PREFACE TO FOURTEENTH EDITION.
THE masterpiece of Chancellor Kent has now become so interwoven with
judicial decisions that these commentaries upon our frame of government and
system of laws will doubtless continue to rank as the first of American legal
classics so long as the present order shall prevail. It is worthy of note that,
in the preparation of this edition, notwithstanding the rapid development and
extension of doctrine in our growing country, the statements of this jurist,
though long since made, have rarely been found criticised or curtailed in final
decisions. The thorough and lucid annotation of Judge Holmes in the twelfth
edition, which placed the work fully in harmony with the later researches and
the current of more recent decision, has in all respects been preserved and
retained, as first published, in this edition. The notes of Mr. Barnes in the
thirteenth edition, which though not so elaborate, added much of value, are now
chiefly enclosed in brackets and followed by the letter B. In this form, when
directly relating to matters discussed in the notes of Judge Holmes, they are
added thereto; in other cases they have in the main been added, with the same
designation, to the older notes. Certain of Mr. Barnes's notes, based upon
decisions which have been overruled or more carefully considered in recent
cases before courts of the highest authority, are now omitted or briefly
incorporated in the new notes, in order
to save space and to prevent the repetition of the same discussion, with
different results, in more than one place.
The aim of the present editor has been to present fully the growth of
doctrine in recent years upon all the topics discussed in this work; to supply
new illustrations of the principles derived from the very latest decisions; to
define the extension or limits of these principles resulting from such
decisions, and especially to fortify the work in parts not recently much
developed, especially in those relating to the Law of Nations, equity,
judgments, taxation, master and servant, aliens, the domestic relations,
patents, copyrights, and trade-marks. An examination of the new notes, which
are in double columns at the foot of the pages, and are indicated by the last
letters of the alphabet, will best enable an intelligent profession to
determine the value of this new material, in which nearly nine thousand cases
have been added to the twenty-four thousand cases cited in the last edition,
not including the frequent citation of other authorities than the reports and
the not infrequent further use made of decisions already cited in that
JOHN M. GOULD.
BOSTON, MASS., Aug. 1, 1896.
PREFACE TO THE TWELFTH EDITION.
I HAVE devoted more than three years to the attempt to bring this work
down through the quarter of a century which has elapsed since the author's
death. While it has been in progress I have tried to keep the various subjects
before my mind, so far as to see the bearing upon them of any new decision in
this country or in England. Almost all my more important notes have been
partially or wholly rewritten — many of them more than once — in the
light of cases which have appeared since their first preparation; and every
case cited has been carefully examined in the original report. In order to
avoid encumbering the text with frequent interruptions and an unmanageable body
of notes, the additions to each of the author's subdivisions have generally
been compressed into one subordinate essay. Great care has been taken to insert
nothing which does not contribute to the main current of the discussion, to
condense as far as possible what has been inserted, and to make each of the
more important notes a whole in itself when that could be done without
repetition. The contents of the notes are indicated by italicized headings. The
notes which have been added to former editions since the author's death have
not been retained, with the exception of one by Mr. Justice Kent, the
Chancellor's son, and several by the last and very able editor, Judge Comstock.
These are enclosed in brackets, and marked with the initials of the authors.
The large store of materials which has been collected since the sixth edition
has not been neglected, however, and has often furnished valuable cases not to
be found elsewhere.
The great weight attaching to any opinion of Chancellor Kent has been
deemed a sufficient reason for not attempting any alteration in his text or
notes. To insure accuracy, this edition has been printed from the eleventh, and
then read with the sixth, which contained the author's last corrections. The
has been scrupulously restored, except that whenever a difference
between the proofs and the sixth edition has occurred in a citation, it has
been corrected in the proper abbreviated form. In this way a large proportion
of the author's citations has been verified; and it is believed that the
present revision, together with the care which former editors have bestowed,
has insured their accuracy.
In order to make the author's arrangement clear, the principal headings
into which he divides each chapter are distinguished by full-faced type; the
subordinate heads are printed in italics; and when, as happens in a few
chapters, these are again subdivided, the heads of the last subdivisions are
also printed in italics, but enclosed in brackets.
The star paging, which is that of the second edition, and by which the
book ought always to be cited, is put at the top of the page. It has been
thought advisable to present the cases cited in the four volumes in one table,
for the same reason that one index is better than four.
