The Commentaries of Chancellor James Kent and the Development of An

The Commentaries of Chancellor James Kent and the Development of an

American Common Law, Downloaded from https://academic.oup.com/ajlh/article/37/4/440/1789574 by guest on 30 September 2021

by CARL F. STYCHIN*

The legal thought of Chancellor James Kent, as revealed in his four volume contribution to the American legal treatise literature, recently has resurfaced as a subject worthy of examination by legal historians. The importance of Kent as jurist and writer in the literary tradition of the legal treatise is beyond dispute. During his career on the bench, both on the New York Supreme Court and at Chancery, he brought an intellectual vigor to the Courts which helped shape the development of American jurisprudence. His Commentaries, which constituted a major step in the development of an indigenous treatise literature in America, enjoyed widespread popularity and went through fourteen editions. The purpose of this article is to focus on the importance of that literary contribution. The method adopted is a close textual examination to discern Kent's vision of the well ordered legal system as applied to America in the early years of the nineteenth century. James Kent was situated, with the other writers on the law of his age, in a unique position. Writing about the common law in post• Revolutionary America, he was forced to redefine and redescribe its theo• retical basis. Independence forced the rewriting of the story of the founda• tions of the common law because, after the Revolution, its authority could no longer be grounded in the timelessness of English custom. Thus, to entrench the common law in America, Kent had to justify the importation of a system about which considerable skepticism and distrust was being expressed. At the same time, the enterprise of the common law, by its nature, demanded the application of precedent. It was here that Kent man• aged to reconcile, on first examination, what appear to be contradictory positions: to justify the common law on a basis other than the English cus• tomary tradition and, at the same time, to borrow extensively from the substance of that tradition as authority for legal rules. How this apparent 'sleight of hand' was realized is the great achievement of Kent and is an

*Lecturer, Department of Law, Keele University, United Kingdom. An earlier version of this article was submitted in partial fulfillment of the requirements of the degree of Master of Laws at Columbia Law School and was written in conjunction with a seminar in the history of common law literature offered by the school. The author thanks the seminar's instructor, Eben Moglen, for his many suggestions, comments, and encouragement, and also thanks Barbara Black and R.C.B. Risk for their helpful comments on previous drafts. 1993 CHANCELLOR KENT AND AMERICAN COMMON LAW 441 important transition point in the development of the American legal tradi• tion.

KENT'S LIFE AND WORK Downloaded from https://academic.oup.com/ajlh/article/37/4/440/1789574 by guest on 30 September 2021 James Kent was born on July 31, 1763 in Fredericksburgh, New York, of solid New England stock. The most significant political event of his childhood and adolescence undoubtedly was the Revolutionary War and the Declaration of Independence, and Kent claimed to have remem• bered both (the Declaration was signed when he was thirteen years of age).1 The historic political upheavals of his time also were felt during his college days at Yale.2 Classes were disrupted occasionally on account of the Revolutionary War and British occupation. During one such period, Kent was forced to retire to a village and reportedly there received his first exposure to Blackstone's Commentaries) After College, Kent studied law as an apprentice to Egbert Benson, Attorney General of New York.s and was admitted to the bar of the Supreme Court of New York in January, 1785 at age twenty-one. He mar• ried Elizabeth Bailey, the daughter of Colonel John Bailey of Poughkeepsie, the same year and entered into a law partnership with Gilbert Livingston on April 12, 1785.5 He also took an interest in politics, and in 1788 attended as a spectator at the assemblage of the Constitution.« This interest was translated into elected office as member of the New York Assembly for Duchess County on May 26, 1790.7 Kent and his wife moved to New York City three years later, where he was appointed attor• ney and counsellor in the Mayor's Court.f In December, 1793, he was elected to the Chair of Law, Columbia College, an appointment which was the natural outgrowth of a life of intellectual curiosity. Kent's duties as lecturer commenced in November, 1794, and his introductory law lec• ture was printed for private distribution by the Trustees of Columbia

1. WILLIAM KENT, MEMOIRS AND LETTERS OF JAMES KENT, LL.D. 1-7 (1898) [hereinafter "MEMOIRS"]. Kent's father. Moss Kent, was a lawyer who graduated from Yale College in 1752. His paternal grandfather, Rev. Elisha Kent, also was a graduate of Yale College (1728). James Kent's great-great grandfather, Thomas Kent, had been a resi• dent of Gloucester, Mass. in 1644. On his maternal side, his mother was Hannah Rogers, the eldest daughter of Dr. Uriah Rogers of Norwalk, Conn. (id. at 6). 2. Kent entered Yale College in September, 1777 and graduated September 22, 1781 with the degree of Bachelor of Arts, ranking among the best in classical studies, history, belles• lettres and reading (id. at 8-10). 3. JOHN T. HORTON, JAMES KENT: A STUDY IN CONSERVATISM 21-22 (1939). 4. Id. AT 33-34; MEMOIRS, supra note 1, at 15. 5. MEMOIRS, supra note 1, at 22-23. The legal partnership sustained itself for twelve years. The marriage lasted until his death. 6. Id. at 30. A Federalist by conviction, Kent greatly admired Alexander Hamilton tid. at 31). 7. Id. at 37. 8. Id. 442 THE AMERICAN JOURNAL OF LEGAL HISTORY Vol. XXXVII

College. The following year, a more ambitious project was published, entitled Dissertations, Being the Preliminary Part of a Course of Law Lectures by James Kent, which contained three lectures-"Theory, History, and Duties of Civil Government"; "Of the History of the American Union"; and "Of the Law of Nations." The publication was cited in Brown's Treatise on Civil and Admiralty Law, the first time an Downloaded from https://academic.oup.com/ajlh/article/37/4/440/1789574 by guest on 30 September 2021 American legal source was referred to by a European author.? Not long after his arrival at Columbia, Kent's career began to shift from an academic to a judicial path, beginning with his appointment, in February, 1796, to the post of Master in Chancery. 10 The previous spring, Kent had completed his first course of lectures, but inexplicably a second course was not well received and had to be abandoned. Consequently, Kent tendered his resignation to Columbia in May, 1797. 11 As his career in academia waned, other avenues opened. Kent was elected a member of the Assembly of the City of New York and in 1797 was appointed to the office of Recorder of the Mayor's Court.Iz In February, 1798, he became a Judge of the Supreme Court of New York, receiving his Commission prior to his thirty-fifth birthday.l' He was elevated to Chief Justice in 1804. 14 In February, 1814, Kent was transferred to the Court of Chancery upon his appointment as Chancellor.I> He was fifty-one years old and about to embark on his most important and final judicial posting. With lit• tle to guide him, Kent developed, with great intellectual energy, a body of doctrine that earned him a place as one of the leading jurists of his time.!e Kent's career as a judge, however, was cut short by his mandatory retire• ment at age sixty.l? Chancellor Kent's forced retirement from the Bench heralded the beginning of one of the most significant contributions to American legal literature. Once again, his career changed direction, but this time back in the direction of the academy. Upon his retirement, Columbia College offered Kent his old office of Law Professor, vacant since 1795. Kent accepted and, with accustomed vigor, promptly embarked upon the task of writing and delivering law lectures. In the spring of 1826, having com• pleted his first series, he agreed to allow the text to appear in print at the urging of his son Judge William Kent. Thus, at age sixty-three, Kent began the daunting task of reducing his lectures to manuscript form. His

