James Kent, author of the celebrated Commentaries on American Law, is often spoken of as the American Blackstone. The High Court of Australia has cited Chancellor Kent, describing him as one of the “great commentators”.[1] The Hon Robert French AC has described Kent as one of the “great American legal scholars”.[2] The late Justice McPherson regarded Kent as a disciple of the common law.[3] Given such accolades, and that it is nearly two centuries since Kent’s Commentaries were first published, it is timely to examine who Chancellor Kent was and his influence on Anglo-Australian law.
Life and Career
James Kent was born on 31 July 1763 in what is now Putnam County, in upstate New York.[4] Kent’s father was half farmer, half lawyer. Kent’s mother died when he was seven. From a young age, Kent boarded with his maternal grandfather in Connecticut, in a house that would later be torched to the ground by the British during the Revolutionary War. Kent went to Yale College from 1777 to 1781, graduating among the first of his class.
During a hiatus in classes due to the Revolutionary War, Kent read the fourth volume of Blackstone’s Commentaries on the Laws of England. He decided upon a career in law. Kent commenced an apprenticeship in Poughkeepsie, New York with the State’s Attorney-General, whose next-door neighbour was John Jay. John Jay would later become Chief Justice of the United States and Governor of New York.
Kent was admitted to the New York Bar in 1785, at the age of twenty-one. He commenced legal practice in a partnership in Poughkeepsie. He also married in 1785, a union that endured until his death in 1847.
“Kent has continued to be cited by Australian courts and commentators.”
When business was slow, Kent engaged in prodigious self-study and moved in Federalist Party circles, where he built a connection with the likes of John Jay and Alexander Hamilton.
Kent was a member of the New York State Legislative Assembly at various times between 1790 and 1797.
In 1793, Kent ended his partnership in Poughkeepsie and moved to New York City, where he commenced legal practice on his own. This did not go well. In December of that year, Columbia College appointed him inaugural professor of law. He remained in this post until 1797, delivering lectures in law. Columbia College conferred a Doctorate of Laws on him.[5]
He maintained his practice, being admitted as a solicitor and counsel in Chancery in 1794. The customary examination was waived due to his reputation. In 1796, Kent was appointed master in chancery, which allowed him to give up his unsuccessful practice in the city. In 1797, Kent was appointed as the Recorder of New York City, a part-time judicial position.[6]
Then, in 1798, at the age of thirty-five, Kent was appointed a justice of the New York Supreme Court.[7] In 1804, he became Chief Justice at the age of forty-one.[8] This was a court of five justices, having original as well as appellate jurisdiction.
The Supreme Court had prior to that time not shown itself to be particularly impressive as a Court.[9] One of Kent’s major innovations in that Court was that, as Chief Judge Judith Kaye put it, “he introduced to New York the custom of writing opinions on significant matters and collecting them in official, state-sponsored reporters”.[10] Kent would produce written opinions, supported by legal authorities, with the result that the other judges effectively had to produce their own written opinions, as a matter of pride. The first official reporter, in 1804, was one George Caines, but he was very quickly regarded as unsatisfactory and was replaced by William Johnson in 1805.
Kent demonstrated erudition in judgment writing, relying on English precedents where appropriate, but also on many occasions French and civil law in order to justify the same result, thereby overcoming the resistance of the other judges to rely on the law of the country with whom America had lately been at war.[11] He described his judicial approach in memoirs in the following terms:
“When I came to the Bench there were no reports or State precedents. The opinions from the Bench were delivered ore tenus. We had no law of our own, and nobody knew what it was. I first introduced a thorough examination of cases and written opinions…
Between that time and 1804, I rode my share of circuits, attended all the terms, and was never absent, and was always ready in every case by the day. I read in that time Valin and Emerigon, and completely abridged the latter, and made copious digests of all the English law reports and treatises as they came out. I made much use of the Corpus Juris, and as the judges (Livingston excepted) knew nothing of French or civil law, I had immense advantage over them. I could generally put my brethren to rout and carry my point by my mysterious wand of French and civil law. The judges were Republicans and very kindly disposed to everything that was French, and this enabled me, without exciting any alarm or jealousy, to make free use of such authorities and thereby enrich our commercial law.
I gradually acquired preponderating influence with my brethren, and the volumes in Johnson, after I became Chief Justice, in 1804, show it. The first practice was for each judge to give his portion of opinions, when we all agreed, but that gradually fell off, and, for the last two or three years before I left the Bench, I gave the most of them. I remember that in eighth Johnson all the opinions for one term are ‘per curiam’. The fact is I wrote them all and proposed that course to avoid exciting jealousy, and many a per curiam opinion was so inserted for that reason.
