Main currents in American thought

Through this fierce scramble of rival politicians moved a scholarly figure who preserved to the last the dignity and distinction of an earlier age. James Kent, whose long life and ripe legal learning were devoted to upholding what he conceived to be the ultimate principles of law and politics, was the chief political thinker of the transition days of New York. A disciple of Locke and Blackstone, remodeling seventeenth-century liberalism into eighteenth-century conservatism, he was concerned to erect the barriers of the Common Law about the unsurveyed frontiers of the American experiment, assigning exact metes and bounds beyond which it should not go. Like John Marshall and Joseph Story he was expert in devising legal springes to catch unwary democrats, and while the Jeffersonians were shouting over their victories at the polls, he was engaged in the strategic work of placing the Constitution under the narrow custodianship of the English law. An ardent Federalist and later an equally ardent Whig, he reveals in his precise thinking the intimate relations that everywhere exist between economics, politics, and legal principles.

With John Adams he accepted the dictum of Locke that “the great and chief end ... of men’s uniting into commonwealths, and putting themselves under government, is the preservation of their property”; and believing that the English Common Law was the securest of all agencies devised to safeguard the subject in the enjoyment of his property rights, he made no difficulty in imposing that law upon the Constitution, circumscribing the written document by Common Law fences. Government he conceived to be a patriarchal institution erected for the single purpose of coercing the vicious, and as such it must remain in the hands of the good, the wise and the wealthy. It did not need the authoritative pronouncement of his great master to convince him that the wealthy included the good and wise. Observation of the “barbarian Jackson” and his rude followers was enough to convince him of the truth of the fact. “All theories of government that suppose the mass of the people virtuous,” he wrote to Webster, “and able and willing to act virtuously, are plainly utopian, and will remain so until the Saturnian age” (William Kent, Memoirs and Letters of James Kent, p. 207). Profoundly distrustful of democracy, he brought all his wide reading in the history of ancient and medieval republics to demonstrate the favorite Federalist conviction—a conviction that Paulding in his Letters from the South paid his respects to⁠[1]—that democracy is only a euphemism for mob-rule and that it must speedily conduct to anarchy and despotism. All leveling principles he repudiated without waiting to hear cause.

Until necessity counseled otherwise he looked with suspicion on the holders of liquid wealth, as likely to prove wanting in the wisdom and goodness that came naturally to the landed proprietor. He would have the many ruled by the few, but those few he would have owners of great estates.

After all, the learned Chancellor was only a transplanted Yankee of the Fisher Ames school, with something of the austerity and intellectual vigor of his two Puritan grandfathers. An ardent admirer of Hamilton, he early broke with the more liberal faith of his family and joined himself to the extreme Federalists. He was advanced rapidly by Governor Jay, enjoyed for years both office and distinction, and ably defended the party of his choice. Fearful of agrarian laws and the sequestration of property by the enfranchised poor, he fought stubbornly every proposal for an extension of suffrage or a larger measure of self-government for the cities. Defeated in the great constitutional convention of 1821 he soon after lost his office and retired to write his Commentaries on American Law, a work that was to exercise a creative influence on the later development of our jurisprudence. That American law came to be deeply colored by Federalist political theory, that it upheld from the bench principles that had been repudiated at the polls, was due in no little measure to the legal scholarship of this last of the New York Federalists. What a recent historian has borrowed to describe another applies with equal felicity to Chancellor Kent—“his pigmy hope that life would some day become somewhat better, punily shivered by the side of his gigantic conviction that it might be infinitely worse” (Fox, Decline of Aristocracy in New York Politics, p. 243).