9. Id. at 61-64. 10. Id. at 80. 11. Id. at 75-77. 12. Id. at 82-83. 13. Id. at 108. 14. Id. at 120. 15. Id. at 157. 16. For a discussion of Kent's contribution to American law as a jurist, see HORTON, supra note 3; Donald Roper, James Kent and the Emergence ofNew York's Libel Law, 17 AM. J. LEGAL HIST. 223 (1973). 17. MEMOIRS, supra note 1, at 189. 1993 CHANCELLOR KENT AND AMERICAN COMMON LAW 443 first volume of Commentaries was published in 1826 and subsequent vol• umes of the four volume series appeared in December, 1827; October, 1828; and April, 1830. Sales were sufficiently intense that the first edition was quickly depleted and a second edition, broader and more comprehen• sive, was produced. Kent continued revising and editing the Commentaries for the third edition (1835) and the fourth edition, pub• Downloaded from https://academic.oup.com/ajlh/article/37/4/440/1789574 by guest on 30 September 2021 lished in 1841.18 He died in 1847 at the age of eighty-four. 19 Chancellor Kent's four volume Commentaries deserves recognition in the history of legal literature in America if, for no other reason, than because of its breadth of circulation. Kent's treatise quickly became a sta• ple with lawyers and held an important place throughout the nineteenth century. As historian Perry Miller described, the Commentaries of Kent, like those of his contemporary Story, "rolled through the decades before the Civil War like a juggernaut."20 The popularity of the Commentaries is easily understandable. Kent provided the first systematic survey with detailed discussion of the major areas of American law. In so doing, he created a native alternative to Blackstone for an American legal audience in need of a concise yet comprehensive treatment of the law. Furthermore, his 'scientific' approach to the organization of legal concepts would come to be associated with the method of instruction offered by American law schools. At this level of generality, the worthiness of Kent as a subject for study is unimpeachable. However, on a more substantive level, the impor• tance of Chancellor Kent's contribution to the literature is less certain. The traditional position, espoused in the only full length biography of Kent, James Kent: A Study in Conservatism by John T. Horton,21 suggest• ed that Kent was a deeply conservative thinker. He distrusted Jacksonian democracy for what he perceived were the dangers to property rights aris• ing from factionalism. This distrust of democracy was manifested in a reverence for the common law which, in Horton's interpretation, was equated with the common law of England. Deference to the inflexibility of the common law superseded claims of justice in individual cases.22 The conservative thesis was reformulated by Perry Miller in The Life of the Mind in America and applied generally to the early treatise writers. In Miller's account, Kent was deeply influenced by Blackstone and his Commentaries were a holdover from an eighteenth century neo• classical tradition. Miller described Kent's sense of "elegance" in legal scholarship as "a steady flow of sound principles, supported by sound authority and bearing strongly on the point in discussion."23 This "cold

18. Id. at 190-200. 19. Id. at 276-277. 20. PERRY MILLER, THE LIFE OF THE MIND IN AMERICA 156 (1965). 21. HORTON, supra note 3. 22. Id. at 153. 23. MILLER, supra note 20, at 148. 444 THE AMERICAN JOURNAL OF LEGAL HISTORY Vol. XXXVII circumspection of legal rationality"24 was the means by which Kent, Story and Hoffman, through a body of legal literature, created a tri• umphant vision of coherence and stability in the law.25 Although the com• mon law was central to this vision,26 the American legal elite, in attempt• ing to secure the acceptance of their conception of the well ordered legal system, had to contend with a populace less than enthusiastic over the Downloaded from https://academic.oup.com/ajlh/article/37/4/440/1789574 by guest on 30 September 2021 reception of English common law: Under the form of accommodating English law to the United States, they were asserting the universal against the particular, the comprehensive rationality of tra• ditional wisdom against the fiat of individual statute, the heritage of civilization against provincial barbarism. Their quest for inherent rationality within the com• mon law ...had to assert the rationality, assume it perfect and impose it upon a recalcitrant people.27 The common law vision, then, had to be imposed upon a new nation "sub• dued" to the "heritage of civilization"28 embodied in it. Closely linked to the dominant role of the common law was a concern with the preservation of private property and the property qualification, and the rejection of an elected judiciary. This description of Kent's treatise writing and conservative agenda for the development of law in America has fallen into some disrepute. In its place there has emerged another interpretation of the Commentaries which rejects the thesis that Kent and his fellow treatise writers were engaged in a conservative project. In advancing this thesis, however, the intellectual importance of the Commentaries and Kent's conception of the sound legal system has been significantly diminished. Lawrence Friedman, for example, in his review of The Life of the Mind in America, rejected Miller's argument and provided an alternative account of the impact of the treatise writers:

24. Id. 25. Id. at 141. Kent's contemporaries, Joseph Story and David Hoffman, both contributed extensively to the American treatise tradition. Story's career and work is by far the better known; see R. KENT NEWMYER, SUPREME COURT JUSTICE JOSEPH STORY: STATESMAN OF THE OLD REPUBLIC (1985). Story (1779-1845) became the first hold• er of the Dane Professorship of Law at Harvard University in 1832, at which time he began writing his famous series of treatises: see, e.g., JOSEPH STORY, COMMENTARIES ON THE CONSTITUTION OF THE UNITED STATES (Boston & Cambridge, Mass. 1833); JOSEPH STORY, COMMENTARIES ON THE LAW OF AGENCY (Boston 1839). Hoffman (1784-1854) held appointment as Professor of Law at the University of Maryland (1814-1843); see Thomas L. Shaffer, David Hoffman's Law School Lectures, 1822-1823,32 J. LEGAL EDUC. 127 (1982); G. EDWARD WHITE, THE MARSHALL COURT AND CULTURAL CHANGE, 1815-35, at 88-95 (1988). For a sampling of Hoffman's treatise contribution, see DAVID HOFFMAN, INTRODUCTORY LECTURES AND SYLLABUS OF A COURSE OF LECTURES DELIVERED IN THE UNIVERSITY OF MARYLAND, NOW REPUBLISHED IN REFERENCE TO THE RECENT RESIGNATION OF THE MEDICAL AND LAW PROFESSORSHIPS IN THAT INSTITUTION (Baltimore, 1837). 26. See MILLER, supra note 20, at 125: "[Kent] made the least possible concession to legislation and kept a wide area for the common law." 27. Id. at 133. 28. Id. 1993 CHANCELLORKENTANDAME~CANCOMMONLAW 445

Lawyers were hungry for plain, useful texts. They did not buy these books for philosophy. The books indeed contained no philosophy, but only a thin soup of borrowed notions served up with the meat and potatoes of law. Lawyers bought these books for the same reasonthat they buy them today: to help them in study or practice. The "light of order" shed by these books was pragmatic in conception and execution.... In general, the impact of legal treatises on the intellectual life of their readers (Kent and Story were perhaps partial exceptions) was probably not Downloaded from https://academic.oup.com/ajlh/article/37/4/440/1789574 by guest on 30 September 2021 much more than the intellectual impact of the Sears Roebuck catalog on farm• ers.29 Additionally, Friedman argued that the intellectual tone of the Commentaries was linked to its purpose. Rather than characterizing his style as elegant and neoclassical, Kent was reduced to a pragmatic inter• preter of the law. This interpretation of Kent recently has been expanded upon by David Raack.30 In his discussion of Kent's contribution to the treatise tra• dition, Raack posits that "Kent was neither closed-minded nor reac• tionary: he was an intellectual, interested in new ideas and opinions. He was not the inveterate conservative that he is often portrayed."31 As for his view of the common law, Raack discerns a "tension between Kent's eulogies for the traditional rules and learning of the common law and his admission that some of these rules were obscure, harsh or absurd. "32 He concludes that this "ambivalence" resulted from the absence of a theoreti• cal model of the law. Neither of these accounts, "Kent as conservative" nor "Kent as prag• matist," adequately captures the importance and complexity of Kent and his conception of the common law in American post-Revolutionary soci• ety. The issue, I suggest, is not simply how wide a berth Kent gave the common law and the degree of his ambivalence towards those statutes which abridged it. Rather, what warrants examination is how, through the Commentaries, Kent managed to retell the story of the common law to an American audience and to justify its reception into a new legal order. An analysis of how the story was recast focuses, first, on the reworking of the theoretical basis of the common law. The justification for its rules shifted from the timelessness of English custom (an untenable basis in nineteenth century American society), to the universality of the rules. The common law was accorded a central place in Kent's vision of the legal system to the extent that doctrine exhibited the requisite universality of character. This decline in the role of custom in American law necessarily had conse• quences for how the rights of property and liberty, protected through the common law, were grounded. Although the substance of natural rights, as understood in post• Revolutionary America was continuous with eighteenth century English

