3^0 
 ' ISP 
 
 PAPERS 
 
 OF THR 
 
 DUBLIN LAW INSTITUTE. 
 
 (Contents : 
 
 PART I. j 
 
 1 . Opening Address by the Principal of the Institute. / 
 
 2. Address by His Grace the Archbishop of Dublin, on the Intellectual a/\d 
 
 Moral influences of the Professions. 
 
 3. Law, as it relates to the economic condition of a people, by Professor Lawson. 
 
 4. The Duties and Licence of Counsel, by the late T. Wright, Esq., Barrister- 
 
 at-Law. 
 
 5. Legal Calculation and Division of Time,- by Professor Barry. 
 
 6. The Records of Ireland, and their Application to Professional Purposes, 
 
 by T. J. Beasley, Esq., a.m., Solicitor. 
 
 PART II. 
 
 I. Argument of Joseph Napier, Esq., Q.C., in the House of Lords, in the case of 
 
 Viscount Dungannon v. Smith. 
 
 II. Papers on Legal Education : — 
 
 1 . Imperial Law School of St. Petersburg. 
 
 2. Views of the Judges of the Supreme Court of the United States in reference 
 
 to Legal Education. . 1 
 
 3. Letter from the late Honorable Judge Story. 
 
 4 . Letter from the late Professor Bell, of Edinburgh . 
 
 b. Resolution of Commissioners on the course of Legal Study in Edinburgh. 
 
 i 
 
 TO BE HAD AT THE LAW INST PIUTE ; OF HODGES AND SMITH, GRAFTON-STREET ; MI U, I KEN. | 
 15, COLLEGE-GREEN; AND OF E. SPETTIGUE, CHANCER i -LANE, LONDON. 
 
 DUBLIN: 
 
 PUBLISHED BY ALEXANDER THOM, 87, ABBEY-STREET, 
 
 Price Two Shillings. 
 
 a . 
 
 
 18 4 6 . 
 
ADDRESS 
 
 DELIVERED BY 
 
 TRISTRAM KENNEDY, ESQ., BARRISTER- AT-LAW, * 
 
 principal of lljc sDublin Unto Institute, 
 
 AT 
 
 THE OPENING SOIREE OF THE SOCIETY, 
 
 Wm 
 
 HELD ON MONDAY EVENING, JANUARY 31, 1842. 
 
 The society of the Dublin Law Institute 
 having now reached its third year, it shall 
 be my gratifying duty to lay before you 
 a review of its progress, its objects, and 
 its results, from the date of its inundation 
 as a public institution. It had its early 
 struggles and difficulties, but these were 
 of shorter duration than might have been 
 reasonably anticipated ; for no sooner 
 were its objects fully scanned, and its 
 merits thoroughly understood, than it re- 
 ceived the sanction of those individuals, 
 whose fostering encouragement has ena- 
 bled it to reach its present position. Those 
 supporters were not confined to the youth- 
 ful or unenlightened students, who would 
 have had direct and personal interest in 
 the establishment as a means of acquiring 
 instruction. There were also the master- 
 minds of the legal profession, whose suc- 
 cess no difficulty had been able to impede 
 — whose perseverance had surmounted 
 each perplexing obstacle — but whose 
 manly and honorable feelings enabled 
 them to hail, with disinterested approba- 
 tion, the foundation of an Institution for 
 directing the studies of those embarking 
 in legal pursuits, to rejoice in the first 
 attempt made in this country to teach law 
 as a science ; they could not avoid la- 
 menting, that in their younger days there 
 was no institution of this description of 
 which the law student could avail himself; 
 and whilst they deplored the enormous 
 waste of time they had suffered in their 
 own early reading, they rejoiced that the 
 Institution would relieve all future stu- 
 
 dents, availing themselves of its advantages, 
 from this loss; that it would contribute 
 to the respectability and efficiency of the 
 Irish bar, and that it would afford to the 
 community in general the means of ac- 
 quiring a knowledge of the laws and con- 
 stitution of the country. The professional 
 School or Institute has passed the ordeal 
 of a second session. It is known to the pub- 
 lic. Ithas undergone the severeand criticis- 
 ing test of professional opinion. It hasgained 
 new and valuable supporters. It has pre- 
 served the confidence of the enlightened 
 and intellectual friends who approved of 
 its foundation. It has survived the pesti- 
 lential attacks of ignorance, folly, preju- 
 dice and malevolence. The Institute pre- 
 sents to students the aid ot’six experienced 
 professors, approved of by the Benchers, 
 and known to both the profession and the 
 public. The synopsis published, of the 
 courses of instruction, renders unnecessary 
 my dwelling upon the plans pursued in 
 the institute ; suffice it now to observe, 
 that students and members of the bar who 
 attended the first, I might add experimen- 
 tal, course of instruction m the Institute, 
 have evinced by attendance a second and a 
 third year, that the time thus dedicated was 
 not altogether misspent. How very differ- 
 ent a system the Institute presents to that 
 so quaintly described by Roger North, in 
 his discourse on the study of the laws. 
 “ Such,’' says he, speaking of the novice, 
 “as are willing and inquisitive may pick 
 up some hints of direction ; but generally 
 the first step is a blunder, and what fol- 
 
2 
 
 address op the principal. 
 
 lows loss of time ; till even out of that a 
 sort of righter understanding is gathered, 
 whereby a gentleman finds how to make 
 better use of his time, and of those who 
 are so civil as to assist a novice with their 
 advice what method to take ; few agree in 
 the same ; some say one way, some ano- 
 ther, and amongst them rarely one that is 
 tolerably just. Nor is it so easy a matter 
 to do it that every one should practice to 
 advise, for most enter the profession by 
 chance, and all his life after, is partial to 
 his own way, though none of the best/’ 
 
 The necessity that existed for a system of 
 instruction for the youthful lawyer was 
 met in ancient Rome by the houses of the 
 elder lawyers being with them, the schools 
 for the youth intended for the bar. “We 
 shall see,” remarks Quintilian, “ a whole 
 company of studious young people fre- 
 quenting his house, and consulting him 
 upon the proper methods of speaking; he 
 forms them as though he were the 
 father of eloquence, and like an old ex- 
 perienced pilot points out to them the 
 course they ought to steer, and the rocks 
 they must shun, when he sees them 
 ready to set sail.” — Here, then, is the 
 secret of the lasting reputation of Ro- 
 man lawyers constituting them the studies 
 of excellence even of the present day. 
 The young men had the benefit of study- 
 ing the best models, not only in the prin- 
 ciples of law, but also in the art of con- 
 veying this knowledge. Is it to be 
 wondered then that they learned, in the 
 words of St. Austin — “ Sapienter dicer e, 
 eloquenter dicere ?” 
 
 The beneficial influence this society has 
 produced, is evinced in a variety of chan- 
 nels ; and we have the satisfaction to know 
 that this fact has been most frankly admit- 
 ted by someofthemostdistinguishedjudges 
 in the land. Independent of the publications 
 which have emanated from the society, 
 the increase of legal works in this country 
 is considerable. The Legal Reporter , the 
 only law periodical published in Dublin, 
 had its origin since our foundation ; a work 
 which has found its way out of Ireland, and 
 is now desired in America as a channel for 
 communicating the proceedings of our in- 
 stitute. A system similar to that pursued 
 in the selection of a professor to the me- 
 dical jurisprudence classes of the institute 
 has recently been adopted by an eminent 
 medical school in this city. Feeling, as we 
 did, the want of power to communicate 
 with advantage to the pupils the combined 
 subjects mingled in a course of medical 
 
 jurisprudence, by means of an individual 
 exclusively educated in their own profes- 
 sion, they wisely appointed a member of 
 the bar to lecture on that branch more 
 immediately within his province ; and I 
 have further the satisfaction of stating, 
 that their choice has fallen on one of the 
 earliest students who availed himself of the 
 advantages of the Law Institute, and whose 
 labors bid fair to reflect in return a grate- 
 ful lustre on his alma mater. The students 
 at law, with a laudable anxiety to remove 
 from them the opprobrium passed upon the 
 young aspirant to legal fame by a Nestor 
 of our craft, and stimulated by the praise- 
 worthy example shewn in the sister pro- 
 fessions of divinity and physic, now desire 
 not only a means of acquiring a knowledge 
 of the law, but even demand, as at present 
 exists in the other learned professions, an 
 evidence of the acquisition of that know- 
 ledge before undertaking to practice, in 
 order to remove from their profession the 
 reproach embodied in the aphorism of my 
 Lord Coke, in pronouncing a solemn judg- 
 ment. “ It is an old rule,” said his lord- 
 ship, “ that a man ought to take care that 
 he do not commit his soul to a young di- 
 vine, his body to a young physician, and 
 his goods or other estate to a young law- 
 yer, for in Juvene Theologo est conscientice 
 detrimentum , in Juvene Legislator e bur si 
 decrementum , et in Juvene Medico Ccemete- 
 rii incrementum” 
 
 Education in Ireland, its nature and 
 its means of accomplishment, have 
 been long a subject productive of ex- 
 treme diversity of opinion, of discord and 
 of animosity, even amongst the best in- 
 formed. One solitary instance is present- 
 ed for the historian to record, in which 
 Protestant, Dissenter, Roman Catholic, 
 Whig, Tory, Conservative, and Radical, 
 stand all united in the cause of education ; 
 legal knowledge the object sought; the 
 Dublin Law Institute the means for ac- 
 quiring its extension. Is this then a case 
 in which insensibility should continue, 
 or where the opportunity offered for 
 conferring extensive and permanent bene- 
 fit on mankind should be neglected? 
 Does it not afford to the state phy- 
 sician a priceless opportunity of healing 
 wounds with which the subject has been 
 long afflicted ? Would not generous diet- 
 ary ministered to the mind, augur for Ire- 
 land happier and wiser days ? The claims 
 of the society do not rest here ; the insti- 
 tution has been founded in accordance with 
 the suggestions and recommendations con- 
 
DUBLIN - LAW INSTITUTE. 
 
 3 
 
 tained in the report from the select com- 
 mittee of the House of Commons on edu- 
 cation in 1838, in which report the com- 
 mittee state it as their opinion (after three 
 years’ deliberation) that institutions of this 
 nature should be established and main- 
 tained at the joint cost of the profession 
 and of the state ; a report, the general 
 tenor of which, both in spirit and detail, 
 reflects credit on the chairman of that 
 committee, a member of this society, the 
 universal friend to education, Mr. Wyse — 
 a report which does honour to a British 
 House of Commons, and which if acted 
 upon would raise Ireland from darkness, 
 restoring to her the place she once main- 
 tained amongst enlightened nations. 
 
 The society itself consists of the most 
 distinguished and elevated members of the 
 several professions ; the system of its 
 working is under the control of a council 
 selected from the bar, whose names alone 
 offer sufficient guarantee for the worth 
 and efficacy of the plans. Let it not be 
 supposed however that this institution has 
 been looked upon with apathy by other 
 learned bodies; by those distinguished indi- 
 viduals whose more especial province it is 
 to elevate the standard of legal knowledge, 
 and afford to the profession the advantages 
 of theirpaternal superintendance ; actuated 
 by that purest and most liberal principle 
 of encouraging in others the pursuit they 
 themselves have been devoted to with 
 honor and success ; the laurels they have 
 won they desired should be preserved un- 
 withered in succession ; and following the 
 brilliant examples set by Hortentius and 
 Cicero from the very outset — the infant 
 struggles of our society have been care' j 
 fully watched and our exertions stimulated | 
 by the parental advice of many of the 
 most enlightened benchers of the Society j 
 of King’s Inns; and when at length the i 
 learned body itself was convinced, af- j 
 ter watching our early career, that it 
 was for the interest of the profession of 
 which they were guardians, that the in- i 
 stitute should have the sanction of their j 
 body ; sinking all unworthy feelings witli | 
 a liberality that rarely influences incorpo- 
 rated societies, the benchers of the King’s j 
 Inns, to their honor be it spoken, have 
 not only given to the institution the ad- 
 vantage of their approval' — they have uni- 
 ted with us in the noble and important en- 
 terprise — they have become fellows of our 
 society — they have given a substantial 
 mark of their desire for the continuance 
 of the system by endowment of the insti- 
 
 tute. The approbation received has not 
 been merely local or the lesult off any 
 national obligation. From the highest 
 legal quarters in England we have been 
 cheered on to exertion. From the bench- 
 ers of Lincoln’s Inn, London, we have 
 received the wannest expressions of en- 
 couragement: the} 1, have also, by an en- 
 dowment, extended our means of effecting 
 the object which they thus approved. To 
 this I may add, what I am sure will gratify 
 my fellow-laborers in our common un- 
 dertaking, that I am to-day afforded an 
 opportuniiy of conveying to them the 
 pleasing intelligence that the Society of 
 Gray’s Inn have also confered a golden 
 proof of their approbation, by a donation 
 of 100 guineas; a sum similar to that pre- 
 sented by Lincoln’s Inn> 
 
 To establish a mere school oflaw for pro- 
 fessionalmen, thoughamost responsible and 
 desirable undertaking, has not been the re- 
 stricted object sought by this society. We 
 have likewise desired to facilitate generally 
 theacquisition of legal knowledge — to raise 
 jurisprudence from amongst the mercenary 
 arts of a particular community, and give 
 it a place along with the liberal sciences 
 interesting to the whole family of man- 
 kind. With Burke we desire to see juris- 
 prudence made the pride of the human 
 intellect; the collected reason of ages 
 combining the principles of original jus- 
 tice with the infinite variety of human 
 concerns ; and with Demosthenes, Ci- 
 cero, Hardwicke, Holt, Mansfield, Jones, 
 Hoffman, and others, we desire to have it 
 placed “ on the basis of moral rectitude 
 and the principles of eternal truth.” We 
 desire to relieve our country from the im- 
 putation of negligence in the cultivation 
 of that science which employs in its 
 theory the noblest faculties of the soul, 
 and exerts in its practice the cardinal 
 virtues of the heart. It was necessary to 
 proceed with caution and deliberation in 
 framing rules and organising a system 
 which should be at once, sound, perma- 
 nent, and extensive in its effects — one 
 that, whilst it should facilitate and make 
 plain the acquirement of legal knowledge, 
 to the profession itself, would likewise 
 bring its attainment within t he reach of 
 every class of the community We are 
 told by Blackstone that it is incumbent 
 on every man to be acquainted with those 
 laws at least with which he is most imme- 
 diately concerned, lest he incur the cen- 
 sure as well as inconvenience of living in 
 society without knowing the obligations 
 
4 
 
 ADDRESS OF THE PRINCIPAL. 
 
 which it lays him under; and thus much 
 may suffice for persons of inferior condi- 
 tion who have neither time nor capacity to 
 enlarge their views beyond that contracted 
 sphere in which they are appointed to 
 move ; but those on whom nature a d for- 
 tune have bestowed more abilities and 
 greater leisure cannot be so easily excused. 
 These advantages are given them not for 
 the benefit of themselves only, but also 
 of the public, and yet they cannot in any 
 scene of life discharge properly their duty 
 either to the public or themselves vvithout 
 some degree of knowledge in the laws. 
 We shall not dwell upon the commentary 
 given by that learned author as to the ne- 
 cessity of ’legal education for “ the gentle- 
 man of independent estate and fortune,” 
 whom to suppose ignorant in this branch 
 of learning is treated by Mr. Locke as a 
 strange absurdity; neither shall we delay 
 to comment on the value of knowledge of 
 ^ this description to jurors, in which posi- 
 tion most men are liable to be placed, the 
 general incapacity of the best of whom to 
 discharge important duties with any tole- 
 rable propriety Blackstone himself ob- 
 serves, <k has greatly debased their autho- 
 rity” — and passing over the magistrate 
 whose ignorance of law may have rendered 
 him an object of contempt from his infe- 
 riors, and of censure from those to whom 
 he is accountable for his conduct; and the 
 various professions to whom certain know- 
 ledge of law is recommended; we may in- 
 dulge with that learned author in an ex- 
 pression of amazement that ther6 should 
 be no other state of life, no other occupa- 
 tion, art, or science, in which some me- 
 thod of instruction is not looked upon as 
 requisite, except only the science of legis- 
 lation, the noblest, the most difficult of 
 any. Apprenticeships, he says, are held 
 necessary to almost every art, commercial 
 or mechanical: along course of reading and 
 study must form the divine, the physician, 
 and the practical professor of the laws ; but 
 every man of superior fortune thinks him- 
 self born a legislator. Yet Tully was of a 
 different opinion. It is necessary, says he, 
 for a senator to be thoroughly acquainted 
 with the constitution ; and this he declares 
 is a knowledge of the most extensive na- 
 ture, a matter of science, of diligence, of 
 reflection, vvithout which no senator can 
 * possibly be fit for his office. 
 
 We have alluded to the light of other days ; 
 it may be well cursorily to investigate the 
 degree of knowledge, and estimate the igno- 
 rance of the mass of our countrymen in the 
 
 ✓ 
 
 19th century; 1st, as to the particular laws 
 enacted for their guidance ; ^ndly, as to the 
 general principle which renders laws indis- 
 pensable, and we shall consider how their 
 deficiencies in this respect affects their so- 
 cial condition. If a peasant in this coun- 
 try be asked what his idea of law is — its 
 object — what its results, there passes be- 
 fore his mental vision a tragic scene most 
 difficult for him to describe ; not, how- 
 ever, for the reason that the impression 
 made has not been deep and lasting, but 
 from his ignorance, and consequent inca- 
 pability of comprehending what he wit- 
 nesses ; there exists a confused idea of the 
 going judge of assize and the sentence 
 which he passes, the gaoler and the exe- 
 cutioner, 'with the various ungracious of- 
 fices performed by them. The learned 
 counsel and agent next present themselves, 
 in his opinion mercenary hirelings, open 
 to a retainer from either truth and justice, 
 or their antagonists, falsehood and fraud, 
 whoever first commands their services ; 
 prisons, cells, transports, foreign climes, 
 pillory, houses of correction, tread-mills, 
 fines, and forfeitures, all rush in confused 
 order to the scene, leaving the ignorant 
 and innocent spectatorappalled rather than 
 solaced by any idea of protection which 
 reflection on the subject wonld have pro- 
 duced in an educated mind. If we take a 
 microscopic view of a criminal court of 
 law pending the investigation which may 
 chance to occupy attention, anxiety is too 
 frequently evinced for the prisoner’s ac- 
 quittal, no matter how unequivocal may 
 be the evidence of his guilt; and when a 
 prisoner is convicted on indisputable proof, 
 sympathy for the guilty and regret for the 
 vindication of the law arises. In fact, law 
 seldom appears, or is comprehended, ex- 
 cept in its most appalling aspect. The 
 evils resulting from the neglect of educa- 
 tion in this respect are numerous. Igno- 
 rance produces crime, and affords protec- 
 tion to 1 the criminal — to the outlaw it 
 offers a house of refuge — to the thief a 
 ready welcome — to the false witness a very 
 general justification. I might appeal for 
 the general accuracy of this lamentable 
 statement to many whom I have the honor 
 to address, and who could from their own 
 experience corroborate all I have asserted 
 by illustrations too painful to dwell upon 
 for any other object than the one here 
 sought; the removal of the producing 
 cause. I may be permitted to give a 
 scene which came under my own obser- 
 vation some years ago. In the capacity 
 
DUBLIN LAW INSTITUTE. 
 
 5 
 
 of high sheriff of a northern county, I was t 
 called upon to attend the pillory of an in- 
 dividual convicted of wilful and corrupt 
 perjury. The period appointed arrived 
 for exposing the convicted offender in his 
 degraded position to an assembled multi- 
 tude, many of whom, no doubt, had wit- 
 nessed, some perhaps had comprehended, 
 the extent of his perfidy. On entering the 
 pillory what were the sensations, what the 
 conduct of its occupant ? Was there 
 evinced a deep feeling of remorse for the 
 position in which he then stood, for the 
 injury he had endeavoured to inflict upon 
 his neighbour, for the outrage he was 
 guiity of to society? Was there a single 
 symptom of regret for the breach of the 
 laws of man — did he tremble before his 
 God whose law he had not only broken, 
 but upon whom he had called as a witness 
 and invoked as his assistant in the perpe- 
 tration of the crime ? Feelings such as 
 these were (let us charitably presume) to 
 him unknown ; man stood the representative 
 of savage nature, in ignorance encom- 
 passed, the enormity of the offence he had 
 committed apparently unknown to him, 
 but as if confident of the sympathy of the 
 spectators, instead of their aversion, he 
 rejoiced in the distinguished position in 
 which his conduct had placed him ; with 
 liis head in the pillory, exultingly, he vo- 
 ciferated to the assembled multitude a suc- 
 cession of cheers for those upon whose 
 behalf his false testimony had been given. 
 
 And why do we find amongst persons in a 
 higher walk of life, who have some know- 
 ledge upon all matters, except the laws 
 intended to regulate society, a disinclina- 
 tion to discharge many duties which the 
 community and good order expect them 
 to perform? Why do we frequently find 
 the person who should stand in the posi- 
 tion of prosecutor, as well as the witness 
 who should give evidence, each decline 
 the, performance of those high duties? 
 Reflection will convince us that the same 
 cause producing the crime entitled to pro- 
 secution, withholds the prosecutor and 
 witness from bringing that crime to light ; 
 and 1 shall all fearlessly repeat, that the 
 source of this abandonment of the highest 
 social duties is for the most part ignorance, 
 gross ignorance of the principles upon 
 which laws are enacted, and of the con- 
 stitutional remedies for obtaining their 
 repeal when unsuited to the exigencies of 
 the state. How long shall the conduct of 
 the people, as affecting the social organi- 
 zation of their country, be directed by 
 
 mere momentary impulses, instead of fixed 
 principles ? How long shall they continue 
 to stumble through life in this respect like 
 the beast of the field — their action the re- 
 sult of instinct, rather than the fruit of 
 reason ? It is high time, when enlight- 
 enment on other subjects is making visi- 
 ble advances through the land, that the 
 most indispensable of all worldly know- 
 ledge should be promoted — promoted not 
 only by the people whose great advantage 
 it must be to acquire the knowledge, but 
 also by the government, whose first duty it 
 is to promulgate it. 
 
 It must be admitted that general education 
 may progress for evil as well as good; and that 
 knowledge constitutes neither the one nor 
 the other, while its application can deter- 
 mine either. This very principle in my 
 mind points most directly at the national 
 importance and absolute necessity for pro- 
 pagating a knowledge of the laws of the 
 country, and their objects cotemporaneous 
 and coextensive with other branches of 
 education — nay, I shall go further, and 
 even declare, that the extension of know- 
 ledge of the laws of the country must con- 
 stitute the most powerful check upon 
 the application of knowledge to evil pur- 
 poses. Let it not be supposed that the 
 desire is to make Ireland a nation of law- 
 yers or special pleaders, or yet to consign 
 a sufficient space in man’s intellectual pre- 
 mises for the reception of even the index 
 to the Irish statutes. It is, however, 
 suggested, that without infringing on the 
 high prerogatives, or legal preserves of 
 the profession, rational exertion might be 
 profitably made in the different grades of 
 society for pointing out the object of laws, 
 the principles upon which they are based, 
 and the great end to be attained by uni- 
 formity of submission to what is law, with- 
 out diminishing the constitutional exer- 
 tions of individuals to promote the correc- 
 tion of what may appear mischievous or 
 inapplicable in them to any existing state 
 of things — thus promoting feelings calcu- 
 lated rather to command a respect for the 
 law than an anxiety to see it evaded or 
 resisted, and inducing a spirit of in- 
 vestigation, and a due appreciation of 
 those obligations by which we should 
 be bound to society, as being insepa- 
 rable from the maintenance of our 
 rights. If a knowledge of the laws be 
 not forced upon the public, it is a matter 
 ofjustice that every avenue to its acquire- 
 ment should at least be open, and every 
 reasonable means be adopted for its pro- 
 
6 
 
 ADDRESS OF THE PRINCIPAL. 
 
 mulgation, as in the less important 
 branches of education. It is man’s right 
 to have afforded him the facility of beco- 
 ming acquainted with those laws, the 
 breach of which his plea of ignorance 
 could not justify. A wise and good go- 
 vernment should anticipate the advantages 
 to be derived from the redress of this 
 neglected but most important branch of 
 public education. It may be asked, and 
 perhaps often has been asked, why should 
 Ireland attempt to offer instruction, or 
 why establish there a university of this 
 nature — why originate any institution cal- 
 culated to be more perfect in itself, or 
 more beneficial to either the legal profes- 
 sion or to mankind in general, than those 
 matured in other parts of the empire. I 
 might simply answer these questions on 
 the part of the juniors in the profession, 
 for whose benefit our Institute is more es- 
 pecially established, by inquiring, in the 
 language of Horace — 
 
 Tell, for you know, my friends, prophetic tell 
 What shall we do our empty bags to swell ? 
 
 Or on the part of those more advanced in 
 years, and reaping the fruits of their in- 
 dustry and talent, i might answer that the 
 days of Regulus had passed away, and 
 that our Plinys of the present time, in 
 place of merely regretting the delay of his 
 final exit, would speedily expose the false 
 pretensions of that advocate who deemed 
 it necessary to afford an opportunity of 
 judging whether he was engaged for 
 plaintiff or defendant by wearing a patch 
 over his right or left eye. But have we 
 it not, on a variety of authority, that Ire- 
 land has given the most distinguished pro- 
 fessors to the most famous universities in 
 Europe ? Was not Ireland, once the nur- 
 sery of the sciences? Have we it not on 
 the authority of Littleton, that to this 
 country England chiefly owed her know- 
 ledge ? How many Saxons out of Eng- 
 land resorted to this our land for instruc- 
 tion, who, at the public charge, were 
 maintained and educated, without office 
 or reward, bringing back the use of 
 letters to their then ignorant coun- 
 trymen. Bede, early in the eighth 
 century, in writing of those Saxons ob- 
 serves, “ quQS omnes libentissime suscipi- 
 entes victvm eis quolidianum sine pretio 
 libros qnoque ad legendum ct magiste- 
 rium gratuitum prcBhere curabant. ” We 
 have it recorded that at “the Mayo of the 
 Saxons,” as it was called, or the Great 
 College of Mayo, at one time no fewer 
 than 2,000 students from England were 
 
 in attendance, and this was but one of 
 several similar institutions then through- 
 out this country. We shall not here pause 
 to consider or parley on any cause which 
 may have impeded the continuation of the 
 ancient honor and renown of Ireland in 
 the diffusion of useful knowledge : but we 
 may fairly ask, should her degeneracy be 
 prolonged ? Should she remain entirely, 
 dependent on external influence or acci- 
 dent for the yielding those beneficial re- 
 sults which, if permitted, she is capable of 
 rendering to herself, and with advantage 
 to the whole empire? Shall we be told 
 that Ireland, once the resort for education, 
 should not now be encouraged to extend 
 to her own sons useful knowledge — or has 
 lapse of time so altered the character of a 
 nation that her instruction should be left 
 to depend on the offspring of the itinerant 
 or sojourner she herself once taught? Are 
 we now inferior in energy and zeal to other 
 European nations, or beneath them in 
 those qualifications necessary for either 
 receiving or yielding instruction? To our 
 divinity, our medical, and surgical schools, 
 we appeal for a refutation of any such sup- 
 position; and also to the distinguished of 
 our bar, whose success could not be impe- 
 ded, though deprived of advantages which 
 every other civilised country affords. 
 
 The advantages presented by the Law 
 Institute are not offered as a substitute 
 for any other system of instruction, 
 or as a reason for the students forsa- 
 king any other accessible path to know- 
 ledge, whether practical or theoretical. 
 We desire not to supersede the valuable 
 privilege of instruction to be procured in 
 England, or the benefits which education 
 in any other country may afford. We 
 simply offer a general sj^stem of instruction 
 where none has existed, rendering more 
 •profitable in its application the knowledge 
 which may have been gathered, we care 
 not where. We desire not to participate 
 in the tests existing for creating the bar- 
 rister, the solicitor, the proctor, or the 
 advocate. In the powers that be let that 
 responsibility remain; but to the anxious 
 student, in each and every branch of legal 
 study, our Institute will be open, and 
 every facility afforded for increasing and 
 testing knowledge, strengthening the un- 
 derstanding, familiarising the application 
 of principles, and rendering practical in- 
 struction more efficient. We seek an 
 honorable rivalry in the communication of 
 useful knowledge, not with Englishmen or 
 Scotchmen, but with all enlightened na- 
 
DUBLIN LAW INSTITUTE. 
 
 7 
 
 tions of the world. The public instruction 
 of the New England States has been de- 
 scribed by Mr. Webster, a distinguished 
 member of the Congress, “ as a wise and 
 liberal system of police, by which property 
 and life, and the peace of society, are se- 
 cured.” To this he adds — “We rejoice 
 that every man in this community may 
 call all property his own, as far as he has 
 occasion for it, to furnish for himself and 
 children the blessings of religious instruc- 
 tion and the elements of knowledge. 
 This celestial and this earthly light he is 
 entitled to by the fundamental laws. It 
 is every poor man’s undoubted birthright 
 — it is the greatest blessing which this 
 constitution has secured to him — it is his 
 solace in life — and it may well be his con- 
 solation in death, that this country stands 
 pledged by the faith, which it hath plighted 
 to all its citizens, to protect his children 
 from ignorance, barbarism and vice.” — 
 Those sentiments are worthy a citizen of 
 the world — sentiments not restricted by 
 the Americans to the selfish interests of 
 their country alone, they rejoice in every 
 advance made to their universal attain- 
 ment. In a communication I received by 
 the last mail from thence, ProfessorGreen- 
 leaf, of Harvard University, expresses 
 himself thus — “ In the establishment of 
 your Institute we hail with joy a fellow- 
 laborer in the holy work of advancing the 
 empire of law, and shall not cease to take 
 a deep interest in whatever may affect the 
 prosperity of your institution, as it must 
 equally concern the noble science, to the 
 cultivation of which our lives are devoted 
 with untiring zeal, and which, as we trust, 
 is destined to confer blessings for ages to 
 come on both our countries ; on this side 
 the water the choice lies between the 
 restraints of law and of brute force, since 
 no other can exist.” Lord John Russell 
 in his treatise on the British Constitution 
 observes — “ That the blessings of the 
 British Constitution under which we live, 
 is not, after all, an unmeaning phrase;” and 
 in summing up the circumstances which 
 oppose the establishment of arbitrary 
 power in England, the most prominent he 
 presents is “the general diffusion of the 
 light of knowledge.” In comparing the 
 various descriptions of learning most be- 
 neficial to acquire in weighing what 
 
 species of knowledge is most important 
 for society to have inculcated, let the va- 
 luable sentiment of Sir Edward Coke turn 
 the scale, when he says — “ There is no 
 jewel in the world comparable to 
 
 learning — no learning so excellent both 
 for prince and for subject as a know- 
 ledge of laws — and no knowledge of 
 any laws (I speak of human) so neces- 
 sary for all estates, and concerning goods, 
 lands or life, as the common law.” 
 
 If I felt I had merely to address the 
 enlightened portion of society within 
 these walls, 1 should not have subjected 
 myself to the imputation of offering insult 
 to the understanding, by either the advo- 
 cacy of what may be considered admitted 
 truths, and the support of a system, the 
 importance of which we must all acknow- 
 ledge ; or by corroborating those views 
 with the recorded legacies of the entombed ; 
 when we have the Cokes, the Hardwickes, 
 the Holts and the Mansfields of our own 
 day, giving life and vigour by their cheer- 
 ing breath to those principles which, 
 though for a time neglected, can never 
 perish. But this being the first occasion 
 on which we have thus assembled 
 and the duty of addressing you hav- 
 ing devolved upon me, I have deemed 
 it important to bear in mind, that the ob- 
 jects we profess are rather the communi- 
 cation and extension of useful knowledge 
 than ministering to the taste of the more 
 enlightened; and that the papers read 
 here may find their way into hands where 
 plainness of expression, and simplicity of 
 views advanced, may be essential to the 
 attainment of the object desired. It is 
 confidently anticipated that this society 
 will henceforth be bountifully supplied 
 with papers instructive and interesting to 
 the community, from the distinguished 
 members of the several learned professions 
 at home, and that we shall not be driven 
 to foreign climes for an undue proportion 
 of written contributions, when there ex- 
 ist among ourselves inexhaustible mines 
 ofintellectual wealth. The ordinary ex- 
 cuse of 44 want of time/' will not we trust 
 be the substitute for the communication of 
 ideas important to mankind. It has been 
 observed by him to whose judgment the 
 destiny of our country is now consigned, 
 that he who finds time for every thing 
 — for punctuality in all the relations 
 of life — for the pleasures of society — . 
 for the cultivation of literature — for 
 every rational amusement, is the same 
 man who is the most assiduous and 
 the most successful in the active 
 pursuits of his profession.” We need not 
 invoke the memory of Pliny to corrobo- 
 rate this fact. How numerous are the 
 instances of its truth recorded in the annals 
 
8 
 
 ADDRESS OF THE PRINCIPAL. 
 
 of the united kingdom ? and I have little 
 doubt that the records of this Institute will 
 hereafter afford copious additional proofs 
 of the same fact — that they will show the 
 willingness with which the highest profes- 
 sional characters of our own day have per- 
 formed a great moral duty, by sacrificing 
 the requisite time and contributing from 
 their inestimable intellectual stores, in 
 order to confer universal benefit on society.* 
 The opinion of Johnson may be borne in 
 mind with advantage by some of the friends 
 to this Institution. “It is not necessary,” 
 says he, “that a man should forbear to 
 write till he has discovered some truth 
 unknown before ; he may be sufficiently 
 useful by only diversifying the surface of 
 knowledge and luring the mind by a new 
 appearance to a second view of those beau- 
 ties which it had passed over inattentively 
 before. Every writer may find intellects 
 correspondent to his own, to whom his 
 expressions are familiar and his thoughts 
 congenial.” Upon the peculiar obligation 
 of the legal profession to advance this so- 
 ciety, I shall only add, that through the 
 Institute will be afforded to all the oppor- 
 tunity of discharging that debt which Lord 
 Bacon has observed is due from every man 
 to his profession ; first by his personal inte- 
 grity to adorn it, and secondly to streng- 
 then the roots of the science itself. In our 
 admiration of the laws of the Romans, the 
 astuteness and justice that, guided Romulus 
 and Numa in their enactments, and our 
 unbounded respect for the oratory of the 
 great classical lawyers, whose sayings arid 
 doings are so minutely recorded in profane 
 history, we too much lose sight of the 
 advantage our science must gain by a more 
 intimate connection with sacred history, 
 in which is set forth on the great authority 
 of “the Wonderful Counsellor,” “the 
 Mighty God,” “ the Prince of Peace,” the 
 fact that “the government shall be upon 
 
 i His shoulder.” The advantages to be 
 1 gained, in regard even to the style of our 
 I oratory, from the study of the simple and 
 j sublime compositions of Scripture, have 
 i been forcibly dwelt upon by Gerson and 
 Rollin ; however, there is much beyond 
 ! oratory to be acquired by our more inti- 
 | mate acquaintance with Scriptural writ- 
 ! ings. Even amongst the profane authors, 
 the talent of speaking well supposes and 
 requires that of living well. Cicero and 
 Quintilian alike agree upon this point being 
 essential to a great lawyer ; and Cato dis- 
 tinctly says, “Orator vir bonus dicendi 
 peritus.’’ The presence and active part to 
 be taken in our proceedings this evening by 
 the distinguished Prelate who will presently 
 address you, affords a more convincing 
 proof of the accuracy of these views than 
 any reasoning I could offer. Acting in 
 accordance with the precept and example 
 of his divine Master, who whilst on earth 
 himself attached to human laws their due 
 importance, his grace affords to this society 
 on its opening, not merely the sanction 
 S which his exalted station and high scien- 
 | tific character must impart to our efforts ; 
 
 ! nay more, he stamps it as a holy work, 
 
 | having for its object the exalting the high- 
 , est temporal interest of mankind — a duty 
 not unfrequently committed by Omnipo- 
 n the management of his peculiar 
 to the same individual on whom he 
 ed the highest office of the priest- 
 hood ; and I trust I may be permitted to 
 add that the very discharge of this duty 
 on the present occasion bv one equally 
 distinguished for his diversified scientific 
 attainments, as for his devotedness to his 
 Master’s calling, practically infixes upon 
 our minds the great principle, that in ren- 
 dering the cultivation of all human know- 
 ledge available for the benefit of mankind, 
 it is equally within our power to make it 
 subservient to the glory of God. 
 
 | tence (i 
 ! people) 
 
 ♦EXTRACTS EROM BYE-LAWS OE SOCIETY. 
 
 In any publication which the Society may issue, it is expressly to be understood, that the Body 
 is not responsible for all which that publication may contain, but that the statements, whether of 
 fact or of opinion, are those of the writer and not of the Society ; for whilst on the one haqd the 
 Society considers that it would not be consistent with the discovery of truth or with the respect 
 which it entertains for its correspondents and contributors, to prescribe any set of opinions to 
 which the writers must conform themselves ; on the other hand it cannot make itself answerable 
 for sentiments in which, possibly, a portion of its members may not concur. 
 
 Any person desirous of facilitating the acquisition of legal knowledge in Ireland, or cultivating 
 the study of law as a science, is eligible as an A ssociate, conformable to the Bye-Laws of the 
 Society. 
 
 The contribution of each Associated One Guinea, Yearly. 
 
 Any A ssociate may, at his entrance, compound for his contributions by the payment of Eive 
 Guineas. 
 
 A ssociates have the privilege of attending all meetings of the Society specially appointed, either 
 for the reading of foreign contributions or other papers of interest. 
 
 Associates not resident in Ireland are entitled to a copy of the proceedings of the Institution, 
 and such papers of interest, as may from time to time be published by the Society. 
 
ADDRESS 
 
 OF 
 
 HIS GRACE THE ARCHBISHOP OF DUBLIN, 
 
 ON THE 
 
 . INTELLECTUAL AND MORAL INFLUENCES OF 
 THE PROFESSIONS, 
 
 DELIVERED 
 
 AT THE OPENING SOIREE 
 
 OF 
 
 SbonetB of tfjc BttMm Hafo Institute, 
 
 ON THE 31st JANUARY, 1842. 
 
 Some ancient writer relates of the cele- 
 brated Hannibal, that during his stay at 
 some regal court, the evening-entertain- 
 ment on one occasion consisted of a dis- 
 course, (what we in these days should call 
 a “lecture,”) which an aged Greek phi- 
 losopher, named Phormio, if I remember 
 rightly, had the honor of being permitted 
 to deliver before the king and courtiers. 
 It was on the qualifications and duties of 
 a General. The various high endowments 
 — the several branches of knowledge, and 
 the multifarious cares and labours apper- 
 taining to an accomplished military leader, 
 were set forth, as most of the hearers 
 thought, with so much ability and ele- 
 gance, that the discourse was received 
 with general applause. But, as was na- 
 tural, eager inquiries were made what was 
 thought of it by so eminent a master in 
 the art military, as Hannibal. On his 
 opinion being asked, he replied with sol- 
 dierlike bluntness, that he had often heard 
 old men talk dotage, but that a greater 
 dotard than Phormiohe had nevermet with. 
 
 Ha would not however have been 
 reckmied a dotard, at least he would not 
 have deserved it, as he did, if he had had 
 the sense, instead of giving instructions in 
 the military art to one who knew so much 
 more of it than himself, to have addressed 
 an audience of military men, not as sol- 
 diers, but as human beings; and had set 
 before them correctly and clearly, the ef- 
 fects, intellectual and moral, likely to be 
 produced on them, as men , by the study 
 and the exercise of their profession. For 
 
 that is a point on which men of each pro- 
 fession respectively are so far from being 
 necessarily the best judges, that, other 
 things being equal, they are likety to be 
 rather less competent judges than those 
 in a different walk of life. 
 
 That each branch of study, and each 
 kind of business, should have a tendency 
 to influence the character, and that any 
 such tendency, if operating in excess, ex- 
 clusively, and unmodified by other causes, 
 should produce a corresponding mental 
 disease or defect, is what no one I sup- 
 pose would deny. It would be reason- 
 able as an antecedent conjecture ; and 
 the confirmation of it by experience 
 is a matter of common remark. I have 
 heard of a celebrated surgeon, whose at- 
 tention had been chiefly directed to cases 
 of deformity, who remarked that he scarce- 
 ly ever met an artisan in the street but 
 he was able to assure himself at the first 
 glance what his trade was. He could 
 perceive in persons not actually deformed, 
 that particular gait or attitude — that par- 
 ticular kind of departure from exact sym- 
 metry of form — that disproportionate de- 
 velopment and deficiency in certain mus- 
 cles, which distinguished, to his anatomi- 
 cal eye, the porter, the smith, the horse- 
 breaker, the stone-cutter, and other kinds 
 of labourers, from each other. And he 
 could see all this, through, and notwith- 
 standing, all the individual difference of 
 original structure, and of various acciden- 
 tal circumstances. 
 
 Bodily peculiarities of this class may 
 
10 
 
 address of his grace 
 
 be, according to the degree to which they 
 exist, either mere inelegancies hardly 
 worth noticing, or slight inconveniencies, 
 or serious deformities, or grievous dis- 
 eases. The same may be said of those 
 mental peculiarities, which the several 
 professional studies and habits tend, re- 
 spectively, to produce. They may be, ac- 
 cording to the degree of them, so trifling 
 as not to amount even to a blemish : or 
 slight, or more serious defects ; or cases 
 of complete mental distortion. 
 
 You will observe that 1 shall throughout 
 confine myself to the consideration of the 
 disadvantages and dangers pertaining to 
 each profession, without touching on the 
 intellectual and moral benefits that may 
 result from it. You may often hear, from 
 persons gifted with what the ancients called 
 epideictic eloquence, very admirable and 
 gratifying panegyrics on each profession. 
 But with a view to practical utility, the 
 consideration of dangers to be guarded 
 against is incomparably the most impor- 
 tant; because to men in each respective 
 profession, th ^beneficial results will usually 
 take place even without their thinking 
 about them, whereas the dangers require 
 to be carefully noted, and habitually con- 
 templated, in order that they may be effec- 
 tually guarded against. A physician who 
 had a friend about to settle in a hot climate, 
 would be not so likely to dwell on the be- 
 nefits he would derive spontaneously from 
 breathing a warmer air, as to warn him of 
 the dangers of sun -strokes and of marsh 
 exhalations. 
 
 And it may be added that a descrip- 
 tion of the faulty habits which the mem- 
 bers of each profession are in especial 
 danger of acquiring, amounts to a high 
 eulogium on each individual, in proportion 
 as he is exempt from those faults. 
 
 To treat fully of such a subject would of 
 course require volumes ; but it may be 
 not unsuitable to the present occasion to 
 throw out a few slight hints, such as may 
 be sufficient to turn your attention to a 
 subject, which appears to me not only 
 curious and interesting, but of great prac- 
 tical importance. 
 
 There is one class of dangers pertaining 
 alike to every profession, every branch of 
 study — every kind of distinct pursuit. I 
 mean the danger in each, to him who is 
 devoted to it, of over-rating its import- 
 ance as compared with others, and again 
 of unduly extending its province. To a 
 man who has no enlarged views, no gene- 
 ral cultivation of mind, and no familiar 
 
 intercourse with the enlightened and the 
 worthy of other classes besides his 
 own, the result must be more or less 
 of the several forms of narrow-mindedness. 
 To apply to all questions, on all subjects, 
 the same principles and rules of judging 
 that are suitable to the particular ques- 
 tions and subjects about which he is espe- 
 cially conversant ; — to bring in those sub*- 
 jects and questions on all occasions, suit- 
 able or unsuitable ; like the painter Horace 
 alludes to, who introduced a cypress tree 
 into the picture of a shipwreck ; — to re- 
 gard his own particular pursuit as the one 
 important and absorbing interest; — to look 
 on all other events, transactions, and oc- 
 cupations, chiefty as they minister more 
 or less to that ; — to view the present state 
 and past history of the world chiefly in 
 reference to that ; — and to feel a clannish 
 attachment to the members of the particu- 
 lar profession or class he belongs to, as a 
 body or class ; (an attachment, by the bye, 
 which is often limited to the collective 
 class , and not accompanied with kindly, 
 feelings towards the individual members 
 of it,) and to have more or less an aliena- 
 tion of feeling from those of other classes ; 
 — all these, and many other 'such, are 
 symptoms of that narrow-mindedness 
 which is to be found, alike, mutatis mutan- 
 dis , in all who do not carefully guard them- 
 selves against it, whatever may be the pro- 
 fession or department of study of each. 
 
