James Kent

American legal scholar

• Born: July 31, 1763
• Birthplace: Fredericksburg, New York
• Died: December 12, 1847
• Place of death: New York, New York

Through his law lectures, written judicial opinions, and four-volume Commentaries on American Law, Kent won renown as a legal scholar of profound intellect. His work set the standard by which future legal and constitutional scholarship in the United States was measured.

Early Life

The mother of James Kent, who had been born Hannah Fitch, was the daughter of a physician. Kent’s father, Moss Kent, the son of a noted Connecticut Presbyterian minister, had been educated at Yale College and had become a successful lawyer. It was natural, as he was born into an educated and socially prominent family, that James would be sent to the best private schools and tutors available. Beginning at the age of five, he studied the traditional college preparatory curriculum for that era. He had a happy childhood, notwithstanding the loss of his mother at the age of seven and the troubles and loss of home during the early days of the American Revolution.

At the age of fourteen, James Kent entered Yale College, where he excelled as a student, being accepted into Phi Beta Kappa in his senior year. In 1779, he had to flee Yale when the British threatened to march through New Haven, Connecticut, and the college was closed down. During this brief interruption of his college studies, Kent discovered his father’s four-volume set of William Blackstone’s Commentaries on the Laws of England (1765-1769). He found the clear and eloquent prose of the Commentaries so profound that it turned his interest toward law.

By the time he was graduated from Yale at the age of eighteen in 1781, Kent had become a scholar and a gentleman. He was considered a handsome youth, slight of build and just under average height, with a high forehead and a friendly face. He was somewhat shy, but throughout his life he made friends easily. Kent was ambitious and understood that preferment often came to those who were respectful of their superiors. By 1781, Kent had acquired life-long beliefs in caution and conservativism, hard work and honesty, and a sense of duty to society in return for his position as a member of the country’s elite upper class.

Because there were no law schools in the United States before 1784, the only way for Kent to become a lawyer was to “read for the law” while working for a practicing attorney or judge. He secured a clerk’s position with New York’s attorney general, Egbert Benson, in Poughkeepsie, New York. He soon reestablished his reputation for diligence, spending most of his own time reading and studying the classics in law by Hugo Grotius, Samuel von Pufendorf, John Locke, Blackstone, and Edward Coke, among others. By January of 1785, he easily passed the oral examination admitting him to the bar. While clerking for Benson, he lived with John Bailey and fell in love with his daughter Elizabeth. They were married on April 3, 1785, just after he had joined Gilbert Livingston, a prominent Poughkeepsie lawyer, as a partner. He was twenty-one and she was sixteen. It was to be a long and happy union with four children, three of whom survived to adulthood.

Life’s Work

The events surrounding the adoption of the U.S. Constitution drew Kent into a short political career and brought him to the attention of prominent politicians. He was keenly interested in the proposed new federal constitution, attending as a spectator all sessions of New York’s special convention to decide whether to adopt it. His interest was so piqued, he ran for and was elected to the New York Assembly in 1790 and reelected in 1792 as a delegate of Poughkeepsie. Although his voting record clearly aligned him with the more conservative Federalists, he gained the trust and admiration of all factions for his hard work and knowledge of law. In 1792, the governorship was also being contested. John Jay, the Federalist candidate, was defeated by George Clinton. Kent gained the recognition of Jay and the Federalist leadership of New York when he led the fight during that election to expose some questionable campaign practices by the Clinton forces. Jay and other leading Federalists persuaded Kent to run for the U.S. House of Representatives in 1793, a race he lost.

With a rare lapse of good grace, Kent moved his family to New York City and opened his own law office, saying Poughkeepsie was too provincial. In November of 1794, he also began teaching law at Columbia College. The lectures written for the course were well researched and systematically covered all areas of American law. They later were published and then expanded into his famous, four-volume Commentaries on American Law (1826-1830). The professorship lasted only four years. The course seemed to have been too demanding for undergraduate students to be popular.

In 1795, John Jay ran again for governor of New York and won, but he did so just as the news broke of the unpopular treaty with England he had just negotiated for President George Washington. Kent entered the public debate to defend Jay by writing and publishing several pamphlets and essays. Jay rewarded Kent in 1796 by appointing him one of the two masters in chancery for New York City. A year later, Jay also appointed Kent as recorder of the City of New York. These two appointments, held simultaneously, made keeping a private practice unnecessary, an outcome that Kent welcomed. Although he had proved himself to be a fine courtroom lawyer, Kent had learned that he did not like arguing against other attorneys.

