THE LAW AS AN INTELLECTUAL FORCING-
THE days in which the study of English law as the best of all intellectual trainings are probably past. We live in an age of common-sense, and law tends to become a mere adjunct of justice and convenience. Laws are amended, con- solidated, codified, subtleties of practice are abolished, the very name of pleadings conveys no reproach, a lawyer's clerk can do all the conveyancing—there would be little enough Chancery work did he not—and points of law have ceased to be the stimuli of intellectual culture. That the change is to be regretted few will say, though regret lies deep enough in the hearts of the dwindling residue of those who practised in the great days of the High Court of Chancery. Dreadful days they were from the point of view of the litigant. In that time a vast mass of the litigation was purely fictitious. Wills innumerable came before the Court for interpretation that required no interpretation, as both the attorneys and the learned counsel knew full well, and woe betide the estates so swept into the stream. If they did not exceed a thousand pounds in value, the bene- ficiaries received nothing. The High Court of Chancery during a period of two centuries caused more sorrow and misery in this country than ever the Inquisition caused in Spain. The High Court of Chancery hampered trade in every direc- tion, it made the right of possession to land so uncertain that an eminent lawyer in the nineteenth century declared that there was not one sound title in the country, and it is almost entirely responsible for the backwardness of secondary education in England at the present time through its maladministration of, or incapacity to administer, educational trusts. It is indeed difficult to characterise with sufficient strength of language the evils which were indissolubly asso- ciated with the amorphous monster that went by the name of Equity thirty years ago. Elderly people still shudder at the word "Chancery," unmindful of the fact that it now repre- sents a speedy, and perhaps the speediest, form of justice.
We must ask, then, whether there was no balancing good to the old system of Equity, whether the builders of the system had no plea to put forward in the Chancery of heaven as an answer to the misery and ruin that their structure had caused. It may be doubted if the equity of heaven extended to the case of the average successful practitioner, for the great intellectual abilities that he perforce possessed negatived any plea of ignorance as to the cruelty and injustice of the system of which he was a part. Yet for the nation as a whole there was certainly a balancing good. The Court of Chancery was an intellectual arena of the severest kind, an arena that developed to the utmost the reasoning powers, and one, therefore, that attracted to itself the intellectual forces of the country. It produced a school of thinkers of the first order, and in doing so laid the foundation of a school of thought not more severe in its methods, we may believe, though as fruitful as the other was unfruitful. The modern school of scientific and philosophic thought owes more to the stern intellectual lessons taught in Lincoln's Inn than is often realised. The intellectual effort necessary to evolve "a complete, coherent, symmetrical body of English law," supposed fictitiously to exist in grentio magistratuum, from a series of actual cases was fax greater than under a system such as the Roman, where hypothetical cases were as valuable as real cases. That it also involved much social misery we have seen. But it gave to the present day a remarkable system of law, and it handed on a tradition of hard thinking more sound and in. spiring than that of Oxford or Cambridge. That tradition for the purposes of philosophy and science is invaluable, but for the purposes of law it has little value. The law of to-day has almost forgotten its origin, and the subtle forces that drew it down from its hiding-places in nubibus have lost their virtue.
Yet certain rules of law still valid, though outgrown theii use, and still unabsorbed in the Nirvana of a code, present to
the student of to-day the aroma of old intellectual proeeinimi. Two such rules may be noticed here. The • rule of law which declares the unity of husband and wife still lingers on, and is of occasional importance. It was a wonderful rule. It merged the purse, the person, and the personality of the wife in her husband. The common law said that there should be but one mind in one house, and it was so. The advantages of such a rule are obvious; but it neglected the fact that women, after all, are God's creatures. Therefore the rule involved certain disadvantages that on reflection loom large. The crimes of a wife, for instance, might lie heavy on a husband's shoulders. To kill him was logically not murder, and in those days• the temptation must have been severe. So the legal mind found subtle exceptions to the rule, and to-day the doctrine of unity in respect to crime is sufficiently miti- gated. Again, the law of contract, when once it grasped the rule, disclaimed ft. A wife in her capacity as an undivided moiety of the marital unity could not even order a leg• of mutton. Moreover, it was an abomination for a wife to have no rights whatever with respect to her children. In this matter legal subtlety could create no exception to the rule, and Parliament at last, in 1839, interfered. The legal mind, however, gave itself full play in the matter of property. "All that you have is mine," said the husband. "Let us see," said the Equity lawyer. That little dialogue took place perhaps four hundred years ago. The lawyer invented the principle of the separate estate of married women. The gradual growth of that principle is one of the great achievements of the Court of Chancery. But the inven- tion as it stood alone was not enough. Women used to be weak in money matters. They would give the money that their husbands could not take. So the marriage settlement by deed or will (with all that it means to lawyers) grew up and secured the capital. But that was not enough. The wife could still dispose of her life interest. She could pauperise the household to pay (as she often did) her husband's gambling debts. So Lord Thurlow invented a clause restraining the married woman from anticipating her settled interest. This valuable provision has never been extended to men. But the Courts of Equity went even further in developing the practice of protecting the property of married women. It invented the device known as an equity to a settle- ment. It frequently happened that a husband could not get possession of his wife's property without having recourse to the Courts. The Equity Court thereupon refused to help him unless be made suitable provision for his wife out of the money recovered. The gradual introduction of those excep- tions to the rule of law involved the slow building up of an equitable system of vast importance, and the creation of a great body of legal learning and practice.