 Against this kind of danger the best 
 preservative, next to that of being tho- 
 roughly aware of it, will be found in va- 
 ried, reading and varied society ; in habit- 
 ual intercourse with men, whether living 
 or dead, — whether personally or in their 
 works, — of different professions and walks 
 of life, and, I may add, of different coun- 
 tries and different ages from our own. 
 
 It is remarked, in a work by Bishop 
 Copleston, “ that Locke, like most 
 other writers on education, occasionally 
 confounds two things, which ought to 
 be kept perfectly distinct, viz.: that 
 mode of education, which woul£ be 
 most beneficial, as a system, to society at 
 large, with that which would contribute 
 most to the advantage and prosperity of 
 an individual. These things are often at 
 variance with each other. The former is 
 that alone which deserves the attention of 
 a philosopher; the latter is narrow, selfish, 
 and mercenary. It is the last indeed on 
 which the world are most eager to inform 
 themselves ; but the persons who instruct 
 them, however they may deserve the 
 
THE ARCHBISHOP OF DUBLIN. 
 
 11 
 
 thanks and esteem of those whom they be- 
 nefit, do no service to mankind. There 
 are but so many good places in the theatre 
 of life, and he who puts us in the way of 
 procuring one of them, does to us indeed 
 a great favour, but none to the whole as- 
 sembly.” And in the same work it is 
 further observed, that, “ In the cultivation 
 of literature is found that common link, 
 which among the higher and middling de- 
 partments of life unites the jarring sects 
 and subdivisions in one interest ; which 
 supplies common topics, and kindles com- 
 mon feelings, unmixed with those narrow 
 prejudices, with which all professions are 
 more or less infected. The knowledge too, 
 which is thus acquired, expands and en- 
 larges the mind, excites its faculties, and 
 calls those limbs and muscles into freer 
 exercise, which, by too constant use in 
 one direction, not only acquire an illibe- 
 ral air, but are apt also to lose somewhat 
 of their native play and energy. And 
 thus, without directly qualifying a man for 
 -any of the employments of life, it enriches 
 and ennobles all : without teaching him 
 the peculiar benefits of any one office or 
 calling, it enables him to act his part in 
 each of them with better grace and more 
 elevated carriage ; and, if happily planned 
 and conducted, is a main ingredient in 
 that complete and generous education, 
 which fits a man ‘ to perform justly, skil- 
 fully, and magnanimously, all the offices, 
 both private and public, of peace and war.’” 
 
 But to pass from the consideration of 
 the dangers common to all, and to proceed 
 to what is peculiar to each ; I will begin 
 by pointing out one or two of those which 
 especially pertain to the clerical profes- 
 sion. 
 
 The first that I shall notice is one to 
 which I have frequently called attention, 
 as being likely to beset all persons in pro- 
 portion as they are occupied about things 
 sacred ; in discussing’, and especially in 
 giving instruction on, moral and religious 
 subjects : and the clergy accordingly must 
 be Ae most especially exposed to this 
 danger ; to the danger, I mean, of that 
 callous indifference, which is proverbially 
 apt to be the result of familiarity. On 
 this point there are some most valuable re- 
 marks by Bishop Butler, which I have ad- 
 verted to on various occasions, and among 
 others, in a portion (which I will here 
 take the liberty of citing) of the last un- 
 published Charge I had occasion to deli- 
 ver. 
 
 “ Going over,” says Bishop Butler, “ the 
 
 theory of virtue in one’s thoughts, talking 
 well, and drawing fine pictures of it; this 
 is so far from necessarily or certainly con- 
 ducing to form a habit of it in him who 
 thus employs himself, that it may harden 
 the mind in a contrary course, and render 
 it gradually more insensible, i. e. form an 
 habit of insensibility to all moral conside- 
 rations. For, from our very faculty of 
 habits, passive impressions, by being re- 
 peated, grow weaker ; thoughts by often 
 passing through the mind, are felt less 
 sensibly. Being accustomed to danger 
 begets intrepidity, i. e. lessens fear ; to 
 distress, lessens the passion of pity ; to 
 instances of otheFs mortality, the sensible 
 apprehension of our own. And from these 
 two observations together ; — that practical 
 habits are formed and strengthened by 
 repeated acts, and that passive impressions 
 grow weaker by being repeated upon us ; — 
 it must follow that active habits may be 
 gradually forming and strengthening, by 
 a course of acting upon such motives and 
 excitements, while these motives and ex- 
 citements themselves are bv proportionable 
 degrees growing less sensible, i. e. are 
 continually less and less sensibly felt, even 
 as the active habits strengthen. And ex- 
 perience confirms this ; for active princi- 
 ples, at the very same time that they are 
 less lively in perception than they weie, 
 are found to be somehow wrought more 
 thoroughly into the temper and character, 
 and become more effectual in influencing 
 our practice. The three things just men- 
 tioned may afford instances of it. Per- 
 ception of danger is a natural excitement 
 of passive fear, and active caution ; and 
 by being inured to danger, habits of the 
 latter are gradually wrought, at the same 
 time that the former gradually lessens. 
 Perception of distress in others is a natural 
 excitement, passively to pity, and ac- 
 tively to relieve it: but let a man set him- 
 self to attend to, inquire out, and relieve 
 distressed persons, and he cannot but grow 
 less and less sensibly affected with the va- 
 rious miseries of life with which he must 
 become acquainted ; when yet at the same 
 time, benevolence, considered not as a 
 passion, but as a practical principle of 
 action, will strengthen ; and whilst he 
 passively compassionates the distressed 
 less, he will acquire a greater aptitude ac- 
 tively to assist and befriend them. So 
 also at the same time that the daily in- 
 stances of men’s dying around us> gives 
 us daily a less sensible passive feeling, or 
 apprehension of our own mortality, such 
 
12 
 
 ADDRESS Of HTS GRACE 
 
 instances greatly contribute to the strength- 
 ening a practical regard to it in serious 
 men ; i. e. to forming a habit of acting 
 with a constant view to it. And this seems 
 again further to shew, that, passive im- 
 pressions made upon our minds by admo- 
 nition, experience, example, though they 
 may have a remote efficacy, and a very 
 great one, towards forming active habits, 
 yet can have this efficacy no otherwise 
 than by inducing us to such a course of 
 action ; and that it is not being affected 
 so and so, but acting , which forms those 
 habits: only it must always be remembered, 
 that real endeavours to enforce good im- 
 pressions upon ourselves are a species of 
 virtuous action.” Thus far Bishop Butler. 
 “ That moral habits,” I proceeded to say, 
 “ can only be acquired by practical efforts, 
 was long since remarked by Aristotle; 
 who ridicules those that attended philoso- 
 phical discourses with an expectation of 
 improvement, while the}' contented them- 
 selves with listening, understanding, and 
 approving ; comparing them to a patient 
 who should hope to regain health by lis- 
 tening to his physician’s directions, with- 
 out following them. But he omitted to 
 add, as Bishop Butler has done, that such 
 a procedure is much worse than useless ; 
 being positively dangerous. 
 
 I need hardly remark, that w hat the author 
 says of virtue, is at least equally applicable 
 to religion ; and that consequently, no one 
 is so incurably and hopelessly hardened in 
 practical irreligion as one who has the 
 most perfect familiarity with religious sub- 
 jects and religious feelings, without having 
 cultivated corresponding active principles. 
 It is he that is, emphatically, “the barren 
 fig tree,” which has “no fruit on it, but 
 leaves only !” not, a tree [standing torpid 
 and destitute of all vegetation, during the 
 winter’s frost or summer’s drought, and 
 capable of being called into life and pro- 
 ductiveness, by rain and sunshine ; but, a 
 tree in full vigour of life and growth, 
 wdiose sap is all diverted from the forma- 
 tion of fruit, and is expended in flourish- 
 ing boughs that bear only barren leaves.” 
 
 I need hardly say that the danger I have 
 been now' alluding to, as it is one which 
 besets each person the more in proportion 
 as he is conversant about religious and 
 moral discussions, studies and reflections, 
 is accordingly one which the Clergy most 
 especially should be vigilantly on their 
 guard against, as being professionally 
 occupied with this class of subjects. 
 
 They are professionally exposed again to 
 
 another danger, chiefly intellectual, from the 
 circumstance of their having usually to hold 
 so much intercourse, in their private mi- 
 nistrations, with persons whose reasoning 
 powers are either naturally weak, or very 
 little cultivated, or not called forth on those 
 subjects, and on those occasions, on which 
 they are conversing professionally with a 
 clergyman. How large a proportion of 
 mankind taken indiscriminately, must be 
 expected to fall under one or other of 
 these descriptions, we must be well aware: 
 and it is with mankind thus taken indis- 
 criminately, that the Clergy in the domes- 
 tic portion of their ministrations, are to 
 hold intercourse. Even a disproportionate 
 share of their attention is usually claimed 
 by the poorer, the younger, and in short 
 generally, the less educated among their 
 people. Among these there must of course 
 always be a large proportion w ho will be 
 often more readily influenced by a falla- 
 cious, than by a sound reason ; — who will 
 often receive readily an insufficient expla- 
 nation, and will often be prevented by 
 ignorance, or dullness, or prejudice, from 
 admitting a correct one. And moreover, 
 of those w'hose qualifications are higher, 
 as respects other subjects, there are not a 
 few who, on moral and religious subjects, 
 (from various causes) fall far short of them- 
 selves. There are not a few, e. g., who, 
 while in the full vigour of body and mind, 
 pay little or no attention to any such sub- 
 jects; and when enfeebled in their mental 
 powers by sickness or sudden terror, or 
 decrepit age, will resign themselves to in- 
 discriminate credulity; — -who at one time 
 will listen to nothing , and at another, will 
 listen to anything. 
 
 With all these classes of persons, then, 
 a clergyman is led, in the course of his 
 private duty, to have much intercourse. And 
 that such intercourse is likely to be any- 
 thing but improving to the reasoning facul- 
 ties — to their development, or their cor- 
 rection, or even to sincerity and fairness 
 in the exercise of them, is sufficiently 
 evident. The danger is or.e which it is 
 important to have Clearly before us. ©''hen 
 a man of good sense distinctly perceives it, 
 and carefully and habitually reflects on it, 
 he will not be much at a loss as to the 
 means by which it is to be guarded against. 
 
 You will observe that I have pointed 
 out under this head a moral , as well as an 
 intellectual danger. And in truth the 
 temptation is by no means a weak one, 
 even to one who is far from an insincere 
 character altogether, to lead ignorant, or 
 
THE ARCHBISHOP OF HURLIN'. 
 
 1 *> 
 
 ill-oducated, and prejudiced men into what j 
 he is convinced is best for them, by un- 
 sound reasons, when he finds them indis- 
 posed to listen to sound ones ; thus satisfying 
 his conscience that he is making a kind of 
 compensation, since there really are good 
 grounds (though they cannot see them) for 
 the conclusion he advocates; till he ac- 
 quires a habit of tampering with truth, and 
 finally loses all reverence and all relish for 
 it. 
 
 Another class of dangers, and perhaps 
 the greatest of all to which the Clergy are 
 professionally exposed, and which is the 
 last I shall mention, is the temptation to 
 prefer popularity to truth, and the present 
 comfort and gratification of the people to 
 their ultimate welfare. The well-known 
 fable of Mahomet and the mountain, which 
 he found it easier to go to, himself, than to 
 make the mountain come to him, may be 
 regarded as a sort of allegorical type of 
 any one who seeks to give peace of con- 
 science and satisfaction to his hearers, and 
 to obtain applause for himself, by bringing 
 his doctrine and language into a confor- 
 mity with the inclinations and the conduct 
 of his hearers, rather than by bringing the 
 character of the hearers into a conformity 
 with what is true and right. Not that 
 there are many, who are, in the outset at 
 least, so unprincipled as deliberately to 
 suppress essential truths, or to inculcate 
 known falsehood, for the sake of adminis- 
 tering groundless comfort, or gaining 
 applause; but as “a gift” is said in Scrip- 
 ture to “ blind the eyes,” so, the bribe of 
 popularity (especially when the alterna- 
 tive is perhaps severe censure, and even 
 persecution) is likely, by little and little, to 
 bias the judgment, — to blind the eyes first 
 to the importance, and afterwards to the 
 truth and justice, of unpopular doctrines 
 and precepts ; and ultimately to bring a 
 man himself to believe what his hearers 
 wish him to teach. 
 
 Popularity has, of course, great charms 
 for add classes of men ; but in the case of a 
 clergyman it offers this additional tempta- 
 tion; that it is to him, in a great degree, 
 the favorable opinion not merely of the 
 world in general, or of a multitude assem- 
 bled on some special occasion, but of the 
 very neighbours by whom he is surrounded, 
 and with whom he is in habits of daily 
 intercourse. 
 
 There is another most material circum- 
 stance also which (in respect of this point) 
 distinguishes the case of the clerical pro- 
 fession from that of any other. It is true 
 
 that a medical man may be under atemp- 
 tation to flatter his patients with false 
 hopes, to indulge them in unsuitable regi- 
 men, to substitute some cordial that gives 
 temporary relief, for salutary but unplea- 
 sant medicines, or painful operations, such 
 as are really needful lor a cure. But those 
 (and there are such, as is well known) who 
 pursue such a course, can seldom obtain 
 more than temporary success. When it 
 it seen that their patients do not ultimate- 
 ly recover, and that all the fair promises 
 given, and sanguine hopes raised, end in 
 aggravation of disease, or in premature 
 death — the bubble bursts; and men quit 
 these pretenders for those whose practice 
 bears the test of experience These, 
 therefore, are induced by a regard for 
 their own permanent success in their pro- 
 fession, as well as by higher motives, to 
 prefer the correct and safe mode of treat- 
 ing their patients. But it is far otherwise 
 with those whose concern is with the dis- 
 eases of the soul, not of the body — with 
 the next life instead of this. Tlieir treat- 
 ment cannot be brought to the same test 
 of experience till the day of Judgment. 
 If they shall have deluded both their 
 hearers and themselves by “ speaking 
 peace when there is no peace,” the flat- 
 tering cordial, however deleterious, may 
 remain undetected, and both parties may 
 continue in the error all their lives, and 
 the error may even survive them. 
 
 So also again in the legal profession ; — 
 one who gives flattering but unsound ad- 
 vice to his clients, or who pleads causes 
 with specious elegance, unsupported by 
 accurate legal knowledge, may gain a 
 temporary, but seldom more than a tem- 
 porary, popularity. It is his interest, 
 therefore, no less than his duty, to ac- 
 quire this accurate knowledge: and if he 
 is mistaken on any point, the decisions of 
 aCourt will give him sufficient warning to 
 be more careful in future. But the Court 
 which is finally to correct the other class 
 of mistakes, is the one that will sit on that 
 last great Day, when the tares will be 
 finally separated from the wheat, and when 
 the “ wood, hay, and stubble,” that may 
 have been built up on the divine founda- 
 tion, by human folly or artifice, will be 
 burned up. 
 
 The Clergy therefore have evidently more 
 need than others to be on their guard 
 against a temptation, from which they are 
 not, like others, protected by considera- 
 tions of temporal interest, or by the lessons 
 of daily experience. 
 
14 
 
 ADDRESS OF HIS GRACE 
 
 With regard to the medical profession 
 there used to be (for of late I think it is 
 otherwise) a remark almost proverbially 
 common, that the members of it were 
 especially prone to infidelity, and even to 
 Atheism. And the same imputation was 
 by many persons extended to those occu- 
 pied in such branches of physical science 
 as are the most connected with medi- 
 cine; and even to scientific men generally. 
 Of late years, as I have said, this impres- 
 sion has become much less prevalent. 
 
 In a question of fact, such as this, open 
 to general observation, there is a strong 
 presumption afforded by the prevalence of 
 any opinion, that it has at least some kind 
 of foundation in truth. There is a presump- 
 tion, that either medical men were more 
 generally unbelievers than the average, or 
 at least, that those of them who were so 
 were more ready to avow it. In like man- 
 ner there is a corresponding presumption, 
 that in the present generation of medical 
 men there is a greater proportion than 
 among their predecessors, who are either 
 believers in Revelation, or at least not 
 avowed unbelievers. 
 
 It will be more profitable, however, in- 
 stead of entering on any question as to 
 the amount and extent, present or past, 
 of the danger to which I have been allud- 
 ing, to offer some conjectures as to the 
 causes of it. 
 
 The one which I conceive occurs the 
 most readily to most men’s minds is, that a 
 medical practitioner has no Sunday. The 
 character of his profession does not admit 
 of his regularly abandoning it for one day 
 in the week, and regularly attending pub- 
 lic worship along with Christians of all 
 classes. Now various as are the modes of 
 observing the Lord’s day in different 
 Christian countries, and diverse as are 
 the modes of worship, there is perhaps no 
 point in which Christians of all ages and 
 countries have been more agreed, than in 
 assembling together for some kind of joint 
 worship on the first day of the week. And 
 no one I think can doubt, that, indepen- 
 dently of any edification derived from the 
 peculiar religious services which they re- 
 spectively attend, the mere circumstance 
 of doing something every week as a reli- 
 gious observance, must have some tenden- 
 cy to keep up in men’s minds a degree of 
 respect, rational or irrational, for the re- 
 ligion in whose outward observances they 
 take a part. 
 
 A physician in considerable practice 
 must, we know, often be prevented from 
 
 doing this. And the professional calls, it 
 may be added, which make it often im- 
 possible for him to attend public worship, 
 will naturally tend, by destroying the 
 habit, to keep him away, even when at- 
 tendance is possible. Anything that a 
 person is prevented from doing habitually , 
 he is likely habitually to omit. There is 
 nothing peculiar in the case of attendance 
 on public worship. The same thing may 
 be observed in many others equally. A 
 man placed in circumstances which inter- 
 fere with his forming or keeping up do- 
 mestic habits, or literary habits, or habits 
 of bodily activity, is likely to be less do- 
 mestic, less literary, more sedentary, than 
 his circumstances require. 
 
 I have no doubt that the cause I have 
 now been adverting to oes operate. 
 But there are others, less obvious perhaps, 
 but I think not less important. A religion 
 which represents Man’s whole existence as 
 divided into two portions, of which his 
 life on earth is every w r ay incalculably the 
 smaller, is forcibly brought before the 
 mind in a way to excite serious reflections, 
 by such an event as death , when occurring 
 before our eyes, or within our particular 
 knowledge. Now a medical man is fami- 
 liar with death; i. e. with the sight and 
 the idea of it. And the indifference which 
 is likely to result from such familiarity, I 
 need not here dwell on, further than to 
 refer you to the passage of Bishop Butler 
 already cited. 
 
 But moreover death is not only familiar 
 to the physician, but it is also familiar to 
 him as the final termination of that state 
 of existence with which alone he has pro- 
 fessionally any concern. As a Christian 
 he may regard it as preparatory to a new 
 state of existence ; but as a physician 
 he is concerned only with life in this 
 world, which it is his business to invigo- 
 rate and to prolong ; and with death, only 
 as the final catastrophe which he is to keep 
 off as long as possible, and in reference 
 merely to the physical causes whichfhave 
 produced it. 
 
 Now the habit of thus contemplating 
 death must have a tendency to divert the 
 mind from reflecting on it with reference 
 to other and dissimilar considerations. 
 For it may be laid down as a general 
 maxim, that the habit of contemplating 
 any class of objects in such and such a 
 particular point of view, tends, so far, to 
 render us the less qualified for contempla- 
 ting them in any other point of view. And 
 this maxim, I conceive, is capable of very 
 
THE ARCHBISHOP OF DUBLIN. 
 
 15 
 
 extensive application in reference to all 
 professional studies and pursuits ; and goes 
 far towards furnishing an explanation of 
 their effects on the mind of the individual. 
 
 But there is another cause, and the last I 
 shall notice under the present head, which 
 I conceive co-operates frequently with 
 those above-mentioned : I mean the prac- 
 tice common with many divines of setting 
 forth certain physiological or metaphysical 
 theories as part and parcel of the Chris- 
 tian revelation, or as essentially connected 
 with it. If any of these be unsound, they 
 may, nevertheless, pass muster with the 
 generality of readers and hearers ; and 
 however unprofitable, may be, to them, at 
 least harmless; but theypresent a stumbling 
 block to the medical man, and to the phy- 
 siologist, who may perceive that unsound- 
 ness. For example, I have known divines not 
 only maintaining the immateriality of the 
 soul as a necessary preliminary to the re- 
 ception of Christianity, — as the very basis 
 of gospel revelation, but maintaining it by 
 such arguments as go to prove the entire 
 independence of mind on matter ; urging, e. 
 g. among others, the instances of full mani- 
 festation of the intellectual powers in per- 
 sons at the point of death. Now this or 
 the opposite, the physiologist will usually 
 explain from the different parts of the bo- 
 dily frame that are affected in each differ- 
 ent disease. If he believes the brain to 
 be necessarily connected with the mind, 
 this belief will not be shaken by the ma- 
 nifestation of mental powers in a person 
 who is dying of a disease of the lungs. 
 He will no more infer from this that mind 
 is wholly independent of the body, than 
 he would, that sight is independent of the 
 body, because a man may retain his powers 
 of vision when his limbs are crippled. 
 
 The questions concerning materialism I 
 do not mean to enter upon : I only wish 
 to call your attention to the mistake com- 
 mon to both parties ; that of supposing 
 that these questions are vitally connected 
 with Christianity; whereas there is not 
 one word relating to them in the Christian 
 Scriptures. Indeed even at this day a large 
 proportion of sincere Christians among 
 the humbler classes, are decidedly mate- 
 rialists ; though if you enquired of them 
 they would deny it, because they are ac- 
 customed to confine the word matter to 
 things perceptible to the touch ; but their 
 belief in ghosts or spirits having been seen 
 and heard , evidently implies the possession 
 by these of what philosophers reckon at- 
 tributes of matter. And the disciples of 
 
 Jesus were terrified, we are told, when 
 they saw Him after his resurrection, “ sup- 
 posing that they saw a spirit.” He con- 
 vinced them, we read, of his being real 
 flesh and blood : but whatever may have 
 been their error as to the visible, — and con- 
 sequently material — character ofa Spirit, it 
 does not appear that lie thought it essen- 
 tial to instruct them on that head. He 
 who believed that Jesus was truly risen 
 from the dead, and that the same power 
 would raise up his followers at the last day, 
 had secured the foundation of the Chris- 
 tian faith. 
 
 It is much to be wished that religious 
 persons would be careful to abstain — I do 
 not say, from entering on any physiolo- 
 gical or metaphysical speculations (which 
 they have a perfect right to do) but — from 
 mixing up these with Christianity, and 
 making every thing that they believe on 
 matters at all connected with religion, a 
 part of their religious faith. I remember 
 conversing with an intelligent man on the 
 subject of some speculations tending to a 
 revival of the doctrine of equivocal gene- 
 ration, which he censured, as leading to 
 Atheism. He was somewhat startled on 
 my reminding him that two hundred years 
 ago many would have as readily set a man 
 down as an atheist who should have denied 
 that doctrine. Both conclusions, I con- 
 ceive, to be alike rash and unwarrantable. 
 
 1 cannot but advert in concluding this 
 head, to the danger likely to arise from 
 the language of some divines respecting 
 a peaceful or troubled departure, as a sure 
 criterion of a Christian or an unchristian 
 life. “ A death bed’s a detector of the 
 heart,” is the observation of one of them, 
 who is well known as a poet. Now, that a 
 man’s state of mind on his death bed is 
 often very much influenced by his past 
 life, there is no doubt ; but I believe 
 most medical men can testify that it is quite 
 as often and as much influenced by the 
 disease of which he dies. The effects of 
 certain nervous and other disorders in 
 producing distressing agitation , — of the 
 process of suppuration , in producing de- 
 pression of spirits — the calming and sooth- 
 ing effects of a mortification' in its last 
 stage, and many other such phenomena, 
 are, I believe, familiar to practitioners. 
 When then they find promises and threats 
 boldly held out which are far from being 
 regularly fulfilled, — when they find various 
 statements confidently made, some of which 
 appear to them improbable, and others at 
 variance with facts coming under their 
 
16 
 
 ADDRESS OF HIS GRACE 
 
 own experience, they are in danger of 
 drawing conclusions unfavourable to the 
 truth of Christianity, if they apply too 
 hastily the maxim of “ peritis credendum 
 est in arte sua ” and take for granted on 
 the word of divines that whatever they 
 teach as a part of Christianity, really is so ; 
 without making enquiry for themselves. 
 They are indeed no less culpably rash in 
 such a procedure than any one would have 
 been who should reason in a similar man- 
 ner from the works of medical men two 
 or three hundred years ago; who taught 
 the influence of the stars on the human 
 frame — the importance of the moon’s 
 phases to the efficacy of medicines, and 
 other such fancies. Should any one have 
 thence inferred that astronomy and medi- 
 cine never could have any claims to atten- 
 tion, and were merely idle dreams of empty 
 pretenders, he would not have been more 
 rash than a physician or physiologist who 
 judges of Christianity by the hypotheses 
 of all who profess to teach it. 
 
 The effects, moral and intellectual, of the 
 
 STUDY AND PRACTICE OF THE LAW is a Sub- 
 ject to which I could not have done justice 
 within the limits ofasinglelectuie, even had 
 I confined myself to that one department. 
 For theLaw, — especially considered in this 
 point of view, — is not one profession, but 
 many — A Judge, an Attorney, a Solicitor, a 
 Common Law Barrister, a Chancery Bar- 
 rister, a Special Pleader, &c., are all 
 occupied with Law ; but widely different 
 are the^effects, advantageous and disadvan- 
 tageous, likely to be produced on their minds 
 by their respective occupations. 
 
 On this point I have thrown out a slight 
 hint in a treatise on logic (the joint work 
 of Bishop Copleston and myself) from 
 which I will take the liberty of citing a 
 short passage : — [Book 4. ch. 3. § 1. 2 ] 
 
 Reasoning comprehends inferring and 
 proving ; which are not two different things, 
 but the same thing regarded in two diffe- 
 rent points of view : like the road from 
 London to York, and the road from York 
 to London. He who infers, proves; and 
 he who proves, infers; but the word “in- 
 fer’’ fixes the mind first on the premiss, 
 and then ©n the conclusion ; the word 
 “ prove,” on the contrary, leads the mind 
 from the conclusion to the premiss. Hence, 
 the substantives derived from these words 
 respectively, are often used to express that 
 which, on each occasion, is last in the 
 mind ; inference being often used to signify 
 the conclusion (i. e. proposition inferred) 
 and proof— the premiss. We say, also, 
 
 | “ How do you prove that?” and “ What 
 ! do you infer from that ?” which sentences 
 I would not be so properly expressed if we 
 | were to transpose those verbs. One might, 
 therefore, define proving , “the assigning 
 of a reason or argument for the support 
 of a given proposition and inferring , 
 “ the deduction of a conclusion from given 
 premises.” 
 
 “ In the one case our conclusion is given, 
 (i. e., set before us as the question) and we 
 have to seek for arguments; in the other, 
 our premises are given, and we have to 
 seek for a conclusion — i. e., to put toge- 
 ther our own propositions, and try what 
 will follow from them; or, to speak more 
 logically, in one case, we seek to refer the 
 Subject of which we would predicate some- 
 thing to a class to which that Predfcate 
 will (affirmatively or negatively) apply ; 
 in the other, we seek to find comprehended 
 in the Subject of which we have predicated 
 something, some other term to which that 
 Predicate had not been before applied. 
 Each of these is a definition of reasoning . 
 To infer, then, is the business of the Philo- 
 sopher ; to prove, of the Advocate ; the 
 former, from the great mass of known and 
 admitted truths, wishes to elicit any valu- 
 able additional truth whatever, that has 
 been hitherto unperceived, and perhaps 
 without knowing with certainty what will 
 be the terms of his conclusion. Thus the 
 mathematician, e. g., seeks to ascertain 
 w hat is the ratio of circles to each other, 
 or what is the line whose square will be 
 equal to a given circle. The advocate, on 
 the other hand, has a proposition put before 
 him, which he is to maintain as well as he 
 can. His business, therefore, is to find 
 middle terms (which is ihe inventio of Ci- 
 cero) ; the philosopher’s to combine and 
 select known facts or principles, suitably 
 for gaining from them conclusions which, 
 though implied in the premises, were be- 
 fore unperceived : in other words, for 
 making “logical discoveries.” 
 
 To this I will take the liberty of adding 
 another short extract from the treatise on 
 rhetoric ; which may furnish a hint as to 
 a class of dangers common to men of every 
 pursuit and profession ; that of a person 
 supposing himself, from having been long 
 conversant with a certain subject, to be 
 qualified for every land of business, or of 
 discussion that relates to the same sub- 
 ject : — [Rhet., part 2, chap. 3, sec. 5.] 
 “ The longest practice in conducting 
 any business in one way does not neces- 
 sarily confer any experience in conducting 
 
THE ARCHBISHOP OP DUBLIN. 
 
 17 
 
 it in a different way; e. g., an experienced 
 husbandman, or minister of state, in Persia 
 would be much at a loss in Europe ; and 
 if they had some things less to learn than 
 an entire novice, on the other hand they 
 would have much to wwlearn ; and, again, 
 merely being conversant about a cer- 
 tain class of subjects, does not confer 
 experience in a case where the operations, 
 and the end proposed, are different. It is 
 said that there was an Amsterdam mer- 
 chant, who had dealt largely in corn all his 
 life, who had never seen a field of wheat 
 growing. This man had doubtlessacquired, 
 by experience, an accurate judgment of 
 the qualities of each description of corn — 
 of the best methods of storing it, — of the 
 arts of buying and selling it at proper 
 times, &c.; but he would have been greatly 
 at a loss in its cultivation, though he had 
 been, in a certain way, long conversant 
 about corn. Nearly similar is the expe- 
 rience of a practised lawyer, (supposing 
 him to be nothing more,) in a case of 
 legislation ; because he has been long con- 
 versant about law , the unreflecting attri- 
 bute great weight to his judgment : whereas 
 his constant habits of fixing his thoughts 
 on what the law is, and withdrawing it 
 from the irrelevant question of what the 
 law ought to be, — his careful observance 
 of a multitude of rules, (which afford the 
 mere scope for the display of his skill, in 
 proportion as they are arbitrary, unrea- 
 sonable, and unaccountable) with a studied 
 indifference as to (that which is foreign 
 from his business,) the convenience or in- 
 convenience of those rules — may be expect- 
 ed to operate unfavourably on his judgment 
 in questions of legislation ; and are likely 
 to counterbalance the advantages of his 
 superior knowledge, even in such points 
 as do bear on the question.” 
 
 And here I may remark by the way, 
 that a person engaged habitually in State 
 affairs. — a Politician by profession — ought 
 to be peculiarly on his guard against sup- 
 posing his mode of life to generate especial 
 qualifications in those very points in which 
 its tendency is, — unless particular care be 
 taken to guard against the danger, — to pro- 
 duce rather adisqualification. Who is likely 
 to be the best judge (other points being 
 equal) it might be asked, of the relative im- 
 portance of politicafquestions? At the first 
 glance many would be disposed to answer, 
 “of course, a politician.” But the dispropor- 
 tionate attention necessarily bestowed on 
 different questions, according as they are 
 or are not made party questions — the fields 
 
 of battle on which the contests for politi- 
 cal superiority are to be carried on — inde- 
 pendently of the intrinsic importance of 
 each — this is a cause which must be con- 
 tinually operating to disturb the judgment 
 of one practically engaged in politics. 
 Every one at all versed in history must be 
 acquainted with many instances of severe 
 and protracted struggles concerning mat- 
 ters which are now remembered only on 
 account of the struggles they occasioned ; 
 and again, of enactments materially af- 
 fecting the welfare of unborn millions, 
 which hardly attracted any notice at the 
 time, and were slipped into one of the 
 heterogeneous clauses of an act of parlia- 
 ment. 
 
 Precluded, then, as I find myself, for the 
 reasons above mentioned, from entering 
 fully on the consideration of the several 
 departments of legal study and practice, I 
 will detain you only with a few brief hints 
 respecting some of the dangers to be 
 guarded against from the barrister’s pro- 
 fession. 
 
 He is, as I have already observed, in 
 less danger than a Clergyman, of settling 
 down into some confirmed incorrect view of 
 any particular points connected with his 
 profession; both for the reason there given, 
 — there being a Court on eaith to correct 
 any mistake he may make ; — and also be- 
 cause having to plead various causes, he 
 is called upon to extenuate to-day what he 
 aggravated yesterday, — to attach more, 
 and less weight, at different times, to the 
 same kind of evidence — to impugn, and to 
 enforce, the same principles, according as 
 the interests of his clients may require. 
 
 But this very circumstance must evi- 
 dently have a tendency, which ought to 
 be sedulously guarded against, to alienate 
 the mind from the investigation of truth. 
 Bishop Butler observes, and laments, that 
 it is very common for men to have “ a curi- 
 osity to know whatis's^a?, but nocuriosity 
 to know what is true” Now none can be 
 (other points being equal) more in need of 
 being put on his guard against this fault, 
 than he who is professionally occupied with 
 a multitude of cases, in each of which he is 
 to consider what may be plausibly urged on 
 both sides ; while the question what ought 
 to be the decision, is out of his province, as 
 a Pleader. I am supposing -him not to be 
 seeking to mislead a judge or jury by urg- 
 ing fallacious arguments : but there will 
 often be sound and valid arguments — real 
 probabilities — on opposite sides. A judge, 
 or any one whose business is to ascertain 
 
18 
 
 ADDRESS OP HIS GRACE 
 
 truth, is to decide according to t \\q pre- 
 ponderance of the reasons ; but the 
 Pleader s business is merely to set forth, 
 as forciblyaspossib!e,thoseon hisownside, 
 And if he thinks that the habitual practice of 
 this has no tendency to generate in him, 
 morally, any indifference, or intellectually, 
 any incompetency, in respect of the as- 
 certainment of truth, — if he consider 
 himself quite safe from any such danger, 
 I should then say that he is in very great 
 danger. 
 
 I have been supposing (as has been 
 said) that he is one who would scruple to 
 mislead wilfully a Judge or Jury by spe- 
 cious sophistry, or to seek to embarrass 
 an honest witness, and bring his testi- 
 mony into discredit ; but there is no 
 denying that he is under a great tempta- 
 tion even to resort to this. Nay, it has 
 even been maintained by no mean autho- 
 rity, that it is even a Pleader’s duty to 
 have no scruples about this or any other 
 act whatever that may benefit his client. 
 “ There are many whom it may be need- 
 ful to remind,” says an eminent lawyer, 
 “ that an advocate, by the sacred duty of 
 his connexion with his client, knows in the 
 discharge of that office but one person in 
 the world — that client and none other. To 
 serve that client, by all expedient means, to 
 protect that client at all hazards and costs 
 to all others (even the party already in- 
 jured) and amongst others to himself, is 
 the highest and most unquestioned of his 
 duties. And he must not regard the 
 alarm, the suffering, the torment, the de- 
 struction, which he may bring upon any 
 others. Nay, separating even the duties 
 of a patriot from those of an advocate, he 
 must go on, reckless of the consequences, 
 if his fate should unhappily be to involve 
 his country in confusion, for his client.” 
 [Licence of Counsel, p. 3.] 
 
 On the other hand it is recorded that 
 “ Sir Matthew Hale, whenever he was con- 
 vinced of the injustice of any cause, 
 would engage no more in it than to ex- 
 plain to his client the grounds of that 
 conviction ; he abhorred the practice of 
 misreciting evidence, quoting precedents 
 in books falsely or unfairly, so as to de- 
 ceive ignorant juries or inattentive judges ; 
 and he adhered to the same scrupulous 
 sincerity in his pleadings which he ob- 
 served in the other transactions of life. 
 It was as great a dishonour as a man was 
 capable of, that for a little money he was 
 hired to say otherwise than he thought.” 
 [Licence of Counsel, p. 4.] 
 
 “ Clothed in authority,” says another 
 eminent legal writer, “ derived from the 
 authority and in symbolic robes analogous 
 to the Judge, the Advocate, observing in 
 an honest witness, a deponent whose testi- 
 mony promises to be adverse, assumes 
 terrific tones and deportment, and pre- 
 tending to find dishonesty on the part of 
 the witness, strives to give his testimony 
 the appearance of it. I say a bona fide 
 witness ; for in the case of a witness who, 
 by an adverse interrogator is really looked 
 upon as dishonest, this is not the proper 
 course, nor is it taken with him. For 
 bringing to light the falsehood of a wit- 
 ness really believed to be mendacious, the 
 more suitable, or rather the only suitable 
 course is to forbear to express the im- 
 pression he has inspired. Supposing his 
 tale clear of suspicion, the witness runs 
 on his course with fluency till he is en- 
 tangled in some irretrievable contradiction 
 at variance with other parts of his own 
 story, or with facts notorious in them- 
 selves, or established by proofs from other 
 sources.” [Licence of Counsel, p. 5.] 
 
 “ We happen to be aware from the prac- 
 tice of persons of the highest experience 
 in the examination of witnesses, that thic 
 description is without almost exception 
 correct, and that as a general rule, it is 
 only the honest and timid witness who is 
 confounded by imperious deportment. 
 The practice gives pre-eminence to the 
 unscrupulous witness who can withstand 
 such assaults. Sir Roger North, in 
 his life of Sir Dudley North, relates 
 that the law of Turkey, like our ab- 
 surd law of evidence in some cases, 
 required the testimony of two wit- 
 nesses in proof of each fact ; and that 
 a practice had, in consequence, arisen, 
 and had obtained the sanction of general 
 opinion, of using a false witness in proof 
 of those facts which admitted of only one 
 witness. Sir Dudley North, while in 
 Turkey, had numerous disputes, which it 
 became necessary to settle by litigation, 
 — “ and,” says his biographer, “ our mer- 
 chant found by experience, that in a direct 
 fact a false witness was a surer card than 
 a true one ; for if the judge has a mind to 
 baffle a testimony, an honest, harmless 
 witness, that doth not know his play, can- 
 not so well stand his many captious ques- 
 tions as a false witness used to the trade, 
 will do; for he hath been exercised, and 
 is prepared for such handling, and can 
 clear himself, when the other will be con- 
 founded : therefore circumstances may be 
 
THE ARCHBISHOP OF DUBLIN. 
 
 19 
 
 such as to make the false one more eligi- 
 ble.” 
 
 According to one, then, of the writers 
 I have cited, an advocate is justified, and 
 is fulfilling a duty, not only in protesting 
 with solemnity his own full conviction of 
 the justice of his client’s cause, though he 
 may feel no such conviction, — not only in 
 feigning various emotions (like an actor; 
 except that the actor’s credit consists in 
 its being known that he is only feigning) 
 such as pity, indignation, moral approba- 
 tion, or disgust, or contempt, when he 
 neither feels any thing of the kind, nor 
 believes the case to be one that justly 
 calls for such feelings ; but he is also oc- 
 casionally to entrap or mislead, to revile, 
 insult, and calumniate persons whom he 
 may in his heart believe to be respectable 
 persons and honest witnesses.” Another 
 on the contrary observes : “ We might ask 
 our learned friend and fellow-christian, as 
 well as the learned and noble editor of 
 ‘ Paley’s Natural Theology,’ and his other 
 fellow-professors of the religion which 
 says — ‘ that lying lips are an abomination 
 to the Lord,’ to explain to us how they 
 reconcile the practice under their rule, 
 with the Christian precepts, or avoid the 
 solemn scriptural denunciation — ‘ Woe 
 unto them that call evil good and good 
 evil ; that put darkness for light, and light 
 for darkness ; that put bitter for sweet, 
 and sweet for bitter. “ Which justify the 
 wicked for reward, and take away the 
 righteousness of the righteous from him.’ ” 
 [Licence of Counsel, p. 10.] 
 
 1 have brought forward by choice the 
 opinions of legal writers, both for and 
 against the necessity and allowableness of 
 certain practices; leaving each person to 
 decide for himself both what is the right 
 course for a Pleader to pursue, and what 
 is the probable effect produced on the 
 mind by the course pursued respectively 
 by each. I will add only one remark, ex- 
 tracted from a work of my own, indicative 
 of my own judgment as to the points 
 touched on : — 
 
 “ In oral examination of witnesses, a 
 skilful cross-examiner will often elicit from 
 a reluctant witness most important truths, 
 which the witness is desirous of concealing 
 or disguising. There is another kind of 
 skill, which consists in so alarming, mis- 
 leading, or bewildering an honest witness, 
 as to throw discredit on his testimony, 
 or pervert the effect of it, — of this kind 
 of art, which may be characterised as 
 
 the most base and depraved of all 
 possible employments of intellectual 
 power, I shall only make one further ob- 
 servation. I am convinced that the most 
 effectual mode of eliciting truth, is quite 
 different from that by which an honest, 
 simple-minded witness is most easily baffled 
 and confused. I have seen the experiment 
 tried, of subjecting a witness to such a kind 
 of cross-examination by a practised lawyer 
 as would have been, I am convinced, the 
 most likely to alarm and perplex many an 
 honest witness ; without any effect in shak- 
 ing the testimony ; and afterwards, by a 
 totally opposite mode of examination, such 
 as would not have at all perplexed one 
 who was honestly telling the truth, that 
 same witness was drawn on, step by step, 
 to acknowledge the utter falsity of the 
 whole. Generally speaking, I believe that 
 a quiet, gentle, and straightforward, though 
 full and careful, examination, will be the 
 most adapted to elicit truth : and that the 
 manoeuvres and brow-beatings, which are 
 the most adapted to confuse the honest 
 witness, are just what the dishonest one is 
 best prepared for. — “ The more the storm 
 blusters, the more carefully he wraps round 
 him the cloak, which a warm sunshine will 
 often induce him to throw off.” [Rhet., part 
 1, s. 2. 6th edition.] 
 
 I have thought it best, for the reasons 
 formerly given, to omit all notice of the 
 advantages to be derived from each class 
 of professional pursuits, and to confine 
 myself to the dangers which are to be 
 guarded against, and which consequently 
 require to be carefully contemplated. 
 Even in respect of these, however, I 
 have been compelled, not only to omit 
 many remarks that will perhaps occur to 
 your own minds, relative to each of the 
 Professions I have spoken of, but also to 
 leave several of the most important Pro- 
 fessions wholly unnoticed, (the Military, 
 the Naval, the Mercantile, &c.) not from 
 their not exercising as important an influ- 
 ence, for good or evil, on the human mind, 
 as those which I have mentioned, but be- 
 cause I could not trespass further on your 
 patience; and also, because I conceive that 
 any one, in whatever walk of life, whose 
 attention is so awakened to that class 
 of considerations which I have laid before 
 you, as to be put on the watch for the pe- 
 culiar effects on his own character likely 
 to result from his own Profession, will be 
 likely to follow up the investigation for 
 himself, to his own practical benefit. 
 
LAW 
 
 AS IT 
 
 RELATES TO THE ECONOMIC CONDITION OF A PEOPLE, 
 
 BY 
 
 JAMES ANTHONY LAWSON, ESQ., 
 
 ( Professor of Political Economy in Trinity College , Dublin ,) 
 
 AS DELIVERED IN THE 
 
 l^all of tf)t ^ocietg of tfjc Dublin Unto Institute, 
 
 ON THE 30th OF APRIL, 1842. 
 
 The objects of this Institute are, 
 in the first place, to facilitate generally 
 the acquisition oflegal knowledge, and in 
 the next place, by every means in its power 
 tc raise jurisprudence to its proper place 
 among the liberal sciences. For the pro- 
 motion of these objects not only has a re- 
 gular system of class instruction in the 
 different departments of the law been 
 established here; but it has also been ar- 
 ranged that a course of public lectures 
 should be delivered on subjects more or 
 less connected with the law, in the hope 
 that they may prove generally interesting, 
 and by illustrating the different bearings 
 of our jurisprudence, tend to elevate it to 
 its proper rank as a science. 
 
 Keeping this object in view in selecting 
 a subject for your consideration, and re- 
 membering the words of my Lord Bacon, 
 inter scientias omnes commune est quoddam 
 vinculum , I thought it might not prove 
 uninteresting if I were to view that subject 
 which we are conversant about here, in 
 some measure in connexion with that 
 science with which I have the honor to be 
 connected in our University — to point out 
 in what way the existence of laws and of 
 a legal profession influences the wealth of 
 society, to see from what sources we de- 
 rive our support and emoluments, and what 
 benefits we render in exchange for these 
 to the rest of the community. 
 
