public exigency, when inter arma silent leges, should be required to exist before the executive may override the judiciary by either method.

In his chapter on "State Constitutions" in The American Commonwealth, Mr. James Bryce refers to the tendency of constitutions to grow longer with each revision, largely because of popular distrust of ordinary legislators and the desire to curb them by organic law. Mr. Bryce cites a ridiculous instance in which a Constitution goes even so far as to regulate the supply of stationery and fuel for the use of. the legislature. In advocatingas is the purpose of the present paper the constitutional

regulation of contempt of court, the imputation is not incurred of seeking to lug ordinary legislation into the fundamental law. According to Mr. Byrce's analysis and classification, contempt of court falls within one of the scientifically proper parts of a "normal constitution," "the frame of government,-i. c., the names, functions, and powers of the executive officers, the legislative bodies, and the courts of justice." Nor would the proposed reform necessarily lead to great extension of length, or very elaborate and minute provision in constitutional articles devoted to the "frame of the government." As to the character, jurisdiction, and function of courts, it would probably not be well to depart from the brief, historical forms of definition which proved sufficient in the beginning, and have now been rendered practically definite by custom and adjudication. But, in addition, there should be expressly provided that courts of general jurisdiction shall have such powers to punish for contempt as were exercised by the courts of King's Bench and Chancery at the time of the Revolution, and that courts of limited jurisdiction shall have similar plenary powers when acting within their jurisdictions. Probably it would be

well to expressly inhibit legislation on the subject of contempt, and certainly the executive should be disqualified from pardoning persons committed for contempt except under circumstances which would now authorize the suspension of the writ of habeas corpus. There should also be inserted a certain limitation upon the courts' own powers. In cases of what has been termed "executory' contempt the refusal to perform some interlocutory act, such as to testify in a legal proceeding - the court's

power should be without limitation. In a contested will case in the city of New York several years ago, an old family servant, with a stoical loyalty that won her a great deal of sentimental admiration, spent several months in jail rather than answer questions affecting her employers or touching family secrets. It should not be within the power of a recalcitrant witness to clog the wheels of justice through the alternative of suffering a definite, brief term of confinement. Interested parties would frequently be willing to offer a sufficient pecuniary indemnity for the temporary withdrawal from society. In one of the decisions above cited, as confirmatory proof of the general moderation and propriety with which the power to punish for contempt has been exercised, the court shows that only in two States has an attempt ever been made to constitutionally limit the inherent judicial power. Even if the judicial discretion were made absolute as to consummated as well as interlocutory contempt, it would not be abused except in exceptional cases. But to guard against cruel and unusual punishment in rare cases, as well as for completeness of legal form, constitutions should prescribe arbitrary limitations where the penalty imposed relates to a closed transaction, and thus is merely vindicative of the court's authority and dignity.

(Applause.)

Louis M. King, of Schenectady:

Mr. President, I move that a vote of thanks be tendered to Mr. Larremore for his very interesting paper, and that it be printed in the proceedings.

The motion was seconded and adopted.

The President:

I now have the honor as well as pleasure in introducing to you Mr. Walter S. Jenkins, of the Buffalo Bar, who will deliver an address on "Taxable Transfers, Inter Vivos."

TAXABLE TRANSFERS—INTER VIVOS.

One of the most important, as well as fruitful, sources of revenue to the State, is what is known as the "Taxable Transfer Act," or perhaps more commonly called the "Transfer Tax Law."

It is not the intention of the writer of this paper to give an extended history of legislation upon this subject, either in other States where a like policy prevails, or even in our own State, nor to present an array of figures to demonstrate the advantages and benefits derived from it by the State. Nor shall I discuss the constitutionality of the Taxable Transfer Act. This subject was very fully covered and very ably presented at the last annual meeting of this association by Mr. Tiedeman in his paper on "The Constitutionality of Inheritance Tax Law." I shall only touch upon the successive acts of the legislature of this State relating to this subject so far as they bear upon the one phase of the law to be discussed in this paper which is, as stated in the program, "Taxable Transfers Inter Vivos."

Under that title I shall discuss, as best I am able within the proper limits of a paper of this kind, the question as to the proper and legal construction or interpretation to

be given to that portion of the act which imposes a tax when the transfer is of property "by deed, grant, bargain, sale or gift made in contemplation of the death of the grantor, vendor or donor."

The first law upon our statute books taxing gifts and inheritances is chapter 483 of the Laws of 1885, and is entitled "An act to tax gifts, legacies and collateral inheritances in certain cases." This law is commonly referred to as the "Collateral Inheritance Law." This law provided merely for the taxing of property, with certain exceptions which it is not necessary to specify, passing by will or by the intestate laws of this State from any person who may die seized or possessed of the same while being a resident of this State, or which property shall be within this State, or any part of such property, or any interest therein or income therefrom, transferred by deed, grant, sale or gift, made or intended to take effect, in possession or enjoyment, after the death of the grantor or bargainor. (Chap. 483, Laws of 1885, sec. 1.)

This law, somewhat amended and amplified, was substantially re-enacted by chapter 713 of the Laws of 1887. The act of 1887 did not in any respect change the original act as to the character of the transfer to be taxed, but, with a few mere verbal changes introduced with the view of rendering its meaning more clear, retained the language of the act of 1885 above quoted. The Collateral Inheritance Law thereafter remained entirely unchanged until again amended by chapter 215 of the Laws of 1891. This latter act further amended section I of the previous act by providing for a tax upon "All property which shall pass by will or by the intestate laws of this State from any person who may die seized or possessed of the same while a resident of this State; or, if the decedent was not a resident of this State at the time of his death, which

property, or any part thereof, shall be within this State; or any interest therein or income therefrom, which shall be transferred by deed, grant, bargain, sale or gift made in contemplation of the death of the grantor or bargainor, or intended to take effect, in possession or enjoyment, after such death."

It will be seen that by this amendment the law for the first time provided for the assessment of a tax upon property which shall be transferred by deed, grant, bargain, sale or gift made in contemplation of the death of the grantor or bargainor.

In all other substantial respects, and except that this act introduced the principle of taxing direct inheritances, the law remained the same as under the acts of 1885 and 1887; and the criticism passed upon this law by the learned surrogate of New York county in 1888, in the Matter of the Estate of Mrs. Astor (20 Abb. N. C., 411), applies with equal force and aptness. In commenting upon the law as it then stood, the learned surrogate said: "This legislation, in form and substance, is justly entitled to severe condemnation for great looseness and incoherence of expression."

It was undoubtedly for the purpose of clearing away the doubts and uncertainties arising from the looseness and incoherence of expression of the former laws that, in 1892, the legislature of this State, by chapter 399 of the Laws of that year, revised and practically rebuilt the law taxing gifts, legacies and inheritances, providing more fully and clearly a method of procedure for determining and collecting the tax as well as specifying with more succinctness and particularity the various kinds of transfers upon which the tax should be assessed. It will also be noted that whereas the former law was entitled "An act to tax gifts, legacies and inheritances," the new law, the Law of 1892,