Kent, James (1763–1847)

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KENT, JAMES (1763–1847)

James Kent, a New York jurist, influenced American constitutional jurisprudence through both his writings and his judicial opinions. Largely because of his Commentaries on American Law, Kent was as important a legal figure as any in nineteenth-century America. The Commentaries went through fourteen editions by 1900 and innumerable popular abridgments. After publication of the fifth edition, editors came and went, but they wrought their changes mostly in the notes, leaving Kent's work intact. For approximately three-quarters of a century Kent was for many lawyers, throughout the country, their primary legal authority.

Originally a two-volume set when it appeared in 1826, the Commentaries were quickly expanded to four. Ostensibly the book was commenced after Kent's mandatory retirement from the bench on reaching age sixty in 1823. Yet, it is possible to see the work in process through Kent's carefully crafted opinions beginning with his appointment to the New York Supreme Court in 1798, and continuing while he was the state's chancellor, 1814–1823. And it is scarcely stretching matters to consider the writing of the Commentaries a lifelong process.

Kent's twenty-five years of judicial opinions were imbued with the federalism of the late eighteenth century. At the heart of Kent's jurisprudence was an independent judiciary whose role was to maintain society's moral order. Because of a quirk in New York's 1777 constitution, Kent participated in the veto process as a member of the Council of Revision, which considered all bills passed by the legislature. This process meant that New York judges would have little reason to exercise judicial review when a statute's constitutionality was questioned in a case. Having approved the steamboat monopoly bill on several occasions while sitting on the council, for example, New York judges would be unlikely to declare the law contrary to the federal constitution when such a challenge was made in Livingston v. Van Ingen (1812) and gibbons v. ogden (1819, 1820).

The moral order that Kent and his brethren sought to maintain covered many facets of life, including freedom of expression. There was no room in Kent's order of things for blasphemy—"it tends to corrupt the morals of the people, and to destroy good order," he wrote in People v. Ruggles (1811)—but a Federalist printer was afforded the defense of truth to the common law charge of criminal libel against thomas jefferson in people v. croswell (1804). The New York Supreme Court was evenly divided in Croswell, so that Kent's opinion, based on alexander hamilton's argument, did not become law in itself. A year later the legislature made truth a defense in libel suits, provided the alleged libelous matter "was published with good motives and for justifiable ends." Kent and his colleagues were careful, moreover, in their interpretation of the law, subsequently inserted in the state constitution of 1821, to protect officeholders, setting the groundwork for Root v. King (1829), which kept a bridle on attacks on New York public officials until new york times v. sullivan (1964).

Kent made another major contribution to constitutional law in Livingston v. Van Ingen (1812), by elaborately enunciating the doctrine of concurrent commerce powers. The Livingston-Fulton steamboat monopoly symbolized New York's encouragement of commercial enterprise. Under the statute creating the monopoly, any competitor was required to get a license in order to run a steamboat on New York waters. In his opinion for the state's court of last resort, Kent legitimized the monopoly in a decision that reversed Chancellor john lansing's refusal to grant the monopoly an injunction against unlicensed competition. Of particular constitutional moment was the argument that the monopoly violated the federal Constitution's commerce clause. In rejecting this argument, Kent asserted that in the absence of actual conflict between state and national laws, states retained the powers to regulate commerce. Seven years later in Ogden v. Gibbons (1819), Kent found no such conflict between the monopoly and the federal coasting act of 1793. In the United States Supreme Court, however, that served as the basis for john marshall's invalidation of the monopoly in gibbons v. ogden (1824). Kent's doctrine of concurrent commerce powers persisted, though, largely through the efforts of his former law clerk and judicial colleague, smith thompson, and for a time it won the support of the taney court.

Kent was also responsible for first enunciating what would become the Cherokee doctrine. Speaking for the New York court in Goodell v. Jackson (1823), Kent fully developed the paternalistic notion that American Indian peoples, though subject, were sovereign nations, a theme adopted by Thompson in his Cherokee Nation v. Georgia dissent (1831), which in turn was adopted by Marshall for the Supreme Court in Worcester v. Georgia (1832). (See cherokee indian cases.)

Important as Kent's occasional constitutional opinions may have been, his major contribution to constitutional development remains the Commentaries. There is apparent irony in this accomplishment because Kent did not emphasize constitutional law; instead, he salted that subject into the great body of American law between the law of nations and the construction of wills. Kent succeeded in putting constitutional law in its proper perspective compared to other important aspects of the law. In addition, Kent admirably digested the great Marshall opinions so as, in the opinion of thomas reed powell, to make them decidedly more palatable than they were in the original. Needless to say, the Commentaries continued to vote Federalist.

Donald Roper


Bauer, Elizabeth Kelley 1952 Commentaries on the Constitution 1790–1860. New York: Columbia University Press.

Horton, John T. 1939 James Kent: A Study in Conservatism 1763–1847. New York: Appleton-Century Co.

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Kent, James (1763–1847)

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