 Political economy treats of the wealth of 
 nations; and, as far as we lawyers are con- 
 cerned, I need not tell you that the popu- 
 
 lar opinion is, that our existence, instead 
 of at all enriching, tends only to impoverish 
 the community, and that we are only to be 
 tolerated as a necessary evil. When notions 
 like these are prevalent, it surely is of 
 importance to us to inquire whether they 
 be well founded, for if so, here is an ob- 
 stacle at the outset to our lofty pretensions, 
 which would show us little entitled to that 
 proud position as a profession, which we 
 are permitted to assume. It shall be my 
 object briefly to point to you the fallacy in- 
 volved in these notions. 
 
 These opinions have not been confined 
 to the vulgar, but have found their way 
 into the works of political economists.— 
 Adam Smith, for instance, divides labour- 
 ers into productive and unproductive, and 
 he places us amongst the latter. “ The 
 labour,” he says, “ of some of the most 
 respectable orders of society is, like that 
 of menial servants, unproductive of any 
 value. In the same class must be ranked 
 some both of the gravest and most impor- 
 tant, and some of the most frivolous pro- 
 fessions — churchmen, lawyers, and physi- 
 cians — men of letters of all kinds — players, 
 buffoons, musicians, opera singers, opera 
 dancers.” 
 
 But it is easy to see that this classifica- 
 tion is founded on a partial and imperfect 
 view of what really constitutes the wealth 
 of society. Wealth, properly understood, 
 comprehends all those things which gratify 
 the wants and desires fof mankind, and 
 which are capable of being made the sub- 
 
22 
 
 LAW AS IT RELATES 
 
 jects of exchange or transfer. But Smith 
 has thought proper arbitrarily to confine 
 the term to such objects as are material, 
 and hence arises his mistake. Now, there 
 is no reason whatever for such a restriction 
 as this, and it leads to many absurdities. 
 The fact of its being material is a mere ac- 
 cident — the absence or presence of which 
 cannot either entitle or disentitle to the 
 appellation of wealth. The knowledge of 
 the lawyer and the skill of the physician 
 are as truly constituent parts of the national 
 wealth, as the raw produce of the farmer 
 or the fabric of the manufacturer ; they 
 are equally the result of the employ- 
 ment of labour and capital — they gra- 
 tify the wants and wishes of mankind, they 
 are capable of being exchanged, and the 
 hope of being able to obtain the benefit of 
 them, and the services of those who pos- 
 sess them, encourages industry, and sti- 
 mulates to exertion fully as much as do 
 the grosser products of manual labour — 
 and the amount of revenue derived from 
 their exercise exceeds the rental of all the 
 land of the kingdom. In truth, to consi- 
 der no labour as productive, unless it ter- 
 minate in some material product, is a delu- 
 sion as shallow as it is mischievous. It 
 represents the mere animal nature as the 
 entire of man, putting out of view all the 
 nobler parts of our being, our understand- 
 ing, our feelings, our tastes, which require 
 supplies of a spiritualized kind, as much as 
 the others require material objects to mi- 
 nister to their necessities. I do not mean 
 to say that Smith, by making this classifi- 
 cation, meant to represent his unproductive 
 labourers as useless to the communit}', but 
 certainly some who have come after him 
 have illustrated the saying of Hobbes : — 
 " Words are the counters of wise men and 
 the money of fools for, misled by the 
 use of this epithet, “unproductive,” they 
 have, insensibly perhaps, been led to con- 
 sider this class as the drones of the hive. 
 You will observe this train of thought run- 
 ning through many of our public speakers 
 and writers, exhibiting itself in an immo- 
 derate desire of retrenching every thing 
 not absolutely necessary, and pervading 
 throughout that false and shallow utilita- 
 rianism, which our age has dignified with 
 the name of philosophy. In their eyes the 
 lawyer, by whom I am enabled to trans- 
 mit my family estate through successive 
 generations — the soldier, who insures na- 
 tional independence and security — the 
 clergyman, who promotes the growth of 
 
 I every virtue here, and points to a bright 
 hereafter — all are alike worthless. 
 
 Again this class of labourers, not only 
 themselves directly produce wealth, but 
 indirectly they increase the wealth of so- 
 ciety by rendering the labour of others 
 more productive. Suppose each indivi- 
 dual were to be employed in asserting his 
 own civil rights and securing his property, 
 and that no class of persons was set apart 
 for this purpose, how much of his time 
 would it take away from his other occupa- 
 tions, and yet how ineffectually would it be 
 done? “ In the rudest state of society,’ says 
 Mr. Senior, ‘each man relies principally 
 on himself for the protection both of his 
 person and his property. For these pur- 
 poses he must be always armed, and always 
 watchful, what little property he has must 
 be removeable so as never to be far dis- 
 tant from its owner. Defence or escape 
 occupy almost all his thoughts and almost 
 all his time, and after all these sacrifices 
 they are very imperfectly effected. But 
 now about 15,000 soldiers and not 15,000 
 policemen, watchmen, and officers of jus- 
 tice protect the persons and property of the 
 seventeen millions of inhabitants of Great 
 Britain/’ 
 
 This extract strikingly shows how ne- 
 cessary to the production of wealth is the 
 existence of a government or separate 
 class to protect person and propert}', and 
 equally necessary for the preservation of 
 that wealth are laws to regulate the rights 
 ot property. I trust, therefore, I have 
 now shown that we both directly increase, 
 and indirectly encourage the growth and 
 acquisition of national wealth, and that 
 though it is perfectly true that a man will 
 not grow rich by a fondness for going to 
 law, it is equally true that if no one could 
 go to law, no one could ever become rich. 
 These are truths so obvious in themselves 
 that popular opinion seems to have ad- 
 mitted that we are necessarj', but as it 
 also treats us as a necessary evil, I will en- 
 deavour to explain the source of this 
 error. 
 
 A great part of our laws is caused by the 
 crimes of mankind, and a great deal of litiga- 
 tion arises from the dishonesty of mankind. 
 Now we are very prone, from the strong 
 principle of association in our nature, 
 when we see two things constantly in close 
 connexion, to regard either indifferently as 
 the cause of the other. The remedy or 
 preventive often becomes so connected in 
 idea with the disease, that we forget that 
 
TO THE ECONOMIC CONDITION OF A PEOPLE. 
 
 23 
 
 it is a remedy or preventive, and we begin 
 to regard it with the same unpleasing feel- 
 ings as we do the disease it is intended to 
 remove. In this way many things come 
 to be regarded as evil themselves because 
 their existence is caused by the presence 
 of evil — and especially when the remedy 
 is itself not wholly free from evil, which 
 it seldom can be; thus sickness is a ne- 
 cessary evil, the existence of the physician 
 is caused by the existence of sickness, and 
 in this way he may be, and often is, called 
 a necessary evil So crime and dishonesty 
 exist in the world, their existence calls law 
 into existence, it is forgotten that it exists 
 to remedy and prevent them, and it is 
 looked on with something like the same 
 disfavor as the evils it labours to correct. 
 The expense, the delay, the uncertainty 
 necessarily connected with it are obvious 
 to every one, and their evil is magnified 
 and exaggerated, while the results that 
 would follow if there were no laws are 
 only matter of speculation, and do not come 
 home to men’s minds. Therefore our laws, 
 so far as they are occasioned by our vices, 
 are indeed rendered necessary by evil, and 
 are necessary to put a stop to evil, but 
 cannot in any proper sense of the term 
 be themselves called evils. 
 
 But even if man were as morally perfect 
 as our fondest wishes could desire ; though 
 this would sweep away a great body of 
 our laws, still as long as property would 
 exist, and exchange and commerce be 
 carried on, and as long as the imper- 
 fection of words gave rise to doubt and 
 uncertainty, there must be settled rules to 
 define and explain contracts, to determine 
 the intentions of those transferring or 
 bequeathing property, and to settle its des- 
 tination when undisposed of — and thus 
 the necessity for laws would be as strong 
 as ever. But if laws established for these 
 purposes be considered a necessary evil, 
 it can only be on the principle which 
 would consider property itself, social in- 
 tercourse and civilization as evils. And 
 this is a very popular belief. Misled by 
 the dreams of poets and the fictions of 
 philosophers, we are apt to imagine that 
 man’s most perfect state and his natural 
 state is that in which no property or 
 i civilization or laws exist, but all things 
 are, as it is said, in common. It is very 
 easy for a man in the enjoyment of all 
 the luxuries of civilized life to romance 
 ! about the innocence and happiness of 
 savage life. Pope, in his beautiful villa on 
 the Thames, could sing : — 
 
 Then was not pride, nor arts that pride to aid, 
 Man walked with beast, joint tenant of the shade. 
 
 But I fancy it is a joint tenancy he would 
 be very anxious to sever. It is a truth 
 that should not be forgotten, that man’s 
 natural state is one of social intercourse, 
 civilization and enjoyment of property. 
 This is admirably proved and illustrated 
 in a work, which if you are not already 
 acquainted with it, is well worthy of your 
 perusal — Taylor’s Natural History of So- 
 ciety. («) 
 
 “ We have shewn,” he says, “ that man 
 is formed in body and endowed in spirit 
 for a social and domestic life, not less ma- 
 nifestly than an oyster is organized to lead 
 a motionless life in the waters, or an eagle 
 to traverse the fields of air. He could, 
 therefore, no more have been primarily 
 placed in a condition directly opposed to 
 the intent and purpose of his structure 
 and endowments, than the sea shell could 
 be produced on the top of a mountain, or 
 the giraffe amid the icebergs of the pole. 
 No animal can develope its instincts except 
 under the precise condition to which its 
 structure is accommodated, and the failure 
 of these conditions leads to degeneracy, 
 sterility^, and extinction. Now man is just 
 as obviously unsuited to the solitude of 
 the forest or the desert, as the lion is to 
 his grated den, or the eagle to his chain 
 and cage. All his faculties fit him for so- 
 ciety and improvement, and therefore in 
 a state of society and improvement he 
 must have been originally placed, and 
 lienee, it immediately follows, that savage 
 life can be nothing but a degradation — a 
 departure from the original destiny and 
 position of man.” 
 
 The possession of property, there- 
 fore, is natural and necessary to man’s 
 condition here, and therefore rules, for its 
 protection and disposal, are necessary ; and 
 as in the progress of society these relations 
 become more complex and difficult, in 
 order to their due administration, the ex- 
 istence of a distinct class for that purpose 
 becomes necessary. They are not there- 
 fore to be considered as a necessary evil, 
 but as incident to, and flowing from, the 
 conditions of our existence here. They can- 
 not be looked on as an evil, except on the 
 same principle that food and clothing 
 might be so regarded ; of course if man were 
 
 (a) The idea of this work originated with his 
 Grace the Archbishop of Dublin. It has been 
 admirably worked out in detail, and illustrated by 
 Dr. Taylor, who is an Irishman, and a member of 
 our University 
 
 
24 
 
 LAW AS IT RELATES 
 
 more perfect he would not require them, 
 but just as the latter are rendered neces- 
 sary by our physical, so are the former by 
 our social nature. 
 
 The existence of the class called by 
 Smith unproductive labourers, is therefore 
 necessary and useful to society. Let us 
 now see in what way their existence is 
 provided for, for they are so far truly un- 
 productive that they produce nothing upon 
 which they could subsist. 
 
 The earth is the source from whence 
 man derives his sustenance ; now if the 
 earth were so uniformly barren that a man 
 by toiling upon it all the year could only 
 eke out a bare subsistence, none of the 
 arts could ever have existed — the hard 
 task of sustaining life would absorb all 
 labour. If the climate were so friendly 
 that clothing and shelter werejnot required, 
 human life might be prolonged on these 
 terms; but it would scarcely deserve the 
 name, and we never would have heard 
 Virgil’s beautiful description — 
 
 *• Fundit humo facilem victum justissima tellus.” 
 But if the climate were such that artificial 
 clothing and shelter were necessary, then 
 in order to prolong existence the earth 
 must be endued with a greater degree of 
 fertility in order to leave some leisure 
 from the toil of realizing its products to 
 the providing this food and shelter. Even 
 in this wretched state of existence there 
 would be some improvements soon intro- 
 duced, for it would be found that the result 
 of the joint labours of the community 
 would be greater if one devoted himself 
 exclusively to tillage, another to preparing 
 clothing, and another to building huts. 
 The practice of exchanging would now be 
 adopted — the cultivator has more food 
 than his wants require, but he must have 
 clothing and shelter, the fashioner and the 
 builder can produce more garments and 
 houses than they can use themselves, and 
 reason at once leads all parties to exchange 
 what they w'antless urgently for what they 
 want more urgently. 
 
 In order to support existence in this 
 condition the labour of the cultivator 
 should be productive enough over and 
 above his own wants to procure him 
 clothes and shelter ; and the labour of 
 the fashioner and builder should be pro- 
 ductive enough to supply clothes and 
 houses, not only for themselves but also a 
 surplus sufficient to procure their food. 
 And if the continued labour of the three 
 were only barely sufficient to do this, no 
 
 other art or pursuit could even exist. 
 There would be nothing indeed but pro- 
 ductive labour, but it would be the lowest 
 state to which we ever find man de- 
 graded. So that to have a community in 
 which there was nothing but productive 
 labour (so called) would not seem to be a 
 thing very desirable ; therefore if the term 
 unproductive applied to this class of la- 
 bourers be intended as a reproach it is ob- 
 vious how little foundation there is for it. 
 
 But when, as is always the case in the 
 most ungrateful soil, whose cultivation is 
 attempted by man, the earth yields, over 
 and above what will feed, clothe, and 
 lodge those labouring upon it, an abundant 
 surplus ;and when the labour employed in 
 every kind of manufacture is sufficiently 
 productive after supplying the actual ne- 
 cessities of its labourers to leave a sur- 
 plus, here at once is surplus wealth re- 
 maining over after our absolute necessities 
 are supplied. The existence of this sur- 
 plus produce in the hands of the agricul- 
 tural classes causes others to exert their 
 industry in order that they may have some 
 thing to offer in exchange for it; and this 
 again reacts — the existence of objects 
 around him calculated to gratify his de- 
 sires causes the agriculturist to devote his 
 energies to the soil, and to extort from it 
 all the produce it is capable of supplying, 
 and which he would have no motive for 
 raising beyond what was necessary to sa- 
 tisfy his hunger, unless there were other 
 products about him to excite his wishes 
 and desires. Thus wealth produces wants, 
 and wants in turn produce wealth, — infi- 
 nite varying tastes, desires, and appetites 
 spring up and find ready ministers to sup- 
 ply them all. 
 
 Every man possessing any of this sur- 
 plus can, according to his tastes, call 
 forth every variety of product, and im- 
 press upon the labour of those around 
 him that direction which he thinks fit. 
 Soon, by the operation of laws which it is 
 peculiarly the province of political econo- 
 my to investigate, a quantity of this sur- 
 plus wealth, or the right to command a 
 quantity of this labour, is placed in the 
 hands of individuals whom we call land- 
 lords and capitalists. When you reflect 
 upon this accumulation and consider 
 that by the introduction of machinery la- 
 bour is rendered infinitely more produc- 
 tive, you may form some idea of the vast 
 amount of disposable wealth that exists in 
 a large community, and the variety of 
 
TO THE ECONOMIC CONDITION OF A PEOPLE. 
 
 25 
 
 persons it can set in motion, according 
 to the tastes of its possessors, and hence 
 spring into existence all the arts, sciences, 
 and professions, and all the labour which is 
 not directly employed in supplying the ne- 
 cessaries of life. Doubtless man’s labour 
 has been blessed with this productiveness, 
 in order to render it possible for some to 
 devote themselves to those pursuits which 
 raise us in the scale of moral and intellec- 
 tual beings And surely we ought to feel 
 grateful to thatgreatand good Being, who 
 though he has declared man shall eat his 
 bread in the sweat of his brow, yet has not 
 doomed him to a round of universal and 
 unceasing toil, which would render life irk- 
 some, but has graciously provided for the 
 existence of grades in society, of different 
 pursuits, stations, and avocations. Instead 
 of leaving the social world one dull flat 
 level, in which there would be no room 
 for hope, for progress, for emulation, for 
 example, nothing to stimulate, to exalt, 
 or to inspire, He has diversified and 
 beautified our existence, and though by 
 this wise disposition He has increased the 
 aggregate of human happiness, yet has 
 He not allotted to any station a dispropor- 
 tionate share ; so that the rich should not 
 dare to despise the poor, and those who 
 toil in the lowly valley of life need not 
 envy the pride and pomp of greatness. 
 
 Now that I have shown the connexion 
 between law and the economic condition of 
 society, I will endeavour to point out some 
 of the effects produced upon the state of 
 law itself by the progress of society. An 
 enlightened and well-administered system 
 of jurisprudence is, at the same time, the 
 effect and the cause of increased civiliza- 
 tion ; so that if we can ascertain the state 
 of the law at any period, we have the very 
 best index of the civilization of the people. 
 It is a mistake to suppose that laws 
 abridge man’s natural liberty. The maxim 
 of the law, Sic utere tuo , ut ne aieno - aedas , 
 has its foundation far deeper than any 
 mere artificial system of restraint — it is 
 based upon those “eternal” principles of 
 justice which are implanted in man, and 
 to which all laws ultimately owe their se- 
 curity and continued existence. No man 
 is at liberty to injure his fellow man. Such 
 a right does not belong to man, either in 
 his natural or in any other state. You 
 recollect the story of the advocate for li- 
 berty, who was asked by some reasoning 
 friend, — “ Are you not free ? can you not 
 do as you please ?’’ and his answer was — 
 “No; for I cannot make you do as I 
 
 please.” It is only on such a principle as 
 this, that laws (I mean, of course, just and 
 rational laws) can be said to abridge 
 man’s natural right ; for every man’s na- 
 tural right is, neither to injure, nor to be 
 injured by his fellow. The progress of 
 society consists in substituting on the one 
 hand public authority for private will, and 
 on the other, legal resistance for individu- 
 al resistance. When personal liberty of- 
 fends, and it becomes necessary to call it 
 to account, our only appeal is to public 
 opinion. Public reason is placed in the 
 judge’s chair to pass sentence on the 
 charge which is preferred against indivi- 
 dual liberty. 
 
 It is a popular fallacy to suppose that 
 crime increases with the progress of civili- 
 zation ; and that, not merely in the same 
 proportion that the increasing population 
 would lead us to expect, but in a greater 
 proportion ; so that not only its absolute 
 amount, but its amount in relation to the 
 difference in numbers is increased. This 
 follows from the erroneous impression I 
 have before alluded to, that innocence is 
 the characteristic of rude and barbarous 
 ages. You remember the poet of imperial 
 Rome sighing over those happy ages 
 which, as he says, 
 
 “ Viderunt uno contentam carcere Romam.” 
 
 But there may be two reasons why “ Rome 
 was content with one prison’’ — either that 
 the offences were few, or that the attempts 
 to detect and punish them were feeble. 
 And this last, you will find, on reflection, 
 is the true account of the matter. What 
 countenances this fallacy is, that it is the 
 tendency of a high state of civilization to 
 render police regulations so effective, that 
 no transgression of the law shall pass un- 
 noticed and unpunished. This leads su- 
 perficial observers to conclude, that crime 
 has increased ; thus confounding its de- 
 tection with its creation ; and so with civil 
 as well as criminal legislation. In a rude 
 state of society, laws are imperfect, there 
 is no proper machinery for the enforcing 
 of contracts, and for the assertion of other 
 civil rights ; men slumber upon those 
 rights, which in a more advanced state of 
 society would be at once asserted and en- 
 forced. Thus, I dare say, the increased 
 efficiency of our city police at first caused 
 an apparent increase in the number of 
 petty offences; so the establishment of 
 civil bill courts created a number of law- 
 suits, which would otherwise have slum- 
 1 bered. But the effect of both was good — 
 
26 
 
 LAW AS IT RELATES 
 
 to detect offences, and to redress civil in- 
 juries. 
 
 It is most interesting to observe how 
 faithfully the genius and character of 
 every age is pourtrayed in the character 
 of its jurisprudence. Cuvier was able, 
 from the fragment of a bone, to deter- 
 mine with unerring accuracy the cha- 
 racteristics of the animal of which ages 
 before it formed a part—- and it is not 
 saying too much to assert, that if no relic 
 were left us of a people but a portion of 
 their laws, we could ascertain at once the 
 stage of improvement at which they had 
 arrived, and even fill up and supply many 
 of the details of their social and domestic 
 life. A glance at the progress of our own 
 system of law would show this. Look 
 for instance at the laws of feudalism. 
 When after the destruction of the Ro- 
 man Empire the waves of barbarous 
 invasion swept away established insti- 
 tutions, out of the chaos that was left 
 arose feudalism. We can read in its 
 ordeal and wager of battle the rude cha- 
 racter of the age ; so full of superstition 
 and general debasement and yet so favour- 
 able to the development of individual he- 
 roism ; in its disregard of chattel property 
 and its care of land, we can trace the ex- 
 istence of the landed proprietor with his 
 train of dependants, the absence of trade, 
 and the total want of a middle class; from 
 the almost total want of protection for the 
 serfs against the oppression of their mas- 
 ters, we can infer how degraded their 
 condition was, and how this must have 
 lowered and debased, as slavery ever does, 
 not only the slave but the master; and if 
 you contrast the mode in which Littleton 
 classifies the villeins, into villeins regar- 
 dant, and villeins in gross, (showing that 
 they were regarded just as much a part 
 of the estate as the timber, or the manor 
 house,) w r ith the indignant denunciations 
 against slavery in a modern house of Com- 
 mons, you will see how very different 
 are the modes of thinking at this day, and 
 how far civilization has advanced. The 
 spirit of feudalism was so repugnant to 
 the general sense of the middle and lower 
 orders that they were glad to take refuge 
 from its laws in the bosom of the Church. 
 Hence the continual conflict between the 
 civil and canon, and the common law, till, 
 in the progress of time, both were harmo- 
 nized into our mixed system of jurispru- 
 dence. As you pursue the enquiry you 
 will trace the evidences of our commercial 
 greatness in the growing importance of our 
 
 law of contracts, until it attained complete- 
 ness and symmetry under the forming hand 
 of Lord Mansfield ; and our growth in hu- 
 manity and true wisdom may be read in 
 the mitigation of our once barbarous crimi- 
 nal code. I have thus endeavoured to point 
 out to you some of the relations in which 
 our profession stands towards society. I 
 have been only able to glance at them su- 
 perficially. Lectures are rather more use- 
 ful for suggesting and directing enquiry 
 than for any amount of information they 
 contain, and I shall not consider mine 
 wholly useless if I have succeeded in 
 awakening in any here a desire to trace 
 out and investigate these manifold and in- 
 teresting subjects of enquiry for himself — 
 surely we are called upon to inform our- 
 selves what effect the existence of laws and 
 of ourselves, as a class set apart for their 
 administration, has had, and may have, 
 upon the complicated frame-work of so- 
 ciety. If such a study does not itself pos- 
 sess charms to attract your notice, it would 
 be vain for me to attempt to recommend 
 it by any words of mine ; but I will cite 
 for you an authority in support of it, which 
 no one will be disposed to question — the 
 authority of Edmund Burke : — He says— 
 “ There is scarce any object of curiosity 
 more rational than the origin, the progress, 
 and the various revolutions of human laws 
 — political and military relations are for 
 the greater part accounts of the ambition 
 and violence of mankind, this is a history 
 of their justice. And surely there cannot 
 be a more pleasing speculation than to 
 trace the advances of men in an attempt 
 to imitate the Supreme Ruler in one of 
 the most glorious of his attributes, and to 
 attend them in the exercise of a preroga- 
 tive which it is wonderful to find entrusted 
 to the management of so weak a being. 
 In such an enquiry we shall indeed fre- 
 quently see great instances of this frailty ; 
 but, at the same time, we shall behold 
 such noble effects of wisdom and equity as 
 seem fully to justify the reasonableness of 
 that extraordinary disposition, by which 
 men in one form or other have been always 
 put under the dominion of creatures like 
 themselves. For what can be more in- 
 structive than to search out the first obscure 
 and scanty fountains of that jurisprudence 
 which now waters and enriches whole 
 nations with so abundant and copious a 
 flood — to observe the first principles of 
 right springing up, involved in superstition 
 and polluted with violence, until, by length 
 of time and favourable circumstances, it 
 
TO THE ECONOMIC CONDITION OF A PEOPLE. 
 
 27 
 
 has worked itself into clearness — the laws 
 sometimes lost and trodden down in the 
 confusion of wars and tumults, and some- 
 times overruled by the hand of power; then 
 victorious over tyranny, growing stronger, 
 clearer, and more decisive by the violence 
 they had suffered, enriched even by those 
 
 foreign conquests which threatened their 
 entire destruction, softened and mellowed 
 by peace and religion, improved and ex- 
 alted by commerce, by social intercourse, 
 and that great opener of the mind, ingenu- 
 ous science.” 
 
the 
 
 DUTIES AND LICENSE OF COUNSEL, 
 
 BY 
 
 THOMAS WEIGHT, ESQ., BAEEISTER-AT-LAW, 
 
 AS DELIVERED IN THE 
 
 pmll of tfie gbocteip of tf)e 39ufc!(n Unto Institute, 
 
 ON THE 7th OF MAY, 1842. 
 
 If is related of Charles the First, when 
 Prince of Wales, that being one day at din- 
 ner, and talkingof various matters, he made 
 the observation, that if he were obliged to 
 choose any particular profession in life, he 
 could not be a lawyer ; for, added the 
 Prince, I could neither defend a bad cause, 
 nor yield in a good one. Laud Dia. 1 Feb. 
 1623; Crok. Boswell, 2 vol. 202. 
 
 It certainly has been in past times, and 
 still is, a very common and popular notion 
 with respect to the profession in this coun- 
 try, that the practice of it is not well recon- 
 cilable with the principles of morality ; 
 that to undertake the conduct or defence 
 of any cause, indifferent whether to their 
 own knowledge it be good or bad, righteous 
 or iniquitous ; that the avowe d principle 
 of their practice is, to have regard to no- 
 thing in the course of their advocacy but 
 the interests of the client alone — to sup- 
 port his case, and gain the cause whether 
 it be just or unjust — to strain every nerve 
 to attain this object — and, in fact, to stick 
 at nothing that may be thought conducive 
 to success. Such are the general allega- 
 tions which are made against the practice 
 of the profession, by some writers on morals, 
 by reviewers and others, (with what foun- 
 dation in truth will hereafter be seen,) who 
 very forcibly, and I may say naturallyobserve 
 upon the moral turpitude of such a course 
 of conduct as these allegations suppose, and 
 the injurious effects that it must have when 
 openly pursued, not alone upon the mem- 
 bers of the profession itself who follow it, 
 
 but also upon the public, who witness its 
 exercise and operation. 
 
 This notion is founded mainly, as I con- 
 sider, upon a mistaken view of the conduct 
 and practice of the profession, and of the 
 duties, privilege, and license of counsel, and 
 in pure ignorance of their real bearing and 
 extent. As the object of the institution, in 
 whose lecture -room I have now the honor 
 to address you, is not alone to instruct the 
 student in the laws and judicial procedure of 
 these countries, in their various branches, a 
 matter which is provided for by the regular 
 course of lectures of the several professors 
 during the sessions, but also by means of 
 those public lectures, which are delivered 
 from time to time on stated occasions, to 
 afford the opportunity to all who are in- 
 terested in the advancement of the profes- 
 sion, of considering and exhibiting our 
 laws in the more scientific, philosophical, 
 and popular point of view, I have taken 
 advantage of the means thus afforded, to 
 give a few observations on this subject of 
 the duties and license of counsel, and the 
 moral tendency of the practice of our pro- 
 fession : if they are of no other use, they 
 may at least serve to set your minds a- 
 thinking. 
 
 It is alleged that the indiscriminate ad- 
 vocacy and defence of right and wrong, 
 must, as a matter of course, lead in the 
 end to an utter indifference to truth itself, 
 and that by consequence those who prac- 
 tice it will not scruple at a falsehood, if it 
 serves their turn, and that this is really the 
 
30 
 
 ON THE DUTIES AND LICENSE OF COUNSEL. 
 
 case in the actual practice of the profes- 
 sion, and it is taken for granted that these 
 charges are true. 
 
 These opinions are founded partly on an 
 erroneous view of the duties and license of 
 counsel, partly upon the sophism of beg- 
 ging the question, and partly upon that 
 other fallacy, of reasoning from the indivi- 
 dual abuse to the general practice, the 
 arg amentum a particulari ad universale , as 
 it is called. I have said, it is taken for 
 granted that the charges are true. Thus 
 a writer in the Quarterly Review says, 
 that if a lawyer were to enter upon life 
 with a determination to regulate his con- 
 duct by principles of strict integrity, he 
 would find the path of virtue the path of 
 interest, and his example might thus lead 
 to the reform of “ what is now an iniqui- 
 tous profession/’ an assumption that law- 
 yers at present enter upon life with the 
 determination to regulate their conduct by 
 other principles than those of integrity, 
 and a broad assertion that their profession 
 is iniquitous. The assumption is unwar- 
 rantable, the charge is scandalous and 
 false. 
 
 The ill effects which are attributed to 
 the practice of the profession, as they must 
 arise in all cases both civil and criminal, so 
 are they most loudly complained of in the 
 defence of prisoners. The ingenuity and 
 talent exerted in these cases are severely 
 censured when employed (as it is said they 
 frequently are) to save from conviction 
 those of whose guilt there is no doubt. 
 And previous to the passing of the Pri- 
 soners’ Counsel Bill, this very assumption, 
 that the talent and ingenuity of counsel, 
 where, as in Scotland, they were allowed 
 to speak for prisoners, were in practice per- 
 verted, to save from conviction the un- 
 doubtedly guilty, was used as an argument 
 of the impolicy and impropriety of allowing 
 prisoners in this country, on trial for felo- 
 nies, the privilege of a defence by counsel. 
 The instance cited in illustration, was the 
 case of the notorious Burke, and his ac- 
 complice, in which the woman was ac- 
 quitted by the jury, solely (as it was 
 alleged) by the dexterity of her advocate, 
 though the evidence against her was quite 
 conclusive as to her guilt. She escaped, 
 as Mr. Dymond, (Prin. of Morality, 
 1 Vol. p. 258.) observes, “ because her 
 advoeate had the gift of 4 making the worse 
 appear the better reason and the full 
 and free defence by counsel of any unfor- 
 tunate fellow creature, who might be ac- 
 cused and put on trial for a crime, was termed 
 
 an exertion of his talents and professional 
 skill, not for the furtherance, but the de- 
 feat of public justice, operating to the in- 
 jury of the commonweal, and holding out 
 a direct encouragement to wickedness. 
 Happily, however, for the necessities of 
 civil society, and the pure and impartial 
 administration of public justice, a wiser 
 and better opinion prevailed in this case 
 with the legislature and the public, and ac- 
 cordingly the act of parliament(a)was passed 
 which enables all persons charged with of- 
 fences, to make full answer and defence by 
 counsel or attorney, the preamble reciting, 
 that it is just and reasonable that persons 
 accused of offences against the law, should 
 be enabled to make their full answer and de- 
 fence to all that is alleged against them. And 
 though shortly after the trial of Courvoisier, 
 a petition from some inhabitants of London 
 was presented to the House of Lords, (Mir- 
 ror of Parliament, 10th Aug. 1840,) com- 
 plaining of the alteration of the law, which 
 allowed prisoners charged with felony to 
 employ counsel for their defence, yet the 
 prompt and decisive answer which it re- 
 ceived from Lord Brougham has, I believe, 
 had the effect, that the subject has not been 
 mentioned again. 
 
 The assumption I have mentioned is, in 
 one shape or other, at the bottom of all 
 the reasoning of these writers. Thus, the 
 writer in the Quarterly, alluding to the 
 practice of our lawyers in defending any 
 cause, goes on to remark, “ of our lawyers, 
 we say, because, though the same disre- 
 gard of right and wrong may prevail in 
 other countries, this is the first, if not the 
 only country, where the practice has been 
 justified;” an assumption that the practice 
 and habit of the profession in this country, 
 is to disregard right and wrong ; and, in- 
 deed, if there were any doubt upon the 
 point, it is cleared up by that which fol- 
 lows. The lecturer here referred to a 
 passage in the Quarterly Review upon the 
 oath of advocates by the Roman law, and 
 the practice in Holland, that “ if an advo- 
 cate brings forward a cause which appears 
 to the court plainly iniquitous, he is con- 
 demned in the costs of the suit; and that 
 the inconvenience that a cause, just in it- 
 self, might not be able to find a defender, 
 because of some strong and general preju- 
 dice against it, is obviated in that country 
 by the provision, that a party who can find 
 no advocate, and is nevertheless persuaded 
 of the validity of his cause, may apply to 
 
 (a) 6 & 7 Wm. 4, c. 14. 
 
ON THE DUTIES AND LICENSE OF COUNSEL. 
 
 81 
 
 the court, which has in such cases the dis- 
 cretionary power of authorizing or appoint- 
 ing one and in which the writer ob- 
 served upon our opposite practice. 
 
 All this goes on theassumption, that law- 
 yers or advocates in this country will under- 
 take a cause which they know to be unjust, 
 will persevere in a defence which they have 
 discovered to be supported by falsehood 
 and iniquity ; and upon this assumption 
 the critic goes on to cite with approval 
 the opinion of the author he is reviewing, 
 “ that the same excuse whereby an advocate 
 justifies himself for defeating a just cause 
 by some verbal flaw or technical objection, 
 would justify a pirate or troop of banditti; 
 and yet that is the every day practice of 
 the profession.” This latter observation goes 
 upon the assumption, that the advocate 
 knows that the cause is just. From the 
 way it is put, it may be inferred that he 
 might fairly, in the opinion of these gen- 
 tlemen, take advantage of a verbal flaw or 
 technical .objection to defeat an unjust 
 cause, and the same right may perhaps be 
 allowed him in a doubtful one ; but how the 
 lawyer, or any one else, who is not privy 
 to the facts of a cause, can, before the 
 trial, and without hearing the evidence, 
 know whether that cause is just or unjust 
 we are not told : but this subject will be 
 touched upon a little further on. 
 
 With respect to the Roman law, it were 
 to be wished that the critic had cited some 
 authority for the general form of oath, 
 which he so very dogmatically asserts was 
 required to be taken by every advocate. 
 From the manner in which it is stated, it 
 might be supposed that every advocate 
 upon his admission, and before he had a 
 cause at all, took an oath once for all by 
 way of security for his proper conduct in 
 his profession ; and that this was the 
 opinion of the critic himself is evident from 
 his remark, “ that this is continued in 
 Holland at this day.” For in that country, 
 certainly, a general oath of the kind was 
 administered to both advocates and proc- 
 tors on their admission, and this oath they 
 took once for all, though it was sometimes 
 repeated or renewed every year ; a gene- 
 ral oath of a like kind is taken by our 
 sergeants at law. (2 Ins. 213.) But there 
 can not be a greater mistake than to sup- 
 pose that such was the course of practice 
 by the Roman law. As the subject of the 
 Roman law has been mentioned, and as it 
 is one strongly illustrative of the profes- 
 sional duties and practice of the advocate, 
 
 even at the present day, it may not be out 
 of place very briefly to consider it. 
 
 The use of oaths of this kind, in the 
 practice of the Roman tribunals, was 
 introduced by Justinian — I say intro- 
 duced by him, because though a 
 similar oath was in use before, yet it was 
 taken only in certain causes, and by one 
 only of the parties ; but Justinian, by a 
 new regulation, provided that an oath 
 should be taken in all civil causes what- 
 soever, and not alone by the plaintiff, but 
 also by the defendant, and likewise by the 
 advocates on both sides. The nature of 
 these oaths is important for my purpose. 
 
 The plaintiff was obliged to swear “that 
 he had instituted his suit, not with any 
 intention or design of falsely charging, or 
 calumniating, or slandering his adversary, 
 but because he believed and thought that 
 he had a good and just cause of action.” 
 The defendant, that “ he resisted the plain- 
 tiff’s demand, not from any motives of 
 fraud or delay, but because he believed 
 that he had a good and just defence to 
 the action.” And the advocates were 
 obliged to make oath in each particular 
 cause in which they were concerned, “ that 
 they had undertaken the cause of their 
 client from pure motives ( integro animo,) 
 and that to their knowledge there was not 
 anything of falsehood or deceit in the sub- 
 ject of their advocacy ; that no effort of 
 exertion or of zeal should be wanting on 
 their parts in the cause of their client ; and 
 finally, that if they should subsequently 
 discover in it anything of falsehood or 
 iniquity, contrived of malice or wicked- 
 ness, they would immediately and alto- 
 gether abandon its advocacy and defence.” 
 An oath too was required from the several 
 judges of the different tribunals, and the 
 like from arbitrators. 
 
 Thus the duties of the advocate under 
 the empire, so far, at least, as we can dis- 
 cover them from the terms of his oath, 
 could have very little differed from those 
 of the barrister at the present day ; there 
 is nothing in the duties or practice of the 
 profession, when properly exercised, which 
 would violate in the least degree the sanc- 
 tion of that oath, supposing that such were 
 required in our administration of justice. 
 Fortunately, however, this course has not 
 been followed ; with us, the conduct of the 
 advocate is left to the control of the indivi- 
 dual, to the restraints of prudence, the 
 directions of moral feeling, the dictates of 
 conscience, the influence of religion ; sub- 
 
32 
 
 ON THE DUTIES AND LICENSE OP COUNSEL. 
 
 ject, besides, to the penalties of the law, 
 and to that infant, with which the public 
 are sure to vindicate every violation of 
 that trust and confidence reposed in his 
 honour and integrity. Where these mo- 
 tives fail, there is little ground to expect 
 that the sanction of an oath would operate; 
 as an oath is considered unnecessary in a 
 case where, from the education, rank, sta- 
 tion, or other circumstances of the party, 
 he is presumed to be placed beyond the 
 temptation to do wrong, and expected to 
 act accordingly ; so we may be certain that 
 if in such a case he falsify that expectation 
 by the wilful violation of truth, he would 
 assuredly not scruple at the crime of per- 
 jury, if the lower obligation of an oath had 
 been employed. 
 
 But to finish this subject of the oath of 
 advocates in the Roman law, on which I 
 have, I fear, dwelt too long. The law, it may 
 be observed, applied only to civil causes, 
 and by no means to trials for criminal of- 
 fences ; in these it would seem that the 
 advocate was to defend his client though 
 he believed him to be guilty ; at least so 
 I understand Cicero. “ Nec tamen ,” he 
 says in his offices, “ ut hoc fugiendum est, 
 ita habendum est religioni , nocentem ali- 
 quandoy modo ne nefarium , impiumque de- 
 fender e — vult hoc multiludo, patitur con- 
 suetudo , fert etiam liumaniias'\a ) The 
 oath too was nothing more than an asseve- 
 ration of the opinion of the party, nor 
 could he be considered as perjured, 
 though he lost his cause ; this is agree- 
 able to common sense, for from the 
 very nature of things, in every cause 
 which admits of a decision at all, one 
 party must be in the right, and the other 
 in the wrong, but which of them, it can- 
 not be known till the decision of the 
 judge ; the advocate cannot be certain of 
 the justice or injustice of his cause, be- 
 cause he knows not all the proofs ; I, of 
 course, put out of consideration, those in- 
 stances where he is, of his own know- 
 ledge, acquainted with the true merits of 
 a cause, and the falsehood and injustice of 
 the claim of the client who consults him ; 
 if he acts in such a case he is a party in 
 the crime. As to the case put of “ a 
 cause just in itself, yet by reason of a 
 strong and general prejudice against it 
 unable to find a defender,” if there be 
 any case which requires the free and 
 fearless, exercise of the profession of the 
 advocate it is one against which there is 
 
 this strong and general prejudice in the 
 minds of the public; and nothing con- 
 trasts more strongly the superior advan- 
 tages of the practice in this country, than 
 the consideration of this very circum- 
 stance, and of the “ provision” to obviate 
 the inconvenience, namely, u a discre- 
 tionary power in the Court to authorize 
 or appoint an advocate” in such cases; 
 why should a cause just in itself, but with 
 a strong and general prejudice against it, 
 be left to the mercy of any court or judge, 
 to decide whether it shall be allowed to 
 be properly prosecuted or defended ? 
 Qais custodiet ipsos custodes ? Who shall 
 answer for the prejudices of the judges 
 themselves ? Can we be certain that un- 
 der such a system, they will be invariably 
 above the vulgar influence? Shall we in 
 such case, at all times find on the bench 
 a Lord Keeper Guilford? The anecdote 
 is curious and illustrative of the present 
 point : it is given in North’s Life of Lord 
 Keeper Guilford — “ He (theLord Keeper,) 
 was never more puzzled than when a 
 popular cry was at the heels of a busi- 
 ness ; for then he had his jury to deal 
 with ; and for this reason he dreaded the 
 trying of a witch. It is seldom a poor 
 wretch is brought to trial on that ac- 
 count, but there is at the heels of her a 
 popular rage which demands little else 
 than that she should be put to death, and 
 if a judge is so clear and open as to de- 
 clare himself against the impious and 
 vulgar opinion that the devil has power, 
 &c. &c., the triers (the countrymen) cry 
 this judge hath no religion, because he 
 doth not believe witches, and to show 
 they have some, hang the poor wretches,” 
 The superstition as to witches is obsolete 
 and extinct, but still we have, and while 
 human nature is human nature, we must 
 ever have many other prejudices to deal 
 with. Our judges, it is true, might be safely 
 relied upon, as above the suspicion that they 
 could yield to the influence of such motives, 
 the honoured names which now ornament 
 and give character to the bench may in- 
 deed justly challenge all doubt upon this 
 head. But what is it which has given the 
 tone and character to our tribunals ? What 
 is it which has made our judges what they 
 are ? What is it which has rendered and 
 still keeps the administration of justice, 
 pure and unsullied ? It is the school and 
 the system in which our judges have been 
 formed and trained ; it is the publicity of 
 their proceedings, of their judgments, and 
 their reasons for those judgments, as Lord 
 
 (a) Cic. De Offic. Lib, 2, cap. 14. 
 
ON THE DUTIES AND LICENSE OF COUNSEL. 
 
 S3 
 
 Bacon says, (De Augment. Scient.lib. 8.cap. 
 3 Apr. 38), judices sententice suce rationes 
 adducant idque palom et adstante corona , 
 ut quod ipsa potestate sit liberum fama 
 tamen et existimatione sit circumscriptum ; 
 but above all it is the existence and active 
 exercise of a profession which vindicates 
 and asserts the free, bold, open, and manly 
 advocacy of the cause of any party, no 
 matter who, whose rights may come in 
 question in a court of justice. If our 
 system should be altered, our administra- 
 tion of justice would sensibly deteriorate, 
 and both the bar and the bench would 
 alike hesitate, falter, and halt in their 
 duties, “ where a popular cry was at the 
 heels of a business.” 
 