29. Lawrence M. Friedman, Heart Against Head: Perry Miller and the Legal Mind (Book Review), 77 YALE LJ. 1244, 1250-1251 (1968). 30. David W. Raack, "To Preserve the Best Fruits": The Legal Thought of Chancellor James Kent, 33 AM. J. LEG. HIST. 320 (1989). 31. Id. at 325. 32. Id. at 341. 446 THE AMERICAN JOURNAL OF LEGAL HISTORY Vol. XXXVII constitutional thought, the focus on universality demanded careful atten• tion both to how rights were discerned and protected. As the timelessness of custom ceased to be the guarantor of the rights of liberty and property, a new more sophisticated conception of the legal order was needed. James Kent devised a theory which could accomplish that task. First, he described a method of study-legal science-which would ensure, Downloaded from https://academic.oup.com/ajlh/article/37/4/440/1789574 by guest on 30 September 2021 through the exercise of the cultivated reason of lawyers, that rules were interpreted uniformly and inflexibly to ensure the security of rights. Common law rules were subject to scientific inquiry to determine whether they exhibited the universality necessary to ground them in natural law. The focus on rights also demanded a body charged with their protection from the dangers of arbitrary power and majoritarian impulse'. Once again, the decline of custom forced a reappraisal of the legal order since rights could no longer be considered secure solely on the basis that they had always been enjoyed. Instead, Kent advocated giving judges a pre• dominant place in the legal order. The judiciary was uniquely situated to ensure that legal rules were applied in accord with right reason. In other words, judges replaced custom as the ultimate guarantor of the legal rights of the individual. A rights basis for legal rules thereby provided a ratio• nale for the existence of an independent judiciary, and moreover, suggest• ed that the threat to the security of rights stemmed from the elected legis• lature.

THE CENTRALITY OF THE COMMON LAW

As I already have suggested, the common law was fundamental to Chancellor Kent's understanding of how the legal order should be con• structed. In his most revealing description of the role of the common law in the context of American society, Kent succinctly captured its broad yet not unlimited function: The revolution did not involve in it any abolition of the common law. It was rather calculated to strengthen and invigorate all the just principles of the law ... suitable to our state ofsociety and jurisprudence.ss The skepticism and hostility of segments of the legal profession and the public towards the reception of the English common law during Kent's time has been well documented.s- In this regard, the role of the American treatise writers in entrenching the common law deserves recognition. Kent, like Story, was forced to overcome the resentment directed at the importation of English law, and to reconcile reception with the wide• spread nativism that balked at the prospect. Little attention, however, has been paid to how Kent created a theo• retical construct to justify reception of the common law. Kent's qualifier in his description of the common law-that the test for reception is one of

33. 2 JAMES KENT, COMMENTARIES ON AMERICAN LAW *27 [hereinafter "COMMENTARIES"] (emphasis added). 34. See generally MILLER, supra note 20, at 99-116. 1993 CHANCELLOR KENT AND AMERICAN COMMON LAW 447 suitability-provides insight into the task which he set for himself. A fur• ther indication of Kent's approach is in his description of the common law as "the application of the dictates of natural justice and cultivated reason to particular cases."35 These two statements, read together, constitute the basis for a theory of the common law in post-Revolutionary America. It is important, in engaging in this analysis, to appreciate how the Downloaded from https://academic.oup.com/ajlh/article/37/4/440/1789574 by guest on 30 September 2021 terms "natural justice" and "cultivated reason" were understood by Kent. First, reference frequently is made throughout the Commentaries to the "naturalness" of the common law. An eighteenth century conception of natural law, however, cannot be equated with a twentieth century jurispru• dential understanding of natural law theory. Rather, English constitutional thought associated natural rights with the timelessness of English custom which had ensured the eternal enjoyment of those rights. As Reid demon• strates, the constitutional theory of the American Revolutionary period was not a departure with respect to the substance of rights. Rather, it rep• resented a continuity with English constitutionalism: "the history of rights in the American Revolution is not the story of the evolution of changing rights but of the role of legal doctrine, of the impact of what were per• ceived as timeless rights on a dynamic constitutional controversy."36 The eighteenth century Anglo-American conception of rights, in large measure, was centered on the exclusivity of property rights and the symbiotic relationship between property, liberty, security, and the rule of law. The right to property, after the Glorious Revolution, "became enshrined as a constitutional principle central to the preservation of free• dom"37 and the inseparability of liberty and property was reinforced by a belief that the end of government was security-the security of property. Limited government, then, was defined in terms of property and the threat to property and liberty stemmed from the potential for arbitrary power, which could be controlled only through restraints upon government. To reiterate, the theoretical basis of the right to property was not in "nature," but arose from the authority of custom. Natural law, which pro• tected rights, was eminently 'reasonable' and naturalness connoted simply long standing existence. An eighteenth century English lawyer's under• standing of the common law was derived from this vision of natural law. The common law protected natural rights and, in so doing, comported with reason and natural law. Returning to Kent, it is clear that his understanding of the common law was firmly embedded in this eighteenth century conception of rights. Both 'naturalness' and 'reason' were associated with the common law and the end of the common law, for Kent, ultimately was the protection of rights. This held particular validity with respect to property rights, since, according to Kent, "a state of equality as to property is against the law of

35. 1 COMMENTARIES 471. 36. 1 JOHN P. REID, CONSTITUTIONAL HISTORY OF THE AMERICAN REVO• LUTION 26 (1986). 37. [d. at 28. 448 THE AMERICAN JOURNAL OF LEGAL HISTORY Vol. XXXVII

our nature."38 Kent described the common law as a "necessary and a safe guide"39 which enabled judges to ensure the "freedom and happiness of social life."40Central to the metaphor of law as guide was the role of law in imposing constraints on discretion. This ensured certainty, which was necessary to prevent arbitrariness. The importance of uniformity and sta• bility in the law arose from the dictates of natural justice, which Kent Downloaded from https://academic.oup.com/ajlh/article/37/4/440/1789574 by guest on 30 September 2021 understood to include the protection of political liberty and property: "personal security and private property rests entirely upon the wisdom, the stability and the integrity of courts of justice."41 Thus, security of property was integral to the rule of law. To this point, Kent's conception of natural law, natural rights and the common law appears to be purely derivative of eighteenth century English constitutional theory. Indeed, Kent is frequently credited simply with bringing Blackstone to America in an indigenous fonn.42 However, this view underestimates the originality of Kent, who was forced to justify the common law as guardian of rights in a way that previously had been unnecessary. As already suggested, he had to reconceive the theoretical justification for the common law on grounds other than immemorial usage in order to satisfy his American audience. At several points in the Commentaries, Kent provided the evidence of this new justificatory basis for the tenets of the common law. That standard can be defined as univer• sality. For Kent, it was the universal application and acceptance of a rule that provided the conclusive evidence of its "naturalness" and its "reason• ableness." As he posited, "the universality of the sense of a rule or obliga• tion is pretty good evidence that it has its foundations in natural law. "43 Similarly, with reference to contract law, Kent explicitly linked unifonni• ty with reason: "like other deductions of right reason they [the rules for the interpretation of contracts] have been quite uniform in every age of cultivated jurisprudence."44 The most extensive discussion of natural law in the Commentaries is with reference to self-defense. Kent firmly grounded the justification of self-defense in natural law theory:

