Last September, I published a post on this blog about Joseph Story and the creation of Story’s Commentaries on the Constitution of the United States, one of the most important legal publications of Antebellum America.
This year, I thought I would continue along the same vein and highlight the Law Library’s holdings of items related to another figure in the history of law in the United States, someone who, like Story, vastly enriched legal literature in this country and whose influence over the law endured for a long time to come. My choice was very clear. It had to be James Kent.
James Kent was a prominent leader in the legal profession of the 19th century who was often called “the American Blackstone.” Kent is remembered now for his authorship of the Commentaries on American Law, a bestseller in his day, which by itself made Kent very wealthy and which expanded his influence among practitioners across the country (Langbein, p. 565). Kent was in his sixties, however, when he sat down to write that book, and his professional reputation was already very well established. His career saw early success with an appointment to a lectureship in law at Columbia College, which is now Columbia University (1793-1797), as well as his election to the positions of Master in Chancery (1796) and Recorder of the City of New York (1796). He was appointed to the Supreme Court of New York in 1798. In 1804, at the age of 41, he was made chief justice of that court, a position he held for ten years. In 1814, he accepted the post of Chancellor of New York, that is, judge in New York’s court of equity, which he held until he was forced into retirement at the age of sixty. Kent was also a member of the Council of Revision, a unique institution that existed in the State of New York from the time of its institution under the New York Constitution of 1777 until its abolition by the New York State Constitutional Convention in 1821. That body, which included the Governor, the Chancellor, and Justices of the Supreme Court, remarkably had the authority to review and strike down enactments of New York’s state legislature.
One of Kent’s key contributions lay in the area of court reporting. In the first decades after independence, very few American courts kept a record of judicial opinions. As a judge, Kent adopted the practice of producing written opinions that cited to and argued from recognized authorities for every case he heard. He worked closely with professional reporters, especially a reporter named William Johnson, to make sure written reports of decisions from the courts he worked on became available to the public in an accurate form (Langbein, p. 584). In 1824, Johnson published reports of the Court of Chancery for the years 1814-1824, that is, for the years of Kent’s tenure.
During his judicial career, Kent also produced or contributed to a number of important legal publications. In 1800-1801, for example, the New York legislature commissioned Kent and fellow Supreme Court judge, Jacob Radcliff, to produce a recompilation of all New York State statutes. The legislature enacted their recompilation in 1801. He also revised and digested the rules and orders of the court of Chancery that his predecessor as Chancellor, John Lansing, Jr., compiled in 1815. Kent also revised and enlarged a well-received work by English politician and Barrister of the Inner Temple Sir John Mitford entitled A Treatise on the pleadings in suits in the Court of Chancery, by English bill.
Kent began work on Commentaries on American Law by revising the lectures he delivered at Columbia College in 1794. These early lectures are published in their original form and in a more expanded form. He returned to Columbia to deliver a new set of lectures in 1824-1825, after which he turned, at the urging of his son, to developing the lectures for publication in a much more ambitious format (Langbein, p. 555).
The first volume of Commentaries was published in 1826. The subsequent three volumes came out in December 1827; October 1828; and April 1830. There was almost immediate demand for a second edition, which appeared in 1832. The third edition came out in 1836, and the fourth in 1840. The fifth edition, the last to come out in Kent’s lifetime, appeared in 1844. Kent died in 1847. The work appeared in 14 editions by 1896. The twelfth edition was edited by Oliver Wendell Holmes. Abridgements and popularizations of the work were also published even in Kent’s lifetime. By 1836, the work was translated into German. A Spanish translation appeared in 1865.
Some commentators have noted that Kent insisted throughout his career that the law should be a learned profession, and that precedent and the common law stand at the heart of the law. At the time of American independence, the status of the English common law was debated, with some Americans objecting to its use by courts because of its English origins (Stychin, p. 440). Americans had just fought a long war to throw off English rule. Why did the courts continue to follow the laws of another nation? Others, among them James Kent, sought to demonstrate that the common law had a place, even a crucial place, in the new American legal order. Traces of this objective can be found in the way Kent analyzes common law rules throughout his Commentaries (Stychin, p. 452). Kent argued that while liberty and property rights stood on principles of natural right, courts required clear rules to resolve conflicts and to avoid arbitrary results. The common law supplies an unequalled trove of well-developed rules. American judges ought to apply them with discrimination according to the differing situation of American society, but they should also do so with an eye toward maximizing the reception of the legal heritage that English law offers (Stychin, p. 447-448).
Kent claimed that the resources that he used to write his Commentaries came largely from his private book collection, which contained approximately 3,000 titles (Langbein, p. 555, n.41). He compiled a catalog of his books in 1842, which can now be found in the Butler Library, Rare Books and Manuscript Collections at Columbia University. Most of his collection is now divided between several libraries: The Arthur W. Diamond Law Library at Columbia University holds most of Kent’s law books. The Butler Rare Book and Manuscript Collections of Columbia University also holds several hundred volumes from his library. The New York State Library in Albany holds 200 volumes of his collection. The Harvard Law Library owns five books from Kent (Langbein, p. 555, n.41).
The Law Library of Congress has a collection of 96 titles by or related to Kent in its rare books collection.
The Library of Congress holds a collection of Kent’s papers.
Columbia University Library holds a collection of Kent Family Papers.
Kent wrote an autobiographical sketch that is worth reading.
Craven, Avery. “James Kent: A Study in Conservatism by John Theodore Horton.” The University of Chicago Law Review. Vol. 7, No. 3 (Apr., 1940), pp. 580-581.
Langbein, John H. “Chancellor Kent and the History of Legal Literature.” Columbia Law Review, Vol. 93, No. 3 (Apr., 1993), pp. 547-594.
Stychin, Carl F. “The Commentaries of Chancellor James Kent and the Development of an American Common Law.” The American Journal of Legal History, Vol. 37, No. 4 (Oct., 1993), pp. 440-463.
This post was edited to add a link for the 5th edition of the Kent’s Commentaries.