The New York State Supreme Court was the predecessor of today's high court, the Court of Appeals, which was established in 1847.^[33] Indeed, one of the last Associate Justices named to the Supreme Court in 1845, Freeborn G. Jewett, would only two years later become the first Chief Judge of the Court of Appeals on its formation.^[34] The court Kent joined had only five Justices (rather than the seven Court of Appeals Judges today), and they sat en banc to hear cases in three locations: Albany, Utica, and New York City. ^[35] They were also required to sit in the constitutionally-defined circuits, which for Kent meant extensive, arduous travel throughout the state. ^[36]

Kent's primary contribution as a Supreme Court Justice came not from any particular decision—although he authored many note worthy opinions ^[37]—but rather from a far more fundamental innovation: he introduced to New York the custom of writing opinions on significant matters and collecting them in official, state-sponsored reporters.^[38] As Kent later explained: "When I came to the bench there were no reports or state precedents. The opinions from the bench were delivered ore tenus. We had no law of our own & nobody knew what it was."^[39] Indeed, one searches in vain for a reported decision by Kent's most distinguished contemporaries—such as John Jay, Chancellor Livingston, or Chancellor Lansing.^[40] Moreover, although the situation had improved from Kent's student days, still there were few quality legal treatises. Practitioners of Kent's era could consult Kyd on Bills of Exchange and Promissory Notes or Fitzherbert's Natura Brevium, but legal publishing, like the United States itself, was still in its infancy.^[41] As Kent explained:

I could generally put my Brethern to rout & carry my point by mysterious want of French and civil law. The Judges were republicans & very kindly disposed to everything that was French, and this enabled me without exciting any alarm or jealousy, to make free use of such authorities & thereby enrich our commercial law.^[42]

Kent's practice caught on almost as a matter of self-defense—his opinions, filled with citations, forced his colleagues to follow suit or seem ignorant, unprepared, or lazy.^[43] As Kent would later write, "This was the commencement of a new plan, & then was laid the first stone in the subsequently erected temple of our jurisprudence."^[44]

In 1804, George Caines became the state's first official reporter.^[45] Caines' first volume of reports (1 New York Cases in Error)—largely procedure and property cases—left a good deal to be desired. Indexed under "Distress," for example, is "Insurance"; "Robbery" refers the reader to "Executor." ^[46] Kent apparently did not have a high opinion of the author of the first official reporter, who Kent described as the "profligate Caines." ^[47] As the number of written decisions grew, Kent replaced Caines with his friend William Johnson. ^[48]

One of the earliest reported decisions, written by Kent himself, shows the value of enduring written decisions. In People v. Croswell,^[49] the defendant was indicted for libel of President Thomas Jefferson. Kent's decision expressed the view, consistent with the common law in the days before the Star Chamber and espoused by defense counsel Alexander Hamilton,^[50] that the liberty of the press includes a defense of truth to a libel charge. Put differently, the truth should be received into evidence and the jury should judge both the facts and the law.^[51] By April 6, 1805, Kent's decision had been codified by the legislature and sixteen years later was made part of the New York State Constitution.^[52]

Kent's skill at turning out opinions also had some unintended consequences. As he later lamented:

I gradually acquired preponderating influence with my brethren, & the volumes in Johnson after I became Ch. J in 1804 show it. The first practice was for each judge to give his portion of opinions when we all agreed, but that gradually fell off, but for the two or three last years before I left the bench, I gave the most of them. I remember that in 8th Johnson all the opinions one Term are per curiam. The fact is I wrote them all, & proposed that course to avoid existing jealousy & many a per curiam opinion was so inserted for that reason.^[53]

The story is that on the eve of the election these two gentlemen met and fell into a discussion of the probable result of the election. In the course of the conversation Lewis said to Kent: "Judge Kent, if you will vote for me I will make you Chief Justice if I am elected Governor," to which Kent, recognizing, of course, the true spirit of the remark, promptly replied, "No, sir, personally I admire and respect your character and attainments; but I utterly detest your political principles!" Judge Lewis was elected, and one of his first acts as Governor was the appointment of Judge Kent to be Chief Justice. Would that more of this spirit in judicial appointments by the Executive might be abroad among us at this time!^[54]

