Judicial precedent in the late eighteenth and early nineteenth centuries: a commentary on Chancellor Kent's Commentaries.

Author:Reid, Charles J., Jr.


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. Focusing on Kent's work thus opens a window to the prevailing "thought-world" of the Founding era, as seen through the eyes of the next generation.


In the third edition of his Commentaries on American Law, published in 1836, Chancellor Kent wrote the following:

But I wish not to be understood to press too strongly the doctrine of stare decisis, when I recollect that there are one thousand cases to be pointed out in the English and American books of reports, which have been overruled, doubted, or limited in their application. It is probable that the records of many of the courts in this country are replete with hasty and crude decisions; and such cases ought to [be] examined without fear, and revised without reluctance, rather than to have the character of our law impaired, and the beauty and harmony of the system destroyed by the perpetuity of error. Even a series of decisions are not always conclusive evidence of what is law; and the revision of a decision very often resolves itself into a mere question of expediency, depending upon the consideration of the importance of certainty in the rule, and the extent of property to be affected by a change of it. (6) In the fashion of medieval writers, whether the authors of the Midrash or the glossators and commentators on the medieval canon law, I shall use paraphrases of the text itself as the basis of my analysis, and the organization of the Article will be structured around particular clauses of the text.

  1. "But I wish not to be understood to press too strongly the doctrine of stare decisis...."

    In this paragraph, Kent marks a transition from his previous paragraph, which had endorsed in ringing terms the "inviolability of precedents." (7) "If judicial decisions were to be lightly disregarded," Kent had written in the prior paragraph, "we should disturb and unsettle the great landmarks of property." (8) "It would ... be extremely inconvenient to the public, if precedents were not duly regarded, and pretty implicitly followed." (9) By these remarks, Kent signaled his fidelity to the doctrine of precedent. Yet, by placing the paragraph upon which we are commenting immediately after this ringing endorsement, Kent wished to demonstrate that he was not an absolutist with respect to precedent. He wanted to ensure that his readers received a properly qualified and nuanced understanding of the way in which stare decisis should work in a healthy legal order. Stare decisis was to be respected as serving the purpose of stability in the law over time, but other values of judicial and legal order also required respect: stare decisis, in short, was one principle among several competing principles and values that required weighing and balancing. The commentary below explores how Kent--and his sources--engaged in this weighing and balancing process.

    The term stare decisis requires further explication. Of course, in Latin, its literal meaning is "to stand upon the decisions." (10) But by the time Kent used this term, it had acquired a substantial, specialized meaning as well. One might turn to the treatise writers and the legal commentators for assistance. The obligatory starting point, of course, is William Blackstone, whose Commentaries on the Laws of England was widely read in America as well as in England. Indeed, legal education in the United States for many years commenced with a careful reading of Blackstone's work. (11)

    What did Blackstone teach regarding stare decisis and precedent? First of all, he stressed that the prior decisions of courts were not themselves law, but "the principal and most authoritative evidence" of law. (12) Grasping the significance of this distinction is crucial. Such a statement, of course, implied a preexisting body of "law" that reflected a transcendent reason that stood outside and above the positive enactments of legislatures and the particular decisions of judges, and that courts might discover but could not make. (13) But, even more importantly for our purposes, if judicial decisions were evidence of law, they were necessarily subject to the rules of evidence: they might therefore be subject to further evaluation, scrutiny, consideration, and deliberation to ascertain their fidelity to fundamental legal principles and also to the higher law. (14) They might even be rejected as an inadequate statement of the law. (15) Blackstone himself allowed ample room for this conclusion when he wrote: "So that the law, and the opinion of the judge are not always convertible terms, or one and the same thing; since it sometimes may happen that the judge may mistake the law." (16)

    Two further postulates implicitly exist in this evidentiary theory of stare decisis and natural law: (1) that reason, aided by long experience in the forms and substance of the common law and deep exposure to the classic works of moral and political theory, was capable of guiding us to correct answers; and (2) that these answers, once arrived at, could command the assent of lawyers and judges generally. As Zephaniah Swift of the Connecticut Supreme Court of Errors put it in 1810: "The foundation of the law.... has been pronounced by the greatest jurists, to be the perfection of reason--not of every man's natural reason, but an artificial perfection of reason, gotten by long study, observation, and experience." (17)

    Blackstone's treatment of the authoritativeness of precedent must be read as bounded and guided by these parameters. To be sure, the decisions of the judges represented part of the "custom as shall form a part of the common law." (18) A judicial decision had the effect of "solemnly declar[ing] and determin[ing], what before was uncertain, and perhaps indifferent," or, to put Blackstone's point in more modern language, of resolving an open question about the law. (19) Such a resolution, however, required fidelity to the law understood not merely as the positive enactments of the state, but also as the ageless wisdom of...

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