Many of the cases decided during the sixteen years I was in the Supreme Court were labored by me most unmercifully, but it was necessary under the circumstances, in order to subdue opposition. We had but few American precedents. Our judges were democratic, and my brother Spencer particularly, of a bold, vigorous, dogmatic mind and overbearing manner. English authority did not stand very high in those early feverish times, and this led me a hundred times to attempt to bear down opposition, or shame it by exhaustive research and overwhelming authority. Our jurisprudence was, on the whole, improved by it. My mind certainly was roused, and was always kept ardent and inflamed by collision.”[12]
It is from judgments written during this period that Kent has gained the reputation of father of American commercial law.[13]
“English authority did not stand very high in those early feverish times, and this led me a hundred times to attempt to bear down opposition, or shame it by exhaustive research and overwhelming authority.”
In 1814, after sixteen years, Kent left the Supreme Court to take up appointment as Chancellor of New York, head of New York’s Court of Chancery (which was a separate court until 1847).[14] Chancery was a one judge court, though there were also masters. Appeal lay to the Court of Errors, as did appeals from the Supreme Court.[15] Kent introduced written opinions, and appointed Johnson as official reporter for Chancery, who retained his position as Supreme Court reporter. Kent’s equity opinions are collected in the seven volumes of Johnson’s Chancery Reports.[16]
Kent, in a letter, wrote about this period:
“… it is a curious fact that for the nine years I was in that office there was not a single decision, opinion or dictum of either of my two predecessors (Ch. Livingston and Ch. Lansing), from 1777 to 1814, cited to me or even suggested. I took the court as if it had been a new institution, and never before known in the United States. I had nothing to guide me, and was left at liberty to assume all such English Chancery powers and jurisdiction as I thought applicable under our Constitution. This gave me grand scope, and I was checked only by the revision of the Senate, or Court of Errors. I opened the gates of the court immediately, and admitted, almost gratuitously, the first year, eighty-five counsellors, though I found there had not been thirteen admitted for thirteen years before. Business flowed in with a rapid tide. The result appears in the seven volumes of Johnson’s Chancery Reports.”[17]
In this letter, he went on to say that he studied the English nominate Chancery reports, and he also discussed his approach in deciding cases. For example, “[M]y object was so to discuss a point as never to be teased with it again”.[18]
Professor Langbein, writing about Kent’s style and influence as Chancellor, observed:
“Of Johnson’s three series of reports that chronicle Kent’s judicial work, the Chancery Reports were undoubtedly the most influential. Because Chancery was a one-judge court, Kent had the stage to himself. His judicial style was fully mature. Equity courts had emerged from the American Revolution under a taint for several reasons, including their association with unpopular colonial governors[19] and their jury-free civil procedure. Even in England, much of the detail of equity law, including trusts and succession, had only recently developed. Kent relished the opportunity to lay down the law on a fresh slate… Kent’s Chancery decisions exemplify his campaign to entrench English decisional law as the foundation of American law… Johnson’s Chancery Reports were the only specialized American equity reports of their time, greatly enhancing their influence in other American states.”[20]
As Chief Judge Judith S. Kaye put it, “chancery law of the United States may be said to have commenced with” Kent.[21] Kent paid deference to the Lord Chancellors.[22] One practitioner said of Kent, “We view him today as a sturdy pioneer toiling in a new and stony field, but sunburnt by the light that shone from the decrees of Nottingham, Somers, Hardwicke and Eldon”.[23]
“He built a connection with the likes of John Jay and Alexander Hamilton.”
The London Law Magazine summed it up by observing: “… it has been said of [Kent] … with respect to the Court of Chancery, as was said of Augustus with respect to the city of Rome, lateritiam invenit, marmoream reliquit.”[24]
It is not surprising that he has continued to this day to be customarily known as “Chancellor Kent”.
Kent left office in 1823, on attaining the then mandatory retirement age of sixty.
Once again, Columbia College asked him to be professor of law. He lectured in law from 1824 to 1826. The lectures formed the basis of his Commentaries on American Law, published as a series of Lectures in four volumes between 1826 and 1830.[25] By the time of his death in 1847, he had worked on five revisions.[26] Others updated the work after 1847, including Oliver Wendell Holmes who edited the twelfth edition published in 1873. The fourteenth edition came out in 1896.
