historical jurists, and so looked at them not independently but through the spectacles of that school.69 Spencer's formula of justice is a Kantian formula. He had never read Kant.70 But Kant had become part of the thought of the time so thoroughly that each of the significant nineteenth-century schools - the metaphysical school, the English utilitarians and the positivists— came to his position as to the end of law, though for different reasons and in different ways. Moreover the juristic pessimism of the other schools was fully shared by the positivists.72

Juristic radicalism in the nineteenth century took two paths. On the one hand the idea of justice as the maximum of individual self-assertion and the prevailing juristic pessimism led some to develop to its extreme logical consequences the doctrine that law is intrinsically evil in that it restrains liberty." Hence they advocated not into the rubbish heap of the world's back yard, yet into a secondary and subordinate place. And whereas men have relied in the past on the sovereign and the statute book for order, safety, prosperity, happiness, they are now fast coming to rely for them simply on themselves." Kimball, "Morals in Politics," in BROOKLYN ETHICAL SOCIETY, MAN AND THE STATE, 521-22 (1892). The last statement should be compared with Green (note 15, supra), Carter (note 17, supra), the utilitarian view as stated by Dicey (note 21, supra) and by Markby (note 25, supra), Sharswood (note 25, supra), and Miller (note 58, supra). Purporting to be based purely on induction, it exhibits a curious blindness to the legal and political facts of the time.

69 Maine's Ancient Law is the principal juristic authority used in Spencer's Justice. See the table of references (American ed., p. 287 f.). It is hardly a mere coincidence that the idea of the function of law in maintaining the limits within which the freedom of each is to find the widest possible development (SPENCER, FIRST PRINCIPLES, § 2, quoted in note 68, supra) so closely resembles Savigny's formula: "If free beings are to coexist . . . invisible boundaries must be recognized within which the existence and activity of each individual gains a secure free opportunity. The rules whereby .. this free opportunity is secured are the law." I SYSTEM DES HEUTIGEN RÖMISCHEN RECHTS, § 52.

70 JUSTICE, Appendix A.

71 Cf. CHARMONT, LA RENAISSANCE DU DROIT NATUREL, 122. As to Spencer's relation to Kant, see I MAITLAND, COLLECTED PAPERS, 279-80.

72 "We are to search out with a genuine humility the rules ordained for us — are to do unfalteringly, without speculating as to consequences, whatsoever these require." SPENCER, SOCIAL STATICS, Conclusion, § 8. "If society be, as I assume it to be, an organism operating on mechanical principles, we may perhaps, by pondering upon history, learn enough of those principles to enable us to view, more intelligently than we otherwise should, the social phenomena about us." ADAMS, THEORY OF SOCIAL REVOLUTIONS, 203. See the comments of DEL VECCHIO, FORMAL BASES OF LAW (transl. by Lisle), § 70.


a régime of individual action by voluntary coöperation, free from coercion by state-enforced rules.74 As this group argued for a free consensual rather than a legal ordering of society, naturally enough it gave us nothing which is of importance for jurisprudence. On the other hand the idea of law and government as means of achieving individual liberty was taken up by another group,75 which, rejecting political and juristic pessimism but holding to the idea of individual self-assertion as the end, developed what may fairly be called a social individualism.76 Where the main current of nineteenthcentury juristic thought, following the seventeenth and eighteenthcentury tradition, opposed society and the individual and was troubled to reconcile government and liberty, this group sought individual liberty through collective action and called for the maximum of governmental control as the means to a maximum of liberty.77 On another side in contributing to theories of the social


74 "Free association, liberty, which is confined to the maintaining of equality in the means of production and of equivalence in exchanges, is the only possible just and true form of society. Politics is the science of liberty; under whatever name it may be disguised, the government of man by man is oppression. The highest form of society is found in the union of order and anarchy." PROUDHON, QU'EST-CE QUE LA PROPRIÉTÉ?, I Oeuvres COMPLÈTES (1873 ed.), 224. So Stirner argues that the "liberty" of the metaphysical school is but a negative idea; put positively, the end is: "Be your own; live for yourself, according to your individuality." Accordingly the only justification for society is to contribute to the development of the individual and "permit a larger extension of his powers without demanding restrictions upon his personality beyond what already exist as natural conditions of life in the environment in which he is found." GRAVE, LA SOCIÉTÉ FUTURE, 157.

75 Here we are concerned with the socialists only in their relation to nineteenthcentury juristic thought as to the end of law. Reference may be made to 2 BEROLZHEIMER, SYSTEM der RechtS- UND WIRTHSCHAFTSPHILOSOPHIE, § 38.

76 "Socialism in all its forms leaves intact the individualistic ends, but resorts to collective action as a new method of attaining them. That socialism is through and through individualistic in tendency, with emotional fraternalism superadded, is the point I would especially emphasize." Adler, "The Conception of Social Welfare," PROCEEDINGS OF THE CONFERENCE ON LEGAL AND SOCIAL PHILOSOPHY, 1913, 9.

77 "It is the function of the state to further the development of the human race to a state of freedom. . . . It is the education and evolution of the human race to a state of freedom." LASSALLE, ARBEITERPROGRAM (1863), I WERKE (ed. by Blum), 156, 200. "I take it that the régime of a socialist administration will involve an enormous change of attitude in dealing with crime. Firstly, it will without doubt reduce to the minimum the number of actions characterized by the law as crimes. Secondly, it

interest in the individual life and in developing the Hegelian idea of a culture-state as distinguished from the Kantian law-state, the nineteenth-century socialists mark the beginnings of a transition to a new conception of the end of law. But this aspect must be considered in another connection.

