Kent, James (1763–1847)

Author:Donald Roper

Page 1534

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...

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