Kent's many opinions in his sixteen years as a member of the New York Supreme Court reflect great respect for the English common law, which he incorporated into the burgeoning law of New York and the United States. The combination of his own efforts and the nationwide emergence of the reported decision justify calling Kent the father of American commercial law:

Here questions arose with references to voyages from the Caribbean to the China Sea, and they involved all the principal heads and title of commercial law—bills and notes, charter-parties, bottomry, partnerships, freight, marine insurance. To each question, Kent devoted patient care, and ere he retired from the court a fairly complete code of commercial law had been elaborated. Through this useful achievement the course of trade was smoothed and accelerated as known rules dispelled perplexities and doubts. It was an achievement which won distinction for the Chief Justice and caused his admirers to compare him with Lord Mansfield.^[55]

Footnote 34: See 150th Anniversary of the Court of Appeals, Celebrated on the Steps of the Courthouse, 90 N.Y.2d vii, x (1998). As part of the Court of Appeals' 150th Anniversary celebration in September 1997, Edward Lewis Jewett, the great, great, great, great grandson of Chief Judge Jewett, spoke regarding "The Court, the Jewetts and 150 years." See id. at x-xiv.

Footnote 35: See 3 The Legal and Judicial History of New York, supra note 4, at 45-46. While my colleagues and I today have personal chambers spread throughout the state, we all convene in only one place—Court of Appeals Hall in Albany— in every month but July to hear and decide cases.

Footnote 36: "Judges literally brought the law to the people—a task filled with physical and intellectual obstacles. Circuit riding to county courthouses in back-country settlements was a lonely and arduous practice: time in transit—if the circuit was extensive—often matched time in court." White, supra note 19, at 43. Kent held 140 courts and tried 1755 cases in his 16 years of riding the circuits. See Dillon, supra note 18, at 261. For a letter demonstrating some of the difficulties of riding the Circuits, see Letter from James Kent to Doctor Morse (July 8, 1806), in Carson, supra note 1, at 665.

Footnote 37: For a digest of many of them, see Horton, supra note 6, at 152-96.

Footnote 38: See Kent, supra note 7, at 551; see also White, supra note 19, at 44-45. The practice apparently sprang up in other jurisdictions around the same time. For example, there were written decisions available from the United States Supreme Court as early as Dallas' reports in 1790. See Charles C. Soule, The Lawyer's Reference Manual of Law Books and Citations 8 (1884). Before William Cranch, who began publication of that court's decisions in 1804, the Supreme Court's work was not well known by the bar and even less so by the general public. See Elder Witt, Congressional Quarterly's Guide to the U.S. Supreme Court 9 (2d ed. 1990). Justice Story has been credited with bringing Supreme Court reports into the mainstream in a joint effort with Henry Wheaton, who was then the Supreme Court's official reporter. See White, supra note 19, at 44-45.

Footnote 39: Kent, supra note 7, at 551. Kent would later underscore the importance of written decisions in his Commentaries on American Law:

They are worthy of being studied even by scholars of taste and general literature, as being authentic memorials of the business and manners of the age in which they were composed. Law reports are dramatic in their plan and structure. They abound in pathetic incident, and displays of deep feeling. They are faithful records of those "little competitions, factions, and debates of mankind" that fill up the principal drama of human life; and which are engendered by the love of power, the appetite for wealth, the allurements of pleasure, the delusions of self-interest, the melancholy perversion of talent, and the machinations of fraud. They give us the skilful debates at the bar, and the elaborate opinions on the bench, delivered with the authority of oracular wisdom. They become deeply interesting, because they contain true portraits of the talents and learning of the sages of the law.

