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the principal counsel of the day, and since that time its position has by no means improved.
It is no doubt a matter of congratulation that the Judges have, in this instance, been content simply to perpetuate a time-honoured doctrine which has been universally condemned for a century, and have not thought it necessary (as is
often the case) to add to the sanction of antiquity the · weight of their own approbation. The vigorous assaults on
the part of the highest functionaries of the Law to which this devoted doctrine has been subjected, certainly affords a gratifying spectacle of judicial independence. Lord Thurlow in Scott v. Tyler, after referring to some early cases, observes, “ I do not find it was ever seriously supposed to have been the testator's intention to hold out the terror of that which he never meant should happen,"* and for a modern exposition of judicial opinion on the doctrine, it will be sufficient to refer to the judgment of Jessel, M.R., in Bellairs v. Bellairs (L.R. 18, Eq. 510), in which he follows the current of authority with extreme reluctance. Satisfactory as it is to find that the undisguised opinion of the Judges is in this instance not opposed to the plain dictates of common sense, we may well feel some little disappointment when we reflect that a doctrine, on the face of it utterly absurd, which has been energetically condemned by the highest legal authority nearly a century ago, should still be permitted to flourish in undiminished vigour. The vitality of legal abuses must indeed be great, if such a one as this can escape the raid of Law Reformers uninjured. Without a friend in the world, planted no one knows how or why, it exists simply because it has existed. Possibly like the reed in the fable, its very weakness constitutes its strength. There is, it may be, a kind of chivalrous feeling in the breasts of Law Reformers, impelling them “parcere subjectis et debellare superbos,” that is, to spare the small game,
* See also the observations of Lord Mansfield, in Long v. Dennis, 4 Burr 2055.
and direct their attacks at those large and terrible abuses which have influential defenders and die hard. We know that the satisfaction arising from the successful issue of an enterprise, depends principally upon a sense of the difficulties which have had to be surmounted, and we can quite understand that the feeling of triumph, to say nothing of an increased meed of popular applause, occasioned by a hotlycontested victory, affords a much keener source of gratification to the victor than the discomfiture of a feeble enemy.
A rat-catcher may be more usefully employed than a lionhunter, but his occupation is not held in the same estimation. In this respect, the Law Reformer is no exception to the general rule. He feels as keen a delight as any other naturally combative person in meeting “a foeman worthy of his steel ” To fight the powers that be, to try a fall with the Attorney and Solicitor-General, to brave the invectives of the Lord Chancellor, and the contemptuous sneers of the senior members of the Bar—this is indeed an inspiriting contest, defeat is no dishonour, and victory inexpressibly glorious. How humble in comparison is the position of the mere Scavenger of Reform, he who quietly removes a nuisance the retention of which is a matter of indifference to the highest legal authorities. Too many of us aim rather at being famous than useful, and hence we can understand how it happens that an abuse may owe its vitality to the mere fact that it is too utterly rotten for any human being to defend, and we venture to think that no better illustration of the truth of this paradox can be found than in the continued existence of the Doctrine of Conditions in terrorem.
Having once firmly established the doctrine that persons are in the habit of endeavouring to regulate the conduct of their legatees by purporting to impose penalties which they do not intend to be enforced, and which those legatees may discover from the nearest attorney to be a mere dead letter, it may be a question whether the judges might not, with advantage, have abandoned altogether the transparent pretext of trying to discover the real intention of the testator. The solution they arrived at as to the meaning of the testator's words being, in most cases, obviously opposed to common sense, one would scarcely have thought it worth their while by refining on their canons of construction to render that solution more difficult to forecast. However, various refinements have, as we all know, been engrafted on the primitive doctrine until the decisions of the Court have become extremely difficult to forecast. First a distinction has been taken between those cases in which a testator has merely declared that an interest given to a person shall cease on marriage, without any direction as to the disposition of the fund in that event, and those cases in which there is an express bequest over of the forfeited interest. The judicial mind has been much exercised as to the ground of this distinction. Sir William Grant, M.R., in Lloyd v. Branton (3 Mer. 117), observed, “ Different reasons have been assigned by different Judges for the operation of a devise over. Some have said that it afforded a clear manifestation of the intention of the testator not to make the declaration of the forfeiture merely in terrorem, which might otherwise have been presumed. Others have said that it was the interest of the devisee over which made the difference, and that the clause ceased to be merely a condition of forfeiture, and became a conditional limitation, to which the Court was bound to give effect."
