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In a day when judges played a far greater role in government, Kent lent his time and intellect to a wide range of endeavors beyond the bench. He sat on the Council of Revision—a remarkable body consisting of the Governor and the judiciary, with power to veto acts of the legislature.[79] Earlier, at the direction of the legislature in 1801, he and colleague Jacob Radcliff collected and revised the earliest statutes—the Colonial Laws of New York—which had by then become an integral part of state law.[80] Kent also was frequently called upon by the governor for advice. In 1813, for example, Kent wrote to then-Governor Daniel D. Tompkins discussing the reasons why he believed the State of New York had no jurisdiction in matters concerning Indians on reservations. The case involved the state's apprehension of a member of the Onieda tribe for the murder of a fellow member of the tribe. Kent recommended that the detainee be released unconditionally.[81] Chancellor Kent also served as a delegate to the 1821 New York State Constitutional Convention,[82] which accomplished many reforms, including extending suffrage, strengthening the executive power, and reorganizing the court system.[83] Kent bitterly opposed enlarging the franchise—he and other prominent jurists such as then-Chief Justice Ambrose Spencer sought to limit voters for the state senate to the landed interest. In his words: "I wish those who have an interest in the soil, to retain the exclusive possession of a branch in the legislature . . . . I wish them always to be enabled to say that their freeholds cannot be taxed without their consent. The men of no property, together with the crowds of dependents connected with great manufacturing and commercial establishments, and the motley and undefinable population of crowded ports, may, perhaps, at some future day, under skillful management, predominate in the assembly; and yet we should be perfectly safe if no laws could pass without the free consent of the owners of the soil. That security we at present enjoy; and it is that security which I wish to retain."[84] Despite such opposition, the measure passed overwhelmingly, 100-19.[85] On the other hand, Kent was successful in resisting abolition of separate chancery courts—a measure that passed in the next New York Constitutional Convention.[86] In speaking out against abolishing the Court of Chancery, Kent noted the advantages that followed from a separate equity tribunal and the difficulties that would follow from placing its powers in the hands of the common law courts. "The Court of Chancery," Kent said, "has become too deeply incorporated in our institutions and jurisprudence to be now destroyed as an independent jurisdiction without the utmost inconvenience and hazard." [87] To his great relief, the measure was defeated. Ironically, one reform that Kent and the Convention did not implement was to extend—from sixty—the mandatory retirement age for judges.[88] As a result, Kent was forced to resign as Chancellor just two years later on July 31, 1823.[89] Kent himself did not resist retirement, but later referred to it as the beginning of a "solemn era in my life."[90] The reaction from the bar was far less reserved: His retirement was contemplated by members of the bar with the deepest concern. Those residing in the city of New York appointed a committee to prepare an address on the occasion; this was adopted, and the committee was requested to transmit the report to him at Albany. The address was signed by all the leading lawyers of the city, and expressed their regret that his term of service had expired.[91]At a banquet held by fellow Yale alumni, the attendees raised their glasses to "The James Kent—with better machinery, greater force and greater safety than any other boat, yet constitutionally forbidden to take another trip."[92] Footnote 79: That two separate branches of government would work together to override the acts of the third branch raised separation of powers concerns, among many, ultimately leading to the Council's dissolution after the 1821 Constitutional Convention, despite a vigorous defense by Kent and Chief Judge Ambrose Spencer. See Dougherty, supra note 31, at 83-84; 1 Lincoln, supra note 19, at 743-46; see also supra note 33 (discussing the senate and judiciary collaboration on the Court of Errors). The Council vetoed a total of 118 items in the 40 years of its existence. See Horton, supra note 6, at 233. While the Council was still extant, Kent played an active role in seeking to veto an 1814 act that would have legalized privateering—allowing civilians to attack and prey on enemy vessels—by an association of five or more individuals and even granted them ordinary corporate powers in furtherance of doing so. See Dougherty, supra note 31, at 67. Kent's position was logically and morally sound—"The practice was liable to great disorder, and as its professed object was the plunder of private property for private