This was the first time an academic work had attempted to examine the American legal system as a whole.[27] The treatise was a commercial success.
Kent died in New York City, on 12 December 1847, in his Union Square apartment. He was 84.
Chancellor Kent’s Influence
In 1834, shortly after the release of the Commentaries, Joseph Story dedicated his Commentaries on the Conflict of Laws to Kent. Part of the dedication was in the following terms:
“It is now about thirty-six years since you began your judicial career on the Bench of the Supreme Court of the State of New York. In the intervening period between that time and the present, you have successively occupied the offices of Chief Justice and Chancellor of the same State. I speak but the common voice of the Profession and the public, when I say, that in each of these stations you have brought to its duties a maturity of judgment, a depth of learning, a fidelity of purpose, and an enthusiasm for justice, which have laid the solid foundations of an imperishable fame. In the full vigor of your intellectual powers, you left the Bench only to engage in a new task, which of itself seemed to demand by its extent and magnitude a whole life of strenuous diligence. That task has been accomplished. The ‘Commentaries on American Law’ have already acquired the reputation of a juridical Classic, and have placed their author in the first rank of the benefactors of the Profession. You have done for America what Mr. Justice Blackstone in his invaluable Commentaries has done for England. You have embodied the principles of our law in pages as attractive by the persuasive elegance of their style as they are instructive by the fulness and accuracy of their learning.”[28]
But praise also came from the other side of the Atlantic. On Kent’s passing, the editor of Barbour’s New York Chancery Reports noted, “So highly are his works esteemed abroad, that the Lord Chief Justice of England, Baron Denman wrote to Chancellor Kent some years since, acknowledging the indebtedness of the legal profession throughout the world, to him, for his able Commentaries”.[29]
Justice BH McPherson, writing extrajudicially, observed:
“Kent set himself the enormous task of integrating the laws of each State of the Union with those of England, as well as comparing the result to the legal systems of France, Holland and other continental nations. In this, his underlying purpose was twofold. One was to offset the prevailing mood of hostility in the United States to the continued use of the common law as something English, by showing, as he sought to do, that like the common law those other systems were based on natural law and so arrived at similar results in practice. His other purpose was to demonstrate the systematic or ‘scientific’ character of the common law … For many years Kent’s Commentaries held the stage as the standard legal reference work in America. Its underlying foundation of English law and its accuracy meant that it was soon being accepted and applied in England, Canada and Australia.”[30]
Justice McPherson noted that “An electronic search of the English Reports registered over 100 ‘hits’ before 1865.”[31] It is not known what precise search term was used. The present writer has done his own electronic search of “Chancellor Kent” in the Supreme Court Library’s English Reports database for cases prior to 1865, which produced 150 results where reference was made to Kent’s decisions or his Commentaries. The subject matters of the cases in which Kent was cited included maritime law, insurance, partnership, contract, sale of goods, the Statute of Frauds, conflict of laws, water rights, vendor and purchaser, war and prize, statutory interpretation, limitation of actions, administration of estates, marriage, priorities, lunacy, remedies, accounts and inquiries, pleading, real property, deeds, time, mortgage, pledge, fraud on creditors, treaties, enemy aliens, sovereign immunity from suit, territorial sovereignty over coastal bays and joinder of third parties.
The writer has also searched for “Chancellor Kent” in the ICLR database of the English authorised Law Reports from 1865 to the present. This returned 47 “hits”, across diverse fields.
Justice McPherson went on to comment that, “Between them, Kent and Story not only naturalised English law and consolidated its place in the United States, they also rationalized the use, understanding and teaching of it in the place of its origin. It would not be the last occasion when the words of disciples of the common law from beyond the seas would be read in England.”[32]
As an early example of Kent’s Commentaries being cited by Australian courts, Justice McPherson referred to Rusden v Weekes (1861) 2 Legge 1406, a constitutional law decision of the Supreme Court of the Colony of New South Wales.[33]
Kent has continued to be cited by Australian courts and commentators. An Austlii search of “Chancellor Kent” in the High Court of Australia database produced fifteen results, where a reference is made either to a case decided by Kent or to his Commentaries. A search of “Commentaries on American Law” in the same database produced nine results. The same searches across all Austlii databases returned 111 results (for “Chancellor Kent”) and 61 results (for “Commentaries on American Law”).