1 James Kent, Commentaries on American Law *496.

Footnote 40: See Dougherty, supra note 31, at 114 n. 2.

Footnote 41: See Horton, supra note 6, at 101, 120-22.

Footnote 42: Kent, supra note 7, at 551.

Footnote 43: See Horton, supra note 6, at 150-51.

Footnote 44: Kent, supra note 7, at 551.

Footnote 45: See 1 The Legal and Judicial History of New York, supra note 4, at 370. Coleman's Cases, published in 1801, collected practice cases decided in the Supreme Court from 1794 to 1800, but it was not until the appointment of Caines that there were official reports. See Marke & Sloane, supra note 33, § 10.01, at 10-4.

Footnote 46: See Albert M. Rosenblatt, The Foundations of the New York State Supreme Court (1691-1991): A Study in Sources, 63 N.Y. St. B.J. 10, 13 (1991).

Footnote 47: Horton, supra note 6, at 151 n. 85.

Footnote 48: See id. at 151. This began a long collaboration between the two. Johnson's Reports would, at the Constitutional Convention of 1821, be called "authority in every state from Maine to Florida." Id. at 151 n. 86; see also White, supra note 19, at 44-45 (noting praise for Johnson's Reports in Massachusetts and South Carolina).

Footnote 49: 3 Johns. Cas. 337 (N.Y. Sup. Ct. 1804).

Footnote 50: Kent was particularly impressed with Hamilton's advocacy, noting some years later that a more able and eloquent argument was perhaps never heard in any court. In closing his opinion, he adopted as perfectly correct, "'the comprehensive and accurate definition of one of the counsel at the bar (General Hamilton) that the liberty of the press consists in the right to publish, with impunity, truth, with good motives, and for justifiable ends, whether it respects government, magistracy, or individuals." ' Dougherty, supra note 31, at 98 n. 7 (quoting James Kent). Decades later, Kent wrote of Hamilton, "'If I were to select [a] case[] in which his varied powers were most strikingly displayed, it would be the case of Le Guen v. Gouveneur and Kemble." ' Judith S. Kaye, Commercial Litigation in New York State Courts, in 2 Commercial Litigation in New York State Courts 4 (Robert L. Haig ed., 1995) (quoting James Kent). That case involved what was at the time a complex commercial litigation and resulted in a $120,000 verdict for Hamilton's client. See 1 Johns. Cas. 436 (N.Y. Sup. Ct. 1800); Kaye, supra, at 4.

Footnote 51: See Dougherty, supra note 31, at 97; Rosenblatt, supra note 46, at 13.

Footnote 52: See Dougherty, supra note 31, at 97-98; Rosenblatt, supra note 46, at 13.

Footnote 53: Kent, supra note 7, at 551. Kent's dominant role was well hidden, but not from all observers. Justice Story, attending the Court in New York during the May term of 1807, noted of the other judges, that they "'interfered very little in the business of the court." ' Horton, supra note 6, at 149-50 (quoting Joseph Story). A review of volume 10 of Johnson's Reports reveals that Kent had 26 signed opinions, Thompson two, Spencer one (as well as a dissenting opinion), and the other Justices none. See id. at 150 n. 82. There were 152 per curiam decisions. See id. at 150. Fmore detailedailed breakdown of the earlier Johnson volumes, see id. at 149 n. 80.

Footnote 54: Coxe, supra note 29, at 558-59 (footnote omitted). Like the lack of public respect for lawyers, see supra note 18, concern over the politicization of judicial appointments also endures to the present day.

Footnote 55: Horton, supra note 6, at 157 (footnotes omitted). Kent himself remarked:

The value of the civil law is not to be found in questions which relate to the connection between the government and the people, or in provisions for personal security in criminal cases.... But upon subjects relating to private rights and personal contracts, and the duties which flow from them, there is no system of law in which principles are investigated with more good sense, or declared and enforced with more accurate and impartial justice.

1 Kent, supra note 39, at *547

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