Kent's reputation on the Supreme Court bench assured that he would not long remain there: those with the power to shape destinies had other plans for him. In 1814, the Council of Appointment unanimously elected him Chancellor of New York's Chancery Court—in a sense, his fourth career. The press hailed Kent's appointment to Chancellor,^[56] although he himself was more pessimistic:

The office I took with considerable reluctance. It had no claims. The person who left it was stupid, & 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 . . . from 1777 to 1814 cited to me or even suggested. I took the court as if it had been a new institution, & never before known to the U.S. I had nothing to guide me, & was left at liberty to assume all such English chancery powers and jurisdiction as I thought applicable under our constitution.^[57]

It is unclear why then-Chief Justice Kent accepted this appointment. One theory is that at age fifty, he was eager to settle in New York City and conclude his Circuit travels.^[58] He may simply have desired a new challenge worthy of his formidable talents or yearned for the opportunity to write scholarly opinions unencumbered by the views of other Judges.^[59]

Then too, equity jurisprudence, little known to the United States,^[60] was a greatly respected old friend of Kent's. He had studied the authoritative works of Britain's Pear Williams while in Poughkeepsie two decades earlier. ^[61] Upon Kent's application in March 1794 for a chancery license—which was constitutionally required of attorneys practicing chancery law^[62]— Chancellor Livingston, apparently aware of Kent's reputation as well as of his familiarity with equity, insisted on admitting him to the practice without the customary examination.^[63] And, of course, in 1796 Governor Jay appointed him a Master in Chancery.^[64]

As was true of his Supreme Court years, Kent's lasting contribution as Chancellor is not tied to any particular decision,^[65] but rests more on three innovations. First, he introduced written opinions to the Chancery Court. One of Kent's first acts as Chancellor was to secure the passage of a statute providing for a Chancery Court reporter, and he installed William Johnson in that position.^[66] Second, as head of New York's equity system, Kent helped to demystify its operation and open its courts. Kent would later write: "I opened the gates of the court immediately, & admitted almost gratuitously the first year 85 counsellors, though I found there had not been but 13 admitted for 13 years before. Business flowed in with a rapid tide. The result appears in the seven volumes of Johnson's Ch. reports."^[67]

Kent's letters provide a snapshot of how, as Chancellor, he went about deciding cases:

My practice was first to make myself perfectly & accurately (mathematically accurately) master of the facts. It was done by abridging the bill, and then the answers and then the dispositions, & by the time I had done this slow tedious process I was master of the cause & ready to decide it. I saw where justice lay and the moral sense decided the cause half the time, & I then set down to search the authorities until I had exhausted my books, & I might once & a while be embarrassed by a technical rule, but I most always found principles suited to my views of the case, & my object was to discuss a point as never to be teazed with it again, & to anticipate an angry & vexatious appeal to a popular tribune by disappointed counsel.^[68]

Finally, Kent's writings and decisions helped to bring together a disjointed body of jurisprudence and gave stability to a branch of law that had previously seemed to depend more on the individual judge than on principles and precedent. Justice Story, who had criticized American equity judges for relying on their own sense of right and wrong, no doubt had Kent in mind when he suggested that there were a few exceptional judges who showed proper respect for precedent and whose examples should be followed.^[69]

In his opinions, Kent again remained true to precedents.^[70] Although often entreated to reach a results-oriented decision, he refused to do so. ^[71] Indeed, in one well-known case, Kent remarked, "I should not feel myself at liberty to say, as that case does 'so far as I can go, I shall blot it out forever.' It is the province of the legislative and not of the judicial power to change the law."^[72] Nor did it matter to him that the precedents arose from England, after the Revolutionary War.^[73]

Reliance on English precedent was not for the faint-hearted. The memory of recent conflict with the British made citation of English law unpopular. ^[74] However, the theories of the English Chancellors, and Kent's ability to weave them into persuasive decisions, won widespread respect within the legal profession.^[75] It also prompted a number of other states to follow New York in forsaking a result-oriented approach to equity in favor of following English jurisprudence.^[76]

In short, there can be no doubt why one legal journal opined that "[t]he chancery law of the United States may be said to have commenced with [him.]" ^[77] Recognizing Kent's wide-ranging efforts, Justice Story said of him:

"It required such a man with such a mind, at once liberal, comprehensive, exact and methodical; always reverencing authorities and bound by decisions; true to the spirit yet more true to the letter of the law; pursuing principles with a severe and scrupulous logic, yet blending with them the most persuasive equity; it required such a man, with such a mind, to unfold the doctrines of chancery in our country and to settle them upon immovable foundations." ^[78]

Footnote 57: Kent, supra note 7, at 552 (footnote omitted); see also Horton, supra note 6, at 199-200 ("[T]he closing years of the eighteenth, the opening decade of the nineteenth century found chancery doctrines but little understood, the remedies of chancery but infrequently resorted to, and the decisions in chancery causes usually delivered, as those in law had once been delivered, orally and upon the basis of casual and imperfect investigations.").