One such case is Austin v The Commonwealth of Australia, where the High Court held invalid a special Commonwealth tax on the judicial pensions of State judges.[34] Gaudron, Gummow and Hayne JJ said:
“The provision of secure judicial remuneration at significant levels serves to advantage and protect the interest of the body politic in several ways. Secure judicial remuneration at significant levels assists, as the United States Supreme Court has emphasised, to encourage persons learned in the law, in the words of Chancellor Kent written in 1826, ‘to quit the lucrative pursuits of private business, for the duties of that important station’.”[35]
Another is ICM Agriculture Pty Ltd v The Commonwealth, a case concerned with water rights, where French CJ, Gummow and Crennan JJ said:
“The common law position in relation to flowing water, which adapted Roman law doctrine, was settled in Embrey v Owen. Baron Park adopted the view of Chancellor Kent that flowing water is publici juris in the sense that no-one has ‘property in the water itself, but a simple usufruct while it passes along’.”[36]
And in PGA v R, the High Court held that a husband can be guilty of raping his wife.[37] French CJ, Gummow, Hayne, Crennan and Kiefel JJ said:
“In his lecture entitled ‘Of Husband and Wife’, Chancellor Kent, after referring to the incompetency at common law of a married woman to deal with her property as a feme sole, went on to contrast the position in equity and described the procedural consequences as follows:
‘The wife being enabled in equity to act upon property in the hands of her trustees, she is treated in that court as having interests and obligations distinct from those of her husband. She may institute a suit, by her next friend, against him, and she may obtain an order to defend separately suits against her; and when compelled to sue her husband in equity, the court may order him to make her a reasonable allowance in money to carry on the suit.’”[38] (footnotes omitted)
Furthermore, in Maguire v Makaronis, a case concerned with rescission for breach of fiduciary duty, Brennan CJ, Gaudron, McHugh and Gummow JJ said, after referring to a passage in the judgment of Rich and Dixon JJ in Langman v Handover[39]:
“Rich and Dixon JJ went on to consider the decision to the same effect of Chancellor Kent in Fanning v Dunham. There the Chancellor held that, where a borrower seeks relief in equity (such as delivery up and cancellation) in respect of a security on the ground of illegal usury, the plaintiff must, before being entitled to relief, pay or offer to pay the principal and so much of the interest as is lawfully due.”[40]
The other High Court cases referred to in the Austlii searches, decided between 1905 and 2022, deal with subject matters as diverse as:
- Discovery in equity in aid of foreign litigation;
- Constitutional law;
- Representative proceedings in equity;
- Joint tortfeasors;
- Native title;
- When property passes in wheat delivered under a contract for its storage;
- Whether action per quod servitium amisit is limited to menial or domestic servants;
- Contingent remainders;
- Fraudulent preferences;
- Alienation of property to defraud creditors;
- Immigration;
- Spousal privilege;
- Pawnbroking.
The said Austlii searches across all directories produced law review articles and cases of other Australian courts and courts of New Zealand concerned with a wide range of topics.
Conclusion
On 2 December 1898, Lord Lindley, then Master of the Rolls, wrote to John B Cassoday, Chief Justice of the Wisconsin Supreme Court, as follows:[41]
“Dear Chief Justice:
I have read with great interest your sketch of Scott and Marshall. I knew little or nothing of Marshall’s life tho’ I valued his great judgments very highly. I always look upon him and Kent as two of the greatest judges of whom I know anything. They seem to me to be far greater men than Story although not so widely known here as he. Thanking you for your courtesy in sending me your Brochure, I remain,
Nathan’l LindleyMaster of the Rolls.”
Whether or not Kent was a greater man than Story, it is clear that Kent was a great jurist who made a significant impact on American law and left an indelible mark on Anglo-Australian law. His influence continues to be felt especially in the High Court of Australia.
[1] Palgo Holdings Pty Ltd v Gowans [2005] HCA 28, 221 CLR 249 [16].
[2] “United States Influence on the Australian Legal System” (2018) 43(1) U WA L Rev 11, 12.
[3] BH McPherson, The Reception of English Law Abroad, 493 (Supreme Court of Queensland Library 2007).
[4] In reciting Kent’s background, the writer has drawn on Langbein, “Chancellor Kent and the History of Legal Literature” (1993) 93 Colum L Rev 547 and on other references indicated below.
[5] A decision later to be emulated by the University of Pennsylvania, Dartmouth and Harvard: Horton, James Kent: A Study in Conservatism 1763-1847, p229 (New Jersey: Law Book Exchange 1939).
[6] Both appointments were made by Governor Jay.
[7] He was appointed by Governor Jay.