 As to the remarks in the License of 
 Counsel, &c., a pamphlet reprinted from 
 the Westminster Review, which has been 
 cited by his Grace the Archbishop of 
 Dublin in his late lecture before the Irish 
 Law Institute. Bishop Butler has re- 
 marked that “ it is not to be expected 
 that every one will consider, with such 
 attention as they are bound, even in point 
 of morality to consider, what they judge 
 and give characters of, and he complains 
 of the objections of such as can judge 
 without thinking, and of such as censure 
 without judging;’’ what the Bishop ex- 
 perienced in the opponents of his cele- 
 brated argument from Analogy, has been 
 unsparingly used against the profession of 
 the bar; we have been judged without 
 thought or consideration, censured with- 
 out reason or judgment; of this nature, 
 are the conclusion and assertion of this 
 writer, that the English bar scruple at 
 nothing in the course of their advocacy. 
 His description of barristers as indiscrimi- 
 nate defenders of “ right or wrong by the 
 indiscriminate utterance of truth or false- 
 hood ;” his monstrous allegation, “ that 
 an eminent English practitioner may 
 easily be had, who, for a guinea fee would 
 pledge his honor as a gentleman, that he 
 believed his client to be innocent when 
 he knew him to be guilty,” all this is 
 sheer misrepresentation. It is not the 
 rule nor the practice of the profession, 
 that the barrister is to pledge his con- 
 science or his honor to the truth or justice 
 of his clients case ; the rule is the very 
 contrary, the counsel is to do the utmost 
 for his client without regard to any opinion 
 he may have himself formed ; as he is 
 bound to undertake the cause without 
 inquiry whether it be good or bad, and 
 even though his opinion of it be unfavour- 
 
 able because his conclusion is not matter 
 of knowledge, but of opinion ; so he is not 
 to uphold the cause on the grounds of the 
 same matter of opinion because it happens 
 to be favourable. It is right the rule 
 should be thus strict. Lawyers, like other 
 men, are liable to prejudice and mistakes, 
 and these are not to be allowed to in- 
 terfere with the advocacy of what may be 
 a just right, though they may have been 
 sufficient to raise an unfavourable opinion 
 in the mind of the advocate. “If, (as Dr. 
 Johnson observes,) lawyers were to under- 
 take no causes till they were sure they 
 were just, a man might be precluded 
 altogether from the trial of his claim, 
 though if judicially examined it might 
 be found a very just claim ;” and if a 
 counsel were allowed to pledge his per - 
 sonal character in the way supposed, the 
 natural inference would be, that the cause 
 must be a bad one in which counsel did 
 not so act ; and in every case in which 
 such pledge were wanting there would 
 arise an impression and prejudice in the 
 judge, in the jury, and with the public, 
 that it was one in which, even upon his 
 own statement, the barrister condemned 
 the client. 
 
 The only proofs brought by this writer, 
 are the conduct of the very eminent coun- 
 sel in Courvoisier’s case, and the highly 
 impassioned, rhetorical, and exaggerated 
 statement by Lord Brougham of the duties 
 of an advocate, in one of his speeches on 
 the Queen’s trial ; and taking all these by 
 the measure of the letter, he concludes 
 that the practice of the bar is to stick at 
 nothing, provided it may serve the cause. 
 Understood in this way, there is nothing 
 that the advocate would not be justified, 
 nay bound, in point of professional duty, 
 to do — a notion quite preposterous. It is 
 forgotten that in this, as all other the like 
 cases of moral obligation, the lower duty 
 is ever subservient to the higher. As to 
 Couvoisier’s case, the counsel would not 
 abandon the defence — he was still bound 
 to see that the due forms of law, and the 
 strict rules of judicial procedure should be 
 properly observed, those minute forms and 
 cautious rules, according to which our 
 administration of justice wisely requires 
 that guilt must be established ; I say wisely 
 requires, because it is only by this strict- 
 ness and caution in the establishment of 
 guilt, that even innocence itself can be 
 
 (a) Croker’s Boswell’s Life of Johnson, 2 vol., 
 264. 
 
ON THE DUTIES AND LICENSE OP COUNSEL. 
 
 S4f 
 
 adequately protected. As to the confes- 
 sion which the prisoner made, a confes- 
 sion is not conclusive. Thus, in the civil 
 law, the confession of a party accused of a 
 capital crime, was not admitted as conclu- 
 sive of the fact confessed, as Domat (2 vol. 
 G58.) observes, other proofs are necessary 
 besides his own confession, which might be 
 the effect of melancholy or despair, or 
 from some other cause than the 
 truth ; and our own law is ex- 
 tremely cautious in receiving confessions ; 
 there are besides many instances of inno- 
 cent persons making an actual confession 
 of guilt. Such was the case of Richard 
 Collman, tried for the murder of Sarah 
 Green; (Remarkable Trials, 1 vol. p. 162; 
 Celebrated Trials, 4 vol. p. 344 ;) and the 
 case of the Frenchman mentioned by Lord 
 Clarendon, who confessed that he had 
 begun the great fire of London; so, also, 
 the cases of the trials of the witches in 
 Scotland, &c. (Sir W. Scott Demon, and 
 Witchcraft, Phill. Evid. 1 vol. 419. 8th 
 edition.) Many of these poor creatures 
 confessed the most extravagant, absurd, 
 and improbable charges. These, and the 
 like, show our weakness and fallibility, 
 even under circumstances which might 
 seem to warrant a confident conclusion. 
 In Courvoisier’s case, therefore, as the 
 counsel could not throw up his brief, he 
 was bound to observe upon the evidence, 
 if such observations were fairly called for; 
 the manner in which he did this was con- 
 demned not alone by the public but by the 
 bar. Nothing is more improper, absurd, 
 and imprudent, than an attack upon the 
 character of a witness really above suspi- 
 cion ; than a tirade of observations which 
 are not warranted by the circumstances. 
 As to the abuses in the exercise of the right 
 and the treatment of witnesses complain- 
 ed of, and cited in the Lecture of the Arch- 
 bishop of Dublin, in 2 vol. Legal Reporter, 
 a certain latitude of observation is essen- 
 tially necessary for the purposes and 
 furtherance of public justice. If the coun- 
 sel exceed his privilege, the law is open to 
 the party aggrieved. The reason and 
 extent of the privilege, and the checks 
 upon the abuse of it, may be learned from 
 the opinions of the judges in the cases of 
 Hodgson v. Scarlett , 1 B. fy At. 232; and 
 Flint v. Hike, 4 B. Cres. 478. The sum 
 of all these is, that a counsel is in the same 
 situation and under the same protection 
 as the party himself, and hath a privilege 
 to enforce anything which is informed 
 unto him by his client, and give it in evi- 
 
 proceed 
 force of 
 
 dence, it being pertinent to the matter in 
 question, and is not to examine whether it 
 be true or false. Counsel may comment 
 on the facts proved, and those which he 
 may expect will be proved. Unless our 
 state of society and our laws be changed, 
 this freedom and licence of speech must 
 be allowed. Parties cannot plead their 
 own causes, they have not the knowledge, 
 nor the habit, nor the facility required. 
 Beccaria, (De Delit. et par. sec. 7,) 
 observes, Felice quella nazione dove 
 le leggi non fossero una scienza , the 
 happiest of nations is that where the laws 
 are the fewest, (or rather,) where they 
 have not become a science ; and certainly 
 we are very far removed from that degree of* 
 happiness of which the eloquent Marquis 
 speaks ; with us, the laws, if they have not 
 attained the dignity of a science, are yet a 
 very difficult art, which it requires a great 
 deal of science to understand. But having 
 disposed of the charges and objections of 
 the author of the License of Counsel, it 
 remains to consider the observations of the 
 eminent and learned prelate already men- 
 tioned in the lecture alluded to. 
 
 It is easy to deal with general charges 
 or violent censure, but it is a different 
 matter with the objections of philosophy 
 and learning : and therefore the lecture of 
 his Grace the Archbishop of Dublin would 
 demand the most attentive and careful 
 consideration, did the time permit. As it 
 is, I can but advert to a few points, from 
 which however, I think, it will be plain 
 that the eminent prelate has, in some de- 
 gree, taken the same erronious view of our 
 profession that others have taken before 
 him. His Grace begins by citing a pas- 
 sage from his treatise on logic, see Legal 
 Reporter, 2nd volume, page 114, in which 
 the advocate is contrasted with the philo- 
 sopher and the judge, in respect of the 
 different intellectual habits of proving and 
 inferring in respect of the ascertainment of 
 truth. However this objection might have 
 held against the advocates of ancient Rome, 
 who were employed solely in the pleading 
 of causes, and gave no opinions at all; yet 
 it cannot well apply to our profession in 
 this country. Here the counsel or advo- 
 cate as frequently infers as proves. There 
 is not a case which comes before him for 
 his opinion, that he is not obliged to go 
 through a process of strict investigation, 
 deduction, and inference, before he can 
 come to a conclusion upon it, and that 
 conclusion is quite as unknown, and in the 
 same sense too as that of the philosopher, 
 
THE 
 
 LEGAL CALCULATION AND DIVISION OF TIME. 
 
 BY 
 
 MICHAEL BARRY, ESQ., PROFESSOR OF CRIMINAL LAW. 
 
 AS DELIVERED IN THE 
 
 ON THE 4th OF JUNE, 1842. 
 
 There are very few departments of pro- 
 fessional study in which a knowledge of the 
 rules that govern the legal division and 
 computation of time will not facilitate the 
 progress of the student to an extent which 
 renders the cases to be found on the subject 
 deserving of his best and most attentive 
 consideration. 
 
 “ Time,” observes Mr. Gibbons in his concise 
 and useful treatise on limitation and pre- 
 scription, “whose gradual and imperceptible 
 operation produces such mighty changes in 
 objects of nature has a corresponding effect 
 upon legal rights and liabilities. Time 
 operates in law, either to take away a right or 
 to confer one ; in the former case it is called 
 limitation, which is a period after which a 
 right having continued distinct from the 
 possession, becomes extinguished, or a wrong 
 having been suffered without seeking re- 
 dress, the remedy becomes barred — in the 
 latter it is called prescription, which is a 
 period after which a thing having been 
 possessed and enjoyed, becomes appropriated 
 and possession clothed with the right.” (a) 
 With respect to the division of time, our law 
 rejects fractions of a day more generally 
 than the civil law does. The effect of this 
 principle is to render the day a sort of un- 
 divisible point, so that any act done in the 
 compass of it, is no more referable to any 
 one than to any other portion of it ; but the 
 act and the day are said to be co-extensive, 
 and therefore the act cannot properly be 
 said to be passed until the day is passed. 
 
 [ This is, in general, a judicious rule, and 
 | tends to obviate the great uncertainty and 
 I confusion which a reckoning — a moment o 
 ad momentum , is calculated to'produce ; we 
 find, however, that this “ creature of the 
 law has not been permitted to become its 
 master and that wherever a too strict ad- 
 herence to it, would work injustice, as in 
 those cases where two or more acts have 
 been done or events have taken place, con- 
 ferring distinct right to be adjusted, the 
 law allows the fraction of a day to be con- 
 sidered ; and, indeed, for this purpose, it 
 will be observed, that there may be priority 
 of time in an instant of which Lord Coke, 
 in 1st Inst. 185, b., gives an example of 
 useful and common occurrence : — Land is 
 given to two persons in fee simple, as joint 
 tenants, either by deed in his lifetime, 
 aliening to a third person, might sever the 
 joint tenancy and turn it into a tenancy in 
 common, the legal result of which would be, 
 that upon the death of one of the co-tenants, 
 his share would not survive to the other ; 
 but if one of the joint tenants, instead of 
 aliening in his lifetime, devise his interest, 
 his devisee will take nothing, because the 
 instant he becomes entitled to take a moiety 
 by the circumstance of the death of the de- 
 visor, the surviving joint tenant has already 
 become seised of the whole estate. Here, 
 says Lord Coke, both their claims com- 
 mence at one instant, and although an in- 
 stant — “ est unum indivisible tempore quod 
 non est tempus nec pars temporis, ad quod 
 tamen partes temporis connectuntur,” and 
 that “ instans, est finis unius temporis et 
 
 (a) Gibbon’s “ Lextemporis.” 
 
38 
 
 LEGAL COMPUTATION AND DIVISION OF TIME. 
 
 prineipium alterius yet in consideration of 
 law, there is priority of time in an instant, S 
 as here the survivor is preferred before the 
 devisee ; for Littleton saith — that the cause 
 is that no devise can take effect till after the 
 death of the devisor, and by his death all 
 the land presently cometh by the law to his 
 companion, whereby it appears that Littleton 
 by these words post mortem et per. mortem , 
 though they jump at one instant, yet allow- 
 eth priority of time in the instant, which 
 be distinguisheth by per and post. And 
 the reason of this priority is, that the sur- 
 vivor claimeth by the first feoffor, (as hath 
 been said) and therefore, in judgment of 
 law, his title is paramount to the title of 
 the devisee, and consequently the devise 
 void, and the rule of law is — “ Jus accre- j 
 scendi prefertur ultima voluntatis 
 
 In Fitz william’s Case, 6th Rep. 32, the 
 question arose — whether uses might be 
 revoked, (under a power of revocation and 
 new appointment) and new ones declared 
 by the same deed ; and it was argued they 
 could not — 1st, because the revocation and 
 limitation could not be by one deed, for in 
 that three times are to be observed, “ tern- 
 pus revocandi tempus cessandi veteres itsus 
 et tempus declarandi novos usus.” 2ndly, 
 it was objected, that although ex indul- 
 gentia legis, the law in divers cases will, in 
 construction, consider two distinct times in 
 one instant, yet no case could be put, that 
 by any construction, three times might be 
 admitted in one instant. It seems to have 
 been conceded by the court, that an instant 
 cannot be trisected ; but it was decided that 
 the ancient uses in the case at bar, were 
 revoked, and the new uses well declared by 
 one and the same deed, that in judgment of 
 law there were but two events comprised 
 in the instant, namely, the ceasing of the 
 former uses, and the declaration of the 
 new ; and that the case was, consequently, 
 one in which the instant required, only to 
 be bisected, an operation for which there 
 bad been several precedents, and which was 
 not at all inconsistent with the rule of law. 
 Notwithstanding this case, it is usual in the 
 preparation of deeds containing powers of 
 revocation and new appointment to declare 
 that the donee of the powers may revoke, 
 and by the same or any other deed, appoint 
 new uses, a precaution plainly directed to 
 avoid all question and difficulty about the 
 division of time ; and in a note to Sug- 
 den’s Gilbert on Uses, p. 229, explanatory 
 of the conveyance by lease and release, (it 
 having been essential in England that the 
 
 lease or bargain, and sale for a year should 
 be actually executed) it is observed, that 
 although the lease and release were gene- 
 rally separate instruments, that they might, 
 however informal, be contained in the same 
 deed, for priority should he presumed. 
 With respect to the division of a day into 
 hours. In mercantile law, much attention 
 is paid to the particular hours of business, 
 adopted by particular classes of persons ; 
 hence, the numerous cases upon bills of 
 exchange, in which the courts have, to 
 some extent, recognized the periods of bu- 
 siness of bankers and other commercial 
 persons, with reference to the proper time 
 for the presentment of bills. Thus it may 
 be inferred from the cases of Leftley v. 
 Mills, 4th T. R. 170; Parker v. Gordon, 7 
 East. 385 ; Elford v. Teat, 1 M. & S. 28, 
 that although the court will not actually 
 take judicial notice of banking hours, the 
 holder of a bill, accepted payable at a 
 bankers impliedly, agrees to present it for 
 payment within the usual banking hours. 
 In Leftley v. Mills, Lord Kenyon laid 
 down as a general rule, without any excep- 
 tion, that when a duty is to be performed 
 within a certain time, the party has till the 
 last hour of the day to deliver himself 
 from the obligation, while Mr. Jus- 
 tice Bullen observes : — “ The usage on 
 bills of exchange is established — they are 
 payable any time on the last day of grace 
 on demand, provided that demand be made 
 within reasonable hours. A demand at a 
 very early hour of the day, at two or three 
 o’clock in the morning would be at an un- 
 reasonable hour ; but on the other hand to 
 say that the demand should be postponed 
 till midnight, would be to establish a rule 
 attended with mischievous consequences. 
 And the mercantile custom , at all events, 
 is now perfectly well established to be in 
 accordance with the opinion of Judge 
 Duller. In bankruptcy law there are 
 also instances where the law allows of a 
 fraction of a day, in cases in which a strict 
 adherence to the general rule would operate 
 unjustly. 
 
 All acts of bankruptcy relate, of course, 
 to the day on which they have been com- 
 mitted ; but in a case in which the plaintiff 
 seized the goods of a trader under an exe- 
 cution, and subsequently, but upon the same 
 day, the trader surrendered in discharge of 
 his bail in another action, and committed 
 an act of bankruptcy by lying in prison, so 
 that he was afterwards declared to have 
 been bankrupt on the day when the seizure 
 
LEGAL COMPUTATION AND DIVISION OF TIME. 
 
 39 
 
 was made. In an action for the value of 
 the goods brought by the assignees against 
 the sheriff, the court took notice of this 
 fraction of a day, and held, that as the 
 sheriff had seized before the bankrupt had 
 surrendered, the assigness were not entitled 
 to recover. Thomas v. Desanges, 2 B. and 
 Aid. 586, Exparte D’Obree , S Ves. 82, is a 
 similar instance. 
 
 The term is considered one day in law, 
 and entries of the term generally have rela- 
 tion to the first day of the term ; and this 
 rule is a subject of considerable importance 
 with reference to the time to which judg- 
 ments obtained in a particular term, relate. 
 It also becomes material when declaring 
 upon causes of action which have accrued 
 after the first day of the term in which 
 cases it, is proper to entitle the declaration 
 specially. 
 
 The assizes also are considered in law 
 as one day, which may be illustrated by 
 a point of considerable utility in prac- 
 tice. The death of a sole plaintiff before 
 final judgment, at common law, w r as an 
 abatement of the suit ; but by the statute 
 law, 7 W. 3, c. 7 — it is enacted, that in all 
 actions, real and personal, the death of either 
 party between the verdict and the judgment, 
 shall not be hereafter alleged for error, so 
 as judgment be entered within two terms 
 after such verdict. If the plaintiff or de- 
 fendant die on any day after the first day 
 of the assizes, although before the trial, yet 
 this is no abatement of the suit, as all the 
 posteas are made up as of the first day of 
 the assizes ; so also the sittings of the 
 court at Nisi Prius after term, are in esti- 
 mation of law as one day, so that if the de- 
 fendant should die after their commence- 
 ment, although before the actual day of the 
 trial, still the plaintiff may proceed and 
 take his verdict ; but the sittings of the 
 court at Nisi Prius in term, are altogether 
 different, each of the sitting days being 
 considered distinct and separate, and the 
 postea made up as of the day on which the 
 case is actually tried, so that if the defen- 
 dant should happen to die before that day, 
 the suit has abated ( b .) When, however, we 
 speak of the terms or assizes, as being con- 
 sidered one day in law, it may, perhaps, 
 with some justice be observed, that the 
 word period would be a more accurate ex- 
 pression ; and that the word day was 
 adopted by our earlier writers, not in its 
 literal or popular signification, but rather 
 
 as an illustration of their meaning, that the 
 terms or assizes, comprise in themselves, 
 distinct, separate, and defined periods, or 
 portions of time, and are, therefore, in con- 
 templation of law, as a day is, in the ordin- 
 ary and popular division of time. Having 
 thus far considered the subject of days, I 
 am furnished by the criminal law with one 
 example, at all events, of the legal meaning 
 of the word night. In order to constitute 
 the crime of burglary, the breaking and 
 entering must be both by night ; and we 
 find in Hale’s Pleas of the Crown, that for- 
 merly the night, for the purpose of bur- 
 glary, was separated from the day by the 
 setting and rising of the sun — a judicious 
 rule, as possessing greater certainty than 
 that afterwards adopted, by which it was 
 held, that if from twilight, or the reflec- 
 tion of the sun’s rays, there might be suffi- 
 cient light, whereby the countenance might 
 be reasonably discerned, and the identity 
 sworn to, it was considered day, although 
 the sun was below the horizon ; but if the 
 light was from the moon, or that of the 
 other heavenly bodies, or artificial, the of- 
 fence of burglary might be completed. All 
 uncertainty upon this point has been put an 
 end to by the 1st of the Queen, c. 86, s. 4, 
 by which it is enacted, that so far as the 
 same is essential to the offence of burglary, 
 the night shall be considered, and is thereby 
 declared to commence at 9 o’clock in the 
 evening of each day and to conclude at 6 in 
 the morning of the next succeeding day. A 
 landlord cannot distrainfor rentin the night , 
 because the tenant may tender his rent, and 
 prevent the distress ; but a distress for 
 damage feasant, may be made in the night, 
 because otherwise the beasts who have 
 committed the damage, may escape, and 
 there may be no power of detaining them. 
 Comyn. Dig\ Distress, A, 2. Respecting the 
 computation by months — The word month 
 used in a statute, means in general, a lunar 
 month, unless from the express words, or 
 from the context, it appears that a calender 
 month was intended. 
 
 It is to be observed that in statutes ap- 
 plying to matters ecclesiastical a calendar 
 month is generally understood when a 
 month is mentioned, Catesby’scase, 6 Co. 62- 
 In mercantile cases, as in the case of a bill 
 of exchange, the computation according to 
 the law of merchants is by calendar months* 
 
 In matters of contract, where months are 
 mentioned, whether lunar or calendar 
 months are meant is to be collected from 
 the intention of the parties, as it may ap- 
 
 (6) 2 Ferguson’s Prac. 
 
40 
 
 LEGAL COMPUTATION AND DIVISION OF TIME. 
 
 pear from the terms of the contract. In 
 Lang v. Gale, 1 M. and S. 117, the word 
 month was mentioned in an agreement for 
 sale, and it was held that calendar month 
 was meant. There the abstract was to be 
 delivered in a fortnight, was to be returned 
 at the end of two months, draft to be deli- 
 vered within three months, to be re-deliver- 
 ed within four months and the final con- 
 veyance and payment to be on the 24th of 
 January following. 
 
 Now the contract was on the 24th of 
 June, 5 calendar months before ; hence it 
 was a reasonable inference that the inter- 
 mediate periods of one, two, three, four, 
 meant calendar months, as the last stage 
 and period was indisputably 5 calendar 
 months. Where there is nothing which 
 particularly shews that calendar months 
 were intended in a contract, the expression 
 months would be construed as meaning 
 lunar months. 
 
 An order for a month’s time, to plead, is 
 a lunar month. 
 
 Much information respecting computation 
 of time, by months in all cases, is to be 
 found in Com. Dig. Tit. Ann. Com. Dig. 
 Tit. Temps. 
 
 With respect to the period of a year in 
 law, our law exhibits its feudal origin by 
 the number of instances in which a year 
 and a day is prescribed for the performance 
 of particular acts ; upon the attainder of a 
 felon the king is entitled to a year and a 
 day’s waste of his laws before they go to 
 the lord of a manor (where they are 
 held of a manor) by escheat. It is a 
 necessary ingredient in the crime of mur- 
 der that the party die within a year 
 and a day. The sheriff is bound to keep 
 wrecks a year and a day before they become 
 the king’s property, or that of the lord of 
 the manor ; and other instances might be 
 mentioned. In Mr. Butler’s note to Coke 
 Litt. 250 b., you will see several examples 
 of foreign feudal laws, shewing the origin 
 of this practice, and yet the term “ a year 
 and a day” imported only tbe space of a 
 complete year. 
 
 In the case of Lessee Kiely v. Quin 
 1 Craw. & Dix. 119, you will find the prin- 
 ciple which governs the time comprised in 
 a half year’s notice to quit, necessary to be 
 served by a landlord on a tenant from year 
 to year, clearly and concisely explained in 
 the judgment of Chief Baron Joy, a Judge 
 whose learning shed a lustre upon the Irish 
 bench, and to whom it is difficult to refer 
 without giving some expression to the feel- 
 
 ing of affectionate respect with which his 
 name and memory are associated, he says — 
 “ very shortly after the creation of the 
 tenancy from year to year, it was settled 
 that the party wishing to put an end to the 
 tenancy should give to the other party rea- 
 sonable notice of his intention. This rule, 
 leaving the exact time of such notice uncer- 
 tain and to be decided on the peculiar cir- 
 cumstances of each case, the courts so early 
 as the reign of Henry the 8th decided that 
 half a year was to be considered the rea- 
 sonable notice and that it should be given 
 in all cases, and so the law has ever since 
 continued. Now lord Coke states that 
 the legal half year consisted of 182 days, 
 but this is less than half the year, as the 
 year consists of 365 days and six hours, and 
 if that was to be considered as the half 
 year the tenant would lose of his term one 
 day and six hours in each year ; but as there 
 could not be an equal division of the year, 
 the law not recognising any fractions of a 
 day, landlords and tenants were permitted 
 to make a half year to suit their own pur- 
 poses ; they have done so, by dividing the 
 year by the two feast days of the annuncia- 
 tion and St. Michael, that is, the 25th of 
 March and the 29th September, and this 
 division of the year has uniformly been 
 recognized by the courts for a long time 
 back. Bracton divides the year into solar, 
 lunar, artificial, natural and usual. I think 
 the year here is to be construed “ annus 
 usualis,” and it has been decided that a 
 notice served on the 29th September, to 
 quit on the 25th March following, was a 
 sufficient notice, such being the usual half 
 year. It was argued in this case at the bar 
 that the notice to quit was instituted for 
 the benefit of the landlord, I protest against 
 that, I think it was for the benefit of the 
 tenant. Mr. Justice Buller, in Right at 
 the dem. of Darby v. Flower , 1 T. R. 163, 
 takes the distinction between six months 
 and half a year, and states that a half year’s 
 notice is necessary, that is “ the usual half 
 year.” 
 
 For an explanation of the change from 
 the old to the new style see Legal Rep. 3 1 9* 
 
 Having thus far adverted to the division 
 of time, or rather to some of the legal 
 results incident to its division into instants 
 hours, days, months, and years, it becomes 
 necessary to call your attention to a nume- 
 rous and instructive class of cases, respect- 
 ing the point whether days are to be reckon- 
 ed inclusive or exclusive. Upon this branch 
 of my subject I was compiling, with as much 
 
LEGAL COMPUTATION AND DIVISION OF TIME. 
 
 41 
 
 care as my limited reading enabled, the 
 various decisions to be found in the reports, 
 when I was favored by the kindness of a 
 learned friend with his notes of a judgment 
 not as yet published, but which was some 
 years since pronounced by an eminent and 
 learned Judge(c), in which this part of the 
 subject is fully discussed and the cases 
 reviewed with an accuracy which induced 
 me to ask permission to read a portion of 
 the manuscript upon this occasion. 
 
 After adverting to the facts of the par- 
 ticular case before him he observed : — “ I 
 find a rule laid down and acted on in several 
 cases, namely — that where time is directed 
 to be computed from an act done or event 
 happened, the day whereon the act is done, 
 or event occurs, is to be reckoned as inclu- 
 sive and as the first day of the period to be 
 computed ; in contra-distinction to the 
 computation from the day of the date (or 
 which is the same thing) the date of the 
 instrument. 
 
 I find that rule acted on in Norris v. the 
 hundred of Gastris . reported in Brown- 
 low’s reports, p. 156, but more fully in 
 Hobart, p. 139? where the action against 
 the hundred to recover damages for loss, 
 by robbery, within the hundred was given 
 by statute to the party robbed and so ag- 
 grieved, and it was not considered as a 
 penal statute. (2 Saund. 375, note 3). 
 
 The verdict was for the plaintiff, and 
 afterwards the defendant raised the point 
 that the plaintiff had not proved his action 
 to have been commenced in time, as the 
 27th Elizabeth, c. 13, provided that the 
 party robbed should take no benefit to 
 charge the hundred except he should com- 
 mence his action within one year next after 
 the robbery committed. 
 
 The court, on the general rule, held that 
 the day of the robbery was to be counted 
 inclusive , and so the action was a day too 
 late. 
 
 There was nothing there to take the 
 case out of the general rule. 
 
 It does not make that case of less autho- 
 rity that Hobart was one of the judges 
 who decided it, and had time afterwards to 
 reflect on the point, and that in the report 
 he, as it were, repeats his opinion, speaking 
 in the first person singular. “ I held it 
 that in cases that depend not on writings 
 dated, but where time is to be computed 
 from an act done, as here in case of the 
 robbery, the action was commenced too 
 late.” 
 
 <■ The Judge of the Prerogative Court. 
 
 The same general rule is recognized by 
 Lord Holt, in 1st Lord Raymond, 480, and 
 again adopted at a much later period in the 
 King and Adderly, 2 Douglas report, 438, 
 by Lord Mansfield and the court of King’s 
 Bench. 
 
 Where the question was, whether the 
 late Sheriff could be proceeded against for 
 not returning a writ, the statute having 
 provided that no Sheriff shall be called on 
 to return any writ unless he shall be requi- 
 red to do so within six months after the 
 expiration of his office, and he went out of 
 office at four o’clock in the afternoon of 
 12th February. 
 
 The first opinion of the *court was, that 
 the day of going out of office was to be ex- 
 cluded from that six months, as there could 
 be no fraction of a day, and he might be 
 called on to act in the course of that day. 
 
 But Lord Mansfield and the rest of the 
 court declared they had changed their opi- 
 nion and reviewed the cases, and said that as 
 this was a penal proceeding against the 
 Sheriff he was entitled to the most favorable 
 construction of the act. 
 
 The observation of Lord Mansfield on 
 the penal proceeding, so as to construe the 
 day to be inclusive, agrees with that of Lord 
 Chief Justice Parker in the Queenx. Greene , 
 10 Modern rep., p. 212. 
 
 The next case in point of date wffiere the 
 general rule was recognized and adopted is 
 that of Castle v. JBurditt , 3 Term reports, 
 p. 623, on motion to set aside a non-suit, as 
 the Writ of trespass against officers of the 
 revenue was by statute directed not to be 
 issued out until one calendar month next 
 after notice in writing served. 
 
 It was there contended that the day of 
 the service of the notice should be counted 
 as excluded from the month, for that the 
 intention of the statute was, that the officer 
 should have a whole month to tender 
 amends, (which, it was said,) he could not 
 have if the day of the notice was to be in- 
 clusively reckoned. 
 
 But the court held the case to be within 
 the general rule applied in computing time 
 from an act done. 
 
 The next case is in 3rd East, reports, p. 
 *408, Glassington v. Bawlins. There in 
 ascertaining the happening of an act of 
 bankruptcy by lying in prison two months 
 from the time of the trader’s first arrest, to 
 which the act of bankruptcy had relation 
 back. The question was, whether the day 
 of arrest was to be reckoned exclusively or 
 inclusively. 
 
42 
 
 LEGAL COMPUTATION AND DIVISION OF TIME. 
 
 Mr. Justice Lawrence, who had non- 
 suited the plaintiff on the ground that the 
 day of arrest was to be reckoned exclu- 
 sively, agreed with the rest of the court 
 that it should have been taken inclusively, 
 and that he should not have non-suited, and 
 in terras repeated the general rule as above 
 on which the case was decided. 
 
 As a general rule, therefore, it had then 
 the approval of at least five Chief Judges 
 and the court of King’s Bench. 
 
 Of those two cases, the King and Ad- 
 derly and Glassington and Rawlins, it is to 
 be observed that the acts or events from 
 which the time was to be computed were 
 neither of them done by or under the con- 
 trol of the person affected by the inclusive 
 calculation from the arrest or quitting office. 
 
 The converse of the rule was, that gene- 
 rally speaking when time was to be com- 
 puted from the day of the date or from the 
 date, which is the same thing, the day of 
 the date was to be counted as excluded from 
 the limited time, and both rules appear to 
 have admitted of exceptions like all other 
 general rules. 
 
 Pugh Duke of Leeds, Cowp. rep. 714, 
 is an instance of construing the day of the 
 date inclusive to validate deeds, and there 
 are several cases of exceptions to the rule of 
 inclusive computation of time. 
 
 Of these latter the leading one was in 
 the year 1810, at the Rolls in England, of 
 Lester v. Garland, 15 Vesey, 250. 
 
 That was the case of a devise (not on a 
 clause of a statute) of a residue in trust, 
 in case A. should, within six months after 
 testator’s death, give security not to marry 
 B. and not otherwise, to pay a large sum to 
 the children of A., with a devise over if 
 she neglected to do so. 
 
 A. actually did give security, but at a 
 time that made it necessary to rule the day 
 of the death to be inclusive or exclusive, 
 and the person in remainder filed his bill to 
 be decreed entitled to the money as forfeit- 
 ed, A. not having given the security in time, 
 if the day of the death was to be reckoned 
 inclusively. 
 
 It was ruled to be exclusive, and no 
 doubt, it was a just exception from the ge- 
 neral rule, as it was to save a forfeiture by 
 A.’s neglect of the benefit designed for her 
 children, and the limitation of time must 
 have been intended by the testator to secure 
 the fulfilment of his object, to prevent A. 
 intermarrying with B. ; and, therefore, it 
 was not a case for strictly narrowing the 
 period for her election, whereby the testa- 
 
 tor’s object might be defeated ; and, besides, 
 in the question of intention, the testator 
 could not well have supposed that his wiil 
 would be opened the day he died, and until 
 that was done, the contents of it would not 
 be known, nor to whom the security was to 
 be given, as his representative, if he named 
 one. 
 
 By Vesey’s Report of that case, it would 
 seem as if the Master of the Rolls had de- 
 nied the existence of the general rule. But 
 on considering that and the subsequent 
 cases, where that case is noticed, it is ra- 
 ther to be collected, that what he was con- 
 troverting, was only the universality of the 
 rule, and that he was deciding on excep- 
 tions to it as a general one. 
 
 It was not then necessary to deny it, and 
 adverting tothecase of PellewY. Warnford, 
 in 9th Barnwell and Creswell, 134, it would 
 so appear, and that the general rule was by 
 Sir William Grant, supposed to exist. 
 
 The exceptions, as I collect from the 
 subsequent cases, appear to be of this na- 
 ture. That the rule of considering the day 
 of the act or event, inclusively, is not to be 
 applied where its application is found to 
 inflict or create a penalty or forfeiture, or 
 to divest a vested right, or interest, nulli- 
 fying a deed or contract against the interest 
 of parties, or where it is fairly to be col- 
 lected by the statute or instrument con- 
 taining the limitation, that the intent mili- 
 tates against the inclusive computation ; so 
 in Exparte Fallon 5, Term Reports, 283, 
 including the day of execution of the 
 annuity deeds, in the twenty days prescribed 
 by the statute for their enrollment within 
 twenty days after execution, would have 
 divested the rights of the parties vested by 
 their solemn deeds. 
 
 And, besides the limitation, was merely 
 of so many days for enrollment, (not a month 
 or year), and that was laid hold of as 
 showing the intent of the act — for, says 
 Lord Kenyon, suppose the enrollment was 
 required to be within one day after, the 
 act could not have meant that the execution 
 and enrollment must be on the same day, 
 and even on Sunday. 
 
 So the time limited being to be computed 
 by days, accounts for the nonapplication of 
 the rule in Pelew v. Warnford, and other 
 cases. 
 
 The case of Bowling and Foxall, in 
 ! Ball and Beatty, vol. i. p. 193, on the limi- 
 tation for redemption within six months 
 after execution executed in ejectment for 
 nonpayment of rent, created by the tenan- 
 
LEGAL COMPUTATION AND DIVISION OF TIME. 
 
 43 
 
 try act, the construing the day of execution 
 to be included in the six months, would 
 have caused a forfeiture of the lease, and 
 divested a right ; and Lord Manners, ex- 
 pressly decided the construction of the act 
 on that ground. 
 
 I know but one case on the subject, in 
 the reports of the ecclesiastical courts, and 
 that is exparte, and unopposed, viz., in the 
 goods of Sir Robert Wilmot, in Curtis’ Re- 
 ports, p. 1 . Sir Robert appointed Lord 
 Kenmare, and four others, executors, with 
 this proviso, that he directed and declared, 
 that in case any one or more of them should 
 be absent from Great Britain, at the time 
 of his death, and continue absent therefrom 
 three months next after his decease ; or if 
 any one or more of them, “ shall not prove 
 my will within three calendar months next 
 after my decease, the appointment of him 
 or them shall be void, and is hereby re- 
 voked.” Two of the executors proved, and 
 a reservation was made in the grant of the 
 power of making a like grant to the others, 
 if applying within three calendar months 
 after the decease ; one other afterwards ap- 
 plied to be joined, and had been sworn, but 
 the officer doubted whether the day of the 
 death should be included in the three 
 months or not, and the point was suffered 
 to pass on, Lester v. Garland being re- 
 ferred to. 
 
 There the inclusive computation would 
 have forfeited and revoked the office of ex- 
 ecutor, and there was no clause to substi- 
 tute others ; and the object of the testator 
 by this condition, subsequent, must have 
 been to secure the speedy services of the 
 persons named as executors. 
 
 That case of Lester v. Garland has not 
 been admitted in subsequent cases, as saying 
 that there is no just general rule, or so set- 
 tling the law as to which, it is sufficient to 
 refer to Clarke v. Devey , 4 B. Moore, 465, 
 and Rex v. Justices of Cumberland , 178, 
 amongst other cases. 
 
 On the contrary, it appears by the report 
 of Ex parte Farquher in re Sharkey 
 Mont, fy M‘A., p. 7, decided sixteen years 
 afterwards in Chancery, that the general 
 rule of computation was then fully recog- 
 nized and acted on. 
 
 The question distinctly arose in bank- 
 ruptcy, whether was the day after the 
 arrest of the trader, who afterwards lay in 
 prison, to be reckoned inclusively or exclu- 
 sively in computing the two months, and a 
 regular argument on the point by eminent 
 counsel at each side, took place. 
 
 Sir John Leach, the Vice-Chancellor, de- 
 cided according to the general rule, that 
 the day of arrest was to be counted inclu- 
 sively, It was appealed from to the Chan- 
 cellor, Lord Eldon, who affirmed Sir John 
 Leach’s decision, and expressly laid down 
 in terms, the general rule where the com- 
 putation of time was to be from an act done 
 without the qualification attempted to be 
 introduced by the counsel in Lester v. Gar- 
 land , that the act must appear to have been 
 done by the litigant party. 
 
 Had the rule been considered in West- 
 minster-hall, to have been so repudiated by 
 Sir William Grant, it is not likely that 
 such an able lawyer as Sir Edward Sudgen 
 and his brother counsel would have con- 
 tended for it in the above case. 
 
 This general rule was applied by the 
 ancient common law in the computation of 
 time in the case of continual claim, where,, 
 if B was seized of land of which A had a 
 right of entry, still if B died seized of it, 
 leaving a son, taking by descent A’s right' of 
 entry was then gone, unless he had made 
 his formal claim to the land within a year 
 and a day before B died seized. 
 
 The day of the claim, if made, was al- 
 ways reckoned inclusively. Co. Litt. 255. 
 And yet, though A it was who made the 
 claim, and of course, knew where he made 
 it, he could not possibly be supposed to 
 know when the year and day from the claim 
 would end and expire from the death of B 
 which was afterwards to happen. The most 
 reasonable explanation for the common law, 
 having in so many instances assigned a year 
 and a day in period of time, seems to me to 
 have been to simplify the period, as begin- 
 ning on a certain day in one year, and end- 
 ing on the corresponding day in the next, 
 which would be the case, reckoning the 
 day of the act as inclusive. 
 
 I apprehend that I have already exceeded 
 the limits within which I could hope to oc- 
 cupy your attention, while it has, no doubt, 
 occurred to many that I have overlooked or 
 omitted several of the most interesting and 
 important topics connected with the subject. 
 The learning of the law of prescription and 
 limitation, comprises too extensive a part of 
 the law of property, real and personal, to 
 be compressed within the space of a lecture, 
 in which but an unsatisfactory outline is 
 given even of those portions of the subject 
 upon which I liave attempted to dwell, and 
 in excuse for which, I may be permitted, in 
 conclusion, to observe, that we do not upon 
 those occasions, as has been hastily, if not 
 
44 
 
 LEGAL COMPUTATION AND DIVISION OF TIME. 
 
 unfairly attributed to us, arrogate to our- 
 selves the power of enabling the student in 
 any degree to dispense with the closer read- 
 ing and application so essential to his pro- 
 gress in the knowledge of the law, or profess 
 to do more than to awaken and direct his 
 
 attention to useful subjects of study, in 
 which the more candid and impartial obser- 
 ver will do us the justice to admit, that 
 though we may not be able to gratify it 
 may be of use to excite and stimulate his 
 curiosity. 
 
ON THE RECORDS OF IRELAND, 
 
 AND 
 
 THEIR APPLICATION TO PROFESSIONAL PURPOSES. 
 
 BY 
 
 THOMAS JOHN BEASLEY, ESQ., A.M., SOLICITOR. 
 
 AS DELIVERED IN THE 
 
 ptail ®f of IPtMto Hal® ffiragttoitei, 
 
 ON THE 28th OF JUNE, 1842. 
 
 The records of a country are interesting to 
 its inhabitants, as they conduce to their his- 
 torical pride in the recollections of their 
 ancient times, and afford a pleasing and 
 entertaining comparison with the present ; 
 they revive that spirit of enquiry and re- 
 search useful to the individual and enlight- 
 ening to the community, and as their end is 
 to record those bye-gone times of either 
 glory or oppression, or of pleasure or pain, 
 which form (if I may say) a distinct epoch 
 in the history of our country, so must their 
 acquaintance and developments animate the 
 mind to admire what is therein illustrious 
 and worthy of imitation, and, on the con- 
 trary, to discard the deformity of prejudice 
 and the tyranny of ignorance. 
 
 Unfortunately an enquiry into the records 
 of this country has not usually been pursued 
 for practical purposes and is not considered 
 sufficiently a part of the lawyer’s education, 
 and were we to compare the progress of 
 historical publications in France with our 
 country here, during the last twenty or 
 thirty years, we should have perhaps little 
 ground for self congratulation. France, 
 indeed, is giving to the world her early 
 publications, emulating with chivalrous 
 ardour to preserve from the rude hand of 
 time her ancient records, the muniments of 
 her early civilization, her progress from 
 darkness to light, from infancy to manhood. 
 It is thus we see, in perspective, the former 
 habits and customs of nations, view their 
 rise and fall, their gradual improvement or 
 decay, and, tracing the records of their ac- 
 tions, either admire their wisdom, or con- 
 demn their folly ; virtue will appear there 
 recorded in her primitive character, or vice 
 
 in her crooked devices, and the origin of 
 ancient establishments will shew us how 
 society existed in former ages, and those 
 epochs which form the basis of its history. 
 
 Few (I regret) pursue a search into our 
 records for professional purposes, or carry 
 it farther than certain limits ; in Ireland, 
 perhaps, this may be accounted for by the 
 act of settlement of 1660, and which after 
 the disasters and turmoil of previous revo- 
 lution, came then as a boon to this stricken 
 country and settled Irish property, and 
 whatever previous political causes led to 
 it, it may be well considered the Magna 
 Charta. of Ireland, hence it may seldom be 
 necessary to go beyond this data ; but when 
 we consider that some knowledge of the 
 records of Irish property will always be 
 necessary and useful to the professional 
 man, in tracing titles in the various shift- 
 ings and transfers of landed property in 
 this country, from family to family and 
 from time to time ; their original grants, 
 descents, and various branchings from each 
 other, and which may each day come under 
 his care and require his minute investiga- 
 tion : so shall we justly acknowledge that 
 at least some portion of our time is not mis- 
 placed or thrown away in such pursuits, 
 which arm us with an information so often 
 required in our professional career, and 
 without which we may be often embarrass- 
 ed in our enquiry and led astray, from a 
 want of knowledge of the records of the 
 country whose property we seek to trace 
 and whose title we seek to confirm in its 
 lawful owner ; here tedious and prolonged 
 searches may be prevented and light thrown 
 on our course otherwise complicated and 
 
46 
 
 RECORDS OF 
 
 RELAND. 
 
 darksome, for the traveller cannot find the 
 way where he knows not the localities, nor 
 the seaman understand his course without 
 the chart. Chronology will here assist us, 
 aud a readiness where to seek the deed or 
 muniment, record or grant, wanting, amply 
 compensate for previous labor. 
 
 I shall, therefore, trouble you as shortly 
 as possible, whilst I give you my humble opi- 
 nion on this part of the student’s education, 
 and practically illustrate the use of such a 
 knowledge, and though I may be tiresome 
 or prolix you will, at least, give me the 
 merit of drawing your attention to a sub- 
 ject of much practical use as well as of very 
 fruitful enquiry. 
 
