
them In the exposition OF our common sys-
teh; and these opinions, though not techni-
cally of the same authority as during the
colonial period had practically, and indeed
still have. in great measure, almost as
much weight. The state of Kentucky did
lts pest TO set up common law of its own,
by the enactment that no decision of any
English tribunal since July 4, I776. should
be cited IL the courts of the state; but this
was singular instance. The first peculiar-
lty which appeared in our laws, which is to
this day its most remarkable feature, was
the course OF decision caused by our system
OF written constitutions. This system gave
to the courts power unknown to the COM
mon law-that ofannulling the acts ofother
branches of the government as contrary to
the supreme law of the land; and under it
continually arose important questions as to
the lawful powers of the government, and
especially of the legislature. This class of
questions found no precedent, and. till
lately, no parallel; though difficulties OF the
same kind are now, it is said, beginning to
puzzle the courts of the Dominion of Canada,
where the powers of the provincial parlia-
ments were limited by the fundamental act
OF confederation OF 1867, much as those of
our legislature are restrained by the consti-
buttons of the states and ofthe United States.
The political effects of these instruments are
those to which public attention has been
mainly directed; but their effects on
PRIVATE RIGHTS
have also been remarkable. One provision, for
instance, is common to them all-the preserva-
ton of the right of trial by jury both civil and
criminal causes. The result of this in the
former class of cases, is, that triing disputes of
all sorts, which ought TO be settled in a sum-
mary way by the decision of a single magistrate
gated at infinite cost OF time, trouble and money;
and the legislature is powerless 10 provide a
remedy, as has been done In England, by making
the summary jurisdiction of the inferior magis-
trates final in small cases. In criminal causes,
again, the constitutional provisions as TO the
forms of trial. substantially the same in all the
states have been construed so as to secure to the
prisoner the chance Of escape by any the
common law; and objeci ions which might
formerly be looked upon with favor, as afford
of relieving man from penalty out ofau pro-
portion to his offense suffered still TO prevail
TO protect petty rascals from well deserved SEN
fences. Itshould be an Interesting task, did
space permit, to follow out the workings of our
Constitutional restrictions in the admin istration
of everyday justice in civil and criminal cases;
but this would require a whole book OF itself.
The earliest and most remarkable departures OF
the American law from the English, on which II
wasfounded are thus readily traceable 70 our pc
culiar from OF government. But there are also
where the course of legislation and of Judicial
decision throughout the United States, though
generally consistent with itself, has
VARIED FROM THE CURRENT
OF the authorities In England often merely an
ticipating changes which have come later on
the other side of the Atlantic, as in the familiar
instances of the laws restricting imprisonment
for debt, and those extending the rights OF mar
ried women; and often, again introducing
strange novelties, the results OF which are yet
very doubtful. 1t is easy enough, now, for a
lawyer, or for any person whose attention is
lures which make the American law, as a
whole, distinct system, Notwithstanding the
many minor differences between different sec
tons OF the country; but of late years, and
since the death of Chancellor Kent,
the progress has been very rapid. The equitable
jurisdiction of the courts, formerly restrained
and regarded with much jealousy. has increased,
is increasing, and, at least as exercised by some
ought 10 be diminished. The system
of special pleading, curious. orderly and beau
tfui as ii Is, " in the language of the chancellor,
who pathetically deplored the earliest innova-
lions on IL, has been swept away like cObWeb.
ethan periere run@. The intricacies OF the an
Client and complex real property law, derived
from our ancestors, have, in great part, disap-
peared only to be replaced by the newer, and
not less complex learning OF tax titles and pre-
emption rights. In one part of the country the
railroads are alternately declared to be, and not
70 be- public property, according as the railroads
or the public creditors, are the
PARTIES TO BE PLUNDERED;