[8] He was appointed by Governor Morgan Lewis, who was an ardent anti-Federalist, unlike Kent (as the Governor knew). See William Kent, Memoirs and Letters of James Kent, LL.D.: late chancellor of the State of New York, pp120-1 (Boston: Little, Brown, 1898).
[9] William Kent, Memoirs and Letters of James Kent, LL.D.: late chancellor of the State of New York, p58 (Boston: Little, Brown, 1898); Horton, James Kent: A Study in Conservatism 1763-1847, p100 (New Jersey: Law Book Exchange 1939).
[10] Judith S. Kaye, “Commentaries on Chancellor Kent” (1998) 74 Chicago-Kent L Rev 11, 17.
[11] Langbein, “Chancellor Kent and the History of Legal Literature” (1993) 93 Colum L Rev 547, 569-570; Horton, James Kent: A Study in Conservatism 1763-1847, p154 (New Jersey: Law Book Exchange 1939).
[12] William Kent, Memoirs and Letters of James Kent, LL.D.: late chancellor of the State of New York, pp116-8 (Boston: Little, Brown, 1898).
[13] Judith S. Kaye, “Commentaries on Chancellor Kent” (1998) 74 Chicago-Kent L Rev 11, 19; Horton, James Kent: A Study in Conservatism 1763-1847, p157 (New Jersey: Law Book Exchange 1939).
[14] He was appointed by Governor Daniel D Tompkins.
[15] The Court of Errors was constituted by the New York Senate, the Supreme Court and the Chancellor, by analogy with the House of Lords. Members did not sit on appeals from their decisions.
[16] For more detail on the state of law reporting at the time, and Kent’s contribution to its development, see Langbein, “Chancellor Kent and the History of Legal Literature” (1993) 93 Colum L Rev 547, 571 to 584.
[17] William Kent, Memoirs and Letters of James Kent, LL.D.: late chancellor of the State of New York, pp 157-8 (Boston: Little, Brown, 1898).
[18] Ibid, 159.
[19] In colonial times, governors occupied the office of Chancellor.
[20] Langbein, “Chancellor Kent and the History of Legal Literature” (1993) 93 Colum L Rev 547, 583-4.
[21] Judith S. Kaye, “Commentaries on Chancellor Kent” (1998) 74 Chicago-Kent L Rev 11, 23 citing John Horton, Kent’s biographer.
[22] Horton, James Kent: A Study in Conservatism 1763-1847, p211-3 (New Jersey: Law Book Exchange 1939).
[23] Carson, “James Kent: Picture of Man as Lawyer, Judge and Author Presented by Series of Documents and Letters in His Own Hand-Writing and Hitherto Unpublished” (1921) 7 American Bar Association Journal 662, 670.
[24] He found a city of bricks; he left it a city of marble. Horton, James Kent: A Study in Conservatism 1763-1847, p197 (New Jersey: Law Book Exchange 1939).
[25] James Kent, Commentaries on American Law, 4v (New York: O. Halsted 1826-1830). The first volume was published in 1826, the second volume in 1827, the third volume in 1828 and the fourth volume in 1830. Kent dedicated the work to William Johnson: see vol 4.
[26] He worked on what was to be the 6th edition, which was published in January 1848, shortly after his death.
[27] Judith S. Kaye, “Commentaries on Chancellor Kent” (1998) 74 Chicago-Kent L Rev 11, 27.
[28] Story, Commentaries on the Conflict of Laws, iii-iv (Boston: Hilliard, Gray and Company, 1834).
[29] 2 Barbour’s New York Chancery Reports 646. This tribute also records sentiments expressed at a meeting of the New York Bar, showing the high esteem in which Chancellor Kent was held by the Bar and the grief felt on his passing.
[30] BH McPherson, The Reception of English Law Abroad, 490-1 (Supreme Court of Queensland Library 2007) (footnotes omitted).
[31] McPherson, ibid, p491 n 126.
[32] McPherson, ibid, p493.
[33] For a discussion of this case, see Hon Robert French AC, “United States Influence on the Australian Legal System” (2018) 43(1) U WA L Rev 11, 13.
[34] [2003] HCA 3.
[35] At [159] (footnotes omitted).
[36] [2009] HCA 51 [55] (footnotes omitted).
[37] [2012] HCA 21.
[38] At [45] (footnotes omitted).
[39] (1929) 43 CLR 334 at 356.
[40] (1997) 188 CLR 449, 476-7 (footnotes omitted).
[41] Cassoday (1902-3) 12 Yale LJ 146, 148.