Footnote 58: See John H. Langbein, Chancellor Kent and the History of Legal Literature, 93 Colum. L. Rev. 547, 564 (1993). For discussion of Kent's duties in the circuit courts, see Horton, supra note 6, at 123-39; and supra note 36.

Footnote 59: See supra note 53.

Footnote 60: The concept of equity jurisprudence and its relationship to law may not be well understood today either, as the two concepts have long since merged. As explained by one of Kent's biographers:

The difference between these types of jurisprudence had developed at a distant age in the annals of England, where the remedies at law, confined to the recovery of land, of chattels or of money, had become fixed in number, rigid in form and quite inadequate to the needs of justice. To invent novel remedies the judges had displayed a curious reluctance, so that suitors, often failing to obtain satisfaction in their tribunals, had had but one remaining hope for redress, a recourse to the King himself. His Majesty adopted the convenient practice of turning over their causes to the scrutiny and determination of his chancellor.

Horton, supra note 6, at 201; see also id. at 202-03.

Footnote 61: See id. at 200; Kent, supra note 7, at 552.

Footnote 62: See N.Y. Const. of 1777, art. XXVII, reprinted in 1 Lincoln, supra note 19, at 179-80.

Footnote 63: See Horton, supra note 6, at 99. Kent's first equity case as an advocate, a victory in dissolving an injunction, resulted from a contact he had made on the day of his admission. See id.

Footnote 64: See Kent, supra note 7, at 550. Kent was surprised to learn that he had beaten 16 other applicants for that position. See Carson, supra note 1, at 664; Kent, supra note 7, at 550; see also supra note 18.

Footnote 65: Kent's equity decisions fill seven volumes of Johnson's Chancery Reports. For a thorough digest and discussion of a number of these decisions, see Horton, supra note 6, at 204-27.

Footnote 66: See 1 The Legal and Judicial History of New York, supra note 4, at 333.

Footnote 67: Kent, supra note 7, at 552.

Footnote 68: Id. (footnote omitted).

Footnote 69: See Horton, supra note 6, at 203-04.

Footnote 70: This did not prevent Kent from at times being reversed by the Court of Errors, see supra note 33, much to his frustration. Indeed, after one string of overturned cases, he wrote to Johnson:

"I am discouraged and heartbroken. The judges have prevailed on the Court of Errors to reverse all my best decisions.... After such devastation what courage ought I have to study and write elaborate opinions? I have never felt more disgusted with the judges in all my life, and I expressed myself to Judge Platt in a way to mortify and offend him. According to my present feelings and sentiments, I will never consent to publish another opinion, and I have taken and removed out of sight and out of my office into another room my three volumes of Chancery Reports. They were too fearful when standing before my eyes."

Marke & Sloane, supra note 33, § 10.01, at 10-5 to 10-6 (quoting Letter from James Kent to William Johnson (1820)).

Footnote 71: See Horton, supra note 6, at 207-08.

Footnote 72: Manning v. Manning, 1 Johns. Ch. 527, 537 (N.Y. Ch. 1815).

Footnote 73: See Horton, supra note 6, at 209-13 (noting, among others, Cumberland v. Codrington, 3 Johns. Ch. 229 (N.Y. Ch. 1817)).

Footnote 74: See id. at 211.

Footnote 75: Even though Chief Justice Marshall overruled a Kent decision in Gibbons v. Ogden, 22 U.S. (9 Wheat.) 1 (1824), for example, he felt compelled to praise the Chancellor nonetheless. See White, supra note 19, at 39. For a detailed discussion of the procedural history of the case, see Lock. Rev. Cas. 107-12 (1848).

Footnote 76: See Horton, supra note 6, at 211.

Footnote 77: Id. at 211-12 (internal quotation omitted).

Footnote 78: Coxe, supra note 29, at 560 (quoting Joseph Story).

Page 4

     
(Click Here to view entire document in PDF format)

The Historical Society of the Courts of the State of New York
140 Grand Street, Suite 701
White Plains, N.Y. 10601
phone: (914) 824-5717