38. 2 COMMENTARIES 328. 39. 1 COMMENTARIES 341. 40. 1 COMMENTARIES 342. 41. 1 COMMENTARIES 291. 42. See, e.g., HORTON, supra note 3, wherein chapter seven is entitled "The American Blackstone." 43. 2 COMMENTARIES 326. 44. 2 COMMENTARIES 552. The connection between law and right reason also has been noted by Barbara Black with reference to the jurisprudence of the Puritans; see Barbara A. Black, Aspects of Puritan Jurisprudence; Comment on Berman, Revolution and Law: II The Puritan Revolution and English Law, 18 VAL. U. L. REV. 651 (1984): "Reason ... was viewed and expressed as an alternative, in contrast, to precedent, and preferred" tid. at 663). 1993 CHANCELLOR KENT AND AMERICAN COMMON LAW 449

Homicide is justifiable in every case in which it is rendered necessary in self• defense, against the person who comes to commit a known felony with force against one's person, or habitation, or property of those who stand in near domes• tic relations. The right of self-defense in these cases is founded on the law of nature, and is not, and cannot be superseded by the law of society.45

However, despite this natural law foundation, Kent also explained the law Downloaded from https://academic.oup.com/ajlh/article/37/4/440/1789574 by guest on 30 September 2021 of self-defense in terms of universality: The municipal law of our own, as well as ofevery other country, has likewise left with individuals the exercise of the natural right of self-defense, in all those cases in which the law is either too slow or too feeble to stay the hand of violence.46 Kent's description of self-defense as founded in nature is not surprising. Reid argues that "few British civil rights fit any of the eighteenth-century definitions of natural law. It is possible there was only one right that everyone agreed was natural, the right to self-defense."47 Thus, self• defense provides a unique example of natural law, in the modem sense, in the Commentaries. Since it actually could be understood as prior to civil society, it was therefore truly "natural." Yet, it is noteworthy that Kent still found it useful and perhaps necessary to justify self-defense on the basis of the universality of the law-an understanding which is more con• sistent with his theoretical grounding of the common law. The connection between the common law and the protection of rights was sufficiently strong that Kent understood the entrenchment of rights in a written Constitution to be a 'natural' outgrowth of the common law: The Constitution and laws of the United States were made in reference to the existence of common law-the language of the Constitution and law would be inexplicable without reference to the common law. 48 Indeed, Kent could have gone further and made the claim that he undoubt• edly believed-that rights were inexplicable except by reference to the common law. The very reasonableness of that common law derived from the protection of the rights to property and liberty. Kent also displayed the eighteenth century association of natural and positive law in his discussion of the law of nations. It is interesting that the first topic dealt with by Kent in Volume One is public international law. As Miller maintained, even though Kent readily recognized that the law of nations was founded on agreements, that positivist basis did not diminish from its natural law foundations. Rather, universality remained the governing standard: James Kent began his immense Commentaries with the basic question: if there does exist an international law, is it one with the law of nature, or is it merely "positive"? In all candor, he had to reply that, in so far as it exists at all, it has come about by specific agreements. Yet, even so, it does derive from natural jurisprudence. Its fundamental principles "are founded in the maxims of eternal truth, in the immutable law of moral obligation," and so it maintains "a steady

45. 2 COMMENTARIES 15. 46. [d. [emphasis added]. 47. REID, supra note 36, at 89. 48. 1 COMMENTARIES 336. 450 THE AMERICAN JOURNAL OF LEGAL HISTORY Vol. XXXVII

influence, notwithstanding occasional violence." Its great protector is public opinion, wherefore no nation can violate public law without being subjected to the penal consequences of reproach, "to be inflicted in open and solemn war by the injured party. "49 Thus, the common law, as far as it was applicable to America, was

founded on natural law. Natural law, however, was understood to mean Downloaded from https://academic.oup.com/ajlh/article/37/4/440/1789574 by guest on 30 September 2021 universality. The law, therefore, could be deduced through the application of cultivated reason. By this method, the universal tenets of law could be gleaned. Law also was closely associated with natural rights which, for Kent, referred to the symbiotic relationship of property and liberty. Those rights were protected through constraints upon arbitrariness and this, ulti• mately, was achieved by the inflexibility and stability of an independent judiciary applying the common law. Kent elaborated upon this thesis in the final chapter of the Commentaries, which dealt with the interpretation of wills. His discussion strayed beyond the narrow doctrinal issue and highlighted the theoretical basis of the entire work: There has been a strong disposition frequently discovered in this country, to be relieved from all English adjudications on the subject of wills, and to hold the intention of the testator subject to technical rules. The question still occurs, whether the settled rules of construction are not the best means employed to dis• cover the intention. It is certain that the law will not suffer the intention to be defeated, merely because the testator has not clothed his ideas in technical lan• guage. But no enlightened judge will disregard a series of adjudged cases bearing on the point, even as to the construction of wills. Established rules, and an habitu• al reverance for judicial decisions, tend to avoid the mischiefs of uncertainty in the disposition of property, and the much greater mischief of leaving to the courts the exercise of a fluctuating and arbitrary discretion. The soundest sages of the law, and the solid dictates of wisdom, have recommended and enforced the authority of settled rules, in all the dispositions of property, in order to avoid the ebb and flow of reason and fancy, the passions and prejudices of tribunals. When a particular expression in a will has received a definite meaning by express adju• dications, that meaning ought to be adhered to, for the sake of uniformity, and of security in the disposition of landed property.50 In this passage, Kent summarized the cornerstones of his conception of the well ordered legal system. Settled rules, administered by an indepen• dent judiciary, constraints upon discretion to prevent arbitrariness, and uniformity in interpretation, were all necessary ingredients for the security of the natural right of property. That right, in turn, was inextricably linked to the right of liberty, both of which were entrusted to a judiciary charged with discovering the common law. The judiciary was an "enlightened" body, made up of lawyers possessing a high degree of cultivated reason which equipped them for the task. This provided security from the dan-

49. MILLER, supra note 20, at 166. This natural law understanding of the law of nations also arises later in the COMMENTARIES with reference to the right of fishing in navigable waters: "the common right of fishing in navigable waters, is founded on such plain princi• ples of natural law that it is considered by many jurists as part of the law of nations": 3 COMMENTARIES 413. 50. 4 COMMENTARIES 539. 1993 CHANCELLORKENTANDAME~CANCOMMONLAW 451

gers of factionalism arising from the democratically elected legislatures. Thus, to reiterate, the protection of universal natural rights through the common law demanded both a method of legal analysis that could ensure uniformity, and a number of individuals, highly trained in the com• mon law, to engage in the task of interpretation. In the next two sections of this article, I will examine both of these facets of Kent's vision. The Downloaded from https://academic.oup.com/ajlh/article/37/4/440/1789574 by guest on 30 September 2021 method of interpretation can be described as legal science and the body of lawyers charged with the protection of rights was the judiciary.