gain, its tendency was to impair the public morals, to weaken the sense of right and wrong, and to nourish a spirit of lawless ferocity." Id. But, his position was highly unpopular. Privateering, after all, had been instrumental in bringing the War of 1812 to a successful close and was viewed by the public as a source of strength. Although the Council's rejection of the law created an uproar, and may have hastened the Council's demise, Kent himself was not singled out for criticism—no doubt due to the respect he had earned. See id. at 67-68. Here, again, we see analogues to contemporary problems. Footnote 80: See Dougherty, supra note 31, at 41. Footnote 81: See Letter from James Kent to Hon. Daniel D. Tompkins (Nov. 1, 1813) (on file with the New York State Library, Manuscripts and Special Collections, Accession No. 20231). Kent rendered several opinions, both as Chief Justice and as Chancellor, on the subject of Indian affairs. See 4 Lincoln, supra note 19, at 164-67 (discussing cases); see also 3 Kent, supra note 39, at *379-*400. Of course, even today, this is still a complex area of the law. See, e.g., New York Ass'n of Convenience Stores v. Urbach, 669 N.E.2d 902 (N.Y. 1998). Footnote 82: For Kent's words at the time of the 1822 ratification of the amended New York Constitution, see 1 Lincoln, supra note 19, at 754-55. Footnote 83: See Dougherty, supra note 31, at 83-84. Footnote 84: Id. at 95 (quoting James Kent); see also 1 Lincoln, supra note 19, at 643-49 (recounting most of Kent's speech on suffrage). Footnote 85: See Dougherty, supra note 31, at 95. Kent was consistent in his distrust of the electorate's ability to make an informed and capable decision. In a speech given to the Phi Beta Kappa Society in 1831, Kent called for increased education of the masses, to avoid the evils of media influence on elections: In an age, in which the periodical press has become immensely powerful, whether for good or for evil; and in a country in which the right of suffrage is almost universal, nothing can save us from the destructive effects of such tremendous agents, but the correctness and integrity of public opinion. That opinion is liable to be abused, deceived, and misled, and it requires the constant efforts of wise and good men, and the force of enlarged education, to enlighten the public judgment, and purify the public taste. Phi Beta Kappa Address, supra note 10, at 20. Many of Kent's personal letters, which are preserved and on file in the New York State Library's archives, contain expressions about the popular vote. See, e.g., Letter from James Kent to Hon. Ambrose Spencer (Apr. 18, 1845) (on file with the New York State Library, Manuscripts and Special Collections, Accession No. 20231); Letter from James Kent to Hon. James Hillshouse (June 3, 1830) (same). Footnote 86: See 1 Lincoln, supra note 19, at 680-81. The Chancery Court survived the 1821 Convention, but was abolished in the Constitution of 1846. See 2 Lincoln, supra note 19, at 217. Footnote 87: Horton, supra note 6, at 248 (quoting James Kent). Footnote 88: The limitation had been placed by the Framers as a safeguard against the "senile infirmities" they had once experienced from Chief Justice Horsmanden. See Horton, supra note 6, at 250. William Johnson, Kent's friend and state reporter, was among those expressing outright disbelief that the limitation on age had been continued: "We might search in vain the history of mankind from the first institution of civil government to the formation of the Constitution of the State of New York for a similar limitation. It is opposed to the opinions of the greatest law-givers, statesmen and political writers in all those states and countries to which we are accustomed to look for the lights of wisdom and the lessons of experience. It is a satire on the intellect of the bar and a standing reproach to the discernment and integrity of those to whom is entrusted the power of appointment to office, for it is almost certain that one fit to be a judge at forty, will be equally if not more competent at sixty years of age." Dougherty, supra note 31, at 113-14 (quoting William Johnson). Footnote 89: See Horton, supra note 6, at 262. Johnson recorded the end of Kent's term with the simple statement at the end of his seventh volume of reports, "'This day, the chancellor terminated his judicial labors, having heard and decided every case and motion brought before him." ' See id. (quoting William Johnson). Footnote 90: Kent, supra note 7, at 552. One source tells of Kent, more than 80 years old, sitting astride a cherry tree branch on his New Jersey farm. When his son urged him to be cautious in descending, Kent replied, "'My son, I am used to elevated stations, and know how and when to descend with dignity." ' White, supra note 19, at 38-39 (quoting James Kent). Footnote 91: 1 The Legal and Judicial History of New York, supra note 4, at 334- 35. Footnote 92: Horton, supra note 6, at 265.
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