I wish to express my gratitude to my friend, JAMES B. THAYER, Esq., upon
whom has rested the whole responsibility for my work to the owners of the
copyright. He has read all that I have written, and has given it the great
benefit of his scholarly and intelligent criticism. I have further to
acknowledge the valuable aid which my friends, HENRY PARKMAN and JOSEPH B.
WARNER, have given me by selecting from the cases cited in the eleventh edition
most of those which have been added in brackets [ ] to the author's notes in
the fourth volume. Mr. PARKMAN has also made, under my supervision, such
additions as were necessary to the index.
O. W. HOLMES, JR.
OCTOBER 3, 1873.
TO THE FIRST VOLUME OF THE FIRST EDITION.
HAVING retired from public office in the summer of 1823, I had the honor
to receive the appointment of Professor of Law in Columbia College. The
trustees of that institution have repeatedly given me the most liberal and
encouraging proofs of their respect and confidence, and of which I shall ever
retain a grateful recollection. A similar appointment was received from them in
the year 1793; and this renewed mark of their approbation determined me to
employ the entire leisure, in which I found myself, in further endeavors to
discharge the debt which, according to Lord Bacon, every man owes to his
profession. I was strongly induced to accept the trust, from want of
occupation; being apprehensive that the sudden cessation of my habitual
employment,1 and the contrast between the discussions of the forum
and the solitude of retirement might be unpropitious to my health and spirits,
and cast a premature shade over the happiness of declining years.
The following Lectures are the fruit of the acceptance of that trust;
and, in the performance of my collegiate duty, I had the satisfaction to meet a
collection of interesting young gentlemen, of fine talents and pure character,
who placed themselves under my instruction, and in whose future welfare a deep
interest is felt.
1 I was appointed Recorder of Few York in March, 1797, and
from that time until August, 1823, I was constantly employed in judicial
Having been encouraged to suppose that the publication of the Lectures
might render them more extensively useful, I have been induced to submit the
present volume to the notice of students, and of the junior members of the
profession, for whose use they were originally compiled. Another volume is
wanting, to embrace all the material parts of the Lectures which have been
composed. It will treat, at large, and in an elementary manner, of the law of
property, and of personal rights and commercial contracts; and will be prepared
for the press in the course of the ensuing year, unless, in the mean time,
there should be reason to apprehend that another volume would be trespassing
too far upon the patience and indulgence of the public.
NEW YORK, November 23, 1826.
TO THE SECOND VOLUME.
WHEN the first volume of these Commentaries was published, it was hoped
and expected that a second would be sufficient to include the remainder of the
Lectures which had been delivered in Columbia College. But, in revising them
for the press, some parts required to be suppressed, others to be considerably
enlarged, and the arrangement of the whole to be altered and improved. A third
volume has accordingly become requisite,1 to embrace that remaining
portion of the work which treats of commercial law, and of the doctrines of
real estates, and the incorporeal rights and privileges incident to them.
It is probable that, in some instances, I may have been led into more
detail than may be thought consistent with the plan of the publication. My
apology is to be found in the difficulty of being really useful on some
branches of the law, without going far into practical illustrations, and
stating, as far as I was able, with precision and accuracy, the established
distinctions. Such a detail, however, has been, and will hereafter be, avoided
as much as possible; for the knowledge that is intended to be communicated in
these volumes is believed to be, in most cases, of general application, and is
of that elementary kind, which is not only essential to every person who
pursues the science of the law as a practical profession, but is deemed
1 This appeared in 1828, and a fourth volume was required,
and appeared in 1830.
useful and ornamental to gentlemen in every pursuit, and especially to
those who are to assume places of public trust, and to take a share in the
business and in the councils of our country.
NEW YORK, November 17, 1827.
NOTE BY THE AUTHOR. — When the N. Y. Revised Statutes are
cited in this work, the first edition, of 1829, is generally referred to; and
if the last edition, of 1846, be referred to, it is cited as New York
Revised Statutes, 3d edition; and if the citation of the 3d edition
be by the page, the reference is to the new paging at the top of each leaf.
Whenever I have had occasion to refer, in this new edition of the Commentaries,
to any of the New York statutes, I have always cited from the 3d edition; but,
in other respects, the reference to the 1st edition of the New York Revised
Statutes remains undisturbed; and I have not thought it worth the trouble of
altering that reference, inasmuch as the paging to the first edition of the
statutes is preserved in the margin to the 3d edition.