 A record is derived from the Latin word 
 “ recordor” to keep in mind, defined -by 
 Lord Coke to be “ monumenta quae nos 
 recorda vo camus sunt veritates et vetustatis 
 vestigia,” or, in other words, “ a monument 
 or memorial of so high a nature as it im- 
 porteth in itself such an absolute verity, as 
 if it be ple aded there is no such record, 
 it shall not receive trial by witness, jury, or 
 otherwise,” but by itself ; for in evidence 
 before a jury the COPY of a record will 
 be sufficient proof of its existence and con- 
 tents (Inst. 118, A). The habit of record- 
 ing was very early in Ireland, and histo- 
 rians in general seem to agree that at an 
 early period a body of laws was in this 
 kingdom, that they grew up to maturity 
 from a very weak state at first ; it has been 
 said, by high authority, that the ancient 
 Dane as well as the Saxon had the use of 
 letters from Ireland, but leaving this con- 
 jecture to others, writers are all agreed 
 that Ireland in her early ages was the foun- 
 tain of learning to which the wastern na- 
 tions had recourse, not only for gaining 
 right instructions in the principles of reli- 
 gion, but for the cultivation of reading and 
 scholastic learning ; the Irish Academies 
 were then numerous and her schools full of 
 all nations ; for this we have the authority, 
 amongst others,- of the venerable Bede in 
 his ecclesiastical history (book 3, c. 7 and 
 27), and our historians report highly of the 
 care taken by the ancient Irish and the 
 government of their records, if it be 
 true, no kingdom ought to outdo Ireland in 
 the antiquity or certainty of her histories 
 and records ; for we are told that even pre- 
 vious to the Christian era the Irish rulers 
 ordained periodical assemblies to be holden 
 for the purpose of inspecting and regulating 
 all their monuments of antiquity, genealo- 
 gies and chronicles, and whatever they 
 
 approved of as genuine was ordered to be 
 inserted and enrolled for the benefit of pos- 
 terity ; some of these venerable remains of 
 antiquity are still to be seen preserved in 
 Trinity College, and I may state here that 
 there are a number of early Irish legal 
 records in the archieves of this College, 
 and which we possess through the pa- 
 triotism and instrumentality of our distin- 
 guished countryman Edmond Burke. 
 The learned heads of our “ Alma Mater” 
 would confer a great boon on this country, 
 and upon learning in general, by giving the 
 contents of these ancient records to the 
 public ; may we hope such may be the case, 
 and that these learned men, emulating e ach 
 other in the spirit of enquiry, will bring to 
 light what is now lying uninstructive to 
 any, opened but by few, and lost for public 
 and useful purposes. 
 
 The Brehon institutes are the first re- 
 cords of law in this country, and may well 
 be said to have been the elements of its 
 original government ; these, like the Justi- 
 nian laws, were the compilation of several 
 learned individuals, and at an early period 
 were collated into one great body of juris- 
 prudence and are still extant. The Brehons 
 were those judges who modelled these laws 
 by which our early provincial kings deter- 
 mined all controversies brought before 
 them, several public specimens of these are 
 still to be seen in our public libraries, Trinity 
 College, the Bodleian, and the British Mu- 
 seum. The Brehons were the acknowledged 
 judges of the Irish law, and a distinct fami- 
 ly or tribe , to each of them was allotted an 
 estate of inheritance, and in criminal cases 
 the Brehon had the eleventh part of all 
 fines ; but when the laws of England were 
 introduced into Ireland in the twelfth cen- 
 tury, by king John, son of Henry II. (a), 
 the Brehon law seems to have somewhat 
 abated, as afterwards the statute of Kil- 
 kenny (the 40th Edward III., but not now 
 to be found amongst the public records of 
 this kingdom,) prohibited English subjects 
 from submitting to trial by Brehon law ; 
 notwithstanding which many were obliged 
 to do so, until the whole kingdom by James 
 I. was settled down on English constitution, 
 who abolished many of the old laws and 
 customs, and amongst others gavelkind 
 descent of lands. It may be here curious 
 to remark that previous to the reign of 
 James the I. the Brehon law was in full 
 force in many parts of Ireland. 
 
 The most ancient record in Ireland after 
 («) About 1212. 
 
RECORDS OF IRELAND. 
 
 47 
 
 the settlement of the English, under Henry 
 II, should be the “ modus tenendi parlia- 
 mentum,” or the order of holding the par- 
 liament ; Lord Coke frequently refers to 
 this, as most undoubtedly a genuine piece 
 of antiquity, and mentions that Henry II., 
 after the invasion of Ireland, sent this modus 
 there (Inst. 110 A.) ; yet by others West- 
 minster the 1st is said to be the most an- 
 cient record in which the word “parliament” 
 is used, though from a passage in the sta- 
 tute of Edward II. mentioning parliaments 
 in the time of that king’s progenitors, it is 
 inferred the word had been adopted several 
 reigns before (see Lombard Archeon cap. 
 parliament &c.); others will have it that this 
 word was never applied to denote the great 
 council of the nation in any of the ancient 
 records or writings prior to the reign of 
 Henry the III. (see Prynne on 4th inst., 2) ; 
 contrary opinions, I am aware, have been 
 expressed and go to this extent, that we 
 have proofs of parliaments being held in 
 Ireland at a very remote . period, anterior 
 to the English invasion, and that such 
 assemblies were held we have the authority 
 of the learned primate Usher; and Mr. 
 Molyneaux also adduces some valuable do- 
 cuments connected with the history of the 
 Irish legislature, while endeavouring with 
 considerable talent to establish the para- 
 mount authority of his native parliament. 
 Certainly there are several recitals in early 
 statutes, parliamentary declarations and 
 other records, fully supporting this asser- 
 tion, and proving that some time in or about 
 the year 1189, being the period at which 
 legal memory is held to commence in Ire- 
 land, parliaments and great councils were 
 held and known in that country ; however, 
 this being a “ vexata questio” it is not neces- 
 sary to enter further into it here. 
 
 So far have I deemed it material to go 
 into our very early periods of Irish history, 
 with a view to shew you how necessary it 
 was thought to preserve and complete Irish 
 records and hand them down unimpaired 
 to posterity ; a work, not only illustrious in 
 its attempt, but useful in its consequences, 
 how little of this was attended to by our 
 predecessors of the later ages in Ireland I 
 need scarcely inform you, for few, compa- 
 ratively, of these early records exist ; they 
 were defaced by time or accident, and lost 
 through^he neglect of their keepers, and 
 so much in the dark are we of their con- 
 tents that many persons will not even now 
 credit that Ireland in the aggregate of her 
 early population was more learned and 
 
 highly informed than Ireland in more recent 
 periods. 
 
 To those persons fond of Irish history, 
 its early legends and the history of its lite- 
 rature, I would refer them to Mr. Moore? s 
 history of Ireland, a work not only of 
 labor but of extensive research, and worthy 
 all the fervour of that beautiful and distin- 
 guished writer, whose genius has been so 
 employed to delight and amuse us, and 
 whose harp has immortalized the music of 
 our country. 
 
 The insecure way in which the Irish 
 records were kept, easily accounts for the 
 loss of almost all our early records, which 
 would have thrown so much light on our 
 people and country, as formerly there were 
 no public buildings for their safe keeping, 
 nor sufficient care taken in their preserva- 
 tion, for how is it we find so many public 
 documents and records in the private libra- 
 ries of English noblemen and gentry of both 
 countries, while almost every country in 
 Europe abound with Irish documents illus- 
 trating their scattered state and grievous 
 spoliation. No doubt we find in early 
 reigns (such as of Edward III. and Richard 
 II.) several entries grace the records and 
 to the following effect “ De recordis et pro- 
 cessibus in Hibernia supervidendis et 
 examinandis et corrigendis,” and in the 
 35th Henry VIII. we have the King’s 
 own letter directed to the deputy and 
 council, containing various notifications 
 and mandates, and amongst those the fol- 
 lowing: “ We have by sundry means per- 
 ceived that our records in Ireland have not 
 been so well kept and preserved as apper- 
 tained, whereof hath ensued divers incon- 
 veniencies ; our pleasure is that you, our 
 deputy, take order that no man be suffered 
 to take away any of the same where they 
 be kept,, nor to search for them, but in the 
 presence of our trusty clerks, with such 
 further direction for the safe keeping of 
 them as to your wisdom shall be thought 
 convenient still the many burnings that 
 took place from time to time, and the care- 
 less mode of receiving and preserving 
 them, accounts for their loss and the 
 many chasms in our present collection. 
 Considering the means which for a long 
 time the records had been circumstanced 
 and the neglect which at several periods 
 they have experienced, it is less surprising 
 that so many have been lost or spoliated 
 and that such a number of them as remain 
 should have been so well preserved; yet it 
 is a matter of satisfaction that so many va- 
 
48 
 
 RECORDS OF IRELAND. 
 
 luable documents relating to Ireland, and 
 particularly state papers, are to be found in 
 different repositories in England, as for 
 instance the State Paper Office, the Tower, 
 Rolls Chapel, British Museum, the Lam- 
 beth and Bodleian Libraries. 
 
 The original design of procuring reposi- 
 tories for the public records of this country 
 may be traced to the periods when the Earl 
 of Strafford was Lord Deputy, in Charles 
 the I. time (vide Lord Strafford’s letters, 
 vol. 1st, page 527), where in one of his 
 letters to the Secretary of State, in 1635, 
 he complains that “ there is not a place set 
 apart for these purposes and the want of 
 treasuries for his Majesty’s records hath 
 been of mighty hindrance to the king and 
 subject, wherein many records that might 
 be of public profit and service to his Ma- 
 jesty and of security and advantage to the 
 subject, have been, for want of this, lost or 
 embezzled and sometime burnt. The 
 offices (as he adds) being then kept as most 
 records were, in the officer’s house, to the 
 extreme prejudice of his Majesty and his 
 subjects in their several interests.” It was 
 in consequence of this representation that 
 some buildings were erected for the Rolls 
 Office, as we find the Rolls office sub- 
 sisting in 1760, as Mr. Lodge states 
 in his list of patent offices (MS. vol. 1,) in 
 a crazy condition, though much better for 
 many years past, being repaired at a great 
 expense by Mr. Rigby, Master of the Rolls, 
 So well aware of these evils was the Irish 
 House of Lords, that in 1739 a committee 
 gave their opinion in these words, “ that 
 the public records which concern the pro- 
 perty of the whole kingdom were liable to 
 be distrained for rent, and that upon the 
 death of the officers they must for a time 
 be in the power of their representatives, 
 who, should they prove corrupt or negligent 
 might in a few hours destroy multitudes of 
 them. 
 
 It appeared that at that time the King’s 
 Bench Office was kept in Schoolhouse 
 lane, the narrowest street in Dublin, the 
 Prothonotary of the Common Pleas in 
 Wine Tavern-street, keeper of the Writs 
 in Bride-street, the Pleas Office of the 
 Exchequer in Castle-street, and the Chief 
 Remembrancer’s Office in Kennedy’s lane, 
 not one (with a few exceptions) being in 
 safe or commodious situations, (vide Lord’s 
 Journal, vol. 3, page 452). So much for the 
 state of things in those days. 
 
 In England the habit of enrolling the 
 records commenced about 1151, the 12th 
 
 century, reign of Henry II., the first of 
 Plantaganets, (although we find no reposi- 
 tory for the public records until the reign 
 of Edward I., justly styled the English 
 Justinian), no doubt earlier records exist in 
 England than this, such is the celebrated 
 doomsday book of William the conqueror, 
 the most ancient in the kingdom, and which 
 is to be seen in full preservation in the 
 Chapter House, Westminster, with other 
 records anterior to Henry II. ; yet, save 
 these, none of such exist, but some rare 
 specimens in the cabinets of the curious. 
 It should be observed, however, that the 
 records of the legislature, until the reign of 
 Edward I., were exceedingly irregular 
 and generally defective in point of form ; 
 they are sometimes penned so as to appear 
 to come from the king alone, sometimes as 
 issued jointly by king and the lords, and 
 sometimes the assent of the commons is and 
 sometimes it is not expressed ; sometimes 
 the authority for passing the acts is men- 
 tioned, and sometimes the acts are in the 
 forms of charters ; the first summons of the 
 knights of shires to parliament, extant on 
 record, is in the 49th of Henry III.; the 
 first regular summons directed to the sheriff 
 for the election of citizens and burgesses is 
 in 23rd of Edward I. ; in that reign the 
 proceedings of the legislature assumed a 
 more regular form, but far removed from 
 that in which they appear at present ; the 
 consent of the commons to the levying of 
 taxes for the king gave them great weight ; 
 they took advantage of this circumstance to 
 obtain a remedy of the grievances they had 
 to complain of, and in the reign of Edward 
 III. the mode of presenting their petitions 
 and of receiving their answers was regular- 
 ly practised ; if the petition, and answer to 
 it, were of such a nature as to require an 
 express and new provision to be made for 
 it, the king, with the assistance of his coun- 
 ’ cil and the judges, framed from such petition 
 andanswer, anact, which was usually entered 
 on the statute roll, but if an express and 
 new provision were not required, the peti- 
 ! tion itself and the king’s answer to it were 
 ! entered on the parliament roll, and then 
 usually styled an “ ordinance alterations 
 and improvements gradually took place ; 
 but it was not until the reign of Henry VI. 
 that the petitions of the commons were 
 reduced in the first instance into the body 
 of the bill, this is now generally adopted as 
 we usually see. 
 
 In Ireland, as I have stated, the habit of 
 recording was extremely early and associa- 
 
RECORDS OF IRELAND. 
 
 49 
 
 ted in some way with the national pride of 
 the country ; the first time that it was pos- 
 sible to ascertain what records the public 
 repositories of Ireland then contained was 
 made so late as 1811, in the 50th of George 
 III. ; for though as early as Edward VI. 
 the Irish parliament directed its attention 
 to the records of this country, and repeat- 
 edly evinced their opinion of the impor- 
 tance of the subject, yet appear to have 
 principally confined their exertions to pro- 
 viding buildings for their safe keeping, but 
 to have taken no steps towards affording 
 information or facilitating enquiries into 
 the contents of these records, and although 
 both houses of the Irish parliament in two in- 
 stances, in the years 1721 and 1791, called 
 for such returns, yet the statements given, 
 pursuant to their orders, were scanty com- 
 pared with those delivered under a later com- 
 mission; while on this subject, it appears to 
 me a matter of deep regret that this com- 
 mission in Ireland, so ably conducted and 
 so laboriously pursued, was stopped short 
 in the midst of its labours by the orders of 
 government and is now incomplete and 
 unfinished ; still, strange to say, the Eng- 
 lish commission is even to this day proceed- 
 ing ; and how is it (may I ask) that the 
 same excuse of economy, for closing the 
 record commission in Ireland, has not been 
 applied to close the record commission of 
 England. 
 
 In Ireland there are three great general 
 repositories for our records, these records 
 affect our titles considerably, and from us 
 deserve much consideration ; the first is 
 the Birmingham Tower (one of the oldest 
 repositories) ; the second, the Parliamen- 
 tary Record Office ; and the third, the 
 Registry for deeds, wills, and other con- 
 veyances. The Birmingham Tower con- 
 tains various records, but those of any 
 general use to us in this enquiry are the 
 ancient legal records of this kingdom, and 
 contain considerable information respecting 
 the laws, history and antiquities of this 
 country, from 1220 to more recent periods, 
 beginning as far back as the reign of Henry 
 III. ; patents and grants will be found here, 
 and Mr. Lodge’s index affords much facility 
 to the enquiry ; however, patents and grants 
 of landed property are not generally sought 
 for in this office ; the legal records consist 
 of the rolls, of the pleas hoi den before the 
 judges and justices in Eyre, from the reign 
 of Henry III. to Elizabeth, that is the dif- 
 ferent subjects of legal complaint between 
 individuals in Ireland during that period. 
 
 There is another species of record, not 
 strictly legal, that is not appertaining di - 
 rectly to the laws of the country, these are 
 the rolls of the pipe, and which mean rolls 
 in the exchequer, containing returns of the 
 king’s rents, fines, and other dues to the 
 crown ; these run from the 13th Henry III. 
 up to the 3rd of George II. ; the next lot 
 is miscellaneous, which contain, amongst 
 others, rolls of old recognizances, inquisi- 
 tions on attainder, and ancient orders of the 
 court of exchequer. The contents of these 
 records will be useful to the professional 
 man in traciag remote titles, such as precede 
 the act of settlement, which, as I before 
 observed, may be called the great charter 
 of Ireland. The plea rolls are also essen- 
 tial in tracing the progress and gradual 
 development of the Anglo-Norman juris- 
 prudence in this country, and often useful 
 when we are tracing descents of ancient 
 families and titles of honor ; the nature of 
 the contents of this department may often 
 elicit matters incidental to professional re- 
 search ; during the progress of the recent 
 investigation into the records of this coun- 
 try, it was the anxious wish of the learned 
 and laborious men engaged in it to throw 
 every light on the legal history of this coun- 
 try, hence they principally directed their 
 attention to the discovery of the more 
 ancient records than had been hitherto 
 known here, and particularly in order to 
 ascertain if any were extant of the reign of 
 Henry II. or king John, but after minute 
 investigation they could find no public 
 record anterior to the reign of Henry III. 
 
 By an order of government, in 1811, this 
 ancient keep was stripped of its contents 
 and removed to the Record Tower in the 
 Lower Castle Yard where they now are. 
 
 The next repository is the Parliamentary 
 Record Office, in the Record Tower ; it 
 contains all the records, documents and 
 papers belonging to or connected with the 
 parliament of Ireland, (lords and commons), 
 from the beginning of the 17th century 
 (1634) up to the act of the union (1800). 
 These voluminous documents, previous to 
 the union, were kept in various offices 
 attached to the Irish houses of parliament, 
 and subsequently were removed to the 
 Record Tower to which I have just now 
 alluded. From the view which I have cur- 
 sorily taken of these records, they appear 
 to me to be admirably arranged, so that 
 their contents are easily come at ; here are 
 preserved the original statute rolls of the 
 Irish parliament, claims to peerages, peti- 
 
RECORDS OF IRELAND. 
 
 50 
 
 tions to parliament from public bodies and 
 individuals, for the two last centuries of 
 the existence of the Irish parliament, reports 
 from committees of both houses, corporation 
 documents from 1699 to 1800, and nume- 
 rous other documents relating to claims of 
 persons arising out of the troubles of 1798, 
 the whole preserved and classified, and 
 forming a useful body of documentary evi- 
 dence. We have also here the original 
 journals of the Irish lords and commons, 
 bills and heads of bills (public and private) 
 as well those passed as those rejected, the 
 latter is only to be found here, evidence 
 taken before the various committees of the 
 houses, petitions and reports of various 
 kinds. We have also important papers 
 relating to the Irish peerage and the ac- 
 counts presented to parliament from Irish 
 public establishments, addresses and an- 
 swers to the king, appeals before the house 
 of lords, writs of error, and other law 
 parliamentary proceedings, containing every 
 case of importance tried in Ireland , also 
 newspapers during the 1 8th century, often 
 an important evidence of births, deaths 
 and marriages, peculiarly valuable in Ire- 
 land where so little attention has been un- 
 fortunately paid to such registration, and 
 which so loudly calls for parliamentary 
 regulation, the multifarious and numerous 
 contents of this department prevent me 
 entering more fully into detail, suffice to 
 say, the whole is well arranged and easily 
 accessible ; from, the admirable index of the 
 late commissioners the professional man will 
 here find many documents throwing a light 
 upon his ease, or connecting more strongly 
 the links of his title, often required to be 
 supported by such evidence, and adduced 
 from such enquiries. 
 
 The next general repository, and perhaps 
 most useful in Ireland, is the registry for 
 deeds, wills, and other conveyances. 
 
 The inrolment and registry of deeds and 
 wills to perpetuate the acts of individuals 
 and the evidence of titles, and render noto- 
 rious all transfers and encumbrances on 
 landed property, was practised several cen- 
 turies ago both in Great Britain and other 
 parts of Europe ; most likely the term 
 registry ( registrie ) came from the French 
 registry, that is liber , librarium , and that 
 they were the first originators of a system 
 of registration (Cowell’s interpreter signi- 
 fication of words, 1658). No doubt amongst 
 the Saxons it was amancient custom to trans- 
 act all conveyances at the county court and 
 enter a memorial of them in the chartularv 
 
 or ledger-book of some adjacent monastery, 
 and in England Richard I. projected a ge- 
 neral register for the Jewish mortgages, of 
 which Mr. Hovenden has preserved a copy, 
 but this failed in its intent, and was not 
 received into general use (Blackstone Com., 
 2d vol., p. 342, 1 9 ed.) The great magna 
 charta of John, the famous bulwark of Bri- 
 tish freedom, was in this way registered, 
 copies being ordered to be sent to all the 
 great monasteries for preservation and pub- 
 licity. 
 
 The French early shewed a rigid adhe- 
 rence to their laws respecting registration, 
 for by the laws of that kingdom, as early 
 as the 16th century particularly, an ordi- 
 nance of Henry II., 1553, it was ordered 
 that all wills and deeds containing entails 
 ( substitutions ) of estates should be regis- 
 tered within a particular period of time, 
 and if they were not registered within that 
 time the court seemed to have doubted whe- 
 ther they were binding even on the parties 
 in whose favour these entails were made, 
 but it was laid down they were of no force 
 against creditors or purchasers. 
 
 The several points of the French law on 
 this head being unsettled, were reduced 
 at length into one law by the celebrated 
 ordinance^of August 1747, framed by Chan- 
 cellor D’Aguessau, which lays it down as 
 a fixed principle of French law (Coke Inst. 
 2d, vol. 290, b. XIII), that nothing, even the 
 most actual and direct notice countervails 
 the want of registration, and even a person 
 witness, or party to a deed, still if it be not 
 registered he may safely purchase the pro- 
 perty conveyed or entailed, or lend money 
 upon a mortgage of it ; the present French 
 laws hold registration in as great strictness 
 as their ancestral, for we find in the code 
 Napoleon the articles 1069 and 1070, have 
 received the same principle into them in all 
 its original strictness (code civil Napoleon, 
 Liv, 1069, et seq.), and the 1071 article 
 says the want of transcription on the regis- 
 ter cannot be supplied or excused by any 
 notice or knowledge which creditors or 
 subsequent purchasers may have had of the 
 disposition of the property by other means 
 than registry ; the 1072 article is still more 
 strict, for it excludes all donees, legatees, 
 or even the lawful heirs of him who makes 
 a will if neglected to be registered ( defaut 
 de transcription ou inscription) ; neither 
 can those persons enforce their title against 
 the persons entitled to the property in de- 
 fault of registry. 
 
RECORDS OF IRELAND. 
 
 51 
 
 In Scotland every act regarding the 
 transfer of property is regularly registered 
 and recorded (2 Dalrymple on feudal pro- 
 perty 262). 
 
 In England there are but two registries, 
 that of York and Middlesex ; these alone 
 have public registries ; the question of a 
 general public registry has been much de- 
 bated in England ; a high authority (b) has 
 urged many objections against it, and on no 
 slight grounds, yet still it is an open ques- 
 tion. 
 
 In England the registry began with the 
 2d and 3d of Anne, cap. 4. ; most likely 
 these acts were produced by the able 
 pamphlet of Sir Matthew Hale. 
 
 These produced our Irish registry acts, 
 which commenced with the reign of Anne, 
 March 1703. At first the novelty of the 
 plan, like all such things, was slowly taken, 
 and the number of registries or memorials 
 comparatively small, but its general utility 
 and the growing prosperity of the country 
 encreased the number with progressive ra- 
 pidity, which have continued accumulating 
 every year ; so that now the professional 
 man registers every deed and instrument 
 confided to his care and executed in this 
 country, and indeed we every day receive 
 memorials and deeds executed in England 
 charging Irish property to be registered 
 here in the usual way. 
 
 The registry office in this country, on its 
 first establishment, was in a private house 
 (where some damage was sustained by fire), 
 like other record establishments, but was 
 afterwards removed to the Lower Castle 
 Yard, from hence to the Four Courts, and 
 from thence to its present fine establishment 
 in our neighbourhood, Henrietta-street. 
 The contents of this record department are 
 memorials on stamped parchment, of deeds, 
 wills, and almost every kind of conveyance, 
 from the first establishment of the regis- 
 try, in 1708, to the present day; the arrange- 
 ment is admirable, and the order and regu- 
 lations most satisfactory to the public and 
 profession. The memorials contain the 
 essential parts requisite of each deed, and 
 are prescribed by the act of parliament (6th 
 Anne, c. 2, s. 7), viz.: the names of the 
 county, city and townland, with its barony, 
 street, or square, and parish, the descrip- 
 tion of the parties and its contents ; these 
 are absolutely necessary for the purpose of 
 registration ; they are afterwards tran- 
 scribed regularly into parchment books, to 
 
 (6) Sugden’s Vendors, 2 vol., 224 (9th edition.) 
 
 which there are indexes, as well as to the 
 original memorials ; the original memorials 
 are carefully preserved on files for reference; 
 these are in numerical order ; the calendar 
 of parties names is arranged from the year 
 1708 to 1785 in simple alphabetical order ; 
 from the year 1785 up to the present time 
 in dictionary order. The calendars of 
 denominations of lands are arranged in 
 alphabetical order, according to counties, 
 cities, and corporate towns, in which the 
 lands respectively lie ; the calendars of 
 parties names and denominations of land 
 are in themselves general catalogues as 
 well of the original memorials as of the 
 books in which they are copied ; the calen- 
 dars are generally kept complete to within 
 a short period of the current day, and are 
 continually advancing to completion in the 
 progressive course of official business ; the 
 whole is on an alphabetical arrangement, 
 with two series of indexes, one for lands 
 and premises, and the other for names ; 
 these indexes form the keys to the search, 
 and are easy of reference to those used to 
 the practice ; a fee of 2s. 6d. entitles the 
 searcher to an entire day’s examination. The 
 transcript books contain an entire copy of 
 each memorial, in hoec verba, and afford gene- 
 rally full information ; should there be aily 
 doubt, an immediate reference can be had to 
 the original memorials for greater satisfac- 
 tion. 
 
 To the series of these records there is 
 not any chasm ; the number of files of ori- 
 ginal memo rials suffered some individual 
 injuries by reason of the casualties to which 
 from time to time they have been subject 
 since the year 1708, but such is now scarce- 
 ly possible from their position and locality, 
 and the care taken of them. 
 
 It is to be observed, the English local 
 registry acts (which are not adopted here) 
 require judgments to be registered in order 
 to effect purchasers or creditors. 
 
 The use of a general registry is almost 
 obvious ; as in a commercial country it is 
 essential that land should be easily nego- 
 tiable, to prevent it being monopolized and 
 to render it instrumental of trading enter- 
 prise. All transfers or incumbrances of 
 land should therefore be notorious , that 
 the opulent may lend or purchase secure 
 from fraud, and the indigent mortgage or 
 sell, unoppressed by exactions. It might 
 considerably diminish the trouble and risk 
 attending purchasers, if registering not only 
 judgments and recognizances, but all wills, 
 conveyances and decrees, affecting hinds 
 
52 
 
 RECORDS OF IRELAND. 
 
 and premises, ivithin a certain time, were 
 made essential to their validity, at least 
 against third persons, and if all marriage 
 settlements and other trust deeds, and per- 
 haps all deeds of great importance, were to 
 be also either deposited or enrolled at length 
 (being first duly acknowledged by the 
 grantors, or their attorneys, before a judge 
 of some court of record, or provincial re- 
 gistrar, and certified by him), so that attest- 
 ed copies of them should be evidence under 
 proper restrictions. While hereon, I would 
 observe, that it might be also of practical 
 service to the public to have a registry for 
 all bills relating to lands, premises, or in- 
 corporeal hereditaments, at least so far as 
 the party filing them should lodge in the 
 general registry office, an abstract of the 
 prayer of the bill, so far as it relates to 
 lands &c., the parties names, and the capa- 
 cities in it they are brought before the 
 court, and should afterwards register the 
 amendments ; for when we consider how 
 much of the history of property and pedi- 
 grees equity proceedings may illustrate, 
 and that the mere pendency of them has 
 been deemed notice to all the world, it is 
 unaccountable that as yet there is no index 
 of the principal contents, for it is manifest 
 this cannot be incorporated in the bill 
 books without prolixity and confusion. This 
 has been in some way followed up by 
 the act of 3d and 4th Vic. c. 105, s, 28, 
 effecting the registry of decrees, and 
 declaring them, when so registered, to have 
 the same effect as judgments at law ; would 
 it not, however, have been better that this im- 
 provement should have been effected through 
 the means of the general registry office? 
 
 The registry of all deeds & c. should take 
 place instanter after their execution, and 
 the memorial thereof should be comprehen- 
 sive and full, so that it might be evidence 
 hereafter, indeed the use of a memorial 
 cannot be thoroughly understood, if it be 
 drawn vague and incomprehensible, or if 
 deceit be practised, ignorance obscure it, or 
 mistaken economy contract it, as we find in 
 every day’s practice on investigating titles 
 much depends on secondary evidence of 
 this nature, particularly where the original 
 deed or document is not forthcoming, or 
 lost ; should the memorial in such cases he 
 defective, the purchaser or lender may be 
 as much in the dark as before, and, to use 
 my Lord Hale’s words, cheated under the 
 credit of a public office erected to pre- 
 vent it. ( Here the Lecturer explained 
 what teas a perfect memorial <3rc.) 
 
 It would appear considerations of this 
 kind directed the late census of our popu- 
 lation, under the 4th Vic., c. 27, the fore- 
 runner (I trust) of a general registration of 
 our Irish statistics, having .for its object 
 a most enlightened and philanthropic enqui- 
 ry into the condition of the Irish people, 
 their sanatory and social state, to effect 
 a better system and give to the world a 
 most useful compendium of the resources of 
 our country. 
 
 How short-sighted and whimsical were 
 the objections to this enquiry ! friends and 
 neighbours looked on it as a most intrusive 
 and inquisitorial search, and considered the 
 commissioners as the grand inquisitors of 
 some secret system of espionage into their 
 properties ; the fair sex particularly took 
 umbrage that an enquiry should be made into 
 their ages and other et ceteras, while others 
 conceived it an improper examination 
 into the domestic condition of their 
 families ; many were surprised on being 
 asked when their relatives died, and whe- 
 ther they were single or married, or if 
 any deaths took place in their families, 
 and within what period, or how many hens 
 and cocks, and what cattle grazed on their 
 lawns, not reflecting (as they ought) for a 
 moment of the use and importance of hav- 
 ing proper bills of mortality for the country 
 and a correct account of its general stock 
 and its current resources, and that almost 
 all foreign countries had made long since 
 the same statistical enquiries. 
 
 I would here most willingly enter into a 
 fuller and more minute description of gene- 
 ral registration, its value and importance, 
 but the limits of economy will not admit of 
 further time. 
 
 Having disposed of these general reposi- 
 tories, I now call your attention to equally 
 important repositories. The first is the 
 record court or rolls ; this is a most im- 
 portant office, as bearing on the titles of the 
 country, and here we may find the 
 link which connects the crown and the sub- 
 ject ; this I would define to be the 
 records of patents and grants from the 
 crown to the subject which are here enroll- 
 ed, from the reign of Edward I., with the 
 exception of some early chasms, up to the 
 present time. 
 
 This repository contains a number of 
 rolls, some called patent, (patentes), and 
 other close rolls, (clauses) ; the patent 
 were those open grants from the crown, 
 because they were open for the inspec- 
 tion of all, and so called patent ; and the 
 
RECORDS OF IRELAND. 
 
 53 
 
 close rolls, so called because they contained 
 writs from the crown, sealed and directed 
 to the officers by whom they were received, 
 and to whom alone they were open ; but it 
 is to be observed that any difference which 
 might have originally existed between the 
 close and patent rolls, was discontinued in 
 the course of time, although the name of 
 the former was still preserved, for both spe- 
 cies of rolls contain matters of a similar 
 kind. We have here, also, the statute rolls, 
 enrolments of the acts of parliament of Ire- 
 land, and since the enactment of Poning’s 
 law, in Henry the VII., the original trans- 
 misses of those acts proposed in the Irish 
 parliament. 
 
 The patent rolls are the most numerous, 
 and, next to the enrolled acts of parliament, 
 the most valuable species of record pre- 
 served here, commencing from the 11th of 
 Edward I., with many chasms, to 18th 
 Henry VIII., and from that to the present 
 time the patent rolls are complete, and 
 descend in one unbroken chain, with the 
 exception of one of the rolls, 1 1th Charles 
 I., the loss of which has often been the oc- 
 casion of inconvenience to those who had 
 occasion to refer to it. 
 
 The oldest of the close rolls is the 20th 
 Edward II., but this class of rolls does not 
 appear to have been continued in regular 
 succession, none other occurring until the 
 time of Richard II. The last close roll 
 we find is one of Charles I., but none 
 others appear of later period. 
 
 The parliament rolls begin in Henry 
 VI., and go on to Anne’s reign ; the ar- 
 rangement of the parliamentary rolls was 
 not proceeded with any later than George 
 I., at which time the private and public 
 acts were enrolled separately ; the number 
 cannot be definitely set forth since that 
 time but are very numerous. The statute 
 rolls, prior to Henry VII. are all in Nor- 
 man French, the then legal as well as gene- 
 ral language of the pleadings of the court. 
 
 The rolls of recognizance are to be found 
 here also ; the oldest is in the reign of Henry 
 VIII., and the last in the reign of Charles 
 I. ; but as these are not indexed, or any 
 reference in the rolls office of any kind to 
 them, they cannot be used, and their content s 
 are unknown. 
 
 The next we have are the enrollments of 
 decrees ; the oldest decree we have now 
 preserved, is the 24th Henry VIII., and we 
 may call it perhaps the first decree pro- 
 nounced in Ireland ; from thence the de- 
 crees go down with some chasms, occasion- 
 
 ed by civil dissension in this kingdom, in a 
 chain to the present time. 
 
 The chancery pleadings are the most ex- 
 tensive records of this department ; they 
 consist of ancient bills, answers and repli- 
 cations &c. ; they commence about the year 
 1530, the middle of the reign of Henry 
 VIII., up to the year 1812; the oldest 
 pleading found in the rolls is about the 
 middle of the 17th century ; the more an- 
 cient and certainly more curious were acci- 
 dently discovered by Mr. Hardiman, one of 
 the sub-commissioners to the record inquiry, 
 in the auditor-general’s office, and was 
 afterwards removed by order of govern- 
 ment to the rolls office, the proper reposi- 
 tory for this class of documents ; they are 
 a complete picture of the state of society in 
 Ireland within the periods they embrace, 
 and it is much to be regretted, that to this 
 moment these curious and interesting docu- 
 ments are without any index or clue to 
 their contents; amongst those I have seen a 
 pleading, about 1590, relating to Edmund 
 Spencer, the celebrated poet, in Elizabeth’s 
 time, and author of “ The Fairy Queen ;” 
 the complaint against the poet appears to 
 be made by Lord Roche, of Fermoy, that 
 Spencer was defrauding him of portions of 
 his inheritance ; this curious record was 
 found, with many others, enveloped in dust, 
 in the dome of the Four Courts; it is remo- 
 ved with others from hence to the audi- 
 tor-general’s office in the Castle. 
 
 Animportantrecordintitlehereare thein- 
 quisitions taken after death, called the post 
 mortem inquisitions ; these are highly in- 
 teresting and very numerous, and valuable 
 as evidence in many respects. They com- 
 mence in Elizabeth’s reign, scarcely any 
 being previous, and extend to the restora- 
 tion ; they were taken under commissions 
 to find, by oath of a jury, what lands any per- 
 son died seized of, by what rents and services 
 they were held, and who was the next heir, 
 and his age, by which the right of the crown 
 to escheat and wardships (valuable ac- 
 quisitions then) was ascertained ; these 
 documents are the best evidence of descents 
 and property, and the rights and privilege 
 appendant to property during the period 
 aforesaid, and set out several deeds, wills, 
 and instruments of which there may be no 
 other evidence existing. In our searches 
 on title these are frequently of great im- 
 portance, and often serviceable to the pro- 
 fessional man in completing his scrutiny. 
 
 Grants and patents of lands which have 
 been sold may often be required by pur- 
 
54 
 
 RECORDS OF IRELAND. 
 
 chasers, (for we must hold to mind that un- 
 less vendors make previous stipulation of 
 sale, purchasers can call for the patent to 
 ascertain there is no reversion in the crown,) 
 the searches are made in the rolls office, by 
 the officer of that department, on a trifling 
 fee of 2s. 4d., the only sum paid for any one 
 search in that department. The valuable 
 index of the commissioners of record, and 
 their* able assistants, affords a complete key 
 to such enquiries. After these inquisitions, 
 the records of decrees afford considerable 
 assistance in tracing the ancient names of 
 lands and their various aliases , to prove 
 their identity and possession, as it is often 
 found the denomination of land sold, whose 
 patent is sought for, is included in the 
 grants of greater tracts ; in most cases how- 
 ever the constat of the patent will suffice ; 
 a constat being that part of the grant 
 which shews there is no reversion in the 
 crown. Very often it will be found that the 
 names of the lands in the patent, and as 
 originally granted, have been corrupted by 
 use, or mis-spelled, contrary to what they 
 appear in family deeds, which may create 
 some confusion and embarrassment in title, 
 but here identity may be easily established 
 by the proper exertions. 
 
 In illustration of the value of our ancient 
 legal records, and the necessity of their 
 careful preservation, and also for the pur- 
 pose of widening the identity and unifor- 
 mity of modern pleading with the mode 
 adopted, perhaps I might say, suggested by 
 our ancestors, it may be material, en pas- 
 sant, to advert to a recent case which occu- 
 pied much of the attention of our profession, 
 perhaps I might better say, excited the ob- 
 servation of all interested in the patronage 
 of the church of Ireland — I allude to the 
 late quare impedit for the recovery of the 
 advowson of Camus, in the county of Lon- 
 donderry. 
 
 I need not stop to mention that in an 
 action of this nature it becomes imperative 
 on the plaintiff to establish both title and 
 possession, and in the case to which I am 
 now adverting, the Irish society, who claim- 
 ed an advowson in the north of Ireland, 
 were obliged to refer to the reign of Henry 
 III. for evidence of the title, and to the 
 reign of Edward I. for evidence of posses- 
 sion, thus establishing the value of those 
 ancient muniments which have escaped the 
 depredations of ages. In referring to re- 
 cords of antiquity so remote, the necessity 
 forces itself on us of observing their use and 
 application ; and I shall briefly advert to 
 
 the deduction of title in that remarkable 
 case, remarkable, I observe, from the fact 
 of the plaintiff’s proving a chain of title 
 running parri passiu with a chain of pedi- 
 gree from Henry III. to the 13th of James 
 I., and solely maintained and established by 
 the production of ancient records. 
 
 From the rolls of the Tower of London, 
 of the reign of Henry III., a charter in the 
 37th year of the reign was produced, grant- 
 ing, in distinct and unequivocal terms, the 
 entire lands of Ireland, with the exception 
 of FOUR cities, to prince Edward the 
 king’s son ; to hold to the said Edward and 
 the heirs of his body, so that the said land 
 be never separated from the crown of Eng- 
 land. In a subsequent year of the same 
 reign, another charter was found to the 
 same prince, of the cities excepted by his 
 former charter. 
 
 The necessity of referring to a period so 
 remote, in search of title, will be manifest- 
 ed by the succeeding documents which I 
 shall briefly trouble you with. 
 
 Prince Edward being thus possessed of 
 the entire land “ of Ireland” in the 24th 
 Llenry III., granted to the Walter De 
 Burgo, the whole land of “ Ulster” as fully 
 as Hugh De Lacy formerly held it. 
 
 You will find that Hugh De Lacy held 
 the territory of i( Ulster as a county pala- 
 tine” vide Davis’s rep. 179, which states 
 that “ all Ulster” was a palatine till it 
 descended to Edward IV., to prove which 
 a document was referred to from the Tower, 
 proving that De Lacy held “ pleas” in his 
 court, and had a court of chancery of his 
 own; the l72d page of same report informs 
 us that every palatine had such royal juris- 
 diction. 
 
 Lord Walter died before prince Edward 
 ascended the throne, as appears from the 
 patent roll of the Tower of London, 1st 
 Edward I. 
 
 As I now confine myself to the case of 
 title apart from possession, it will be suffi- 
 cient for me to observe, that the records 
 appearing on the memoranda rolls of the 
 exchequer prove the succession of descen- 
 dants of the De Burgos until their posses- 
 sions were finally vested in Richard Duke 
 of York, the great grandson of Richard son 
 of Walter De Burgo. Richard Duke of 
 York was father of Edward IV., and thus 
 from ancient records within our reach, the 
 title of the crown was established to 
 “ Ulster.” 
 
 Having thus ascertained the necessity 
 even of the crown referring to ancient mu- 
 
ARGUMENT OF JOSEPH NAPIER ESQ., Q.C 
 
 HOUSE OF LORDS. 
 
 VISCOUNT DUNGANNON, Appellant, v. SMITH, Respondent. 
 
 [The following report of the celebrated argument of Joseph Napier, Esq., q.c., in the Dungannon 
 case, has been obtained, with the intention of preserving it amongst the records of the Law Institute, 
 which has received so large a share of support from the learned Counsel, who was one of its Professors 
 on the foundation. 
 
 In order to make the argument intelligible, the following short abstract of the case is prefixed. 
 The testator (the first Lord Dungannon, ) was possessed of leasehold estates, which he bequeathed by 
 will. At the time he made the will, he had a son and a grandson. The latter was called Arthur 
 Trevor. The son died after the making of the will, but in his father’s lifetime. The grandson sur- 
 vived and became the second Lord Dungannon. The leasehold property was given to trustees 
 in trust, to permit the grandson to receive the profits for his life, “ and after his decease to permit 
 such person, who, for the time being, would take by descent as heir male of the body of Arthur Trevor, 
 my grandson, to take the profits until some such person shall attain the age of twenty-one, and then 
 to convey the same to such person so attaining the age of twenty-one years, his executors, &c. ; but if 
 no such person shall live to attain the age . of twenty-one years, then in trust to permit such person 
 and persons successively, who, for the time being, would take by descent as heir male of Arthur 
 Trevor my son , to take the profits until one of them shall attain twenty-one, and then to convey to 
 such first heir male attaining that age, &c. 
 
 The grandson died in 1837, leaving a son who was then of age: and is the present Lord Dungannon, 
 the appellant. He claimed as the heir male of the body of the grandson : but the next of kin of the 
 testator insisted that the limitation after the death of the grandson was void, and the question was 
 so decided in the Rolls Court. From this Lord Dungannon appealed to the House of Lords, and 
 brought over Mr. Napier, specially to argue the appeal at the bar of the House.] 
 
 house of lords. — first day — Monday 21st May, 1845 — Three o'clock, p.m. 
 
 Mr. Napier — My lords, it is not my intention 
 in this case to take up the valuable time of the 
 House beyond what the necessities of the case, 
 the acknowledged importance of it, and the in- 
 terest of my client, demand. When we remem- 
 ber that the will we are now construing, bears 
 date in 1770, and that the testator died in that 
 year, my lords, we are reminded that the de- 
 cision which your lordships will now pronounce 
 in this case, will not merely conclude the rights 
 of my client, but may re-act. upon many sacred 
 family arrangements that have been made during 
 that long interval ; and a decision pregnant with 
 such consequences will surely be made with the 
 greatest deliberation, and for that purpose must 
 be made on a full and satisfactory discussion. 
 My lords, my client has suffered in more than 
 one respect; for, from the history of the case, it 
 appears that when this will first came under the 
 notice of Lord Chancellor Sugden, the question 
 now made upon it arose incidentally, and was 
 not very deliberately and formally discussed, 
 either by the bar or by the Chancellor, whose 
 opinion was intimated extra-judicially : and 
 when the case now under consideration came on 
 before the Master of the Rolls, that premature 
 opinion of the Chancellor had been published, 
 and must have produced an important effect on 
 the mind of the judge who presided at the time 
 
 in the Rolls Court, as to the matter then in ques- 
 tion ; so that I may say, my client’s case has 
 never been fairly and fully heard. With these 
 observations, I will go directly to the question 
 before your lordships. The substance of the 
 view I mean to urge on your attention is this : 
 This is a gift of personal estate ; and wherever 
 there is a gift of personal estate to a series of 
 individuals, I apprehend you find it consistent 
 with all the authorities, and nowhere contra- 
 dicted by any one, that it absolutely vests in 
 the first member of that series, unless you can 
 show a good executory bequest to take it away 
 from the first member, upon some event that has 
 actually happened. There is no decision that 
 can be cited, that contravenes that proposition. 
 The rule with regard to personal estate is very 
 clearly laid down by Lord Lyndhurst, in a case 
 in this house — Hoare v. Byng, in the 10th Clark 
 and Finnelly, 521 ; and there his lordship 
 states the distinct rule of law to be, thatwhere- 
 ever personal estate is lodged in one individual, 
 you must take it out of him, otherwise he takes 
 the absolute interest. So that where personal 
 estate is given to A. B. C. D. in succession, it 
 remains with A ; different in the case of free- 
 hold estate. There is scarcely a stronger illus- 
 tration of the force of that proposition, than in 
 I the case of Mackworfh v, Hincman, in the 2nd 
 
 B 
 
2 MR. NAPIER*! 
 
 was intimated by the testator that he intended 
 there a perpetuity — that he intended it to go 
 along with the baronetcy, while the baronetcy 
 remained; yet, Lord Langdale held that it was 
 an absolute interest, vested in the first member 
 of the series, and that he took it as his absolute 
 property. 
 