In 1798, Jay promoted Kent to associate justice of the New York state supreme court, a position he held until 1804 when he became chief justice. The new position required him to move to the state capital, Albany, and did not pay particularly well. Neither proved a problem, however, because he and Elizabeth had come to dislike the squalor and noise of the city and Kent had made some wise real estate investments that had paid off handsomely. Wealth was never Kent’s ambition, for he sought instead respect as a scholar and man of principle. Kent was an intellectual. In Albany he found time for the further study of law and literature, and his library increased considerably.

The majority of the five-man New York State Supreme Court were Democratic-Republicans (that is, Jeffersonians), a political orientation Kent wholeheartedly despised. He perceived in their philosophy a plot by the lower classes to plunder the wealth and property of the upper classes. This, he thought, was the worst threat to liberty facing the United States. The fact that Kent was successful in becoming the leading justice on the court was a testament to his congenial personality as well as his scholarship.

A major problem before the court, and all state and federal courts at this time, was whether English common law was still in force. Federalists such as Kent thought the answer was yes, while Democratic-Republicans favored developing an American common law spiced with French doctrines as needed. The contest in New York was decisively won by English common law and Kent was largely responsible. Drawing on his profound learning and using his extensive powers of logic and persuasion, Kent carried his colleagues. This situation did not go unnoticed in the press, which praised Kent for his clarity, impartiality, and precision. As chief justice after 1804, Kent arranged to have all of the Court’s opinions written and published, an effort that spread his influence throughout the nation.

Kent did not embrace English common law wholly and without question. There were times when he found it either unsuited to a republican environment or contrary to his sense of justice. He was then willing to amend or alter English precedent. The result was that by the time he left the New York Supreme Court in 1814, a fair body of logically consistent judicial doctrine was in place as a heritage for New York’s future. This included laying the foundations for free enterprise capitalism and the defense of rights such as the free press. In the latter case Kent argued, contrary to English common law, that truth with legitimate intent was an acceptable defense against libel.

In 1814, in recognition of his eminence as a jurist, Kent was appointed chancellor of New York, a judicial office that has since fallen into disuse in the United States. A chancery court was a court of equity that heard cases where the injustice claimed was not covered by statutory law. Such cases were decided on the basis of rules of equity developed by the equity courts over the years. The object of these rules was to render each man his due and make justice and right-dealing prevail in the regulation of people’s affairs. Each case was an ethical rather than legal issue and required a wise and learned judge.

Kent approached his new position with characteristic vigor and scholarly acumen and was soon gaining renown in New York and throughout the nation for the quality of his decisions. As he had done before, Kent began the practice of written decisions that were then published in book form periodically. He became particularly famous for defending property and contract rights. Chancellor Kent did not, however, favor the wealthy, as some claimed. His decisions often provided relief for the poor, and he was known for being hard on those who violated the trusts of widows, orphans, and the feebleminded.

Chancellor Kent was reversed by the New York Court of Errors only on occasion and his reputation for honesty, fairness, high professionalism, and incorruptibility became legend. Many famous lawyers and politicians consulted him on difficult points of law. Chancellor Kent wanted to continue on as chancellor as long as he was physically and mentally able, but New York’s constitution mandated retirement at the age of sixty, an age Chancellor Kent reached in 1823.

After retiring, Kent moved back to New York City to open a law office and became a successful lawyer’s lawyer. Columbia College again asked him to accept a professorship of law. Kent reworked his old lectures, and in the process began his greatest work, the Commentaries on American Law, published between 1826 and 1830. Kent’s retirement turned out to be the most important period of his life. Five editions of his Commentaries were published during his lifetime, and he had finished the sixth just before he died. In the years following his death, further editions under various editors were also published; the fourteenth, in 1896, was the last.

Kent’s Commentaries were the first effort by anyone to study the American laws and the Constitution in a systematic and scholarly manner. Judges, lawyers, and law students throughout the nation bought and used these books. Every copy of every edition published during the chancellor’s lifetime (indeed until nearly the last edition) was sold. Although the Commentaries reflect Kent’s conservative bias, his careful scholarship and intellectual integrity made the books of great value to everyone regardless of their political philosophy. It is probable that, until about 1900, the number of American lawyers unfamiliar with Chancellor Kent’s Commentaries were few.