LAW AS SCIENCE

The shift in the theoretical basis of the common law from custom to universality of recognition had consequences for how the common law was analyzed. First, the literary form of the treatise, as it flourished in England under the authorship of Hale and Blackstone, itself was an attempt to provide scientific classification, "to construct, by rational analysis a new comprehensive scheme for systematizing the whole of the law."51 This attempt at scientific analysis-"law as science"-also has been associated with the American treatise writers. 52 For Kent, the com• mon law was deducible through the application of right reason which, in tum, led to uniformity and inflexibility in the law. However, it is clear throughout the Commentaries that right reason was not an innate function. Rather, it was a cultivated and artificial reason which was obtainable only through diligence in study. It was, therefore, the domain of educated lawyers to interpret the common law, because "to attain a competent knowledge of the common law requires steady and lasting perseverance."53 Miller argued that resort by the legal elites to this "artificial reason" of lawyers was a response to the widely held assumption "of every man's immediate access to the principle of natural reason."54 It also was integral to the attempt at conceptualizing the study of law as science through sys• tematic "clarification, rational ordering and effective dissemination" of legal principles.55 The law as science approach speaks not only to the style of the Commentaries, it also sheds light upon Kent's understanding of the common law. The principles of law were amenable to skillful appli• cation and deduction from right reason. The goals of certainty and unifor-

51. A.W.B. Simpson, The Rise and Fall of the Legal Treatise: Legal Principles and the Forms ofLegal Literature, 48 U. CHI. L. REV. 632, 640 (1981). On the historical relation• ship of law and science, see generally Robert W. Gordon, Legal Thought and Legal Practice in the Age of American Enterprise 1870-1920, in PROFESSIONS AND PROFESSIONAL IDEOLOGIES IN AMERICA 70, 82-87 (Gerald L. Geison, ed., 1983); BARBARA J. SHAPIRO, PROBABILITY AND CERTAINTY IN SEVENTEENTH-CENTURY ENG• LAND 167-193 (1983). 52. See generally MILLER, supra note 20, at 156-86. 53. 1 COMMENTARIES 473. 54. MILLER, supra note 20, at 122. 55. NEWMYER, supra note 25, at 363. 452 THE AMERICAN JOURNAL OF LEGAL HISTORY Vol. XXXVII mity could be realized only through technical competence and expertise. Kent saw these characteristics as inherent to legal study: It would be quite visionary to suppose that the science of law, even in the depart• ment of conveyancing, will not continue to have its technical language, and its various, subtle and profound learning, in common with every other branch of human science. 56 Downloaded from https://academic.oup.com/ajlh/article/37/4/440/1789574 by guest on 30 September 2021 The law as science approach is interesting because of its connection to the reformulation of the basis of the common law. Universality demanded investigation to determine whether a common law rule, as a matter offact, was universally recognized and, therefore, reasonable. That investigation could not be undertaken through the ordinary sensory pow• ers nor through the application of 'natural' reason. Instead, it demanded the artificial reason of the well-trained lawyer. The scientific method as applied to law created the possibility that while the common law as a sys• tem comported with right reason, individual common law rules might not display the requisite universality of natural law rules. Raack's description of this "tension" in the Commentaries undoubtedly is correct.>? However, his conclusion that this piecemeal reexamination of common law rules suggests the absence of a theoretical basis for Kent's understanding of the common law, is erroneous. Because Kent was forced to reformulate the foundations of the common law around the principle of universality, he was left with no alternative but to reexamine individual common law rules to determine their "suitability" for the American condition. In fact, this was the means of "perfecting" the common law, for it allowed Kent to place distance between the monarchical system under which the common law had developed, and a republican society. A unique opportunity was presented to Kent who, recognizing the deficiencies of a number of com• mon law rules, could improve the law. Reform of the law could be justi• fied as necessary to ensure that positive law comported both with natural law and American constitutional law (its natural outgrowth). The determination that individual rules of the common law lacked the universal character necessary to ground them in natural law required scientific precision and only could be determined by one schooled in the cultivated reason of lawyers. Kent elaborated upon this process in his con• sideration of the doctrine of perpetual allegiance and its suitability to America: It has been a question, frequently and gravely argued, both by theoretical writers, and in forensic discussions, whether the English doctrine of perpetual allegiance applies in its full extent to this country. The writers on public law have spoken rather loosely, but generally in favour of the right of a subject to emigrate, and abandon his native country, unless there be some positive restraint by law, or he is at the time in possession of a public trust, or unless his country be in distress, or in war, and stands in need of his assistance....[T]he doctrine of final and absolute expatriation requires to be defined with precision, and to be subjected to certain established limitations, before it can be admitted into our jurisprudence, as a safe and practicable principle, or laid down broadly as a wise and salutary

56. 4 COMMENTARIES 300. 57. Raack, supra note 30, at 341. 1993 CHANCELLOR KENT AND AMERICAN COMMON LAW 453

rule of national policy.58 This passage is instructive in several respects. First, Kent clearly recog• nized the possibility that some English common law rules might not be acceptable. Second, in determining whether a common law rule accorded with natural law, reference was made to the writers on public law-the civilian tradition. Third, Kent stressed that the abandonment of a common Downloaded from https://academic.oup.com/ajlh/article/37/4/440/1789574 by guest on 30 September 2021 law rule should not be undertaken lightly. Rather, precision and incremen• talism were crucial. This suggests perhaps that English common law pre• sumptively accorded with the precepts of natural law and only after care• ful consideration and study was that presumption rebuttable. Of particular interest is the attention paid by Kent throughout the Commentaries to the civil law tradition. This aspect of Kent's work has received little attention and generally has been dismissed as extraneous to the substance of the Commentaries. Miller did recognize that the invoca• tion of the civil law by Kent and Story was a means of furthering the law as a science and as a liberal study. He concluded, however, that the trea• tise writers were never serious about the civil law, which served the pur• pose only of assisting in the elevation of the legal profession and its elite.>? The emphasis on the civil law was a means of demonstrating the learning and cultivation necessary to engage in the legal enterprise. Friedman was even more dismissive of the civil law presence within the American treatise tradition, concluding that it was "of secondary value if not a downright nuisance.?«! This easy dismissal ignores how the treatise writers' reliance upon the civil law was interwoven with the development of a new foundation for the common law in America. If law was a science aimed at determining, through cultivated reason, the compatibility of rules with natural law, then that study required a wide ranging investigation of sources. Only then could the requisite universality of a rule be determined conclusively. Consequently, Kent gave considerable space to the civil law and his characterization is particularly instructive: "the civil law constitutes the principal basis of their [the civilians'] unwritten or common law."61 By describing the civil law as the basis of the unwritten law of the civilians, Kent equated unwritten law with natural law. The civil law, like the com• mon law, was simply an outgrowth of the natural law tradition to the extent that it displayed the universal character of natural law. The fact that the civil law was based upon a code was either irrelevant or perhaps detri• mental to the search for natural law. Indeed, Kent's ambivalence towards codification might explain why he chose to describe the civil law as unwritten.62 Individual rules of the civil law, of course, were subject to