We do not propose to comment on the judicial doubts as to this knotty point; it will be sufficient to observe that the distinction in question, whatever may be its origin, or on whatever grounds it may be upheld, has, in its application, given rise to a good deal of litigation, owing to a difference of opinion among the Judges as to whether or not a residuary bequest amounts to a sufficient bequest over to oust the in terrorcin doctrine. Sir William Grant in the last-mentioned case, without venturing to give a positive opinion as to the effect of a simple residuary bequest, decided that a direction that the forfeited bequests should fall into the residue was as effectual as an express bequest over, and although the better opinion would seem to be that a simple residuary bequest does not amount to a bequest over, the point can hardly be said to be free from doubt.
We see then that the first limitation placed to the doctrine of conditions in terrorem has given rise to a doubt that is still sub judice.
The effect of an alternative bequest has also furnished abundant matter for controversy. If the Judges had been actuated by any bonâ fide desire to carry the wishes of testators into effect, it is difficult to see on what ground they should have refused to an alternative bequest the same weight as an indication of intention which they accorded to a bequest over. If a man is held to have sufficiently expressed an intention to enforce the threatened terrors of forfeiture by indicating the objects of his bounty in the event of the forfeiture taking effect, surely his intention not to rely upon any idle threat remains equally manifest if he takes the trouble to make out an alternative scheme, and, instead of naming other objects of his bounty, proceeds to apportion the relative wages of obedience and contumacy. However, it was settled by Lord Hardwicke (Wheeler v. Bingham, 3 Atk. 364), that an alternative provision in the event of non-compliance with the conditions of celibacy, on which the original bequest was granted, whether such alternative provision was settled by the testator himself, or left to the discretion of others, was not sufficient to oust the doctrine of in terrorem. But although the authority of that decision has, we believe, never been questioned, nevertheless it would be wrong to infer that the insertion of an alternative bequest may be left out of consideration in determining the effect to be attributed to a clause of forfeiture. Such a bequest may produce, in
a different way, precisely the same effect, as regards the threatened legatee, as a bequest over may. Sometimes it will be efficacious to his detriment when a bequest over would have been innocuous, for the tendency of modern decisions has been to consider alternative bequests in the light of limitations (which are valid even when in general restraint of marriage) rather than conditions. The cases on this head (which contain extremely thin distinctions, and are very difficult to reconcile) we will refrain from discussing until we come to consider the question of limitations as distinguished from conditions.
We have said quite enough to show that the in terrorem doctrine has occasioned a great deal of doubt and difficulty, but the most perplexing question of all in relation to that doctrine has still to be investigated, namely, whether the doctrine does or does not apply to conditions precedent. In the first place, it is sometimes by no means an easy matter to distinguish a condition precedent from a condition subsequent. We find it stated in a very early case (Robinson v. Comyns, Ca. Temp. Talbot, 166), that “There are no technical words to distinguish conditions precedent and subsequent, but the same words may indifferently make either, according to the intent of the person who creates it.” After this not very encouraging announcement, it is not surprising to find that a large proportion of the cases on Conditions in Restraint of Marriage, contain more or less elaborate arguments, with the object of showing that what would appear primâ facie to be a condition precedent, is really a condition subsequent, and vice versa. At first sight, the distinction between the two classes of condition seems both simple and substantial. The one class, we are told, operates by way of raising an interest, the other by adeeming a benefit already conferred. In practice, however, it was soon discovered that the distinction was anything but simple, and still less can it be said to be substantial. In fact, we do not hesitate to record our conviction that this