 Now, construing this will in the ordinary 
 course, first, let us see clearly what the intention 
 of the testator was in the will, and then how far 
 that intention is conformable to the rules of law ; 
 and just observe by what a simple process we 
 can arrive at a true result. My lords, I may 
 here just refer you to the text of Littleton, sec- 
 tion 586, where he says, “the reason is, for that 
 the will of the devisor made by his testament, 
 shall be performed according to the intention of the 
 devisor .” Lord Coke’s comment on Littleton’s 
 words are “ quod ultima voluntas testatoris est per- 
 implenda secundum veram intentionem suam ; ct rei- 
 publicce interest suprema hominum testamenta rata 
 haberi and then he adds “ tcstamentum testatio 
 mentis The first matter is clearly to see, that 
 there may be no dispute about it, what was the 
 precise intention and meaning, what was the 
 mind of the testator when he penned this instru- 
 ment. Upon that I would only refer your 
 lordships to one authority, as containing the 
 substance of all that bear upon this part of the 
 case ; I allude to the case of Doe v. Hazlewood, 
 in the first Neville and Perry, 362 where Lord 
 Denman states the rule thus : — “ We are aware 
 of no authority, and none such has been sug- 
 gested, which affects to impose a limit, beyond 
 which the courts shall not proceed in their fa- 
 vorable construction of wills, to carry into effect 
 the intention of the testator.” Now there can 
 be no doubt of the express life estate being given 
 to Arthur Trevor, the grandson of the testator. 
 I would then just take the period of his death. 
 He was living (observe) at the time the testator 
 was living ; he is mentioned by name in the will, 
 and this express life estate is limited to Arthur 
 Trevor, the grandson ; and beyond the period 
 of his life there was a range of twenty-one years, 
 and for any event that would happen (if at all) 
 within that period, the testator had a right to 
 provide. See then, my lords, who, after the death 
 of Arthur Trevor, the grandson, was the distinct 
 and immediate object of the testator’s bounty. 
 Arthur Trevor, his grandson, was the second 
 Lord Dungannon, as your lordships have been 
 informed : the son of the testator died before 
 the re-publication of the will ; he died before 
 the re-publication, but in the same year in which 
 the will was made ; and at the death of the tes- 
 tator (who was the first Lord Dungannon), the 
 grandson was his heir, and succeeded to the title 
 as the second lord. Then he limits the express 
 life estate to that grandson ; and as I said before 
 (and it is a key to this case), he had a right to 
 provide prospectively for any event that would 
 necessarily happen (if at all) within twenty-one 
 years from the death of Arthur Trevor, the 
 grandson. 
 
 i ARGUMENT, 
 
 Now, your lordships will observe that there 
 is no interruption contemplated as to the enjoy- 
 ment of this property ; he does not lock up the 
 rents and profits ; there is no hiatus whatever ; 
 on the contrary, on the death of Arthur Trevor, 
 the grandson, lie points out in the most specific 
 manner, who was to be the next and immediate 
 object of his bounty, intended to enjoy the pro- 
 fits of that estate. Who was that person ? — 
 The heir male of the grandson ; in other words, 
 the appellant. He describes him (as he had a 
 right to do) by a designation that enabled the 
 trustees to select him out from all the world : 
 therefore it is indisputable that, upon the death 
 of the grandson, they had a designated per- 
 son, upon whose head the trustees could put 
 their hands, immediately upon the death of 
 Arthur Trevor, the grandson. Such a person 
 would be discoverable then, if ever ; as, if there 
 was then no heir male of Arthur Trevor, the 
 grandson, there never could be, for if there was 
 then any interruption of the descent, there never 
 could be an heir male afterwards at all. There- 
 fore you have (and it is material in this case to 
 observe it) the first member of a series, the 
 first heir male of the body of the grandson, a 
 designated person, the proper and primary ob- 
 ject of that testator’s bounty, who immediately 
 was to take the rents and profits on the death 
 of Arthur Trevor, the grandson. Now, that being 
 so, it is plain his object was to keep this property 
 with the title. The heir male of the grandson 
 would be the person who would succeed to the 
 title ; and this property no doubt was intended 
 for that purpose to which it has been applied, 
 namely, to provide a jointure and portions when 
 that person might marry. 
 
 Now, the person who would be heir male on 
 the death of Arthur Trevor, the trustees could 
 find out at once ; he was under all circumstances 
 to take so long as he lived ; he was the first, 
 immediate, and exclusive object of the testator’s 
 bounty, so long as he lived. If he attained twenty- 
 one, my lords, it was clearly the intention of 
 the testator, if that heir male attained twenty- 
 one, that the-trust should then terminate alto- 
 gether, and that his equitable title should then 
 be clothed with the legal estate. And the ut- 
 most that can be contended on the other side, 
 is, that it was also the testator’s intention, if the 
 first heir male died under twenty-one, that the 
 next heir male should take the profits. I am 
 not at present applying the rule of perpetuity, 
 as, in looking at the intention of the testator, it 
 is better to keep out of sight the rule against 
 perpetuities ; for whether it exists or not, the 
 intention of the testator must be the same. In 
 discovering that intention, my lords, it is better 
 not to embarrass ourselves with the rule of per- 
 petuity. Applying a plain and candid under- 
 standing to this will, you cannot doubt his in- 
 tention was, that the person who immediately 
 would be heir male of the body of the grandson, 
 on the death of his grandson, should at once 
 take the rents and profits ; and when that per- 
 son attained twenty- one, he would be entitled to 
 the assignment of the legal estate ; but it that 
 
DUNGANNON V. SMITH. 
 
 3 
 
 person died under twenty- one, then the next 
 heir male (if there was any) should take the 
 rents and profits. If he attained twenty-one, 
 he should have an assignment of the legal estate ; 
 and so on from heir male to heir male, as if it 
 was expressed in the words in which I am put- 
 ting it to your lordships. Of course the mere 
 form of the words of the will cannot make any 
 difference in discovering the testator’s meaning ; 
 for, whether I put it in my words or in other 
 words, the meaning of the testator is to be pre- 
 served as to the person who is to take. My 
 learned friend, Mr. Hodgson, called your atten- 
 tion to the two clauses, as to the heirs of the 
 grandson, and of the son ; and there is a verv 
 strange difference in the wording of these clauses , 
 but whether the first clause be confined to an 
 individual heir male, or whether it extends to 
 a series, would make no difference in the devo- 
 lution of the property under the entire will. 
 I tell you why : the second clause embraces 
 the heirs male of the son who had died. Now 
 your lordships will observe that he having died 
 in the testator’s life time, every person who 
 would be heir male of the body of the grand- 
 son, would also be heir male of the body of the 
 son, and vice versa. So, whether you confine the 
 first clause to the single heir male of the body 
 of the grandson, living at his death, or construe 
 that clause as embracing the series in succes- 
 sion, the devolution of the property and the 
 mind of the testator would be the same wholly 
 unaffected. You have then this strange result, 
 that there are two modes of expressing the same 
 thing, and that one will admittedly give a valid 
 bequest to the first heir male ; because, if there 
 be a single heir male of the grandson described 
 in the first instance, it can scarcely be contended 
 at your lordships’ bar, if the bequest had been 
 “ from and after the death of Arthur Trevor, 
 the grandson, to go to the heir male (in the 
 singular number) of Arthur Trevor, the grand- 
 son, till he attained twenty-one ; but if he did 
 not attain twenty- one, then to the heirs male 
 of the body of the son, severally and succes- 
 sively,” (keeping that part of the clause as it 
 stands) : it scarcely would be doubted, in that 
 case, that the first bequest would be good to the 
 individual heir male first pointed at ; and yet, in 
 that case, the uncertainty of the death under 
 twenty-one, and every other consequence that 
 can be put as applicable to the present state of 
 the bequests, would be equally applicable in the 
 case which I have put ; yet still there would be 
 a good and valid bequest to the first, in this 
 mode of expressing it, and still for all purposes 
 the actual intention would be preserved as effec- 
 tually and completely as in its present form 
 which we are construing. Now, whether you 
 take the will in that way, the first branch 
 providing for a single individual or a series, 
 the result of the whole of this part of the will 
 is this: it provides for a series of individuals, 
 commencing on the death of Arthur Trevor, 
 the grandson, to arise in succession at contin- 
 gent intervals, and to each of those persons the 
 interest was to pass, on the happening of the 
 
 particular event that would find him as heir 
 male for the time being. With regard to the 
 first heir male, the “time being” must be on 
 the death of the grandson; he is the then heir 
 male upon the death of the grandson; but as 
 to the second member of the series, it must 
 be on the death of the first under twenty-one, 
 so that you have the series thus composed. 
 My lords, beginning on the death of Arthur 
 Trevor, the grandson : the then heir male of 
 the grandson being the first heir male for the 
 time being, and if he died under twenty-one, 
 then, upon that contingency, there might be a 
 second member of the series, but not otherwise. 
 The next person would then be heir male for 
 the time being, and would take, on the death of 
 the first under twenty- one ; so that you find 
 each member of that series claims under a dis- 
 tinct particular individual contingency peculiar to 
 his own case, and that no two have a common 
 title in that respect. The testator provides pro- 
 spectively for a certain range of contingencies ; 
 as each contingency arises you look for the “ heir 
 male for the time being,” and the contingency 
 itself enables you to discover him ; it is in effect 
 the accidens of his title. He is the heir male of 
 the body of the grandson at the particular point 
 which is peculiar in each case, and it is not com- 
 mon to any two. So that the first heir male 
 has this peculiarity — he certainly takes the pro- 
 fits. The first member of the series certainly 
 takes, upon the death of Arthur Trevor, the 
 grandson. If there is no heir male, then, of 
 course, the trust is at an end, and it does not wait 
 for any person. It failing in that event altogether, 
 the next of kin claim ; but if there be an heir 
 male at the time, he is the certain object of the 
 testator’s bounty, and the “time being” with 
 regard to him is the death of the grandson. 
 Then he takes the rents and profits — there is 
 no locking up, there is no abstraction of the 
 rents and profits from his enjoyment, but on 
 the contrary he is to take them. What takes 
 the rents and profits away from him ? How 
 are they to be taken from him ? What was in 
 the mind of the testator as to that? It was 
 this — if he dies under twenty-one they go to the 
 next heir male. By what means? — By an im- 
 plied executory bequest. It is not in terms ex- 
 pressed. I am only taking it now as the mind 
 and intention that is implied in that passage of 
 the will, that if the first heir male dies under 
 twenty-one, it shall go to the next ; and it goes 
 to that second heir male by an implied executory 
 bequest. Does it go to the second in any other 
 case? — Unquestionably not. It is only to go 
 away from the first in one event, namely, his 
 dying under twenty-one. So that you have in 
 that way a succession of executory bequests, 
 that may or may not take effect, according to 
 events ; and under that, only one person can take 
 at any one time. 
 
 Now, my lords, I conceive this is the cardinal 
 and important distinction, that this is not a case 
 of one abstract bequest, but it necessarily implies 
 and includes a succession of distinct bequests. 
 Your lordships will observe, that all the suc- 
 
 b 2 
 
4 
 
 mr. napier’s argument, 
 
 ceeding members of the series of necessity wait 
 on the fate of the first ; you must finally dispose 
 of the entire claim of the first member of that 
 series, before a second can arise at all ; therefore, 
 the claim of the first must in all respects be 
 dealt with as if it stood singly and alone. In 
 truth, your lordships observe, the providing for 
 others is merely a substitution in case the first 
 fails. The intention of the will was not to take 
 it away and transfer it from the first, unless he 
 died a minor. If his claim thereby terminated, 
 there is a substitution ; but if his claim did not so 
 terminate, then he was to take precisely as if he 
 stood alone. 1 think, upon this view of the will, 
 it may be best read as if it were expressed thus — 
 as if the testator had said, “I give the leasehold 
 estates to trustees, first to permit Arthur Trevor, 
 my grandson, to take the profits for life ; secondly, 
 upon his death, to permit the person who may 
 then be his heir male to take the profits. If he 
 attain twenty-one, then to give him a formal 
 assignment of the legal estate. If he die under 
 twenty-one, then the person who may be next 
 heir male is to take the profits” — and so on to 
 the series. If it had been expressed in that 
 way, that clearly would have been the testator’s 
 will. I would observe, that the mode in which 
 the same meaning is expressed cannot vary this 
 question ; and I would refer your lordships to 
 an authority upon that point, the case of Tol- 
 dervy v. Colt, in the first Meeson and Welsby, 
 286, in which Lord Abinger says — “We are 
 bound to find out the intention of the testator ; 
 and though that intention be expressed ob- 
 scurely and ambiguously, yet if it is expressed 
 in words somehow or other, or expressed by so 
 strong an implication that you cannot avoid see- 
 ing he contemplated the thing and meant it, — 
 though he has not expressed it accurately, — in 
 that case you are bound, if you can find such 
 intention, obscurely expressed or clearly implied 
 in the will, to give effect to it.” And indeed, 
 my lords, there is a strong authority still older 
 in the law, Boraston’s case, 3rd Deports, 20 
 (6), where it is stated — “For when the devisor 
 by apt words and terms might have by good ad- 
 vice made Ills will good and sufficient in law, 
 according to his true intent, there the devisor, 
 being hindered by sickness, or want of good ad- 
 vice, makes his will in a disordered manner and 
 in barbarous and unfit words : the law in such 
 case will reduce the words that want order to 
 good order, and sentence his unfit words to words 
 sufficient in law, according to his intent which 
 appears by his own words.” Now, applying that 
 sensible rule derived from the maxim of law, 
 which is mindful of the circumstances under 
 which a man is often called upon suddenly to 
 dispose of his property, at a time when both 
 mind and body are suffering from the pressure 
 of disease or the approach of death, you must 
 carefully inquire what the intention is. There 
 can be but little doubt in this case what the 
 intention was. It can scarcely be questioned 
 that it was this, namely, to give the property im- 
 mediately to the heir male of the grandson; if he 
 attained twenty-one, he was to have an assign- 
 ment of the legal estate, and if he died under 
 
 twenty-one, the profits should go to the next, 
 and so on.. It cannot be doubted that that was 
 the intention of the testator; and I apprehend, 
 in that case, your lordships would be slow to 
 break down, upon any technical subtleties, all 
 the dispositions of this property, made seventy- 
 years ago, where the intention is as clear as if 
 it had been written with a sunbeam. There is 
 a case that occurred in the Court of Queen’s 
 Bench, in this country, which furnishes a strik- 
 ing illustration of the desire of judges to give 
 effect to manifest intention, where the court 
 went much beyond what we ask your lordships 
 to. do, in giving effect to the present testator’s 
 will — that is, the case of Doe dem. Tremewen 
 v. Permewen, in the 11th Adolphus and Ellis, 
 431. That was a devise of real estate (which 
 makes it still stronger), being to the testator’s 
 sister for life, and after her decease to her son 
 J ames, and his heirs male living to attain twenty- 
 one years, and in case of no such heir male, then 
 over. The argument urged there was this, that 
 there might never be an heir male attaining 
 twenty-one years ; therefore James only took a 
 life estate. It was urged that it might go on 
 for centuries; that there might by possibility 
 be minorities for centuries ; but it is difficult, 
 certainly, to understand how, in the present case, 
 where the longest lease is for ninety-nine years, 
 how there would be minorities for centuries. 
 But that being a case of real estate, there was 
 a possibility of there being minorities for cen- 
 turies, and so the argument was put. How was 
 it met? My Lord Denman says, in giving 
 judgment — “Wi e think, however, that in advance- 
 ment of the testator’s intention it is not neces- 
 sary so to understand them. If the testator had 
 devised to James and his heir finale, and, for 
 default of such issue attaining to the age of 
 twenty- one, then over, a good estate tail would 
 have vested at once, the dying before twenty- 
 one of the issue would have been a condition 
 subsequent, and the remainder would have been 
 barrable. The cases of Stocker v. Edwards, 
 Manfield v. Dugard, Bromfield v. Crowder, 
 though on a different point, seem to furnish the 
 principle on which we might come to that con- 
 clusion. Now a very slight transposition of the 
 words in question would make the will what we 
 have supposed; and we think such a transposi- 
 tion may properly be made in order to effectuate 
 the testator’s intention.” I do not ask in this 
 case to modify (as it is called) the limitations of 
 this will; I do not ask you to deal with it as an 
 executory trust ; I do not ask you to modify 
 the language of it; I do not ask you to intend 
 anything that is not really and virtually meant 
 by the words of this will ; but I do ask you to 
 look at the testator’s meaning; to regard his 
 words as the signs of his ideas ; to see what his 
 mind was ; and, when you come to the conclusion 
 what the testator plainly meant, to deal with 
 the meaning of this testator, as if expressed in 
 the most precise and accurate language. It is 
 not the validity of his words, but the validity of 
 the will that we are considering; and words are 
 the instruments by which you may know his will 
 and intention. His meaning thus clearly was, to 
 
DUNGANNON V. SMITH. 
 
 5 
 
 give theprofits to the first heir male immediately 
 on the death of the grandson ; for him to take the 
 rents and profits instanter; and if he died under 
 twenty-one, then the next to take them; and 
 unless that be so, how can there be a succession 
 of minorities — for that must be derived by impli- 
 cation out of the language of the will? My lords, 
 I ask you to take that as the testator’s meaning ; 
 and so taking it, I admit he meant if the first 
 heir male died under twenty-one, then it should 
 go over ; but I say that he equally meant, if the 
 first heir male did not die under twenty- one, 
 that it was not to go over. Therefore I say, 
 your lordships must dispose of the case of the 
 Adjourned till to-morrow 
 
 first heir male as the primary object of the tes- 
 tator’s bounty on the death of the grandson ; you 
 will dispose of his case in all respects as if that 
 case stood alone. Upon this part of the case I 
 have only one authority more to refer to, and 
 that is the case of Davies v. Fisher, to be found 
 in 5th Beavan, 215; and there my Lord Lang- 
 dale states the rule thus — “ When we have once 
 reached the result and meaning of the words 
 under consideration, due effect should be given 
 to that meaning as if expressed in direct and 
 unambiguous language.” 
 
 The Lord Chancellor — We will go on with this 
 to-morrow. 
 
 morning , at Ten o'clock. 
 
 Second Day. — Tuesday 21 st May, 184 5. 
 
 Mr. Napier — My lords, in the observations 
 which I took the liberty of addressing to your 
 lordships yesterday, I endeavoured to show your 
 lordships what was the true meaning and inten- 
 tion of the testator, to be collected from the lan- 
 guage of the will itself, without resorting to any 
 strained interpretation of it, taking the w ords of it 
 according to their ordinary meaning; and indeed, 
 my lords, in this case, the popular meaning of 
 any part of the language employed does not dif- 
 fer from the legal ; and when we endeavour to 
 get precisely at what the intention of the testator 
 was, the amount of it is this, that it was a be- 
 quest to the grandson, Arthur Trevor, for his 
 life, and then upon his death it was to go to the 
 person who should immediately satisfy the de- 
 scription “heir male of his body ;” that that per- 
 son should take the rents and profits instanter ; 
 that then, if he attained twenty-one, he should 
 get an assignment of the legal estate ; if he died 
 under twenty-one, the profits should go to the 
 next heir male, and so on in succession. 
 
 Now, taking it that I have shown that to be, 
 which can scarcely be doubted, the plain and 
 unequivocal intention of the testator, the next 
 question in order is, to what extent will the 
 law give effect to that intention ? My lords, 
 taking it in this order, the construction of this 
 will is, in my humble judgment (I say it with 
 all deference and respect), very simple and very 
 obvious; and were it not for the manner in 
 which the case has been embarrassed and over- 
 laid by the authorities and observations which 
 were scattered over it at the time of the prema- 
 ture discussion before the Lord Chancellor, Sir 
 Edward Sugden, I should almost have been 
 satisfied to rest my client’s case upon its simple 
 strength : taking up the plain, obvious, and un- 
 equivocal intention of the testator, and applying 
 the undoubted and undisputed rule of law to 
 that intention ; for I apprehend that there can 
 be no dispute in this case, either as to what the 
 intention of the testator was, or as to the rule 
 of law that is to be applied to that intention. 
 
 Now, my lords, certainly my opponents on the 
 other side have had this advantage, that I be- 
 lieve every argument that can be suggested 
 against the validity of this bequest — and I am 
 sure I mean no disrespect to my learned friends 
 
 on the other side, when I say, that I believe 
 every argument that can be suggested — has 
 already been suggested in the course of the ob- 
 servations of Sir Edward Sugden, and the Mas- 
 ter of the Rolls in his judgment. Therefore, 
 they have the advantage now of having their 
 case put, and put with authority on their behalf, 
 while I have to try to get rid of all these embar- 
 rassments, and to present my case to your 
 lordships in its simple and naked strength. 
 Taking it, then, as I have put it — and if your 
 lordships have written down the way in which 
 I put the intention before your lordships, just 
 let us now apply the rule of law to that inten- 
 tion. My lords, the rule of law as I understand 
 it is this — a testator is at liberty to provide, 
 when he makes his will, for prospective contin- 
 gencies. Of course, when he makes his will, he 
 cannot tell whether those prospective events 
 will arise or not ; he therefore makes it, provid- 
 ing for events which may or may not arise. 
 But the law will only give effect to the bequests 
 for such of those contingencies as must arise, 
 if at all , within a life in being and twenty-one 
 years. The law will give effect, I say, my lords, 
 to such contingencies as he provides for, if they 
 must arise within a life in being and twenty-one 
 years, if they arise at all. Now when he provides 
 for a series of successive contingencies where 
 each subsequent one is in substitution of the 
 preceding, where it is in fact providing, that if 
 the first fails, in that event, the second contin- 
 gency shall arise : I apprehend the rule of law 
 is this, that each prior contingency is to be con- 
 sidered independently of any other that follows 
 it, though it cannot be considered independently 
 of those that precede it. As to those that 
 precede it, it must depend upon them, because 
 it cannot arise unless they fail ; but with regard 
 to those that follow, as they are only to arise 
 upon the failure of the first, of course the first 
 are wholly independent of what follow. There- 
 fore it is, that if there be any possibility of anv 
 preceding contingency arising beyond the limit, 
 every limitation founded on a subsequent con- 
 tingency is necessarily invalid ; but not so with 
 regard to the prior contingencies : they are to be 
 considered quite independently of those which 
 follow. 
 
6 
 
 mr. napier’s argument, 
 
 Now, my lords, taking then the rule with 
 these observations that I have humbly taken 
 the liberty of submitting to your lordship’s con- 
 sideration, 'just let us see how very naturally 
 and simply (if, instead of searching for abstruse 
 refinements, we would be content with simple 
 reasons), how simply and readily we may come 
 to an easy solution of the presentcase. Arthur 
 Trevor, the grandson, was living at the time of 
 the testator’s death ; he was the second Lord 
 Dungannon, the testator being the first. He takes 
 an express life estate. The provision of his life 
 estate was a perfectly good provision ; no man 
 can doubt that. Why was it a good provision ? — 
 Because it was for a life in being ; but the law 
 does not limit you to that life, for, with respect 
 to any contingency within the further range of 
 twenty-one years from his death, any provision 
 made for any contingency which must of neces- 
 sity arise within that period (if it happen at all) 
 is just as good as a provision made for a contin- 
 gency which would arise before the death of 
 Arthur Trevor, the grandson. 
 
 Well then, my lords, upon the death of Arthur 
 Trevor, the grandson, these are the provisions 
 made for the destination of this property : upon 
 the death of Arthur Trevor, the grandson, it is 
 not subtracted from enjoyment for one moment, 
 it is not locked up for a single instant of time ; 
 but the very moment that Arthur Trevor, the 
 grandson, is dead, that moment there must, if 
 ever, be an heir male of the body of Arthur 
 Trevor, the grandson ; and whenever he appears, 
 then, in his character of heir male simply, and 
 irrespective of any other personal incident, he is 
 entitled at least to the enjoyment of the rents 
 and profits. So far therefore that is a good 
 limitation ; it commences, and it must commence, 
 if at all, within the legal period. Now, as the 
 defect of an estate of this description, upon the 
 ground of perpetuity, is in the commencement 
 of it, and as the commencement of the estate of 
 the first heir male is upon the death of Arthur 
 Trevor, the grandson, it is manifest that the ob- 
 jection of perpetuity cannot by possibility apply 
 to the commencement of his estate. So far 
 therefore, my lords, the provision as regards 
 him does not violate the rule against perpetuities : 
 and with regard to the subsequent assignment 
 of the legal estate — (which by the way is not 
 under that clause in the nature of a new gift to 
 any distinct person, but it is an assignment of the 
 legal estate to the party, having previously an 
 equitable interest) — with regard to the assign- 
 ment of the legal estate, on what does that de- 
 pend ? — It depends upon the person attaining 
 the age of twenty-one years ; therefore, with re- 
 gard to the heir-at-law of Arthur Trevor, the 
 grandson, whose estate is to commence upon the 
 death of Arthur Trevor, the grandson, instanter, 
 he is to obtain an assignment of the legal estate 
 if he lives till the age of twenty-one. But if he 
 lives for twenty-one years after the death of 
 Arthur Trevor, the grandson, he must at least 
 attain that age within that time, if not before ; 
 therefore he must be in a condition to claim 
 the assignment of the legal estate, that is, to 
 
 perfect his title, in omnibus , even if I am obliged 
 to admit (which I do not concede, but I am 
 willing to argue it upon that supposition) that 
 his attaining twenty-one, is necessary to his 
 perfecting his title in the first instance. If 
 it be so, he must attain the age of twenty-one 
 years (if at all) within the period that the law 
 allows ; and his estate, both equitable and legal, 
 must be complete, in omnibus , within that legal 
 period. It must begin with the legal period, 
 and it must be complete within the legal period. 
 Every incident of it , necessary , probable , or possible , 
 must faU within that period , and cannot arise 
 beyond it. 
 
 What objection then, my lords, is there to 
 the estate of the first heir male ? — No second 
 claimant can arise, unless the first claimant dies 
 under twenty- one. The death of the first under 
 twenty- one, is a part of the title of the second. 
 
 Now, my lords, with regard to the death of 
 the first under twenty-one, and the title of the 
 second claimant in that event, it is no part of 
 my case to discuss, whether his title would be 
 valid or void. If the attainment of twenty-one 
 is an essential part of the title, why then of 
 course the claim of the second man would be 
 void, because, although he might attain twenty- 
 one within the legal period, yet, he might not ; 
 and all the arguments that are put in this case, 
 on the part of the respondent, do apply so far as 
 to show this : that if the attainment of twenty- 
 one be an integral part of the description of the 
 person who is to take absolutely, then the second 
 member of the series would not take. I admit 
 that ; because, although his title might be per- 
 fected within the time, yet, it might not ; and 
 you must construe the will as if at the death of 
 the testator ; it is not to depend upon the con- 
 tingency of the title of the individual falling 
 without or within the line. Therefore, if that 
 be so with regard to the second man, the result 
 then would be this : if the attainment of twenty- 
 one be no part of his title, and the limitation over 
 to him upon the event of the first dying under 
 twenty-one, be good, as an event which must 
 happen, (if at all) within the proper limits, why 
 then the answer to it is, that the event has not in 
 fact happened, because the first has not died un- 
 der twenty-one. If, on the other hand, it be void, 
 then, according to the view which some of the 
 cases would suggest, the estate would be abso- 
 lute in the first ; because there had been no 
 good executory bequest over, to take it out of 
 him in favour of the second man ; or if the first 
 had died under twenty-one, then the estate would 
 have gone to the next of kin upon that event. 
 But if it be a valid bequest over, in favour of 
 the second man, then, as the event has not hap- 
 pened, of course it cannot now take effect ; and 
 therefore, treating it either as valid or void, the 
 estate would remain with the first heir male 
 who has attained the age of twenty-one years. 
 And he takes the estate as the first member of 
 the series to whom the estate passed on the 
 death of Arthur Trevor, the grandson. If it be 
 a valid bequest to the second, the event has not, 
 in point of fact, happened to take it out of him $ 
 
DUNGANNON V. SMITH. 
 
 and if it be void, then of course a void bequest 
 has no legal operation, and could not carry away 
 the estate from him altogether. 
 
 Now, my lords, that being so, I say that every 
 contingency that is provided for, with respect to 
 the claim of the first heir male (whose case 
 must be first disposed of) — every contingency 
 under which he could claim anything equitable 
 or legal, must of necessity happen (if at all) with- 
 in a life and twenty-one years. He cannot claim 
 outside of that limit, it is impossible ; and there 
 is no part of that trust relating to him, which 
 could by any possibility arise beyond a life and 
 twenty- one years. My lords, taking that view 
 of it, there is a case which exactly illustrates 
 the proposition I am contending for : it is the 
 case of Beard v. Westcott, reported in two re- 
 ports ; it was before the Common Pleas, and also 
 the Queen’s Bench ; it is first reported in 5th 
 Taunton, 393 ; and also in 5th Barnwell and 
 Alderson, 801. And I principally wish to direct 
 your lordships’ attention to the argument of 
 Mr. Sugden, in the 5th volume of Barnwell and 
 Alderson, page 806 ; it was the argument which 
 was afterwards adopted by the court, and upon 
 which the certificate was founded. Lands were 
 there devised to John James Beard, (who was the 
 grandson of the testator,) for his life, and then 
 they were given after his death to the first son 
 of his body, and so on in tail male to the issue 
 of such first son ; and in default of issue of such 
 first son, then to the second and other sons ; 
 and in case there should be no issue male of 
 John James Beard, at his death, or in case there 
 should be such male issue at that time, and they 
 should all die before they should respectively at- 
 tain twenty-one, it should go over. The eminent 
 lawyer who argued that case, says, in page 806, 
 “the first gift to John James Beard is valid, 
 being for a life in being that my lords is ex- 
 actly like the case of the grandson here ; “ the 
 second gift to his first son is also valid,” (he was 
 unborn at the time ) : “the second gift to his first 
 son was also valid,” because it must take effect 
 within twenty-one years, and a few months al- 
 lowed for gestation after a life in being ; but 
 the gifts over to the issue of the first son of John 
 , J ames Beard are void, because possibly they may 
 not take effect within twenty-one years and a 
 few months after the termination of the life in 
 being, namely, John James Beard.” Now, my 
 lords, “if I am right in saying that I have inter- 
 preted the will truly — because your lordships 
 will observe that until you interpret the will, and 
 see what the intention is, it is quite idle to con- 
 sider the effect of the rule, as to perpetuity, 
 because the rule must be applied to the will ; 
 and I quoted that passage from Coke, that you 
 must first look to the intention of the testator. 
 But presuming that I have interpreted the will 
 rightly, you have here a gift to Arthur Trevor, 
 just like the gift to John James Beard ; that is, 
 valid. The gift to the unborn son of the grand- 
 son was valid, because it was to take effect, as | 
 to him , (if at all) within a life and twenty-one I 
 years, and it was to go over if he died under I 
 twenty-one : but the subsequent gifts were void, | 
 
 because, though they might take effect within 
 the time, yet they might not. Now here, my 
 lords, exactly as in that case, construing the will 
 at the testator’s death, you can only say, that if 
 such and such events arise which are provided 
 for — as to such of the events as are provided 
 for, which must arise, if at all, within the legal 
 period — the limitations must be valid, and will 
 take effect when these events arise ; but with 
 regard to the others, whether they arise or not, 
 within the time, the will is void, at least the 
 law will not enforce it. But let me put this 
 case, and I put it early in this part of the case, 
 because, with the greatest deference I would 
 say, that it is the fallacy that has been haunting 
 the minds of those who have raised objections 
 to this bequest. It is said, “ suppose the first 
 heir male dies a minor, leaving a son ?” Why, 
 suppose that the unborn son of John James 
 Beard afterwards died a minor, leaving a son, 
 what is the result ? The property does not 
 vest in that son ; but why not ? — Because there 
 was not a good bequest over to vest it in him. 
 Wherever there are valid bequests followed by 
 invalid bequests, the whole will is not set aside : 
 you do not say, because a man has provided for 
 a series of contingencies, some of which he had 
 no right to provide for, or rather, some of 
 which the law will not effectuate, for he may 
 provide for as many as he likes — he may trust 
 his relations to carry them out or not, but the 
 law will not give effect to all, it will not give 
 its aid to render them all effectual ; and if the 
 lawful contingencies do not arise in fact, the 
 property does not vest : and what is the result ? 
 That at that point, when the claim becomes in- 
 valid as to any particular person, the next of' 
 kin put forward their claim ; but it is no an- 
 swer, I submit with the greatest deference, for 
 the plaintiff to say, that because, by possibility, 
 the claim of the first person might not have 
 taken effect, therefore, the entire series of limita- 
 tions of that property is rendered void in its 
 inception. Such a position would overturn 
 many valid titles. The contingency not having 
 in fact arisen, it does not of course vest in that 
 event; but you cannot therefore say that the 
 will of the testator is not to take effect, if the 
 contingency does arise, which contingency- 
 can only arise within the legal period ; therefore, 
 my lords, that case of Beard v. Westcott illus- 
 trates the proposition : it shows first, this, that 
 it is not because there is an intention manifestly 
 expressed, to create a perpetuity, that, therefore 
 the will is not to take effect at all ; it also shows 
 that the possibility of the valid bequest failing 
 in event, does not render it invalid in its incep- 
 tion. 
 
 My lords, I take it that such intention has 
 nothing to do with the case in that view ; it is 
 the tendency of the particular limitation, if 
 effectuated, to create a perpetuity ; because 
 in all the cases where the law gives effect up to a 
 certain point, and rejects the rest, in every one 
 it is the intention of the testator of course that 
 the invalid bequests should have effect (riven to 
 them, if the events arise on which they are in- 
 
8 
 
 MR. NAPIER’ 
 
 intended to take effect. Bat the law does not 
 say, we will destroy the effect of the whole of 
 the will on that account — we will throw aside the 
 whole of the testator’s provisions ; but it says 
 this : as to such of the limitations as provide for 
 contingencies which must arise (if at all) within 
 the legal period, the law will give effect to those 
 which do so arise ; with regard to such as may 
 arise beyond that period, the law will not give 
 effect to them whether they arise or not within 
 that period. 
 
 Now, my lords, I have observed already that 
 the argument in this case, and in fact the whole 
 of the authorities which may be cited on the 
 other side, and which have been cited and relied 
 upon, only prove this : that taking this limitation, 
 as applying to the series, it shows that it is bad 
 in some respects, it shows that the testator has 
 sought to provide for ulterior contingencies, which 
 have not arisen, and never can arise, as to which 
 effect could not have been given. But let me re- 
 fer your lordship’s to one passage on this point, in 
 the case of Hopkins v. Hopkins, in cases tempore 
 Talbot, page 50 ; the Lord Chancellor says, there, 
 “ so we see in these cases the method of the courts 
 is, not to set aside the intent, because it cannot 
 take effect so fully as the testator desired, but 
 to let it work as far as it can.” “The very being of 
 executory devises shows a strong inclination, 
 both in the courts of law and equity, to support 
 the testator s intent as far as possible ; and though 
 they be not of ancient date, yet they are of the 
 same nature with springing uses, which are as 
 old as uses themselves. I can see no difference 
 between this case and the others of the like na- 
 ture that have been adjudged ; and if such a con- 
 struction may be made , consistently with the rules of 
 law, and agreeably to the testator's intent, it would 
 be very hard not to suffer it to prevail .” My lords, 
 observe this, that if you express the intention of 
 the testator in the manner I have taken the 
 liberty of doing, expanding the compendious 
 expression which he lias used in the way I have 
 put it : every objection and every consequence 
 that can be suggested now at the bar, against 
 the validity of the limitations in the will, as it 
 stands, will be equally applicable to it in that 
 expanded form ; and yet, scarcely any counsel 
 at the bar, if it were expressed in the form in 
 which I have put it, would say that the first 
 limitation to the first heir male would not be 
 good. 
 
 Let me put this to your lordships a little more 
 pointedly. Suppose the will had been exactly 
 in these words : “ Upon the death of Arthur 
 Trevor, my grandson, I leave this property to 
 the person who shall then be the heir male of the 
 body of Arthur Trevor, my grandson, to take 
 the profits thereof till that person shall attain 
 twenty-one, and then I wish that the legal estate 
 should be assigned to him ; but if that person 
 do not attain twenty-one, then I wish the pro- 
 perty to go over to a series in succession, to the 
 end of all time.” Suppose that had been the 
 form of the will ; or take it as given in express 
 terms : first, to an heir male of the grandson, and 
 then to the heirs male of the son, successively, 
 
 ! ARGUMENT, 
 
 as he puts it in the second part of the clause. 
 Suppose the first part had been in that form, 
 could any one say, that the subsequent provisions 
 for the series in succession would invalidate the 
 bequest to the first heir male ? The first heir 
 male might have died under twenty-one, and 
 the legal estate might never have been assignable 
 to him. All the same results would, or might 
 have followed ; every consequence, the possible 
 succession of minorities — in a word, every one of 
 those results or possibilities which are put forward 
 here as tests of the validity of the entire, would 
 have been as applicable ; and yet, the limitation 
 to the first heir male would have been good. 
 And so, if you take it in the way I suggested to 
 your lordships yesterday ; if you were to confine 
 the trust to the first heir male of the grandson, 
 and leave the rest to a series of heirs male of the 
 son, from the state of the testator’s family, the 
 son having died before the grandson, the same 
 intention of the testator would have been strictly 
 preserved, and the same contingencies and the 
 same consequences — precisely the same will of 
 the testator, with every consequence that could 
 be put at the bar, as applicable to the present 
 case, would be applicable to that case. There 
 would be the same uncertainty as to who would 
 ultimately take, and how he would take, and 
 when he would take — precisely the same ; and 
 you would then have an admittedly valid limi- 
 tation, with regard to the first heir male, 
 accompanied by all the circumstances, just as 
 you have here ; and yet, although you would 
 have all those consequences open, which are 
 here suggested'as tests, the validity of the limita- 
 tion is not affected. Why should not they be 
 decisive tests in other cases ? — Because they are 
 not real tests at all. If you find they apply to 
 a case in which the limitation would be valid, 
 ay, admittedly valid, it shows they are not in 
 themselves tests of the validity of a limitation; 
 and therefore this case depends really upon an 
 accurate and precise statement of the rule, 'when 
 you come to use it as a test. For instance, 
 when you say, what is very true, that the pro- 
 perty should vest within a life and twenty-one 
 years, that, speaking generally , is true ; but when 
 you come to apply it as a test, it is not ex- 
 pressed with perfect accuracy for the purpose. 
 If you apply it to a limitation, admittedly valid, 
 followed by others admittedly invalid, the first 
 may not vest in event ; the first party contem- 
 plated may not live till the age of twenty-one ; 
 and therefore it shows that it is not safe to ap- 
 ply a general rule in that form, which may be 
 true under certain circumstances ; but where 
 you use it for the purpose of testing the validity 
 of a limitation, it is not properly qualified. 
 
 I neither wish, my lords, nor do I mean to 
 understate or overlook the precise amount of 
 the objection which is made to the validity of 
 this limitation. I hope I quite understand it ; 
 and I do humbly trust that I am in a situa- 
 tion to meet it effectually. It is said, on the 
 other side, that this is a bequest to a class. 
 Now, whenever lawyers use these verbal argu- 
 ments, I like always to examine the reason upon 
 
DUNGANNON V. SMITH. 
 
 9 
 
 which they are based. I like exactly to under- 
 stand, when you say “ a bequest to a class,” 
 what you precisely mean by that, and upon 
 what grounds or in what sense it is that it is 
 said to be a bequest to a class, so as therefore 
 to render the entire void. Let us supply the 
 suppressed premise — Why is a bequest to a 
 class void ? When is it void ? I can under- 
 stand it to be void when a class take together on 
 an event which may arise, outside the limit ; 
 and if all the members of the class either claim 
 together, or if each has precisely the same cha- 
 racter and title, then I can understand the 
 objection made in such a case. But that is not 
 this case. The fallacy of applying it here at 
 once appears, when you come to consider how 
 the supposed class is here composed. Where 
 there is an estate given, suppose to the heirs 
 male of the body of A. B. ; one can understand 
 what is meant by a class there, because every 
 heir male has a common title, the common rela- 
 tion to the common ancestor. That is not so in 
 this case. When you come to look at the class, 
 who is the first heir male ? The heir male of 
 the body for the time being, that is, immediately 
 upon the death of Arthur Trevor, the grandson. 
 Who is the second member of the class ? The 
 second member is the heir male upon the death 
 of the first under twenty-one. Therefore, there 
 is a point in his title that does not belong to the 
 title of his predecessor. In fact, no two can 
 take at all consistently, because a part of the 
 title of any one is the failure of the title of all 
 that precede ; and, as I endeavoured to show 
 your lordships yesterday, each party in fact 
 claiming under that which is what I call the 
 accidens of his title, he is heir male, but heir 
 male at a certain peculiar point. Beginning at 
 the death of the grandson, taking “the time 
 being,” as Lord Ellenborough once translated 
 as liodierne diurne, the first begins at the"death 
 of Arthur Trevor, the grandson ; the next period 
 is the death of the first heir male under twenty- 
 one ; the next, the death of the second heir 
 male under twenty-one ; so that you have those 
 different points of time, “the time being,” re- 
 ferring to those different points, “ the heirs 
 male for the time being,” not embracing every 
 heir male within the range, but only those par- 
 ticular ones who may arise according to the 
 contingencies. 
 
 Now, my lords, observe that for the first heir 
 male of the body of Arthur Trevor, there is a trust 
 under all possible circumstances. It is an import- 
 ant part of this case, that with respect to the 
 first heir male of Arthur Trevor, the grandson, 
 there is a necessary trust for him under every 
 possible state of circumstances you can put. 
 Immediately upon the death of Arthur Trevor, 
 the grandson, his heir male must appear, if he 
 ever does, and there is an immediate and indi- 
 vidual and specific and primary trust for him. 
 Keep that fixed in your lordships’ minds. That 
 is not the case with regard to any other heir 
 male. There is not a certain trust for any 
 other. With regard to all the others, it is con- 
 tingent — contingent upon the fate of the first. 
 
 In fact, each, as it goes on, is contingent upon 
 all that precede, because it is a part of the title 
 of every subsequent man, that all his predeces- 
 sors have died under twenty-one. That is not 
 so with regard to the first. There is therefore 
 a specific and primary trust for the first heir 
 male of the body of Arthur Trevor, the grand- 
 son, and there is no trust for him which can by 
 possibility arise beyond a life in being, and 
 twenty-one years — none. Therefore, with regard 
 to him, the trustees must deal with him first. 
 They have the trust property in them. They 
 have, upon the death of Arthur Trevor, the 
 grandson, means by which they can ascertain 
 the individual to whom they are to hand over 
 the rents and profits, and there is no portion of 
 the trust for him that must not be complete and 
 perfect within a life and twenty-one years, and 
 while he lives no other person can claim the 
 benefit of that trust, by any possibility whatso- 
 ever. 
 
