Judicial Precedent in the Late Eighteenth and Early Nineteenth Centuries: A Commentary on Chancellor Kent's Commentaries

Article excerpt


This Article takes the form of a commentary on a single paragraph from the third edition of Chancellor James Kent's (1763-1847) Commentaries on American Law, published in 1836. The structure of the Article follows very much the format one might encounter in commentaries on various literary, legal, or even sacred works. It considers each sentence and phrase of the paragraph, seeking to explain it, put it into context, and derive meaning from the whole.

One might ask why Chancellor Kent should be singled out for this focus. Kent was among the founders of American law; he taught at Columbia University in the 1790s and returned there following his retirement from the bench; he also served briefly in the New York legislature, where he worked closely with John Jay. (1) It would be his friendship with Jay that led to Kent's appointment to the New York judiciary in 1798. (2) He thereafter spent most of his productive career as a New York judge, serving on the state supreme court but performing his most notable service as state chancellor in charge of the state equity system. (3) According to G. Edward White:

   At his maturity Kent was a leading jurist of his day. He had come
   to dominate the Supreme Court of New York to such an extent that
   [Chief Justice John] Marshall felt compelled, on overruling him in
   Gibbons v. Ogden, to praise his reputation. He had single-handedly
   revolutionized equity practice in New York ... and with the
   publication between 1826 and 1830 of his Commentaries he had
   emerged as the first of the great treatise writers of the early
   nineteenth century. (4)

In his judicial outlook, Kent was broadly conservative and looked to the English common law as an inspiring force for American courts. (5) His writings reveal a deep and rich acquaintance with the main lines of legal history and philosophy. He was a strongly committed believer in natural law who did not shy away from utilizing a naturalist vocabulary to allow for justice in particular cases, even in the absence of statutory authority. His breadth of knowledge, felicity of expression, and commanding position in American law make him a uniquely well-suited subject for a study of this sort.

The purpose of this Article is twofold. At its most basic level, it attempts an exegesis of a passage in Chancellor Kent's Commentaries. As an exegetical work, this Article will begin with Kent's language but then proceed to examine his larger frame of reference. Elements of this larger frame of reference include: the cases he would have encountered during his time on the bench, including English antecedents; the philosophical presuppositions he held in common with the lawyers and judges of the late eighteenth and early nineteenth centuries; and the writings of leading lawyers and judges of the seventy-five years preceding Kent's words. Casting my search widely, I hope to obtain a clear and comprehensive understanding of what stare decisis meant to Kent. This work is fundamentally historical in its ambitions; it seeks to reconstruct and to contextualize. It is not intended as a jurisprudential defense of the doctrine of stare decisis that Kent and his contemporaries followed, nor does it seek to justify the natural law postulates that supported this doctrine. That is not to say that his positions cannot be defended. Rather it is only to point out that my effort is fundamentally historical and not philosophical in scope.

The second, and larger, purpose this Article serves is to elucidate the doctrine of stare decisis as it was held by members of the Founding era. Kent was not quite old enough to be a member of that Founding generation, although he was active in New York politics and a protege of John Jay by the early 1790s. In many respects, however, Kent's work represents the apex of the legal achievements of the Founding era. He moved freely among those Founders still alive when he flourished, knew their work, and shared their political viewpoints. …