In the above case we have seen the gradual destruction of a rule of law originally formulated to suit the convenience of rude ages. It is not less interesting to trace the evolution of rules of law into a more or less final form. We may briefly notice one of these. The Rule in Shelley's Case, the Rule in Wild's Case, and the Rule against Perpetuities are of almost equal interest, but one only can be dealt with here. The Rule in Shelley's Case has many peculiarities, and not the least of these is the fact that while it is even more artificial than the rule of marital unity, it has been maintained with ever- increasing strictness during a period of at least six centuries. The earliest extant reported case governed by it was decided in 1325, and in 1897 the House of Lords emphatically reasserted it in all its naked uselessness. Nor is the rule confined to England. It is the common law in the States of the American Union. It is, for instance, the law of the land in the State of Tennessee, and was recently declared in a learned judgment by Judge Reese to be a settled principle of the common law, not inconsistent "with the liberal and commercial spirit of the age." It has, how- ever, been abolished by statute in the States of Connecticut, New Jersey, Massachusetts, and New York. Mr. Preston, the famous eighteenth- century conveyancer, defined the rule as follows :—" When a person takes an estate of freehold, legally or equitably, under a deed, will, or other writing, and in the same instrument there is a limitation by way of remainder, either with or without the interposition of another estate, of an interest of the same legal or equitable quality, to his heirs, or heirs of his body, as a class of
persons to take in succession, from generation to genera- tion; the limitation to the heirs entitles the ancestor to the whole estate." In Lord Macnaghten's famous judgment delivered in the House of Lords in 1897 the history of the rule is traced. "The better view seems to be that it is a rule of tenure founded on feudal principles, and that its purpose was to prevent the lord being defrauded of the chief fruits of seigniory." For six centuries the rule has been the subject of endless argument in innumerable cases. In Shelley's case, de- cided during the time of Elizabeth, the rule was discussed with vigour, and secured its name. The time, however, arrived, as Lord Macnaghten points out, when "the true doctrine in its primitive simplicity" became obscured, and lawyers of vast learning, such as Lord Mansfield and Mr. Fearne, Lord Thurlow and Mr. Hargrave, quarrelled on the subject with as much vigour as if the reality of ethics or the existence of the infinitesimal were in question. The in- tellect of the age was concentrated on the rule, and, says Lord Macnaghten, "there grew up a mass of decisions so numerous and so perplexing that, in Lord Eldon's opinion, the mind is overpowered by their multitude and the subtlety of the distinctions between them.' " The Courts of Equity offer no such problems to- day, and in sheer intellectual hunger the descendants of Fearne, Hargrave, and Preston are compelled to turn to the unremunemtive fields of philosophy and science.
At last, in 1820, all subtleties were swept away, the primi- tive doctrine was restored, and the rule was asserted to be, not a rule of construction, but an inflexible rule of law. Again, however, its simplicity was tampered with by the subtle intellect of the school of lawyers among whom Sugden was chief. It has now been restored once more to its pristine state of clearness. But the use for the rule has in the meantime vanished. "It checked," said a learned American lawyer, "the disposition to lock up property and render it inalienable." The Settled Land Acts, in giving a tenant for life the power to sell the settled estates, has removed that evil, and the Rule in Shelley's Case now only fulfils what Lord Macnaghten calls "its very end and purpose,"—the frustration of the intention of the person who settles the property. To the lay mind there seems something inherently absurd in the laborious preservation of a rule of law that has no practical use and is a mere trap for testators. That, however, is not the question. As an intel- lectual delight it has fed the minds of lawyers for six centuries, and it has helped to maintain their families in something approaching comfort. These in themselves were achieve- ments, and lawyers, being human, may be presumed to be not without hope that the decision of 1897 has left loopholes for the exercise of further intellectual subtlety. It would possibly be more satisfactory to the Bar and the lower branch of the profession if the rule could be once more undermined in Court than be abolished, as it ought to be, by statute.
But as we have said, law is no longer the great school of intellect. The law was once a science and a philosophy that could call forth treatises which will be to the end of time masterpieces of pure reason. But that day is past in England. All that can be done is to gather up the fragments which remain for the purposes of the history of English law. To do this is an occupation for many able minds, but the fact of such an occupation is in itself a sufficient proof that the law of England is no longer a living source of mental energy. The same thing has happened to us as happened to France in the eighteenth century. We have lost, almost suddenly, the law as an intellectual force; and we are approaching that " Code " stage when intelligence and ability no longer regard legal administration as their natural sphere. In fact, the age of great Judges and great lawyers is dead.
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