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.