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 edition.
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 original text
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 duties.
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.