 Therefore, as it is material and necessary to 
 show how his case stands differently, that it is 
 not the case of a class, nor within the principle 
 of the case of a clsss : let me call your lordships’ 
 attention to what I conceive to be the distin- 
 guishing points of his title. It commences on a 
 certain event, namely, upon the death of Arthur 
 Trevor, the grandson ; whereas all the others 
 commence on the contingent event of the death of 
 their predecessors under age. There is a spe- 
 cific and necessary trust for him immediately 
 upon the death of the grandson, for he is the 
 primary object of the testator’s bounty. Thirdly, 
 my lords, if he attains twenty- one — if that heir 
 male who is the individual object of the trust 
 just as much as Arthur Trevor, the grandson, 
 (for there is as distinct a trust for him as for 
 Arthur Trevor, the grandson) — if he attain 
 twenty-one, then his claim is complete, equi- 
 tably and legally in omnibus. That is not the 
 case as to any other heir male ; because, sup- 
 pose for instance, when he died, that he has 
 attained twenty-one, and he dies and another 
 attains twenty-one, and dies, and a third attains 
 twenty-one ; suppose a controversy to arise 
 between the third and the personal representa- 
 tives of the other two — they have all a common 
 title, so far as being heirs male and twenty-one 
 years of age ; they all claim on behalf of persons 
 who are heirs male, and twenty-one ; but that 
 does not enable the other two to take ; and 
 why ? because another link in their title is 
 wanting — the death of their predecessors under 
 twenty-one. If he attain twenty-one, his title 
 then cannot be gainsaid, even if you make 
 twenty-one necessary to perfect his title — it 
 cannot be controverted. But that is not the 
 case as to any other but the first ; so that I may 
 say, with regard to him, that he is like an heir 
 apparent, they like heirs presumptive ; he takes, if 
 he lives ; and thus it is manifest there is this 
 distinction, that all the contingencies affecting 
 his claim are personal contingencies, and are 
 individually peculiar to himself, as an indivi- 
 dual. Not so with regard to the others : the 
 others depend upon the fate of other persons, 
 
10 
 
 MR. NAPIER’S ARGUMENT, 
 
 namely, their predecessors ; but his claim is a 
 personal claim, an individual claim, in all re- 
 spects disconnected from, and independent of, 
 the fate of those that follow, because no second 
 title can arise unless the first title fails. There- 
 fore his case must be disposed of upon its own 
 individual merits — it must depend upon con- 
 tingencies, and upon incidents that are personal 
 to himself. How then, give me leave to ask, 
 does his case differ from what it would be, if it 
 stood alone ? How does it differ from this ? 
 supposing there was nothing more in the will 
 but this : “ To the heir male of Arthur Trevor, 
 my grandson, to take the profits till he attain 
 twenty-one, and then to assign the legal estate 
 to him.” His attaining twenty-one would be 
 just as necessary in that case to perfect the 
 title. If he dies under twenty-one, the estate 
 will go to next of kin ; if he lives till twenty- 
 one, his title is complete. If the testator goes 
 beyond that, and provides for ulterior events — 
 events that cannot arise at all, or that may arise 
 beyond the limits— that is the same thing as if he 
 made no ulterior provision : in fact I take it, 
 that an insufficient bequest over, is the same as 
 if he made no bequest over; and therefore 
 when he has made a bequest in the event of the 
 first man dying under twenty-one, if that be- 
 quest is insufficient, it is the same as if he had 
 made none, when you come to enforce it in a 
 court of law, and the claim of the next ! of kin 
 arises whenever the illegality commences. But 
 in the way I have taken the liberty of putting 
 it, consistently with the intention, and not con- 
 travening any rule of law, I think I show your 
 lordships that this case is to be dealt with as if 
 that limitation for the heir male of Arthur 
 Trevor, the grandson, stood alone : because it is 
 the primary one, and must be disposed of on its 
 own merits and incidents, before any other can 
 arise. And therefore I say, that to talk about 
 a gift to a class, is a mere sophisma nominis ; 
 because the reason of a rule is the thing to be 
 considered. We are not to be carried away by 
 words and names ; that objection which is pro- 
 perly applicable to a class taking together, is 
 not to be applied to such a case as this ; it 
 never has been applied to such a case as this ; 
 and therefore, taking it in the way I put it, that 
 objection here ought not, I submit, to prevail. 
 
 Now, the strange part of this case, and the 
 part which I must confess appears to my mind 
 most incomprehensible, is this, that they say in 
 their bill that this bequest is void, from and 
 after the death of Arthur Trevor, the grandson, 
 and they of course felt obliged to put it so. 
 They say, that though this testator has made 
 provisions that must commence upon the death 
 of a life in being, those provisions are void from 
 that time — that is, the provisions which must 
 commence within twenty- one years of the end 
 of the period which the law allows, are all void 
 in their inception. They insist upon intestacy 
 from and after the death of Arthur Trevor, the 
 grandon, and your lordships will observe, they 
 are driven to that ; they could not avoid it. 
 They cannot maintain their case unless they are 
 
 prepared to establish that the entire of this 
 bequest, from and after the death of Arthur, 
 the grandson, is void in law — and why ? Upon 
 the ground of perpetuity? Perpetuity is where 
 an estate is to commence at a period too remote ; 
 here it is to commence, and must commence 
 within the legal period ; it must commence 
 upon the death of a life in being ; and how that 
 is to be made void upon the ground of remote- 
 ness, is difficult to imagine. 
 
 With that view I will take the liberty of 
 calling your lordships’ attention to two or three 
 authorities — they shall not be many ; at the 
 same time I trust your lordships will bear with 
 me in a case of this consequence, as well to my 
 client as to the many interests which depend 
 upon the fate of this decision ; many family 
 provisions which have been made for a century 
 back, are subject to precisely the same objec- 
 tion. I trust therefore your lordships will bear 
 with me while I refer (though I will not trespass 
 unnecessarily upon your attention) to a few of 
 the leading authorities, to exemplify the appli- 
 cation of the rule of perpetuity, and to show 
 you that your lordships can decide this case 
 agreeably to every legal principle derived from 
 authorities, and without contravening the inten- 
 tion of the testator, or the policy of any rule of 
 law. 
 
 The first case that I will direct your attention 
 to, is a very leading and important one. It is 
 the case of Taylor v. Biddal, which is reported 
 in 2nd Modern Reports, page 289. It arose 
 upon a special verdict. Your lordships will 
 find a very good abstract of it made by Mr. 
 Baron Bayley, in delivering the opinion of the 
 judges in the case of Cadell v. Palmer, in 1st 
 Clarke and Finnelly, page 412. That was the 
 case of a special verdict. A party, Richard 
 Ben, seised in fee, had a sister named Elizabeth. 
 She was formerly married to one Smith, by whom 
 she had issue, Augustine Smith, now lessor of the 
 plaintiff, and she afterwards married Robert 
 Wharton, by whom she had issue, a son, called 
 Benjamin, and a daughter, called Mary, the now 
 defendant. Then the testator devised these 
 lands to Elizabeth his sister, and heir, for so 
 long time, and until her son Benjamin Whar- 
 ton should attain his full age of twenty- one 
 years ; and after he shall have attained his said 
 age, then to the said Benjamin and his heirs for 
 ever ; and if he die before his age of twenty-one 
 years, then to the heirs of the body of Robert 
 Wharton , and to their heirs for ever , as they should 
 attain their respective ages of twenty-one years. 
 My lords, Benjamin died within twenty-one, so 
 that the event upon which the estate was to go 
 over by the executory devise, arose. It was to 
 go then to the heirs of the body of Robert 
 Wharton, as they should attain the respective 
 ages of twenty- one. At the time that Ben- 
 jamin died, Robert Wharton was living, and of 
 course they had to wait for the death of Robert 
 Wharton to see who would be the heir of his 
 body, and of course they should wait till that 
 heir would attain twenty-one. It was argued, 
 that as Robert Wharton was living when Ben- 
 
DUNGANNON V. SMITH. 
 
 11 
 
 jamin died under twenty-one, there was no one 
 then to take the estate ; but it was said, that 
 until Robert Wharton died, and there was an 
 heir of his body, the estate remained in the heir- 
 at-law. Upon the death of Robert, it so hap- 
 pened that the person who was the heir of the 
 body of Robert Wharton, was twenty- one ; but 
 it might have been otherwise That person was 
 held to take under that devise. Chief Justice 
 North, in giving judgment, begins by saying, 
 “ Favourable distinctions have been always admitted 
 to supply the meaning of men in their last wills.” 
 And in another part he says, “ The learning of 
 executory devises stands upon the reasons of the 
 old law, wherein the intent of the devisor is to be 
 observed .” Then he adds, that the estate re- 
 mained in the heir till the contingency happened, 
 and then he says, “ In this case a fee. did vest 
 in Benjamin presently, and therefore after his 
 death, without issue, the defendant is his heir,” 
 and then concludes thus : “ The defendant may 
 take, by way of executory devise, as heir of 
 the body of her father, which, though it could 
 not be whilst he was living (because nemo est 
 h ceres viventis ), yet after his death she was heir 
 of his body, and was then of age, at which time, 
 and not before, she was to take by the will.” 
 
 My lords, this is as strong a case as possibly 
 could be, because the age of twenty-one was a 
 part of the title there. You see how much 
 plainer my case is than any of the cases that have 
 arisen, because the peculiarity of the case before 
 your lordships is, that independently of age , the 
 first heir male was to take the profits and merely 
 to have his interest clothed with the legal estate, 
 under the instrumental part of the gift, namely, 
 the assignment of the legal estate ; but here it 
 was to be the heir of the body of Robert Whar- 
 ton attaining twenty-one. Supposing first that 
 Robert Wharton had no heir, of course the de- 
 vise would have failed, and the estate would 
 have remained with the heir-at-law as a freehold. 
 Supposing the heir of Robert had been a minor, 
 they would have waited to see whether she 
 attained twenty-one. Suppose that minor had 
 died leaving an heir — and when we go to possi- 
 bilities, it is as possible that the lady in that 
 case, if she had died under twenty-one, might 
 have left an heir, as that a minor gentleman 
 would — the possibility, therefore, would just 
 arise as much in that case. She might have 
 died under age, and there was a general descrip- 
 tion which must wait till the time would arise 
 when it would be satisfied. 
 
 That case, my lords, derived great importance 
 from this circumstance. The rule of law with 
 regard to perpetuities, which was settled in a 
 great and important leading case, was derived 
 by Lord Hardwicke from the consideration of 
 that very case. He inspected the record — he 
 examined it carefully. I will read to your 
 lordships the special certificate of Lord Hard- 
 wicke when he was at the head of the Court of 
 King’s Bench, when a case was sent to his court 
 from the Court of Chancery, upon a question of 
 this kind. The rule was taken out of this very 
 case, and settled in such a manner as must, I 
 
 think, enable your lordships in every case to use 
 it, as your lordships would a dial to correct an 
 erring timepiece. He gives the rule and the 
 reason of it in such a manner, as that if a court 
 of justice use it and apply it candidly and fairly, 
 and without calling in subtleties to embarrass it, 
 it can give no difficulty to any court, in carrying 
 out plainly the intention of a testator agreeably 
 to this rule of perpetuity. Your lordships will 
 find Lord Hardwicke’s special certificate, in the 
 case of Stephens v. Stephens, reported in cases 
 Tempore Talbot, page 232. The case had been 
 sent to the Court of King’s Bench for their 
 opinion, and Lord Hardwicke then took some 
 trouble and sent a special certificate back to the 
 Lord Chancellor: when that came back, the 
 report says, he was pleased to decide according 
 to it, and expressed his satisfaction with it as 
 agreeing perfectly with his own sentiments, and 
 said he hoped it would be for the future a lead- 
 ing case in the determination of all questions of 
 this kind. In page 232, the special certificate 
 is set out. Lord Hardwicke says, “As to which 
 we do not find any case wherein an executory 
 devise of a freehold hath been held good, which 
 hath suspended the vesting of the estate until a 
 son unborn should attain his age of twenty-one 
 years, except the case of Taylor and Biddal, 
 adjudged upon a special verdict in the Court of 
 Common Pleas, Hill, 29 and 30, Charles II., 
 and reported in 2nd Modern, 289. That reso- 
 lution appeared in every view of it to be so 
 considerable in the present case, that we caused 
 the record to be searched, and find it to agree 
 in the material parts thereof with the printed 
 report, and, therefore, however unwilling we may 
 be to extend executory devises beyond the rules 
 generally laid down by our predecessors, yet 
 upon the authority of that judgment, and its 
 conformity to several late determinations in 
 cases of terms for years, and considering that the 
 power of alienation will not be restrained longer than 
 the law would restrain it , viz. : — during the infancy 
 of the first taker , which cannot reasonably be said to 
 extend to a perpetuity , and that this construction will 
 make the testator s whole disposition take effect ivhich 
 otherwise would be defeated , we are of opinion that 
 the devise before mentioned may be good by way of 
 executory devise In the particular case, I ad- 
 mit of Stephens v. Stephens, it was the case 
 of a son ; but I mention this certificate for this 
 reason, that Lord Hardwicke takes it in a gene- 
 ral form, and derives it out of the case of Taylor 
 v. Biddal as a general rule ; and, my lords, he 
 gives the t reason of that rule — he breathes into 
 that rule the breath of life, and enables you to 
 apply it to every case by taking the rule in con- 
 junction with the reason of it; and, my lords, in 
 every case in which it could not by its applica- 
 tion be said reasonably to extend to a perpetuity, 
 namely, when you only consider the claim of the 
 first member of a series who is the first taker, if 
 he lives, till the time during which his title is to 
 be complete, you suspend it. How long ? You 
 suspend it for a life and twenty-one years. You 
 have a right to do that — you have a right to keep 
 the property in abeyance for a life and twenty* 
 
12 
 
 me. napier’s argument, 
 
 one years. During that time you must know 
 whether there is any part of the title of the first 
 man that can by possibility fail, even if age is to 
 be a part of the title, as in Taylor v. Biddal ; 
 and you only lock it up during the period that 
 the law allows you ; after that, the next of kin 
 may claim, and the persons interested in it may 
 dispose of it — it is not withdrawn from com- 
 merce. There is no rule violated when con- 
 sidered with reference to the reason of it; and 
 I would remark this, that where the intention 
 of a testator is to be interfered with, upon a 
 rule of public policy, that rule should not be 
 based upon technical grounds or verbal argu- 
 ments; it should not be aided by subtlety or 
 sophistry, but you should look to the reason of 
 the rule ; you should see whether its policy is 
 evaded or contravened by the construction 
 sought for, and if it be neither (and it cannot be 
 said in this case that the rule would be violated, 
 because the primary intention here, if expressed 
 in other words, is admittedly valid), then it must 
 turn and rest upon a mere verbal argument 
 without principle or reason in it. If you take 
 this decision of Lord Hardwicke founded upon 
 the reason of the rule, stated in the manner I 
 have put it, it is impossible, if that is to be a 
 leading case — it is impossible, taking that and 
 applying it with a candid, and fair, and honest 
 purpose, as you would wish to do in any matter 
 of common life — it is impossible, if your lord- 
 ships are to apply your reason, and your under- 
 standing, and your knowledge, for the wholesome 
 and wise purposes of sound, construction — it is, 
 I repeat, impossible you can lawfully decide 
 against the intention of the testator. Reason, 
 principle, and authority alike forbid you to do 
 so — whereas, by applying that rule in the man- 
 ner I have put it, you at once consummate the 
 entire intention of the testator, and at the same 
 time sustain, in all respects, the authority of the 
 rule of law against perpetuity. 
 
 The date of the decision of Lord Hardwicke 
 is important with reference to the subsequent 
 case of Trafford v. TrafFord. The date of that 
 certificate was in the year 1736; and I may just 
 mention, that the reason of the rule was stated 
 and referred to, when Lord Chief Baron Mac- 
 donald delivered the opinion of the judges 
 in the Thelluson case, which your lordships 
 will find in 1st Hew Reports, 388. He there 
 adverted in the same way, to the reason of the 
 rule in that case. He says, “ It is true that this 
 will almost always be the case and mode of dis- 
 posing of property, introduced and encouraged 
 up to a certain extent, for the convenience of 
 families, which in almost all instances look at 
 the existing members of the family of the testa- 
 tor and its connexions.” By the way, I may 
 just mention in passing here, a curious circum- 
 stance in this will ; I do not mean of course that 
 it is to be much relied upon, but one may as 
 well notice, that there were trustees named in 
 the will. Some of the properties are for twenty- 
 one years ; — bishop’s leases, for instance, where 
 the parties in fact renew them, though there is i 
 no covenant for the purpose. How there is a I 
 
 discretion as to the renewal of the leases given 
 to those named as trustees personally, and 
 such other trustees as should be substituted 
 during the minority of the grandson. I just 
 remark that, for this circumstance : it showed 
 how the testator did not contemplate the con- 
 tinuance of the trust estate in the trustees 
 beyond existing lives, because the trustees who 
 alone were thus to exercise a discretion as to 
 renewals, were to be the original trustees, (not 
 their executors) ; and such other trustees as 
 should be substituted in the room of any that 
 should die during the minority of the grandson. 
 How the grandson was living at the time the 
 testator made his will ; therefore, whatever per- 
 sons would be substituted during the minority of 
 the grandson, must have been persons in existence 
 at the time of the testator’s death, because they 
 could not otherwise have been trustees during the 
 minority of the grandson, if they had not been 
 in existence at the time of the death. It shows to 
 what extent the testator contemplated the con- 
 tinuance of the trust, looking to the members of 
 the family. It shows that he never contemplated 
 the continuance of the trust beyond a legal limit, 
 otherwise he would have proyided for the con- 
 tinuance of the estate in trustees, which he did 
 not. Chief Baron MacDonald goes on to say, 
 “But when the true reason for circumscribing the 
 period during which alienation maybe suspended, 
 is adverted to, there seems to be no ground or 
 principle that renders such an ingredient ne- 
 cessary.” (That was an ingredient as to select- 
 ing particular lives : they allow you to take the 
 range of all the world for any lives that were 
 then living.) “ The principle is, the avoiding of 
 a public evil, by placing property for too great a 
 length of time cut of commerce. The length of 
 time will not be greater or less, whether the 
 lives taken have any interest vested, or contin- 
 gent, or have not; nor whether the lives are 
 those of persons immediately connected with, 
 or immediately leading to that person in whom 
 the property is first to vest, a term to which it 
 is difficult, to annex any precise meaning. The 
 policy of the law can no way be affected by those 
 circumstances , which I apprehend looks merely to 
 duration of time.” To “duration of time. ” The 
 policy of the law then is this, that you may keep 
 the property suspended during a life and twen- 
 ty-one years ; during that time there arises no 
 public evil. If, for the purpose of giving effect 
 to the dispositions, it is necessary to keep it 
 locked up during that time, you may do so. 
 Well, then, when there are members of a series 
 in succession, thus, where each man’s case must 
 be considered before the following one arises ; 
 and so as to every member of that series, whose 
 case must be disposed of within the limit that the 
 law allows — v r hat is there in sense or reason to 
 prevent your giving effect to the limitation as to 
 him ? IIow do you contravene the rule of law 
 one whit more than if his case stood alone, when 
 it is in fact not dependent upon any other but 
 itself? How do you contravene the rule of law 
 more according to the mode by which you express 
 and preserve the testator’s intention ? It is the 
 
DUNGANNON V. SMITH. 
 
 13 
 
 intention you are to consider on the one hand, 
 and the rule of law, with reference to its reason, 
 upon the other; and taking the rule, with its rea- 
 son, and you are to take the intention of the 
 testator, to see if yon can give effect to the in- 
 tention, up to a certain point, without violating 
 the rule of law. Wherever you begin to con- 
 travene the rule of law, that is, with regard to 
 the subsequent claiment,the title fails; and when 
 ever the title of any subsequent claimant fails, 
 the right of the next of kin succeeds, or the pre- 
 viouus person takes absolutely, if it be not taken 
 out of him. 
 
 My lords, I have adverted to these cases, as 
 showing you, that from first to last the rule was 
 always regarded, with reference to the reason of 
 it ; and especially I have called your attention 
 to the case before Lord Hardwicke. When he 
 decided Trafford v. Trafford, Lord Hardwicke 
 was presiding in the Court of Chancery. I ap- 
 prehend a higher authority in every respect 
 could not be stated to this or any other court 
 than the authority of Lord Hardwicke. My 
 lords, the impression that was made upon his 
 mind by Taylor v. Biddal, appears in more than 
 one instance. In a case in 3rd Atkyns, page 12, 
 in the year 1743, your lordship will find he re- 
 fers to that case of Taylor v. Biddal. He says he 
 had a very particular reason for looking into it in 
 the case of Stephens v. Stephens, and therefore 
 sent for the record out of the treasury : and he 
 says there is one part of the decision which is in- 
 correct, namely, as to saying that the fee vested in 
 Benjamin presently ; he says it was not so ; but 
 he says he sent for the record out of the trea- 
 sury — that was in the year 1743. N ow three years 
 after, he decided Trafford v. Trafford; Could 
 your lordships suppose a judge more competent 
 to deal with a case of this kind than Lord 
 Hardwicke? In the year 1736, when he pre- 
 sided over the Court of Queen’s Bench, he and 
 his learned brethren in that court referred to 
 the case of Taylor v. Biddal ; sent for the record 
 out of the treasury ; derived the rule out of it ; 
 gave the reason of the rule ; stated it in a special 
 certificate; and sent it to the Court of Chancery. 
 And in the year 1743 he adverted to the care 
 with which he had examined that case ; and in 
 the year 1746 the case of Trafford v. Trafford 
 came on to be decided. 
 
 Now, my lords, it has been said, that in the 
 observations made by Lord Eldon on that case, 
 he has damaged it ; and no doubt my Lord 
 Eldon, in a case that your lordships have been 
 referred to by my learned friend Mr. Hodgson, has 
 certainly mentioned that a considerable question 
 might have been made in that case. I do not 
 know any case in which a considerable question 
 might not be made. But I think Lord Eldon's 
 observation is valuable for this purpose : that it 
 shows pretty clearly at all events what was in 
 fact considered to be the law in the case of 
 Trafford v. Trafford. The objection there 
 shows, that at all events Lord Hardwicke, and 
 the eminent men who practised in that court at 
 that time, assumed the law to be, that, with 
 regard to the first person under a general 
 
 bequest, it would be good with regard to him ; 
 and would vest in him, when he had all the 
 incidents in himself that were pointed out as 
 necessary to enable him to take. 
 
 Now, my lords, it is said that we are to con- 
 strue this will as at the death of the testator. 
 The case of Trafford v- Trafford was decided in 
 the year 1746, and this will was made some 
 twenty- four years afterwards, I think. Suppose 
 that we had been dealing with this case in the 
 year that the testator died, with the decision of 
 Tavlor v. Biddal, with the certificate in Stephens 
 v. Stephens, with the case of Trafford v. Trafford, 
 decided by Lord Hardwicke — can any man who 
 hears me doubt what would have been the fate 
 of it? Suppose a bill had been filed at that 
 time with reference to the trusts of this pro- 
 perty, can any man doubt, my lords, what 
 Lord Hardwicke would have decided with refer- 
 ence to that case, the decision of Trafford v. 
 Trafford having been for twenty-four years, at 
 the time the will was made, the unimpeached 
 and undisputed law of this country? At the 
 time Lord Eldon made his observations on it, it 
 had been for sixty years the undisputed law of 
 this country. My lords, suppose, at the time 
 Lord Eldon made his observations upon it, this 
 House had been asked to reverse it, would it 
 have been done ? It had been for sixty years 
 the law of the land ; your lordships will find it 
 adverted to in the early edition, by Hargrave 
 and Butler, of Coke upon Littleton, with refer- 
 ence to the settlement of personal estate. It 
 is in 18 b, note 7 : it is referred to there with 
 reference to a settlement of personal estate; 
 what then would have been the argument? 
 That what had been assumed to be a good 
 limitation by Lord Hardwicke, what had been 
 assumed to be a good limitation by the eminent 
 men practising at his bar at that time — that a 
 testator, struggling with disease or prostrate at 
 the approach of death with imperfect advice, or 
 wholly unassisted — was to be, at his peril, a better 
 or more subtle lawyer than Lord Hardwicke ; 
 and that what that eminent and distinguished 
 judge had in the Court of Chancery held or 
 assumed to be a good limitation, and what had 
 been so stated in the books at the time followed 
 by the precedents — that, my lords, a testator, at 
 his peril, was to know by anticipation and with 
 a prophetic mind that an ex-chancellor, in the 
 year 1806, standing alone in this house, and 
 battling with his political rivals, criticising 
 minutely the grounds of Lord Erskine’s de- 
 cision, and Lord Hardwicke’s decision, and 
 standing alone in his opinion here, and throwing 
 out that doubts might be entertained of that 
 guiding case before Lord Hardwicke, and that 
 a question might be raised upon it which was to 
 overturn what had been done for sixty years 
 under it ; — that the most sacred arrangements of 
 property, family settlements of personal estate, 
 making provisions and jointures — provisions for 
 younger children, and jointures for the females 
 of families — that all those were to be overturned 
 and swept away and destroyed at the time the 
 limitations were to take effect, because, at the 
 
14 
 
 mr. napier’s argument, 
 
 end of sixty years, upon a mere verbal criticism 
 on the words of it, not showing that the rule of 
 law was in any way substantially contravened 
 at all — Lord Eldon politically expressed a doubt 
 upon the subject. My lords, would this house 
 have listened to such an argument for the over- 
 turning of that decision, even supposing they 
 might have considered the objection tenable ? 
 I am sure it would be unnecessary for me to 
 refer your lordships to the cases which are per- 
 fectly familiar to you, where you have often 
 said that if in the first instance the subject had 
 been brought before you, where the decision 
 would only be prospective, and regulate future 
 rights, you might have considered that a more 
 correct and technical view might and ought to 
 be taken ; yet, that after a certain view had been 
 acted upon and had become entwined with all 
 those arrangements, so sacred as the settlement 
 of personal estate for the support of families, 
 you would not afterwards recur to more correct 
 views where those settlements had been acted 
 upon for such a period of time, and where the 
 consequences would be so tremendous to those 
 whose interests are bound up in those arrange- 
 ments. My lords, with regard to the observa- 
 tions of Lord Eldon at that time, at the end of 
 sixty years, did he venture to cite a case to 
 warrant the house to overrule that decision of 
 Lord Hardwicke ? Does he himself say that it 
 could not be at all supported ? No, my lords, 
 he does not ; he certainly intimates his opinion 
 that a considerable question might arise upon 
 it, and that a doubt might be raised upon it. 
 My lords, I have adverted already to the posi- 
 tion in which he stood ; and certainly the ob- 
 servations that he made upon the cases of heir- 
 looms ; when your lordships look to it, you will 
 find he is adverting to Foley v. Burnell, and 
 Vaughan v. Burslem, and other cases on heir- 
 looms, and I think he speaks of the cases there 
 as containing directory trusts which unquestion- 
 ably, I think, no lawyer at present would say 
 was correct : but, on the contrary, they were 
 taken, upon all hands, to be trusts executed ; 
 it shows the keenness and anxiety at that time 
 with which his acute and practised mind was 
 seeking to entangle his adversaries in the ques- 
 tion then before the house, on which he was 
 ultimately beaten and overruled, in which he 
 stood alone, and was struggling, therefore, in 
 that case, of course to upset all the grounds 
 upon which the decision of the other lords could 
 be based. But, by lords, I do not put myself 
 upon any narrow criticism of that kind with 
 respect to the observations of Lord Eldon ; I put 
 it upon the broad ground, that Lord Hardwicke 
 (as great a name as Lord Eldon’s) assumed the 
 law to be as I have stated it : and that it went 
 forth as the authorized and authenticated law 
 of the land for sixty years. What form of 
 limitation would a person preparing a will, or a 
 testator giving instructions, such as in the pre- 
 sent case, be so likely to take as that which was 
 approved of by Lord Hardwicke And can your 
 lordships denounce and condemn the form, con- 
 sistently with those ancient maxims of the law 
 
 which say that you are to look merely to the 
 intent of the testator, and to assist him in giving 
 it effect, not looking simply to the mere collocation 
 of the words or the language which he employs, 
 but having regard to his intention, to give his will 
 a liberal and substantial interpretation ; and to 
 effectuate, to the utmost possible extent , by a candid 
 and honest understanding of the meaning of the 
 testator, expressly or virtually stated in his will. 
 
 My lords, some precedents were yesterday 
 adverted to by my learned friend Mr. Hodgson. 
 Your lordships will find a precedent of the be- 
 quests of leasehold estates in the 7th volume 
 of Barton’s Conveyancing, which collects the 
 precedents from the earlier books. I refer to 
 it for brevity. In the 7th vol. of Barton’s 
 Conveyancing, page 737, and also in a still more 
 recent book of considerable authority, as a book 
 of precedents, the second volume of Stewart’s 
 Conveyancing, pages 208 and 219. 
 
 Lord Campbell — What is the date of Stewart? 
 
 Mr. Napier — It brings it down to 1838. 
 Now, my lords, I mean to take a course that 
 was once taken with Sir Edward Coke, by Chief 
 J ustice Willes, to cite Lord Eldon against him- 
 self ; I will cite Lord Eldon against him- 
 self. In the case of Tregonwell v. Sydenham, 
 3rd Dow’s Parliamentary Cases, page 194, a 
 question arose there, which I think, when rightly 
 considered, applies very strongly to the present 
 case. The testator devised land to his son B. 
 for life, remainder to the first and other sons of 
 B., in tail male, and with different limitations ; 
 and then he gave to trustees a term of sixty 
 years to retain the rents and to apply them in 
 the purchase of land, to be conveyed to “ such 
 persons as should be in possession by virtue of 
 his will of certain other estates therein men- 
 tioned, for life, with such remainder as should 
 continue the estate as long as possible in the 
 testator’s name and blood.” Now, it so hap- 
 pened, that in point of fact the person who was 
 in possession at the time when the conveyance 
 had been made, was not in existence at the 
 time of the testator’s death, and therefore, in the 
 event that happened , the limitation did not take 
 effect ; because, as to him it was void ; and the 
 Court of Exchequer, acting upon that view, in 
 fact acting upon the principle that is sought to 
 be applied to the present case — that because 
 there might be persons claiming under that 
 word “ persons,” as to whom it would be too 
 remote, therefore it was too remote as to all 
 who claimed under it — they held the whole 
 trust void. That came to be argued, and it 
 stood over for a year for consideration, and 
 Lord Eldon remarked — It is a case of great 
 importance with respect to other decisions ; a 
 very ruling case with respect to the right of real 
 property ; and it is of great consequence, that 
 whether reverted or affirmed, it should be de- 
 cided on very sufficient consideration.” Then, 
 my lords, a year afterwards the learned lords 
 delivered their judgments ; and I will first refer 
 your lordships to the pages. In page 205, your 
 lordships will find the observations of Lord 
 Eedesdale to which I wish to call your lord- 
 
DUNGANNON V. SMITH. „ 
 
 15 
 
 ships’ attention ; he says — ft I confess my mind j 
 does not in that respect accord with the decree j 
 of the Court of Exchequer. It appears to me 
 impossible to hold with the barons that the 
 trusts are void, as to the term of sixty years. 
 
 I do not apprehend that the trusts are altogether 
 void ; but only that the conveyances of the land I 
 to be purchased are, in certain events , what the 
 law will not permit to take effect, and so far 
 only the trusts are void.” In the next page, he 
 says, “ The directions for the conveyance of the I 
 lands so purchased, are legal, as applicable to j 
 certain persons. The point at which the ille- I 
 gality commences is, where the testator limits j 
 for life to persons not in existence at the j 
 time of his death, as those could not be made 
 tenants for life, at least not with remainders to 
 their first and other sons, but must take a large 
 estate, so that I am strongly impressed with the 
 idea that the trusts were not originally void, 
 and that the directions to purchase were good.” 
 Now observe, my lords, the phrase there was, 
 
 “ to such persons as should then be in possession.” 
 That was a general phrase which would apply 
 to some persons without the line, and therefore, 
 according to the person who would be in posses- 
 sion at the time, the trust was or was not to take 
 effect. It so happened, in point of fact , that the 
 person who was ‘in possession at the time the 
 trust could take effect, was a person who was 
 not in esse at the testator’s death, and as to him 
 the trust was too remote : therefore, this house 
 held the trust to be void in event , hut only because 
 of that event ; manifestly intimating, that if the 
 person who was in possession, or if the person in 
 possession had been one of the persons further 
 back in the line adverted to under the general 
 phrase, it would have been good. That shows, 
 that where you have a general expression appli- 
 cable to a set of persons pointing at (and em- 
 phatically in this case) a succession of persons ; 
 and in this case, where the very title was simply 
 and only under the direction to convey, which 
 is not our case, for our case is far stronger — but 
 I am putting it as I think is best, most against 
 myself ; supposing his title, in an essential part 
 of it, to be founded upon a direction to convey, 
 valid as applicable to certain persons, that is, as 
 applicable to such persons who must take it at 
 all within the legal period — Lord Eldon him- 
 self says, in page 215, “Here I must intimate, 
 that though these trusts have been considered 
 as too remote, it is difficult to say that they 
 •were so in all events ; but as the case had not 
 happened in which they could be carried into 
 effect, and as the money was to be raised out of ! 
 land, and the devise could not take it, because i 
 it was not given to him, it must go*to the real j 
 representative.” That is, in other words, that | 
 it was perfectly good in point of law, as appli- 
 cable to certain persons, if those persons had 
 been in a condition to take ; so, in my case, the 
 direction to convey is a good direction, as appli- 
 cable to certain persons, provided those persons 
 be in a condition to take. My client is in a i 
 condition to take : for he, being the first of the 
 series, and twenty-one, he is in a condition to 
 
 take at the time the trust is to take effect ; and 
 that case exactly governs this in that respect. 
 It is mentioned, I believe, in the life of Lord 
 Eldon, that in the interval while he was ex- 
 chancellor, he had been reading Coke; and 
 certainly this case being decided some time 
 after his observations in the case of the Duke 
 of Newcastle v. Lady Lincoln, I must say he 
 seems to have profited by his reading, because, 
 when he comes to deal with this case, it is in a 
 different tone from the observations he made on 
 Trafford v. Tr afford. 
 
 My lords, I was adverting to the circumstance, 
 that in the present case it is much stronger, for 
 this reason, that in this case, the assignment of 
 the legal estate is merely instrumental. This 
 matter was a good deal discussed in a case which 
 came before your lordships’ house — the case of 
 Phipps v. Ackers in 9th Clarke and Finnelly, page 
 594, where Lord Lynahurst says, that the will 
 is an equitable conveyance, and that the assign- 
 ment of the legal estate must conform to the 
 right. Supposing here you were to strike out 
 of this will every thing about the assignment, it 
 would not vary the estate one whit ; it is given 
 to the heir male for the time being, until some 
 such person should attain twenty-one. To 
 whom are the trustees to convey? To such 
 person attaining twenty- one — that is, of course, 
 a person who is already entitled to the equitable 
 interest — for it is in the character of heir male 
 that the party is entitled to the equitable inte- 
 rest — and if twenty-one be a portion of his 
 absolute title to that equitable interest, that does 
 not depend upon a direction to convey; there- 
 fore, the mere direction to convey is nothing 
 more nor less than a formal part of the gift; the 
 substantial part of it is founded on the enjoy- 
 ment of the rents and profits. Therefore, my 
 lords, I say this case in Dow is much stronger, 
 because, there the whole title of the party 
 depended exclusively on the conveyance to be 
 made by the trustees ; that conveyance was to 
 be made to such person; therefore, I have that 
 case establishing this proposition, that a general 
 phrase, descriptive of a number of persons, may 
 be good with regard to some, although invalid 
 with regard to others. Then you must cast 
 back again on the description of the series to 
 see to whom it is to be good — you find, with 
 regard to the first member of the series, that 
 clearly if it is good as to any person, it must be 
 good as to him. 
 
 Now, my lords, the next case to which I will 
 advert, is the case of Tollemache v. the Earl of 
 Coventry, to which your lordships have already 
 been referred. It is reported 2nd Clarke and 
 Finnelly, Gil ; and certainly I must say that, in 
 the judgment of the Master of the Rolls, this 
 case appears to have been misunderstood. My 
 lords, this case, I apprehend, when rightly un- 
 derstood, decides the present case. It was a 
 case decided on great consideration. Sir Edward 
 Sugden, in his observations in Keru. Dungannon, 
 adverts to it as bearing upon the present ques- 
 tion ; though certainly, from the observations he 
 has made upon it, he did not seem to relish the 
 
16 
 
 MR. NAPIER’S ARGUMENT, 
 
 decision, although he said he should be bound 
 by it. He said it bore upon the present ques- 
 tion, but from the observations he made upon it, 
 he did not appear to think it accorded with the 
 view he threw out upon this question. I think, 
 my lords, whatever principle is fairly derivable 
 from that case, it ought to be applied steadily to 
 th^y>i;esent. It is said, that it was the decision 
 of it single judge, but I believe that it is not so. 
 I rather think Lord Lyndhurst concurred in 
 that decision. 
 
 Lord Brougham — Most undoubtedly. 
 
 Mr. Napier — But whether it be so or not, it 
 is the decision of this house. Consider the judg- 
 ment in that case, and see whether it does not 
 govern this case in all its parts. I do not mean 
 to pick out passages of the judgment and sever 
 them from the rest of the case and the general 
 reason of the judgment; but to see wliat was 
 actually decided, what principle is involved in 
 it, whether it does not necessarily decide this 
 case, on both views of it, in favour of my client — 
 on the one view, that the first heir male must 
 fill all the requisites within the time, if he lives ; 
 and on the second view, that the estate having 
 been given to him in the first instance, it remains 
 with him, there being no good bequest over to 
 take it out of him. My lords, in that case there 
 is some little confusion sometimes about the 
 second Lord Yere; but I say, the first Lord 
 Vere was the testator; he gave his personal 
 estate to his wife for life ; afterwards to the son, 
 who was named in the will by name as an indi- 
 vidual; and then after that it was given in trust 
 for such persons as should from time to time be 
 Lord Yere. Now, on looking into the pleadings 
 in that case, it will be seen that the appellant, 
 Lady Laura Tollemache, claimed under the 
 third Lord Yere — that is, the first person who 
 took under the general bequest; the son (the 
 second Lord Yere) was named in the will ; the 
 third Lord Yere was the person who took under 
 the general bequest 11 to the person who from time 
 to time should he Lord Vere." Then there was a 
 fourth who died very young; and there was the 
 fifth, who was brother to the third, and who was 
 called Duke William, I think. Now, the third 
 Lord Yere taking under that general bequest, 
 the decision of this house was, that he took abso- 
 lutely ; and on the pleadings, it is quite clear to 
 any one who examines the case with a right 
 apprehension of its bearings, that that was the 
 necessary result. The Master of the Rolls 
 seems not to have adverted much to it. He says, 
 though it appears in the marginal note that that 
 was decided, yet he intimates that that was not 
 in point of fact decided. Your lordships will see 
 on looking into it, that nothing else could have 
 been decided consistent with what is stated in the 
 case. The appellant there claimed as the per- 
 sonal representative under the third Lord Yere. 
 The third Lord Yere it appears had disposed 
 of the personalty. It had been invested in stock, 
 and then a bill was filed for an account of that 
 as against his personal representatives. There 
 were revivors and other proceedings, which I 
 need not detail ; but the controversy was between 
 
 those representing the third Lord Yere and the 
 fourth. There were other parties claiming ; but 
 I am confining my attention to those. Sir John 
 Leach held the general bequest good as to the 
 fourth, only giving a life estate to the third ; 
 and then this house reversed the decision of Sir 
 John Leach, holding it to be not good for two 
 but only for one, and that the third Lord Yere 
 (the first person claiming under the general de- 
 scription) took absolutely. Now, my lords, in 
 considering that case and the decision, it is right 
 to bear in mind the view, which I believe origi- 
 nated with Lord Brougham, the then chancellor, 
 with regard to the peculiarity of the peerage 
 law, and the effect of the possibility of the abey- 
 ance and attainder of the peerage, which made 
 it peculiarly distinguishable from an ordinary 
 case like the present, which is merely governed 
 by the rules of ordinary descent. There is no 
 doubt, in the two cases there may be this com- 
 mon property, that one cannot doubt the object 
 was to give the interest to the person who would 
 have the title; but then it is done in a way less 
 liable to objection than in that case, because, in 
 the Coventry case, there was the objection 
 which Lord Brougham originated, and which, I 
 believe, operated so far as to change Lord Lynd- 
 hurst’s original opinion upon this question. 
 
 Lord Brougham — Lord Lyndhurst never had 
 formed an opinion upon it originally. He went 
 out of office the day that the appeal came to him, 
 and he merely gave a judgment pro forma to 
 speed the appeal. 
 
 Mr. Napier — As I understand, he afterwards 
 concurred with your lordship, in the view you 
 took of it ultimately. 
 
 Lord Brougham — Yes. 
 
 Mr. Napier — That being so, I was remarking, 
 that in the present case it is less liable to objec- 
 tion, because it does not go upon peerage law ; 
 but in the present case it goes by descent ; but 
 it is important to bear in mind, in understanding 
 the way I am putting this case, that it was de- 
 cided upon the ground of the peerage law, that 
 the fourth Lord Yere, on account of the pecu- 
 liarity of the peerage law, could not take, but 
 that the third did, and took absolutely. Now, 
 what was the position of the third Lord, Yere? 
 Take the will, as of course we must construe 
 every will as upon the day the testator died. 
 Now the third Lord Yere was in esse as a man 
 at that time, and if he lived he would become 
 Lord Yere; non constat he would ever be Lord 
 Yere, because if he died in his father’s lifetime, 
 of course he would not. With regard to the 
 person who would be fourth Lord Yere, that 
 was wholly uncertain ; it could not be predicated 
 of any particular person, and therefore, with 
 regard to him, as there was no one of whom it 
 could be said that he would be fourth Lord 
 Yere if he lived, it was held to be bad as to the 
 fourth. But with regard to the third, who was 
 the. grandson, and who was then living, this was 
 certain, that if he lived he would be Lord 
 Yere. Now see how I apply that case. — I will 
 take the case most strongly against myself. I 
 will assume that it was necessary in this case 
 
DUNGANNON V. SMITH. 
 
 17 
 
 that there should be an heir male who attained 
 twenty-one. I will assume that the incident 
 of the age of twenty-one was a part of my title. 
 How, upon the death of Arthur Trevor, the 
 grandson, there must then be an heir male. 
 That heir male, if he lives , must, within the legal 
 period, fill the full character, and no other per- 
 son can interfere with him, if he lives. He is 
 just like an heir apparent, and all the others 
 are like heirs presumptive, for if he lives he 
 must take. How at the death of Arthur Trevor, 
 the grandson, he being a person then necessarily 
 in esse, if ever there would be an heir male, if 
 he lives for twenty-one years, his title must be 
 complete, even if twenty-one years be a part of 
 it. So with regard to the third Lord Yere : he 
 was in esse (as Lord Brougham remarked) as a 
 man ; but he took a distinction between an indi- 
 vidual and a peer — the succession to the peerage 
 and the succession by birth and descent. But 
 what sustained the case of the third Lord Vere 
 was this — although true it was, you could not 
 tell whether he would ever be Lord Yere — true 
 it was, you could not ‘say whether, upon the 
 death of the son of the testator, there would be 
 a person to succeed, or whether there would not 
 be an abeyance or attainder of the peerage ; yet 
 you could say this, that with regard to that person, 
 it is plain if he lives he is the. first object of the 
 testator’s bounty ; it is plain if he lives he will 
 be Lord Vere ; it is plain all that must take 
 place, if at all, within the legal limits ; there- 
 fore, as it did take place, as he did live at the 
 time of the death of the son, and became Lord 
 Vere, his title was complete and absolute, and 
 the property remained with him. 
 