Besides his professional work, Kent spent his declining years traveling and enjoying the company of his wife, children, and grandchildren. He seemed especially to enjoy the many banquets held to honor him. He remained alert and vigorous until nearly the end of his life. Besides old age, a touch of arthritis was all that seemed to bother him. He died quietly at home in his sleep December 12, 1847, at the age of eighty-four.

Significance

As a New York Supreme Court justice and then chancellor, Kent left a legacy of written opinions of exceptional merit and scholarly precision that had influence far beyond the state’s borders. During Kent’s tenure on these courts, only the U.S. Supreme Court was more highly respected or more frequently cited as precedent in the decisions of other courts. Kent set standards for the entire American legal profession and was studied even in Europe. Kent respected the power of justice to maintain a stable and free society, and through his writings helped teach this respect to American lawyers. He also helped significantly in creating the aura of impartiality, justice, and wisdom that typically surrounds American judges and inspires individual judges to live up to that standard.

Kent’s Commentaries were often used as texts in colleges and law schools, teaching law to generations of American lawyers. More important, the four volumes also taught by example how to study the law. Some might disagree with some of Kent’s conclusions and ideas, but few could fault the manner by which he arrived at them. The Commentaries stressed the significance of the unique American doctrine of judicial review. Kent believed that this doctrine, which allowed courts to declare actions by other branches of government unconstitutional, was the keystone of liberty and justice. Through the courts’ exercise of judicial review, the power of the state could be confined to legitimate uses. This would both preserve the principles of the Constitution and build public faith and trust in government.

Kent, unlike many Jeffersonians, never questioned that the final arbiter of constitutional issues was the U.S. Supreme Court. He had lived through the years of the Articles of Confederation and understood that the United States could not long survive with a weak and powerless national government. Kent’s Commentaries also contributed to the intellectual tradition favoring an indivisible union, based on the principles of the Constitution, with a national government strong enough to preserve those principles. When the crisis of secession came, it was this tradition that preserved the United States.

Bibliography

Ferguson, Robert A. Law and Letters in American Culture. Cambridge, Mass.: Harvard University Press, 1984. Interesting and perceptive discussion of the impact of law and lawyers on American culture from the Revolution to the Civil War, an era during which lawyers were perhaps the most respected professionals. Mentions Kent only briefly.

Horton, John Theodore. James Kent: A Study in Conservatism, 1763-1847. New York: D. Appleton-Century, 1939. Reprint. New York: Da Capo Press, 1969. Not particularly profound, but the only published biography. What is lacking is insight into Kent’s personality and any real appreciation of his impact on the American legal profession.

Horwitz, Morton J. The Transformation of American Law, 1780-1860. Cambridge, Mass.: Harvard University Press, 1977. Mentions Kent in a number of places. Probably the best legal history of the era to date. Emphasis is on the transformation of English law in the colonies into a modern national legal system, and how this transformation aided economic development.

Kent, James. Commentaries on American Law. Edited by Oliver Wendell Holmes, Jr. 12th ed. 4 vols. Boston: Little, Brown, 1864. The fifth and sixth editions are considered by many the best produced by Kent personally, although any of the fourteen will suffice. The twelfth, by Oliver Wendell Holmes, Jr., is considered the most definitive edition.

‗‗‗‗‗‗‗. Memoirs and Letters of Chancellor James Kent. Compiled by William Kent. Boston: Little, Brown, 1898. Reprint. Union, N.J.: Lawbook Exchange, 2001. Compiled by Kent’s eldest son, William. For readers interested in more personal details of Kent’s life and his correspondence with other famous people of his day. The selection is a bit biased in Kent’s favor.

Langbein, John H. “Chancellor Kent and the History of Legal Literature.” Columbia Law Review 93, no. 3 (April, 1993). Discusses Kent’s influence on the development of law as a body of precedent based on published, written opinions.

Newmyer, R. Kent. The Supreme Court Under Marshall and Taney. New York: Thomas Y. Crowell, 1968. The best short discussion of the great legal and constitutional questions of Kent’s era from the viewpoint of the Supreme Court. Although Kent is mentioned only briefly, this work is an excellent introduction to the important issues Kent had to face.