58. 2 COMMENTARIES 44. 59. See MILLER, supra note 20, at 169: "In practice the courts and the writers of textbooks did not make such extensive use of the Civil Law as the learned advocates pretended." 60. Friedman, supra note 29, at 1254. 61. 1 COMMENTARIES 515. 62. See infra. 454 THE AMERICAN JOURNAL OF LEGAL HISTORY Vol. XXXVII the same scientific investigation to determine whether they comported with natural law . However, the principle of universality itself implied that the civil law tradition, in large measure, should bear a resemblance to the English common law with respect to the fundamental rights of property and liberty. Kent emphasized the "importance of the study and influence of the Downloaded from https://academic.oup.com/ajlh/article/37/4/440/1789574 by guest on 30 September 2021 civillaw"63 frequently in the Commentaries. In fact, he argued for greater simplicity and a reduced number of text authorities in the common law to permit the lawyer greater opportunity for the study of the civillaw.64 It is apparent that, for Kent, the great virtue of the civil law was the degree of certainty and stability that it provided, particularly with respect to proper• ty. Consequently, many of the substantive rules of the civil law were rec• oncilable with English constitutional principles. To the degree that the civil law could further natural rights, it warranted study: The value of the civil law is not to be found in questions which relate to the con• nexion between. the government and the people, or in provisions for personal security in criminal cases. In every thing which concerns civil and political liber• ty, it cannot be compared with the free spirit of the English and American com• mon law. But upon subjects relating to private rights and personal contracts, and the duties which flow from them, there is no system of law in which principles are investigated with more good sense, or declared and enforced with more accu• rate and impartial justice.... [T]he civil law shows the proofs of the highest culti• vation and refinement; and no one who peruses it can well avoid conviction, that it has been the fruitful source of those comprehensive views and solid principles, which have been applied to elevate and adorn the jurisprudence of modern nations.e> Thus, reference to the civil law tradition was integral to a principled approach to law. The tenets of the civil law enhanced certainty, stability, and uniformity in the application of rules. If property was more secure under the protection of a civil law rule, rather than a rule of the common law, then the former was in accord with natural law and ought to be adopted as part of the American common law. The process of examina• tion of rules of the civil law only could be undertaken by lawyers schooled in its nuances. This was understandable because the evaluation of rules of law had to be pursued carefully, systematically, and scientifi• cally, to ensure that stability would be enhanced rather than sacrificed. Scientific method thereby became a means to further the search for uni• versal rules-rules which would protect rights by enhancing the certainty of the legal system. Thus, the shift in the theory of the common law from immemorial custom to universality of recognition required the development of a new

63. I COMMENTARIES 486. 64. I COMMENTARIES 475. 65. I COMMENTARIES 547. An example of Kent's appreciation of civil law rules is presented in his discussion of the law respecting defects in title. After a review of English and American case law, Kent concluded that: "it is to be regretted, that the embarrassment and contradiction which accompany the English and American cases on this subject cannot be relieved, by the establishment of some clear and definite rule, like that declared in France, which shall be of controlling influence and universal reception" (2 COMMENTARIES 476). 1993 CHANCELLOR KENT AND AMERICAN COMMON LAW 455 method of study to ensure that natural rights were adequately protected. Moreover, as mentioned earlier, the focus on property and liberty demanded an elite group, steeped in cultivated reason, to protect those rights. That body-the judiciary-was necessary to guarantee the security of property, through the application of the common law, from majoritari• an threats. The shift to a universal rights basis for legal rules, then, neces• Downloaded from https://academic.oup.com/ajlh/article/37/4/440/1789574 by guest on 30 September 2021 sarily led to a focus on legal science as a methodology and, additionally, demanded a central role for judges as guarantors of the rights which were secured through the common law.

THE ROLE OF JUDGES

For Kent, the judiciary's capacity to secure rights arose from its abil• ity to ensure the certainty, uniformity and inflexibility of law. This con• ception of the role of courts resulted from Kent's concern with the dan• gers of factionalism. An independent judiciary was essential to guarantee natural rights from the threat of excessive democratic impulses: In monarchical governments, the independence of the judiciary is essential to guard the rights of the subject from the injustice of the crown; but in republics it is equally salutary, in protecting the constitution and laws from the encroachment and the tyranny of faction. Laws, however wholesome or necessary, are frequent• ly the object of temporary aversion, and sometimes of popular resistance. It is requisite that the courts of justice should be able, at all times, to present a deter• mined countenance against all licentious acts; and, to give them the firmness to do it, the judges ought to be confident of the security of their stations.66 The importance of judges extended to a supervisory role over legislatures, which Kent saw as particularly vulnerable to factions. The courts were uniquely situated to contain that danger: Nor is an independent judiciary less useful as a check upon the legislative power, which is sometimes disposed, from the force of passion, or the temptations of interest, to make a sacrifice of constitutional rights; and it is a wise and necessary principle of our government ... that legislative acts are subject to the severe scrutiny and impartial interpretation of the courts of justice.e? The importance of an independent and stable judiciary also influ• enced Kent's views on the divided court system of the United States. He recognized that in a unitary system there existed a greater likelihood of stability and uniformity in the interpretation of laws: "the federal adminis• tration of justice has a manifest superiority over that of the individual states, in consequence of the uniformity of its decisions, and the univer• sality of their application."68 However, given the presence of state courts, Kent extolled the benefits of divided jurisdiction-a division in which the universality of the common law would not be sacrificed and in which nat• ural rights would be protected:

66. 1 COMMENTARIES 294. 67. ld. 68. 1 COMMENTARIES 444. 456 THE AMERICAN JOURNAL OF LEGAL HISTORY Vol. XXXVII

The vast field of the law of property, the very extensive head of equity jurisdic• tion, and the principal rights and duties which flow from our civil and domestic relations, fall within the control, and we might almost say, the exclusive cog• nizance, of the state governments. We look essentially to the state courts for pro• tection to all these momentous interests. They touch, in their operation, every cord of human sympathy, and control our best destinies. ...The elementary princi•

ples of the common law are the same in every state, and equally enlighten and Downloaded from https://academic.oup.com/ajlh/article/37/4/440/1789574 by guest on 30 September 2021 invigorate every part ofour country.69 Thus, left in the hands of the judiciary, the common law would be interpreted uniformly in furtherance of rights. Indeed, this faith was relat• ed to Kent's confidence that the training of judges prepared them to exer• cise their cultivated reason. Once again, the belief in law as science was closely connected to a confidence in the ability ofjudges to protect rights. This conception of the judiciary also influenced Kent's views on equitable jurisdiction. Universality inevitably led to increasingly inflexi• ble legal rules. Consequently, courts of equity, acting in accordance with natural law principles, over time would find their jurisdiction less subject to the discretion by which it was first characterized: ... [T]he system of equity is equally to be found embodied in the reports of adjudged cases; and the rules and usages of the court of chancery are as fixed as those which govern other tribunals. They have been regarded as a kind of sec• ondary common law, framed or promulgated by the court of chancery within the last two centuries. That court is an [sic] much bound as a court of law, by a series of decisions, applicable to the case, and establishing a rule. It has no discre• tionary power over principles and established precedents.... A court of equity becomes, in the lapse of time, by gradual and almost imperceptible degrees, a court of strict technical jurisprudence, like a court of law. 70 Thus, equity, like the common law, could be made into a scientific enter• prise. Discretion was constrained and flexibility denied to secure property rights. Interestingly, the security which the judiciary provided was not equated by Kent with infallibility. This is apparent from Kent's descrip• tion of the power of the executive to grant pardons. Kent accepted that this power was necessary and he acknowledged that in accepting it he was making a "a tacit acknowledgement of the infirmity of courts of jus• tice."71 However, this infirmity was related by Kent to factors that were beyond the control of the judge: And this power of pardon will appear to be more essential, when we consider, that under the most correct administration of the law, men will sometimes fall prey to the vindictiveness of accusers, the inaccuracy of testimony, and the falli• bility of jurors.72 Thus, even the most learned and reasoned jurist might be unable to render a result in accordance with the principles of natural justice because of fac• tors beyond the control of his cultivated reason. Those factors necessarily