In the nineteenth century, the idea of justice as the maximum of individual self-assertion, which begins to appear at the end of the sixteenth century, reached its highest development. But at the same time the actual course of legal rules and doctrines began to turn toward a new idea of the end of law and the forerunners of that idea appeared in juristic thought.


Roscoe Pound.

will certainly regard the greatest possible consideration for the criminal compatible with the maintenance of social existence at all, as its first duty in the matter." BAX, THE ETHICS OF SOCIALISM, 3 ed., 57 (1893). It should be noted that the first prophecy is not borne out by modern social legislation.



N act recently passed in Massachusetts puts an end there to the rule of the common law whereby a contingent remainder failed if it did not vest during the continuance of the particular estate or at the instant when that estate determined. The act also provides that such remainders shall be governed as regards remoteness by the rule against perpetuities, to the exclusion of any such rule as that laid down in Whitby v. Mitchell, respecting limitations to successive generations.2


The common law rule had been previously modified by statute in 1836 to the extent that a contingent remainder would not be defeated by the destruction of the precedent estate by disseisin, forfeiture, surrender, or merger, but it would still have failed if it was not ready to take effect upon the natural termination of the preceding estate. The commissioners who recommended this statutory provision pointed out how unjust and absurd it was that the intention of a testator or grantor should be defeated if the preceding estate determined before the happening of the contingency upon which the remainder depended. But the remedy they provided extended only to the case where the preceding estate deter

1 42 Ch. D. 494 (1889); 44 Ch. D. 85 (1890).

2 ACTS 1916, c. 108. By § 1, "A contingent remainder shall take effect, notwithstanding any determination of the particular estate, in the same manner in which it would have taken effect if it had been an executory devise or a springing or shifting use, and shall, as well as such limitations, be subject to the rule respecting remoteness known as the rule against perpetuities, exclusively of any other supposed rule respecting limitations to successive generations or double possibilities." The application of the act is limited by § 2 to instruments executed after its passage and wills and codicils thereafter revived or confirmed.

REV. STAT. 1836, c. 59, § 7; REV. Laws 1902, c. 134, § 8. Purefoy v. Rogers, 2 Saund. 380, 387, 388 (1670), is an instance of a contingent remainder defeated by the premature determination of the particular estate. A testator had devised lands to his wife for her life and, if she should have a son and call it by his name, he gave them to him after her life. She afterwards married again and she and her husband purchased the reversion from the testator's heir before she had a son. Her estate for life was held to be merged in the reversion, and the contingent remainder to her son destroyed. See also 2 BL. COMM. 171.

mined prematurely, and not to the case where it determined naturally by its own limitation, before the contingency happened.

A similar course was pursued in England, where an act was passed in 1845,* containing, among other things, a provision regarding contingent remainders substantially the same as that in the Massachusetts statute of 1836.

In the previous year however an act had been passed in England which dealt more completely with the mischief incident to contingent remainders. A section of this act provided that every estate which previously would have taken effect as a contingent remainder should thereafter take effect, if in a will, as an executory devise, or, if in a deed, as an executory estate of the same nature as an executory devise, and provision was also made against the destruction of existing contingent remainders by the premature determination of the preceding estate. This act, which contained other provisions for simplifying the transfer of property, met with much criticism. As to the section relating to contingent remainders, one writer described it in the Law Magazine as "a most alarming clause, ," while another, Mr. Bellenden Ker, in a diffuse letter to the Lord Chancellor, undertook to show the difficulties of understanding or applying the clause. The shallowness of his objections was afterwards exposed by an eminent conveyancer, who in an article published in the Jurist pronounced the section to be "per

4 8 & 9 VICT. c. 106, § 8.

5 7 & 8 VICT. c. 76. It was provided by § 8, "That after the Time at which this Act shall come into operation no Estate in Land shall be created by way of contingent Remainder; but every Estate which before that Time would have taken effect as a contingent Remainder shall take effect (if in a Will or Codicil) as an executory Devise and (if in a Deed) as an executory Estate of the same Nature and having the same Properties as an executory Devise; and contingent Remainders existing under Deeds, Wills, or Instruments executed or made before the Time when this Act shall come into operation shall not fail, or be destroyed or barred, merely by reason of the Destruction or Merger of any preceding Estate, or its Determination by any other Means than the natural Effluxion of the Time of such preceding Estate, or some Event on which it was in its Creation limited to determine."

8 JUR., pt. 2, pp. 289, 361, 407; 32 LAW MAG. 159-61; 9 JUR., pt. 2, pp. 2, 228; 10 JUR., pt. 2, pp. 2, 14.

7 The writer in the LAW MAGAZINE was disturbed chiefly because the clause, as he read it, made it impossible to create a contingent remainder, and yet made it equally impossible to create an executory estate without creating a contingent remainder; and, again, because it provided that a contingent remainder should take effect as an executory devise, although by the rules governing an executory devise, it might be void (32 LAW MAG. 160). His criticism was sufficiently answered in 9 JUR., pt. 2, p. 2.

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