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same and a more illustrious name than many times the same number of years devoted with equal ability and learning to the performance of judicial duties.
The system of equity jurisprudence as Kent developed, expanded and adapted it to the situation and circumstances of this country has become universal throughout its limits, and Chancellor Kent is justly entitled to the distinction or descriptive appellation of the creator of the equity system of this country, as Marshall is entitled to that of the creator of our constitutional jurisprudence.
Another parallel between Marshall and Kent consists in the irreproachable simplicity and purity of their private characters. Tennyson's lines in the Wellington Ode:
" And, as the greatest only are,
In his simplicity sublime apply equally to these great judicial magistrates. There is nothing more charming in the history of the great men of our profession than the domestic life of Marshall and Kent. It is idyllic, and no one can arise from a study of the lives of these great men without loving the man as much as he admires the magistrate.
Considerations such as these, which have been so imperfectly expressed, led the writer in his Marshall Day Ad. dress at Albany to remark that, aside from Marshall's services in the field of federal constitutional law, there were other English and American judges who have as wide or wider fame than Marshall — Story, Shaw and Kent, and to state that, having mentioned Chancellor Kent, the hearers would perhaps give him leave, in this capital city and before the bar of the State, to repeat what he had elsewhere said, that,
“ As a judge and author, Kent will not suffer when compared with the greatest names which have adorned the English law. The American Bar and people venerate his name and character. Simple as a child in his tastes and habits throughout his tranquil and useful life; more than any other judge the creator of the equity system of this country; the author of Commentaries which, in accuracy and learning, in elegance, purity and vigor of style, rival those of Sir William Blackstone, his name is admired, his writings prized, and his judgments at law and in equity respected in every quarter of the globe wherever in its widening conquest the English language has carried the English law.”
No writer has considered the respective powers and duties of the Federal and State judiciaries so satisfactorily as Chancellor Kent, whose chapters on that subject are characterized by precision, justness and elegance. He pointed out that there was enough in the jurisdiction of the several States to cheer and animate the cultivation of the science of jurisprudence therein, observing that “ The vast field of the law of property, the very extensive head of equity jurisdiction, and the principal rights and duties which flow from our civil and domestic relations, fall within the control, and, we might almost say, the exclusive cognizance of the State governments. We look essentially to the State courts for protection to all these momentous interests. They touch, in their operation, every chord of human sympathy, and control our best destinies.”
The speaker suggested that under the auspices of the Bar Association of the State we should have a James Kent Day, in order that we may suitably make manifest our appreciation of the great services which he rendered to general jurisprudence, and particularly to the jurisprudence of the State of New York, and this in the hope that it might result in a statute in honor of his memory, either here in the capital city, where he lived and labored for twenty-four years, or in the City of New York, where his Commentaries were written and where he died.
As the unenvied and undisputed title of Marshall is that of The Great Chief Justice, so equally the undisputed and unenvied title of Kent is that of The Great Chancellor and The Great Commentator. This is his double title to his just renown and fame.
The most valuable possession of a State or nation is its great men-men who have rendered to it enduring and useful services-services whose benefits and blessings have the quality of immortality by continuing long after those who have rendered them have closed their earthly career. One great, conspicuous merit of Kent's Commentaries is that they are equally valuable to the student, to the active practitioner and to the laborious and inquiring judge. The late eminent Mr. Justice Stephen, in his History of the Criminal Law of England, says that: “ If we except the Commentaries of Chancellor Kent, which were suggested by Blackstone, I should doubt whether any work intended to
describe the whole law of any country possesses anything like the excellent merits of Blackstone's work."
Such is the consensus of opinion in this country, as elsewhere.
It may be true that Chancellor Kent's true monument is to be found in the record of his life, in the consummate judgments which he rendered at law and in equity, and in his celebrated Commentaries, and that these will endure through successive generations and survive any material monument that may be erected to his memory. It it undoubtedly true, to use the eloquent words of Charles Sumner in a letter to Chancellor Kent, that
“ The mighty tribute of gratitude is silently offered to you from every student of the law in our whole country. There is not one who has found his toilsome way cheered and delighted by the companionship of your labors, who would not speak as I do, if he had the privilege of addressing you."
Chancellor Kent left behind him as man and magistrate an example difficult indeed to follow, impossible to surpass, worthy of profoundest reverence. His influence on our laws and jurisprudence ended not with his life, but in all our wide and extensive domain spreads as the generations come and go, undivided, and operates unspent. As the inheritors of his example and of the benefits of his labors we owe him an uncanceled debt of gratitude. No! Rather we owe it to ourselves and to those who shall come after us to make manisest by some fitting memorial our appreciation of our obligations. It is not enough to recognize such a duty by words. The practice of all nations in all ages has been to exhibit their gratitude for great characters and great services by some fitting and enduring memorial which shall stand in the eyes of all observers, not only as a memorial to him to whom it is erected, but also of the sentiments of gratitude, veneration and esteem of those by whom it is erected. It thus serves a double purpose-a memorial to the honor of the dead, and at the same time a memorial of duty performed by the living.
When the subject of the erection of a suitable statue to the memory of Chancellor Kent was approved by this Association at its last meeting, a special committee was ap
pointed consisting of one member from each judicial district to take the matter in charge and bring it to the attention of the Legislature. The suggestion was also approved by the Albany Bar Association. The committee has made some progress in the way of the execution of their duties, and intends to prosecute the work with zeal and vigor.
In conclusion it is respectfully suggested that this same committee be continued, or another appointed, with larger powers than those with which the committee was clothed by this Association at its last meeting. They suggest that the Association shall pass resolutions to the effect that the American Bar Association shall give its weighty sanction to the proposal to erect a monument to Chancellor Kent, and asking the co-operation of the Legislature of the State, the State and national courts, the State, city and other bar associations, the universities and other institutions of learning and the lawyers and students of the law throughout the land, in the erection of a monument in the City of Albany worthy of the genius, labors, name and character of Chancellor Kent.
JOHN F. DILLON.
COLUMBIA LAW REVIEW.
Published monthly during the Academic Year by Columbia Law Students.
Home Rule PROVISION IN THE New York CONSTITUTION—THE SPECIAL FRANCHISE Tax Decision. —That no generally accepted rule has yet been formulated by which to determine when the home rule provisions of the New York Constitution have been violated is shown by the recent decision on the Special Franchise Tax Law, in which four opinions were written, the conclusion of each being based on reasoning different from the reasoning of every other opinion, and also differing from the opinion of the referee before whom the case had first been argued. The People ex rel. Metrop. St. Ry. Co. v. State Board of Tax Comm'rs (1903) 80 N. Y. Supp. 85. The clause of the section in question reads: “All city, town and village officers whose election or appointment is not provided for by this Constitution, shall be elected by the electors of such cities, towns and villages or some division thereof, or appointed by such authorities thereof as the Legislature shall designate for that purpose.” Art. X, Sec. 2, N. Y. Const. 1894. This section, adopted word for word from the Constitution of 1846, replaces with slight modifications Art. IV, Sec. 15, Const. 1821, which replaced Art. XXIX, Sec. 15, Const. 1777. The latter reads: “ The town clerks, supervisors, assessors, constables and collectors and all other officers hitherto eligible by the people, shall always continue to be so eligible, in the manner directed by the present or future acts of the Legislature."
By providing that local officers shall either be locally elected or appointed by local authorities it was the intention of the framers of the Constitution not to protect and perpetuate the offices themselves, but to secure to the locality the control of the functions and duties