69. 1 COMMENTARIES 445 [emphasis added]. 70. 1 COMMENTARIES 489. 71. 1 COMMENTARIES 283-284. 72. 1 COMMENTARIES 284. 1993 CHANCELLOR KENT AND AMERICAN COMMON LAW 457 arose from the vices and errors of citizens who did not possess the powers of reason of the well trained lawyer. Kent's attitude towards the pardon foreshadowed something of his views about juries more generally, as revealed in his discussion of the jurisdiction of admiralty courts. Kent recognized that the history of admi• ralty courts held an important place in the story of the American Downloaded from https://academic.oup.com/ajlh/article/37/4/440/1789574 by guest on 30 September 2021 Revolution. Indeed, the administration of the Stamp Act by the Courts of Vice-Admiralty was the means by which the British government avoided prosecutions before American juries, and this expanded jurisdiction became "associated with arbitrary government and the denial of rights."73 The concern not only related to the expansion of prerogative law, but also to the perception that property was not secure where trial by jury was denied.74 With American independence, however, the ambivalence towards admiralty jurisdiction was diminished. Instead, Kent was skepti• cal of the jury system in contexts that required a degree of knowledge unlikely to be possessed by the lay person, such as in the law of patents and testamentary dispositions.75 Moreover, with respect to admiralty jurisdiction, Kent had no concerns with an expanded sphere of influence: The vice admiralty courts in this country, under the colonial governments, exer• cised a most ample jurisdiction, to the extent now claimed, over all maritime con• tracts, and over torts and injuries, as well as ports as upon the high seas; and the constitution of the United States, when it conferred not only admiralty, but mar• itime jurisdiction, added that word ex industria, to remove every latent doubt. This large and liberal construction of the admiralty powers of the district courts, and their extension to all maritime contracts, torts and injuries, was recommend• ed by the general equity and simplicity of admiralty proceedings, and the policy and wisdom of that code of maritime law, which had embodied the enlightened reason of the civil law, and the customs and usages of the maritime nations, and regulates, by its decisions, the commercial intercourse of rnankind.?« Undoubtedly, one component of that "enlightened reason" of the civil law was the greater likelihood of uniformity, inflexibility and securi• ty that went with decision making by judges as opposed to relying upon the whims of juries. The focus on the right to property, which had con• tributed to the pre-Revolutionary American distrust of admiralty jurisdic• tion, for Kent became transformed into a concern that juries lacked the reason necessary to comprehend admiralty law, patents and testaments. Miller argued that this distrust of juries stemmed not only from a view of law as science, but also from the need for certainty in an increasingly commercialized society.77 Although it is not the purpose of this article to articulate Kent's role in the reaction of law to the 'progress' of society, Miller did make a sound observation that Kent was not enamored with juries. That ambivalence was linked to a skepticism as to the ability of the

73. REID, supra note 36, at 178. 74. Id. at 181. 75. See generally MILLER, supra note 20, at 177-182. 76. 1 COMMENTARIES 369. 77. MILLER, supra note 20, at 181. 458 THE AMERICAN JOURNAL OF LEGAL HISTORY Vol. XXXVII

untrained to comprehend the subtleties of the law and a general unwilling• ness to trust juries with the protection of the individual's right to property. Thus, for Kent, the role of the judiciary was central to the preserva• tion of rights in a well-ordered society. Common law judges ensured the security of property and the protection of liberty. Judicial independence was necessary as a check on the popularly elected legislature, which in Downloaded from https://academic.oup.com/ajlh/article/37/4/440/1789574 by guest on 30 September 2021 tum also was conducive to guaranteeing rights. A predominant role for the judiciary as guarantor of individual rights was the logical outcome of the refashioning of the common law on the basis of universal natural rights. As rights were grounded in legal rules, it became necessary to pro• tect them from the majoritarian threat of the legislative branch. An inde• pendent and educated judiciary was the means by which that threat was contained.

THE ROLE OF STATUTES

The relationship of the judiciary to the legislature also raises the par• ticular question of the role of the latter in enacting statutes. Not surpris• ingly, for Kent the function of statutes was tied to his conception of the place of judges in interpreting the common law. Given the central role which Kent accorded the common law in the American legal order, and given the importance of the judiciary in the application of law in a uni• form and inflexible manner, it is interesting to examine how statutory enactments fit within this framework. The traditional response to the inquiry has been to focus upon Kent's perceived antipathy towards the codification movement of the early nineteenth century.78 A close exami• nation of the Commentaries, however, reveals that Kent's understanding of statutory law was a far more sophisticated one which warrants further attention. First, it is important to recall that Kent's conception of the legal order was a response to his perception of the dangers of factionalism and the potential insecurity of property rights in a democratic society. The common law, enforced by an independent judiciary, provided a check upon the pressures of majoritarianism. Statutes, as a product of the legis• lature, fostered disorder and the breakdown of stability and uniformity in the legal system. This formed the backdrop to Kent's opinions on statute law. However, it is equally true that Kent could be highly critical of indi• vidual common law rules if they created uncertainty, diversity, or were otherwise not in accord with natural law. Thus, just as common law rules were examined on an individual basis to determine whether they were rea• sonable, so too were individual statutory enactments. For example, Kent discussed extensively the question of when a statute becomes effective. He examined the common law rule and con-

78. See, e.g., MILLER, supra note 20, wherein he described Kent as feeling "outrage against the very idea of a code which inflamed his otherwise serene old age" (id. at 249). 1993 CHANCELLOR KENT AND AMERICAN COMMON LAW 459 eluded that it was unreasonable due to its potential to operate unjustly, because of retrospective effect, upon rights of property and liberty: The English rule formerly was, that if no period was fixed by the statute itself, it took effect by relation, from the first day of the session in which the act was passed, and which might be some weeks, if not months, before the act received

the royal sanction, or even before it had ever been introduced into parliament. Downloaded from https://academic.oup.com/ajlh/article/37/4/440/1789574 by guest on 30 September 2021 This was an extraordinary instance of the doctrine of relation, working gross injustice and absurdity; and yet we find the rule declared and uniformly adhered to, from the time of Hen. VI.79 Perceiving the common law rule to operate unfairly, Kent reviewed the analogous civil law rule. He finally determined that statutory modification brought the common law into conformity with the demands of right reason: The code Napoleon adopted the true rule on this subject. It declared, that laws were binding from the moment their promulgation could be known.... The New York revised statutes have also declared the very equitable rule, that every law, unless a different time be prescribed therein, takes effect throughout the state, on, and not before, the 20th day after the day of its final passage. 80 Thus, in this case, legislative enactment ensured certainty, uniformity and the protection of rights. The example highlights Kent's willingness to examine common law rules and statutory rules on an individual basis to determine whether reform would further the ends of the legal system. However, Kent's willingness to examine statutes on their merits to determine reasonableness must not be confused with an endorsement of more general and comprehensive attempts at legislative reform of the common law. Early nineteenth century America was marked by a codifi• cation movement that "was spurred by the perception of defects in the common law ... the complaints about the technicality, obscurity, and mys• tery of the common law."81 The drive for codification drew upon many of the same theoretical strands as the American treatise tradition-the desire for certainty, stability, uniformity, and law as a scientific enterprise. In fact, Miller went so far as to suggest that "ironically enough, the great textbooks, by their concerted effort to impose a logical structure upon their materials, became in effect drafts of codes. "82 Despite the apparent similarity in the underpinnings of the views of Kent and the proponents of codification, Kent's response to codification and specifically to the attempt at legislative reform in New York State in the 1820's, was ambivalent at best. 83 Given Kent's attempt at reformulat• ing the theoretical basis of the common law in post-Revolutionary America, this attitude seems counterintuitive. Codification drew heavily from the civil law tradition and was advocated on the basis of its rationali-

79. I COMMENTARIES 456. 80. I COMMENTARIES 459. 81. Raack, supra note 30, at 349. 82. MILLER, supra note 20, at 245. 83. For a discussion of the codification movement see Raack, supra note 30, at 348-365. Raack concludes that the reform attempts in New York were highly significant: "New 460 THE AMERICAN JOURNAL OF LEGAL HISTORY Vol. XXXVII ty and certainty. Indeed, from the perspective of Kent and Story, the codi• fication movement placed them in an awkward position vis their earlier laudatory comments on the virtues of the civil code: the pundits who had originally demanded that ignorant candidates submit to the immense discipline not only of the Common Law and equity, but of the Civil

Law, had increasingly to insist that for an American the civil law was only an Downloaded from https://academic.oup.com/ajlh/article/37/4/440/1789574 by guest on 30 September 2021 intellectual relaxation which should never be seriously considered integral to his own sysrern.s- However, Kent's skepticism towards codification is not inconsistent with his theoretical framework. Rather, his ambivalence stemmed from doubts that, as a practical matter, the security of rights would be enhanced by a code. This resulted not only from his opinions on factionalism in the leg• islative process, but also from concerns specifically related to the devel• opment of a comprehensive code. For Kent, the potential for greater uncertainty outweighed the utopian possibility of scientific precision and rationality: it would be quite visionary to expect, in any code of statute law, such precision of thought and perspicuity of language, as to preclude all uncertainty as to the meaning, and exempt the community from the evils of vexatious doubts and liti• gious interpretations.e> The dangers of uncertainty were exacerbated, in Kent's mind, by the possibility of diversity in interpretation between the states resulting from divergent language used in drafting. The most glaring example of this inconsistency was in the law of descents. Kent compared the uniformity of the English common law rule with the vexatious confusion of the American law: Descent, or hereditary possession, is the title whereby a person, on the death of his ancestor, acquires his estate by right of representation as his heir. The English law of descents is governed by a number of rules, or canons of inheritance, which have been established for ages, and have regulated the transmission of the estate from the ancestor to the heir, in so clear and decided a manner, as to preclude all uncertainty as to the course which the descent is to take. But in these United States, the English common law of descents, in its most essential features, has been universally rejected, and each state has established a law of descents for itself. The laws of the individual states may agree in their great outlines, but they differ exceedingly in the details. There is no entire, though there is an essential uniformity on this subject; and, the observation of a great master of this title in American law, is rather too strong, when he says, that "this nation may be said to have no general law of descents, which probably has not fallen to the lot of any other civilized country. '86 Although Kent suggested, as a preface to his quotation from Reeve's Treatise on the Law ofDescents, that the author had overstated the case,

York's decision in the 1820's to embark upon a major revision of its statutes was a signal event in the codification movement. Although it stopped short of outright codification, many people perceived it as a sign that the arguments of law reformers and codifiers were gaining ground" tid. at 355). 84. MILLER, supra note 20, at 246. 85. 1 COMMENTARIES 468. 86. 4 COMMENTARIES 374. 1993 CHANCELLOR KENT AND AMERICAN COMMON LAW 461 the reader was left to suspect that there was an element of truth in Reeve's conclusion. Kent's concerns with legislation were multifaceted. They were based not only on the unlikelihood that broad attempts at codification would comport with natural law and create greater stability and uniformity in the law. He also noted the particular difficulty of reducing a body of common Downloaded from https://academic.oup.com/ajlh/article/37/4/440/1789574 by guest on 30 September 2021 law, largely founded on natural reason and the protection of rights, and incorporating all of the subtlety of cultivated reason, into a code created by the legislative branch: There is a peculiar and inherent difficulty in the application of the new and daz• zling theory of codification to such intricate doctrines, which lie wrapped up in principles and refinements, remote from the ordinary speculations of mankind. Brevity becomes obscurity, and a good deal of circumlocution has heretofore been indulged in all legislative productions; and reservations, provisoes, and exceptions, have been carefully inserted, in order that the meaning of the lawgiv• er might be generally, and easily, and perfectly understood .... The intelligence of the great body of the legislature, in any country, cannot well be brought to bear upon a dense mass of general propositions, in all their ties, relations, and depen• dencies, or be made to comprehend them; and the legislation by codes becomes essentially the legislation of a single individual.e? The problem, according to Kent, with the process of codification was the danger that the individual charged with drafting would be unable to fully comprehend the intricacies necessary to reproduce and perfect the law: "it may affect the wisdom of the scheme itself, if some valuable matter should have been omitted."88 Uncertainty and confusion thereby would result. The concern thus arose particularly from the breadth of the reform effort, which included codification of the law of property: No system of law can be rendered free from such imperfections; and the extent of them will necessarily be enlarged, and the danger greatly increased, when there have been entire and radical innovations made upon the settled modifications of property, disturbing to their very foundations the usages and analogies of existing institutions.89 These inherent difficulties with codification also had ramifications for the judiciary which would be charged with interpreting the code. The uncertainty would force judges to remedy the likely defects of the code in order to protect rights. Thus, rather than correcting the deficiencies of the common law, the codification process would lead to greater confusion and instability. "Judicial legislation"90 would be necessary as a gloss on the code. Judges thereby would cease to be discoverers of the common law and instead would exercise a dangerously arbitrary discretion as inter• preters of ambiguous statutory language. This reasoning explains how Kent could reconcile his acceptance of individual statutory rules, which might remedy common law defects, with an ambivalence and hostility towards large scale codification movements.

87. 4 COMMENTARIES 351-352. 88. 4 COMMENTARIES 352. 89. Id. 90. Id. 462 THE AMERICAN JOURNAL OF LEGAL HISTORY Vol. XXXVII

Incremental intervention by the legislature could ensure greater stability if the effort explicitly was designed to enhance the protection of rights. In a codification attempt, however, the virtue of increased stability would be sacrificed because uncertainty was the likely outcome of an attempt to encapsulate a body of cultivated reasoning into written form. Consequently, it is not surprising that Kent responded to the Revised Downloaded from https://academic.oup.com/ajlh/article/37/4/440/1789574 by guest on 30 September 2021 Statutes of New York with mixed emotions: "there is much in the work to recommend it, and there is much cause for apprehension, on account of the depth to which the hand of reform has penetrated, in pursuit of latent and speculative grievances."91 This apprehension was the inevitable result of Kent's legal theory and specifically his understanding of the relation• ship of legislatures and courts.

CONCLUSION

A close examination of Kent's Commentaries reveals a conception of the well ordered legal system that cannot be described simply as "con• servative" or "pragmatic." Rather, the accomplishment of Chancellor Kent was his ability to justify, on a new theoretical foundation, the eigh• teenth century English constitutional rights of property and liberty. The decline of custom in nineteenth century America forced this shift and, to this end, Kent recognized that a more sophisticated understanding of the common law, statute law, and the role of the judiciary was demanded. The universality of legal rules replaced English custom as authority and this facilitated the transplanting of English common law into American soil. Indeed, it provided a uniquely post-Revolutionary American justification for those rules. Most importantly, universality meant that rules were grounded in natural rights and, as a result, lawyers and judges assumed the role of interpreters and protectors of the rights of individuals. The law as science movement provided the method of legal analysis, and judges, steeped in the wisdom of the common law, ensured that rights were pro• tected from the threat of majoritarianism. Kent is a central figure in American legal history, then, not because of his understanding of the sub• stance of rights, but rather in the theoretical basis by which rights were understood. In engaging in that task of devising a new and distinctly American legal theory, Kent played a crucial role in entrenching the com• mon law in America. Equally important, he merits recognition for formu• lating a uniquely American common law, capable of adaptation to fit the conditions of a new society while remaining sufficiently stable to secure rights. Finally, the focus on universality ensured that rights were given an autonomy and priority that would become the hallmark of thi American legal tradition. The popularity of the Commentaries throughout the nine• teenth century suggests that Kent's conception of the legal order had a significant influence. A close examination of the Commentaries reveals

91. 4 COMMENTARIES 351. 1993 CHANCELLOR KENT AND AMERICAN COMMON LAW 463 how that reformulation was accomplished and, moreover, underscores the significance of Kent in the history both of the common law treatise and in the development of a new legal order. Downloaded from https://academic.oup.com/ajlh/article/37/4/440/1789574 by guest on 30 September 2021