 How, my lords, could not every objection 
 which has been made here, supposing you con- 
 strue the will on the death of the testator, have 
 been made with regard to that case, and with 
 regard to the title of the third Lord Yere? 
 Why, you might have said, suopose he dies, 
 and suppose there be an abeyance^ the peerage, 
 (because you must take the decision with re- 
 ference to that view which was put forward by 
 his lordship in his most elaborate judgment,) 
 there may be an abeyance of the peerage for 
 centuries, and there may be no person within 
 the legal limit, to satisfy the description, and to 
 take this property ; but the answer is, that with 
 regard to this person, if he lives, he is the pri- 
 mary object of the testator’s bounty, and must 
 take. Why ? — Because, if he lives, he will, 
 within the .lawful period, fill the character the 
 testator has pointed out ; and so here on 
 the death of Arthur Trevor, the grandson, 
 his lieir male, (who is the primary object of 
 the testator’s bounty, and as to whom no other 
 person is to interfere with his claim, unless he 
 dies under twenty-one). If he lives for twenty- 
 one years, he must necessarily within that time 
 fill the character of heir male at twenty-one, 
 just in the same way the grandson who was in 
 esse as man, must, if he lives, fill the character 
 of Lord Vere, within the limit. Lord Brougham 
 at the end of that case, says, with regard to the 
 third Lord Yere, “ I felt all along the possibility 
 
 of such application ; but besides this much more 
 pointed application to the case at the bar, I am 
 bound by decision and authority in the one case ; 
 I must run in the face of authority if I denied the 
 third Lord Veres right ; but I have no decision, 
 nor any authority supporting the other.” My 
 Lords, there it was the first member of the ge- 
 neral class ; just as here it is the first member ; 
 and you speak of him at a time when you know 
 that if he lives he would become the person in- 
 tended. So you may say there must be an heir 
 male on the death of the grandson. If that heir 
 male lives, he must become perfect in all respects 
 with regard to title, legally and equitably ; he 
 must take, and he alone ; he must have his case 
 first dealt with, and disposed of ; you look to 
 him individually in the first instance ; and it is 
 impossible, I submit with great respect, to up- 
 hold the decision of this House, with regard to 
 the title of that third Lord Yere, taking abso- 
 lutely that property upon any sound principle 
 that will not in the present case uphold the title 
 of my client, even if you make it necessary that 
 he should attain twenty-one to make his title 
 to an equitable or legal interest, absolute. 1 
 
 My lords, I say then that if the Master of 
 the Rolls had rightly apprehended this case, it, 
 might have varied his opinion upon the present . 
 It is unquestionable, from his judgment, that 
 he had not rightly considered it ; or if he had, 
 he had not rightly understood it : he took it up 
 as if the amount t of the decision in that case 
 was simply this, to defeat the title of the fourth 
 Lord Yere, by applying all those principles 
 which are undeniable, which would apply in 
 the present case to the second, or third, 
 or fourth claimant, hut which do not apply to the 
 first. Then what have we in this case ? — We 
 have a general bequest and description applicable 
 to a number of persons ; just as in the case of 
 Tregonwell v. Sydenham; just as in Taylor v. 
 Biddal ; you have a general compendious des- 
 cription, applicable in its nature to a succession 
 of persons ; you have that personally applied to 
 those individuals who must arise in succession, 
 one after another : you have their case dealt 
 with and disposed of, in order, individually, and 
 consecutively; and there is no case, I appre- 
 hend, to be found, in which a bequest, applica- 
 ble to a succession of persons, has been held 
 void, ah initio , on the ground that an estate 
 which is to commence on the death of a living 
 person, is to be considered void on the ground 
 of perpetuity. 
 
 My lords, I might rest therefore upon this 
 case ; I might take this case as having cleared 
 the ground ; as having rejected everything that 
 can be brought in by way of analogy, or byway 
 of dicta, or by any other mode of interference 
 with the sound principles of law. I have this 
 case carrying out the rule of law, with reference 
 to the reason of it ; because in this case, as in 
 every case involving the rule as a rule of public 
 policy, with regard to perpetuities, it was acted 
 upon just as Lord Hardwieke acted upon it ; it 
 was considered with reference to the first indi- 
 vidual ; it was considered with reference to the 
 
 c 
 
18 
 
 me. napier's argument, 
 
 first member of that series ; and it was found, 
 that with regard to him the claim must fail, 
 or take effect within the time ; that therefore 
 the intention of the testator could not be con- 
 travened, nor could the rule of law be contra- 
 vened, but that both perfectly harmonized ; and 
 therefore his lordship, in that case, and this 
 House accrediting that by their authority in this 
 very case, show, that with regard to an expres- 
 sion of that kind, embracing and applicable to 
 a succession of persons, a large and comprehen- 
 sive and compendious expression is to be dealt 
 with, as it ought, on sound sense and reason, 
 according to its true meaning and real interpretation; 
 it must be taken to import what it really means, 
 namely, a- succession of persons so described, 
 arising one after the other. What, in the name 
 of sense, can be the difference between speaking 
 ©f an heir male for the time being, as is done 
 here, and speaking of the person who is the first 
 heir male, and then of the next heir male, and 
 so on ? In point of sense is there any difference ? 
 And especially in the will of a testator which is 
 to be construed solely with regard to what is 
 his real meaning ? Can you doubt as men, 
 having common sense and plain understanding, 
 that that was the real meaning of this testator ; 
 not upon any conjecture as to his meaning, but 
 from the language he has used ? I should ra- 
 ther say, can you doubt that is what he intended, 
 as clearly as if he had expressed it in the very 
 language in which I have put it ; and why should 
 there be a difference in the construction, when 
 there is no difference in the meaning and conse- 
 quences ? Why should there be a difference in 
 the construction, when there is no difference in the 
 applicability of the rule of law, on the ground 
 of public policy, interfering on public grounds, 
 with regard to the intention of the testator ? 
 Why should one construction be sought in the 
 one case, and another construction sought in the 
 other ? 
 
 I submit therefore that the cases I have cited 
 from Taylor v. Biddal down to this case, all 
 confirm the proposition with which I set out. 
 Surely I need not cite more cases in support of 
 a proposition so firmly based upon justice and 
 reason; surely I am not bound to cite more 
 than two decisions of this House, and one of 
 Lord Hardwicke, and to throw those into the 
 scale against the dictum of Lord Eldon ? "When 
 your lordships are assembled here to decide 
 cases that are to govern the rights of property 
 hereafter, and not merely so, but to act upon 
 family arrangements for nearly a century back — 
 family arrangements of personal estate, founded 
 on the supposed validity of these decisions — are 
 they to be swept away on the dictum of any 
 judge? My lords, I think your lordships would 
 be more fitly employed when you take up the 
 decision of Lord Hardwicke, made twenty-four 
 years before this very will was executed— made 
 nearly a century back from this present time — 
 1 say "it would be more befitting the dignity and 
 the honor of this House, to have regard to the 
 substance of that decision made by Lord Hard- 
 wicke, and not be measuring the breadth of the 
 
 shadow cast upon it by a passing opinion of 
 Lord Eldon. We have therefore in all these 
 cases, severance ; for in the case of Tollemache 
 v. the Earl of Coventry, it is said that the words 
 “ as far as the rules of law and equity will per- 
 mit,” make no difference. Indeed, if authority 
 were wanting upon that, your lordships would 
 find it in 3rd Yesey, Jun. page 395, where it 
 fis mentioned that the judges in the case of 
 Foley v. Burnell, stated these words made no 
 difference whatever : nor could they make any 
 difference, as your lordship’s will see at once, 
 if I am right in the proposition I have put be- 
 fore, that it is not the intention of the testa- 
 tor to provide for events too remote, that 
 
 is, to decide the question ; that it is not his 
 general intention to create a perpetuity ; but it 
 is whether the particular limitations which are 
 sought to be effectuated, if enforced, would tend 
 to create a perpetuity. How in order to illus- 
 trate that, suppose, in the present case, the tes- 
 tator had said, “to the heir male for the time 
 being, until some such person attains twenty- 
 one, as far as the rules of law and equity will 
 permit.” Supposing he had said that, would it 
 have been void, ab initio ? In the case of Tolle- 
 mache v. the Earl of Coventry, it is quite ob- 
 vious that the testator contemplated more than 
 one Lord Vere ; would the putting in a clause of 
 that kind save the bequest ? How, why should 
 it ? Why should that make any difference, if 
 I am right in saying that it is never the general 
 intention of the testator, with regard to creating 
 a perpetuity ? But it is when the law is brought 
 to bear upon his will, to see how far it will give 
 effect to it, and whether the extent to which it 
 is sought to effectuate the limitations, will tend 
 to create a perpetuity. In many cases a par- 
 ticular limitation is supported, where there is 
 beyond that a plain intention to create a per- 
 petuity. Your lordships will find some excel- 
 lent observations of Lord Brougham, upon that 
 subject, in Campbell v. Harding, 2nd Russell 
 and Myl. 390. 
 
 Lord Brougham — Campbell v. Harding was 
 before this house, but I do not think much was 
 said about it here, because we gave up the point 
 of executory devise. 
 
 Mr. Napier — I just advert to it, because, in 
 the reasons given by the respondents in this 
 case, there appears to be a passage picked out 
 from his lordship’s judgment in Tollemache v. 
 the Earl of Coventry, where they say the rule 
 of law is, that if there be any possibility of the 
 period of vesting exceeding twenty-one years, 
 if it is not absolutely certain it never can 
 exceed twenty-one years, the limitation is void; 
 and according to all the cases it is void, not in 
 the excess only, but absolutely for the whole. 
 My lords, that is perfectly true when rightly 
 understood, but in the way in which they apply 
 
 it, if it had been applied to the case of Tolle- 
 mache v. the Earl of Coventry, it would have 
 
 i defeated the estate of third Lord Yere, and 
 | therefore it was at the outset I mentioned it 
 ! was so necessary for your lordships, when you 
 j come to apply this rule, to understand exactly 
 
DUNGANNON V. SMITH. 
 
 19 
 
 the mode in which I venture respectfully to put 
 it ; because, now take the rule in that general 
 way in which they throw it out in their reasons, 
 apply it to the case of the third Lord Yere : 
 it was not absolutely certain that he would ever 
 be Lord Yere, and therefore the property might 
 not have vested, if you take the rule in that, 
 unqualified way ; but it was certain, that if he 
 lived to take it at all, it would vest in him only 
 within the time. And so here you could not 
 tell, until the grandson died, whether there 
 would be an heir male, or whether, if there were 
 an heir male, he would live to attain twenty- 
 one ; but you could tell if there were an heir 
 male, and he should appear on the death of 
 Arthur Trevor, the grandson, that he was the 
 primary object of the testator’s bounty ; you 
 could tell that it was not the intention that the 
 estate should go from him unless he died under 
 twenty-one ; and you could tell that if he lived 
 for twenty-one years, his title must be in om- 
 nibus complete. These were the propositions 
 you could affirm, and therefore the same prin- 
 ciple which upheld the one will, upholds the 
 other ; and the same principle which would 
 defeat the one would defeat the other. 
 
 My lords, I have said there is not a single 
 case — I have not been able to find any, nor has 
 one case I believe been decided in which where 
 there is a series to arise consecutively it has 
 been held void from its commencement ; indeed 
 I should have been surprised if there had been 
 such an anomaly in the British law as a case to 
 be found of that character. If you take the 
 objections that have been put by way of tests, 
 and apply them to these different cases that I 
 have cited, your lordships will find the same 
 result in all, namely, that the objections which 
 have been put by way of tests, would defeat the 
 valid limitation in every one of the cases I have 
 cited, where the limitations have been held to 
 be valid. Could there be a stronger instance of 
 that than the case of Tregonwell v. Sydenham ? 
 when in point of fact the conveyance to one 
 person would have been valid if he had lived, 
 but which became void in event, and therefore 
 the limitation never did take effect, and of 
 course the property never did vest ; and yet it 
 was admitted there, both by Lord Redesdale and 
 Lord Eldon, that if any of the prior persons 
 who were in esse at the testator’s death, had 
 been living at the time the trust was to take 
 effect, it would have been good with regard to 
 them. 
 
 Now, my lords, I may just classify the objec- 
 tions which have been made with reference to 
 the authorities on which they are founded. 
 The objections which have been made to this 
 bequest are founded upon analogies, and I may 
 put them under these heads : there is the ana- 
 logy from powers : there is then the analogy 
 from the accumulation trusts : and there is, 
 lastly, the case of a bequest to a class to take 
 together. I advert to these, because from the 
 way they have mixed up in the observations of 
 Sir Edward Sugden, I think I may say, the 
 classification I have given, embraces the different 
 
 sources of authority brought to bear against 
 this bequest. With regard to this of powers, 
 I own I did hear with surprise the case of Ware 
 v. Polhill brought into the argument against 
 us; that is a case in 11th Yesey, 257 : no man 
 can doubt the propriety of that decision ; but I 
 do respectfully say, it has not any proper bear- 
 ing upon the question now before your lordships. 
 It was the case of a settlement of freehold and 
 leasehold estates, and there was a trust to pay 
 the rents and profits ; there were copyhold 
 estates, payment of fines, and different things ; 
 and then the surplus rents and profits were to 
 be paid to the person for the time being in the 
 possession of the freehold ; and there was a 
 power at any time to the trustees, with the con- 
 sent of the person entitled to the freehold, to 
 sell the leasehold and to invest the produce in 
 freehold property, to be settled to the uses of 
 the settlement ; in fact, it was a mere plan and 
 device to take away from the person who would 
 be entitled to the leasehold estate, to take away 
 at any time his property in the leasehold. Now 
 what was the effect there? Why. of course, 
 the moment a tenant in tail was born, the lease- 
 hold estate vested absolutely in him; and of 
 course when the absolute estate had vested, to 
 allow a power to remain in trustees, at any time 
 afterwards, with the consent of another party 
 who had become entitled to the freehold, to 
 take away the property from the personal repre- 
 sentative of the tenant in tail who died entitled 
 to the leaseholds — of course such a power could 
 not have any efficacy whatever. In its very 
 nature there you could not sever in any respect, 
 and of course to allow the ownership to exist 
 in one person, and the power to defeat that 
 ownership, and transfer it over at any future 
 time to subsist in another — such a state of 
 things could never be tolerated for a moment, 
 and there of course the power was held to be 
 void, and no doubt it was rightly held to be 
 void. But what was the consequence ? I may 
 here just observe, as bearing on the other 
 branches of this case, that although it was 
 argued in that case that the intention of the 
 testator was, that no infant tenant in tail should 
 take the leaseholds ; that the power itself showed 
 that he did not intend any tenant in tail to take 
 the leasehold who was a minor, that did not 
 prevent it vesting in a minor tenant in tail, but 
 they struck out (as it were) all the void part of 
 the will ; the power which was introduced for 
 the purpose of defeating the estate of the tenant 
 in tail was, as it were, struck out, and the vested 
 estate of the tenant in tail remained. Now, 
 what bearing has that upon the present case ? 
 And singularly enough, although it excited at 
 the time a good deal of apprehension, the very 
 man who first exposed the true ground of the 
 decision, was Sir Edward Sugden himself. 
 
 My lords, your lordships will find in the case 
 of Boyce v. Ilanning, 2nd Crompton and Jervis, 
 334, (and Lord Lyndhurst was then Chief Baron, 
 and a case was sent to the Court of Exchequer 
 on this very question with regard to the power,) 
 this very exposition is given of it — that- the 
 
20 
 
 MR. NAPIER S ARGUMENT, 
 
 estate having vested in a minor tenant in tail, 
 you could not allow a power there to be sub- 
 sisting in any other person to defeat the vested 
 estate : you could not prevent the estate vesting 
 in a minor tenant in tail. They did not say 
 one part of the limitation is void, but although 
 it is void we will look to it to gather the inten- 
 tion of the testator, so as that you shall not 
 take under the previous part. If you resort to 
 the legal operation of the first part of the 
 clause, they say in the present case you cannot 
 do that, because the subsequent part shows you 
 were not intended to take under that until you 
 attained twenty-one ; and then you go to the 
 other part and say — Very well; 1 have attained 
 twenty-one— they say — Oh, but that is void 
 and too remote ; that is, to defeat the legal 
 operation of what is valid by taking a partial 
 intention from what is argued to be void ; and 
 then to defeat that intention by the legal opera- 
 tion of the void part from which the intention 
 is first collected. How, that was the case of 
 Ware v. Polhill. The estate vested in a minor 
 tenant in tail, the power was virtually expunged 
 from the will — it was, like a bad proviso, 
 intended to take away the previous estate, and 
 accordingly it was followed up with all its con- 
 sequences, and they struck it out, and neither 
 gave efficacy to it in its legal operation, nor 
 derived any intention out of it : because I sub- 
 mit you cannot derive an intention from any 
 part of the will which you at the same time de- 
 clare to be null and void. 
 
 Well, now, my lords, that analogy, I appre- 
 hend, certainly does not apply to this case. 
 
 My lords, does the other analogy apply one 
 whit more ? The trusts for accumulation ? I 
 submit it does not. Your lordships’ attention 
 has been called to the case before Sir William 
 Grant, the case of accumulation ; it was a deed 
 of trust. The accumulation there is to take 
 away the property from the first person : it is, 
 just as the other case, an attempt to divest the 
 ownership. Now, my lords, in a case of accumu- 
 lation there is this also to be observed — the 
 testator intends the fund for some one person : 
 now I admit you cannot divide the fund : you 
 cannot, if a testator leaves property which he 
 intends for some one person, cut that into parts, 
 because if the party did not take the whole of 
 it, you cannot tell that he intended him to have 
 any portion, and in the very nature of it , it is not 
 capable of severance. When rent is received 
 under such a trust, you must decide whether it 
 is to be accumulated or spent. The moment 
 the trustees receive rent they must say, under 
 a clause of that description, is this to be accumu- 
 lated or spent? Now, if you invest it for 
 accumulation, you take it away from the person 
 by whom otherwise it would be spent : and you 
 cannot accumulate while it remains contingent 
 whether it ought ever to have been accumulated 
 or not. Accordingly, my lords, in the case of 
 Phipps v. Kelynge — which has been referred to, 
 and which I need not trouble your lordships 
 with again — in the case of Phipps v. Kelynge, 
 that was distinguished upon the ground that 
 
 there was no locking up ; but in the meantime 
 the rents and profits "Went and were enjoyed ; 
 and that distinction was relied on ; and surely 
 if this class of cases had the slightest bearing 
 upon such a question as the present, that dis- 
 tinction does apply in this case, because there is 
 no accumulation here : there is instantaneous 
 and uninterrupted enjoyment : therefore, if the 
 analogy of accumulation could apply at all, 
 it would be with reference to Phipps v. Kelynge, 
 which is distinguishable upon that ground which 
 it has in common with the present case. We 
 do not divide the fund here ; we do not call on 
 your lordships here partially to execute the in- 
 tention of the testator at all ; (to use the words 
 of Lord Hardwicke) j his entire disposition is 
 made to take effect in such a case. I may just 
 observe here, that the very case of Ware v. Pol- 
 hill should be a lesson of instruction, because I 
 believe it alarmed persons in this country, and 
 many persons having titles under a general 
 power of sale and exchange were for a long 
 time alarmed whether titles under those powers 
 were not shaken by that decision : but it was 
 not until the true character and nature of it 
 were understood, and the real point of the de- 
 cision rightly apprehended, that it was seen it 
 had no real bearing upon that question : and 
 therefore I say, these analogies are only calcu- 
 lated to mislead. It is remarkable, and I think 
 the best comment to show they don’t apply to 
 cases like the present, that you do not find Lord 
 Eldon relying on that case of Ware v. Polhill, 
 where he spoke in 12th Yes ey, in the Duke of 
 Newcastle v. Lady Lincoln : he does not say it 
 has been already decided in the Court of Chan- 
 cery : nor does he apply that decision to the 
 case as contravening the principle of Trafford 
 v. Trafford ; Lord Eldon does not rely upon it 
 in Tregonwell v. Sydenham; nor does Sir 
 William Grant rely on the decision of the 
 accumulation case when he afterwards came to 
 decide Leake v. Robinson. On the contrary, 
 they are not relied upon by either of those 
 eminent judges when they came to deal with 
 the other question. I say, therefore, that the 
 subject matter of accumulation is not in its 
 nature severable ; and besides that, it was 
 intended there to take away the property from 
 the first person, from the minor tenant in tail ; 
 and in both cases, the power of sale and accumu- 
 lation, the void part, the part that was held not 
 to operate, was (as it were) struck out; and 
 although it was argued that it indicated an 
 intention that the first person should not take 
 during minority, yet it was not allowed to have 
 that effect by supplying the intention ; it was 
 struck out, and then the clause gets its legal 
 operation, entirely independent of that portion 
 which was so struck out. 
 
 Now, my lords, what application have those 
 analogies to a case like the present ? Can they 
 do any thing but embarrass plain reasoning? 
 It merely shows the true value of those running 
 observations that Sir Edward Sugden made 
 when he prematurely discussed the question, 
 and (as he mentioned) that he had not looked 
 
DUNGANNON V. SMITH. 
 
 21 
 
 into those cases for some length of time, but 
 made cursory remarks from general recollection, 
 and thinking they bore on the question. That 
 has given authority to those results that he 
 seemed to deduce, which embarrasses me at the 
 bar of your lordships’ House — obliging me, when 
 I prefer resting upon a simple view of the case, 
 yet in justice to the interest of my client, to 
 argue against such an application of these sup- 
 posed analogies, which can have no other 
 effect but to mystify and prevent you from 
 taking a direct, and clear, and satisfactory view 
 of the question before you. 
 
 My lords, as little application have the other 
 cases of bequest to a class. What is the prin- 
 ciple there ? It is not ascertained by picking out 
 a few words from a judgment. Your lordships 
 know much better than I do, that in delivering 
 a judgment, of course all the language that the 
 judge employs, is more or less affected by the 
 subject matter that is present to his mind, in ! 
 the immediate question before him. I do not 
 deny, that if you pick out a sentence or two 
 from what Lord Eldon says, you may get some- 
 thing that does seem to indicate an objection to 
 a limitation of this description ; but is that to 
 govern the rights of parties — a mere expression 
 of opinion, where the matter was not a point in 
 debate ; not a matter on which he was called on 
 to decide, or necessary to be argued before him : 1 
 and when a solemn decision of such extensive I 
 influence is to be made, rom dicta of that kind 
 to control the free exercise of your lordships’ 
 judgment, on a great and grave question of this 
 description? — ( Their lordships here consulted .) 
 
 My lords, I was adverting to the case of a 
 class. Now what is the reason there ? Why, 
 when a class are to take together, they form one 
 body, or one group ; there is an entirety in the 
 bequest which you cannot sever. If a testator 
 says, I mean a certain number of persons to 
 take, you have no right then to say, that one or 
 two of them may take, and the others not. They 
 form one entire group ; they must take as a class, 
 collectively , and not singly; and therefore, of 
 course if it be remote as to any member of that 
 class, it is remote as to the class ; for, in as 
 much as he does not intend any one should take 
 unless all take, and as all cannot take until a 
 time that is too remote, the class cannot take 
 until a remote event ; and his intention cannot 
 take effect at all until a remote period. But 
 does that apply to the case of a series ? Does 
 that apply to the case where it is not his inten- 
 tion, in that way, that none should take unless 
 all should take ; but where his intention is that 
 only one should take ; and where his intention is, 
 that if the first takes, no other should take, and 
 therefore the gift separates itself into parts ? It is 
 not here that the rule of severance cannot apply, 
 as in those cases where you could not apply it to 
 effectuate the intention of the testator. The rule 
 of severance (as is every rule of construction,) 
 is subservient to carry out the intention of the 
 testator. If you can, by the rule of severance, 
 effectuate his intention, you are to do it ; and 
 if you cannot do that by the rule of severance, 
 
 of course you are not at liberty to sever. If 
 the nature of the bequest dees not admit of it, 
 you cannot do it ; but if the nature of the be- 
 quest admits of it, you not only can do it, but 
 you ought and must ; for the rule of law makes 
 it imperative on you, for the purpose of giving 
 effect to his intention, to do so. 
 
 My lords, then with regard to the class ; 
 when Sir William Grant refers to it, and throws 
 out some observations about the executory de- 
 vise being made subject to a condition, that if 
 it exceeded the limit, it is void. He certainly 
 is a great authority ; but I do not find that laid 
 down any where else, that there is any condition 
 implied ; on the contrary, I find it laid down 
 in the first case I cited to your lordship’s, that 
 “ it stands upon the reason of the old law, that 
 the intent of a testator is to be observed.” I 
 do not deny that a single bequest cannot be 
 partially good, and partially bad ; but if he 
 means to say, that if there be a limitation im- 
 plying two separate bequests, it is invalid as to 
 both, because it is so as to the second — I con- 
 tradict that ; I say that is not the law of Eng- 
 land ; that no doubt you cannot separate a fund 
 into two parts ; no doubt, if there be a single 
 bequest to an individual, or to different parties 
 composing one class, to take together , you cannot 
 separate it : but if there be a bequest to go to 
 one person failing him, to another — and failing 
 him, to another — there you take each individual 
 case in succession ; and it does not sever the 
 bequest when you give it to the first ; it is 
 merely saying that you may strike out all that 
 subsequent part, because the events have not 
 arisen ; nor if they did arise does it make any 
 difference ; there is no necessary or substantial 
 connexion between what is bad and what is 
 good ; they are perfectly disjointed in their 
 nature ; and there is no reason why the good 
 part should be so entangled with the bad, as 
 that this should drag that along with it. 
 
 My lords, it is remarkable that Sir William 
 Grant does not refer in that case to the analogy 
 of accumulation trusts, (although Leake v. Ro- 
 binson was decided after Southampton v. Hert- 
 ford,) as bearing at all upon that question. He 
 does not seem to think that allowed of any ana- 
 logy that could be brought to bear upon the 
 question of a class ; but he refers to two autho- 
 rities, by which he says the law is settled. What 
 are the decisions to which he refers? — Both 
 cases of entire bequest, given to persons to take 
 concurrently ; and, my lords, let me just advert 
 to one of them. Take the case of Routledge 
 v. Dorill, which is one of the cases he refers 
 to, and the reasons given by Lord Alvanley 
 in that case, in 4th Vesey, Jun., page 366 : 
 
 , I xtrd Alvanley’s reasoning shows that the ground 
 ! I am putting it upon, is the true one ; for there 
 he says the gift over was to be on failure of all, 
 and then only ; and therefore, he says, the gift 
 j must wait on a remote event. Now, with res- 
 I pect to the principle, your lordship’s will find it 
 very clearly stated in the case of Porter v. Fox, 
 which is in 6th Simons, page 485. The Viee- 
 | Chancellor there says, what the testator meant, 
 
99 
 
 mr. napier's argument, 
 
 was, that the right of each child should depend 
 on there being a class formed; and that the 
 first member of that class who should attain 
 twenty -five, should take a share, the amount of 
 which should be determined by the number of 
 individuals then .constituting the class. “ The 
 testator has directed such a distribution to take 
 place amongst a class of persons, as the law will 
 not allow. If the whole of his intention cannot 
 prevail, effect cannot be given to any part of it.” 
 That is the whole principle you are to effectuate, 
 if you can, and as far as you can ; but in that 
 case you cannot effectuate, because you cannot 
 tell, if the whole is not to take effect, how much 
 of it is to take effect ; that would be making a 
 new will for the testator ; but that is not this 
 case, because no man can doubt that by giving 
 the estate to my client, you would be effecting 
 the full and entire intention of the testator ; 
 therefore, I submit that those analogies do not 
 apply ; and I have put them under these three 
 classes, and have endeavoured to deal with 
 them fairly, neither to pervert them, nor mis- 
 state them, but to see if they have any real 
 bearing on this question ; and to try and meet 
 the objections fairly if I can. I do respectfully 
 submit, that with regard to those three sources 
 of authority brought against me, they have no 
 real and substantial bearing (when rightly 
 understood) upon the question before your 
 lordships ; nor have they ever been applied to 
 a case of succession. In addition to the autho- 
 rities I have adverted to, where the case of 
 succession has been dealt with in the way I am 
 asking now to deal with it, I may advert to 
 one other case before Vice-Chancellor Wigram, 
 the case of Lilly v. Hay, 1st Hare, 583 — where 
 he in the same way applied the rule of severance 
 to a limitation that was to go on in succession, 
 that would have tended to remoteness, if literally 
 carried out ; but being a case of succession he 
 held that it was good as to the existing set. 
 
 How, my lords, what is the principle deducible 
 from these cases ? It is said, sometimes you are 
 making a new will for the testator, and again it 
 is said, non constat , what the testator would have 
 done if he had been told that these limitations 
 could not take effect. These reasons do not 
 apply here. If you find a limitation valid as 
 far as it goes, you are bound to give effect to it ; 
 but what I am stating to your lordships as the 
 rule of severance is, that wherever you can ef- 
 fectuate the intention by severance, you ought 
 to do it ; and there is that case of Mogg v Mogg, 
 which is certified to the Queen’s Bench, and 
 afterwards approved of by Sir William Grant 
 himself : there is also the case of Defflis v Gold- 
 schmid, 19 Vesey,570. Sir William Grant there 
 says, “ There are two repugnant intentions : first, 
 the testator means all the children to take ; but 
 secondly, he means the child who first attains 
 twenty-one shall take its share. It is impossible 
 to comply with both these objects. If all after 
 born children are let in, you cannot ascertain 
 what share the first who attains twenty-one is to 
 take. It was therefore necessary to act on the 
 one intention or the other ; and the course that 
 
 was adopted as most convenient was to give a share 
 to the child that attained twenty- one, although 
 the necessary effect was to exclude all after-born 
 children.” How, my lords, if that rule was 
 adopted there for the purpose of effectuating the 
 paramount intention of the testator where the 
 other intention was supposed to be of such minor 
 importance, that it was not regarded — surely, in a 
 case where you effectuate the entire intention 
 of the testator by this rule — where the subject 
 matter is in its own nature severable — where 
 the limitation severs itself in point of fact, and 
 does not require the assistance of the court to 
 do it — where you are not obliged to modify or 
 vary or alter, but to apply plain understanding 
 to the language used — surely, if that case is good 
 law, and the rule of severance can be applied 
 there, it ought to be applied to the present case. 
 
 How, my lords, suppose I am right down to 
 this point, and that I ,have given your lordships 
 a right summary of the authorities, would it not 
 be enough for me to stand there upon those au- 
 thorities, and to ask your lordships to validate 
 this bequest, and to establish this title, which 
 arose in the year 1770, although the limitation 
 only took effect in the year 1837, on the death 
 of the grandson ? Might I not ask your lord- 
 ships, with some degree of confidence on those 
 authorities, to say that that bequest, made at 
 that early period, was a good and valid bequest ? 
 And, my lords, I cannot omit reading to your 
 lordships some observations of a very distin- 
 guished judge, the late Lord Kenyon, when ad- 
 verting to an attempt to get rid of some deci- 
 sions applicable to family settlements : he says, 
 “ In family settlements provision is made for 
 unborn generations ; and if, by the means of new 
 lights occurring to new judges, all that which 
 was supposed to be law by the wisdom of our 
 ancestors, is to be swept away at a time when 
 the limitations are to take effect, mischievous 
 indeed would be the consequence to the public ; 
 it was upon this ground that the majority of the 
 judges in the House of Lords were of opinion 
 that the case of Perry n v. Blake had been wrongly 
 decided in this court.” That is in Doe v Allen, 
 8 Term Reports, 504. 
 
 My lords, I now come to the case on which I 
 believe the main strength of this case has been 
 put, the case of Ibbetson v. Ibbetson ; and cer- 
 tainly, my lords, I must say I approach it with 
 great humility in any observations I may take 
 the liberty of making upon it. It is a decision 
 affirmed on appeal by one of your lordships, for 
 whose judicial character and eminence I have 
 the most unfeigned respect ; but at the same 
 time I will humbly submit my observations upon 
 the case to your lordships for your consideration. 
 In the first place I may observe, that even taking 
 that case to be rightly decided, it does not 
 govern the present case, because the general 
 bequest there was not held void ab initio ; on 
 the contrary, the person who first claimed 
 under that general bequest, was held entitled 
 at all events to a life interest, and the Vice- 
 Chancellor said it was not necessary for him 
 to decide whether he merely took a life interest 
 
DUNGANNON V. SMITH. 
 
 23 
 
 or an absolute estate. The decision was affirmed 
 on appeal ; and with regard to that part of it, I 
 believe Lord Cottenham had not the means of 
 deciding, because the proper parties were not 
 before him at the time, for the purpose of having 
 that question raised and decided. Now, with re- 
 gard to that case, it was appealed against, and I 
 believe it was compromised. The argument of 
 the case before Lord Cottenham is not reported, 
 although the decision is ; but the argument before 
 the Vice-Chancellor of England in 10th Simons 
 is fully reported. It is a very singular case ; 
 for it appears there, if your lordships will look 
 to the statement of it, that in the marriage settle- 
 ment of the testator he provided for sons living 
 at his decease, or who might be born after- 
 wards — contemplating by the settlement the 
 possible birth of sons after his death, posthu- 
 mous children, or at least one. Now, when he 
 came afterwards to give, by his will, the personal 
 property to trustees, it is “ upon trust to'permit 
 the same to be used by the person or persons 
 who, for the time being, shall be entitled to 
 the possession of his mansion-house, under 
 and by virtue of the settlement made on 
 his marriage, or by his will, until a tenant in 
 tail, under the age of twenty-one years, should 
 be in possession, and then to go and belong to 
 such tenant in tail.” So he there refers back 
 again to the settlement made upon his mar- 
 riage, and there is certainly this difficulty in 
 the case that always struck my mind ; it is per- 
 haps from my inexperience, but I never could 
 see an answer to it : that is, that if you are to 
 go upon possibilities, there might have been a 
 son afterwards born, and he might have had 
 issue ; and there might have been a line of 
 estates tail that would have come into operation 
 before the other parties under the will could 
 have claimed ; and there might therefore have 
 been individuals claiming this personal estate 
 by direct descent from the testator; and yet, 
 curious enough, the tenant for life, Sir Charles 
 Ibbetson, who claimed after the issue of the tes- 
 tator himself, was held entitled at all events to 
 a life interest in the personalty under this 
 general clause, to permit the same to be used 
 by the person or persons who, for the time 
 being, should be entitled under the settlement 
 or will. Now his claim might have been pre- 
 ceded there by a line of issue claiming under 
 the testator directly. I never could understand 
 how he was to take only for life. I could very 
 well understand the case, if they chose to give it 
 to him absolutely as owner. In that case there 
 is no bequest to Sir Charles Ibbetson, by name, 
 to those personal chattels ; it is under the general 
 bequest that he takes ; and if the Vice-Chan- 
 cellor had decided what it was not necessary 
 for him to decide, and what he did not decide 
 one way or other, that he took absolutely, it 
 would be an authority for me, because it would 
 be exactly square with the proposition I first 
 mentioned to your lordships, namely, that where 
 there is a general bequest applicable to the case 
 of persons arising in succession, then the first 
 member of the class taking, if there is not a 
 
 good bequest over to take it out of him, it re- 
 mains absolute with him, and that would uphold 
 this decision upon that view of it, and the 
 counsel in argument put it so. 
 
 Mr. Hodgson — With respect to the question 
 your lordship just asked now, I have in- 
 quired. The fact is, they were advised to 
 appeal, and there was an intention to appeal, 
 but a family arrangement took place, in conse- 
 quence of which, Sir Charles Ibbetson, who 
 would have been the appellant in the case, was 
 perfectly satisfied, and gave up the contest. 
 
 Lord Brougham — I thought, when Mr. Napier 
 said it had been affirmed on appeal, that it was 
 affirmed by this House. It was affirmed on 
 appeal by the Lord Chancellor from the Vice- 
 Chancellor. 
 
 Mr. Hodgson — It was a rehearing. 
 
 Mr. Napier — In that case the counsel who 
 argued in support of Sir Charles Ibbetson’s 
 title as against the tenant in tail, say, “ no par- 
 ticular individual is pointed out as the first 
 taker. Sir Charles became the first taker by 
 the happening of a contingency.” Supposing, 
 however, that the trust in this case is not alto- 
 gether void for remoteness, the principle upon 
 which those cases were decided (that is, Ware 
 v. Polhill, and Lord Southampton v. the Mar- 
 quess of Hertford), “ would give Sir Charles the 
 plate and other articles, as being the first indi- 
 vidual of a class.” Accordingly the Vice- 
 Chancellor, at the end of his judgment, quotes 
 Ware v. Polhill ; he relies on that case, and he 
 relies on the cases of trusts for accumulation, 
 and then he says that the rule of law is, that 
 “ if it ever took effect at all, it must of necessity 
 have vested the absolute interest in some one 
 within the period allowed by law ; it was bad 
 then, and must be so now.” Now, how does he 
 carry out his own principle ? — does he say this 
 general bequest to this class is void ah initio ? 
 No such thing ; but on the contrary he says, 
 “ I am of opinion that so far as the gift was 
 framed to take effect after the death of Sir 
 Charles Ibbetson, it was void. Whether it was 
 good as a gift for life only, or void as a gift in 
 remainder after his death, or whether it might 
 be construed a gift absolutely to Sir Charles 
 Ibbetson — according to what seems to have been 
 the opinion of Lord Brougham upon the gift in 
 Lord Vere’s will — to the third Lord Vere, it is 
 not necessary to decide.” Now, suppose it had 
 been given to Sir Charles absolutely, could it 
 be contended as an authority here, that the 
 limitation here is void, ah initio ? My client 
 was in as good a condition as Sir Charles Ibbet- 
 son, because my client was the first heir male, 
 who must have been born at the death of the 
 grandson, and the Vice-Chancellor does not 
 carry out the principle ; he does not say that it 
 is void entirely — no such thing ; and therefore 
 I stated at the outset, and I repeat the propo- 
 sition, that there is no case from first to last, 
 in which a general bequest of this description, 
 applicable to persons in succession, has been 
 held in toto void ; yet that is the argument 
 that was urged in this case, and that they must 
 
24 
 
 mr. napier’s argument, 
 
 uphold. It came then afterwards before Lord 
 Cottenham ; it would ill become me minutely 
 to criticise his lordship’s judgment ; but there 
 is certainly one part of it that I have never been 
 able to understand. His lordship deals with 
 the case of a tenant in tail. Your lordships 
 observe, there is this peculiarity in the case, it 
 is not like our case at all, in one respect, because 
 it is a gift to one class of persons until one of 
 another shall attain twenty-one. It is to a per- 
 son who would be from time to time entitled to 
 the possession of the mansion-house and free- 
 holds until a tenant in tail shall attain twenty- 
 one, and then to go and belong to that tenant 
 in tail; so that there is a distinct gift to the 
 tenant in tail who attains twenty-one. How 
 the argument that was pressed on his lordship 
 was this : it was an argument pressed by the I 
 late Mr. Jacob, who, if he had lived, would 
 have occupied the place I now occupy ; and my 
 client is rather unfortunate in that respect, 
 having lost both the assistance of Mr. Pember- 
 ton Leigh and Mr. Jacob. The argument that 
 was pressed upon Lord Cottenham was this — 
 that supposing you made out that the gift to the 
 tenant in tail was void for remoteness, what then? 
 Here is a gift to commence within the proper 
 limit. It is to be enjoyed then by a class of 
 persons until a remote event. How if that event 
 be too remote, then it is an enjoyment until a 
 period that the law cannot contemplate. How, 
 it was said, therefore, that a party had a right 
 to claim under the previous direction. The an- 
 swer given to that was — that cannot be ; because, 
 if you look to the subsequent part, it negatives 
 the intention of benefiting any tenant in tail 
 who has not attained twenty-one. How, my 
 lords, the testator in a gift of chattels of that 
 description gives it until a certain period and 
 then it is to go over. The first estate is not to 
 determine absolutely , but the first estate is to 
 terminate for the purpose of introducing a new 
 estate ; and I confess I never could ascertain 
 how this could be consistently argued, that you 
 should say in such a case that the event is too 
 remote for the purpose of introducing a sub- 
 sequent estate, but is not too remote for the 
 purpose of determining the previous estate. 
 Such a principle did not prevail in the case of 
 Ware v. Polhill to defeat the estate of the minor 
 tenant in tail. It might have been urged in 
 Foley v. Burnell ; yet the rule of law had its 
 effect and vested the interest absolutely in the 
 first taker. Perhaps in the case of Ibbetson v. 
 Ibbetson, with regard to that argument, it may 
 have been said — why, supposing that to be so, 
 then it will vest absolutely in Sir Charles : that 
 will answer my purpose, though it would not 
 answer the purpose of the parties claiming in 
 Ibbetson v. Ibbetson ; because if it be the true 
 rule that here it is to vest in the first of the class, 
 unless you can take it out of him, being per- 
 sonal estate — and you must show a valid bequest 
 over in an event that has happened, but here the 
 event has not happened, and therefore it is im- 
 material whether the bequest over is valid or 
 invalid ; the absolute interest remains in the 
 
 first; being personal estate, there is nothing to 
 give it over ; the object of the testator is not to 
 determine it simpliciter , the object of the testator 
 is to determine it for the purpose of shifting it 
 over on a certain event; but if it cannot shift 
 over, then it is to remain with the first. In 
 truth it would give a base fee in freeholds ; 
 would not that give an absolute interest in 
 chattels ? Because, if the implied or express 
 bequest over be limited over on an event too 
 remote for the law to contemplate, you cannot 
 shift the interest over, and therefore it remains 
 in the first taker, and in that way I can bring 
 the case of Ibbetson v. Ibbetson to bear in 
 favour of my argument in the present case ; 
 though of course I admit my own humble view 
 of it is of a more simple kind ; I would rather 
 rest the case itself, according to my own humble 
 view of it, upon the substantial, intelligible, and 
 rational basis of this being virtually and neces- 
 sarily a series of executory bequests on succes- 
 sive contingencies, each subsequent being a 
 substitution for the preceding, and depending 
 upon its failing to take effect. But I have the 
 other view, that even supposing'you bring this case 
 of Ibbetson v. Ibbetson to bear upon me, it does 
 not defeat the bequest ah initio ; on the contrary, 
 
 [ it proves it is good at all events to some extent ; 
 
 I it is good at all events to the extent of giving 
 j at least a life estate to the person claiming un- 
 j der that general bequest, who became (in event) 
 
 | the first taker ; and if it be good to any extent, 
 it is impossible that the respondents can support 
 their claim, which can only be supported on the 
 ground of this bequest being entirely and ab 
 initio void. In that case of Ibbetson v. Ibbetson 
 Lord Cottenham referred to Trafiord v. Trafford 
 as being in point on that part of that case ; but 
 I take the liberty of saying, most respectfully, 
 with reference to that observation, that there Is 
 this difference : if you are to deal with Trafford 
 v. Trafford and to import an intention of keep- 
 ing the estate from vesting until the party at- 
 tains twenty-one, you are to remember that the 
 intention in Trafford v. Trafford was founded 
 upon the assumption that it was a good limita- 
 tion as far as respects the first of the class. It 
 is not as if Lord Hardwicke had said that it is 
 a void limitation so far as it gives the estate 
 when he does attain twenty-one ; but at the 
 same time you may from the void clause collect 
 an intention in order to defeat your taking un- 
 der the previous part of the bequest. Ifyom 
 resort to Trafford v. Trafford, deal with it in. 
 omnibus , take it as an authority, and I am willing 
 to go by it ; it is a sound authority in my humble 
 judgment; and even if it were open to verbal 
 criticism, it is, at all events, too well founded 
 on reason and justice, and too long acted upon 
 in framing dispositions of leasehold property, to- 
 allow it now to be disturbed, or to say that all 
 the family arrangements of long standing which 
 have been founded upon it during a century, 
 are now to be condemned as void. 
 
 My lords, I say then this is no case of intes- 
 tacy under the general bequest ; and I say, even 
 with reference "to the decision of Ibbetson v , 
 
DUNGANNON V. SMITH. 
 
 25 
 
 Ibbetson, that before that decision was pro- 
 nounced, the law was clearly in my favour. 
 Surely, if independent of that decision the law is 
 in my favour, it can hardly be pressed against 
 me ; because, when a case comes before your 
 lordships’ House, you will examine the authori- j 
 ties and extract the reason of the rule ; and no | 
 modern decision is of so binding a character that I 
 you are not enabled to try the soundness of it I 
 by the tests by which you try every decision, J 
 when you have to fix the law and settle it for 
 future cases. 
 
 Now, my lords, although the case was not re- 
 ported in the regular reports, at the time the 
 question arose in Ireland in the present case, it 
 cannot be doubted that that decision had a 
 material bearing on the decision in this case. 
 My lords, your lordships have heard the way, 
 perhaps rather unfortunately for the fair discus- 
 sion of the present case, in which this question 
 came before the court in Ireland. 
 
 Lord Chancellor — At the time Lord Chancellor 
 Sugden gave his opinion, I believe Lord Cotten- 
 hain had not decided the appeal ? 
 
 Mr. Napier — Yes, my lord, it was reported at 
 that time in the Law Journal, but the parties 
 had also the short-hand writers’ notes, and the 
 short-hand writers’ notes were handed up to Sir 
 Edward Sugden on the bench at the time. Your 
 lordships will find, in the judgment in Ker v. 
 Lord Dungannon, it was mentioned to his lord- 
 ship that there was an appeal to the House of 
 Lords at the time ; and he said that he would 
 let the case stand over for the result of that ap- 
 peal. He says, “ under such circumstances I 
 shall not finally dispose of this case, should it 
 turn on that point, until the House of Lords have 
 pronounced their opinion in Ibbetson v. Ibbetson, 
 but shall allow this case to stand over until the 
 decision of that cause, and also in the meantime 
 to go before the Master and give security for 
 mesn rates.” I happened to be junior counsel in 
 the case of Ker v. Lord Dungannon, where 
 the question on the will arose incidentally — the 
 main question was on the plaintiff’s want of 
 equity to obtain an injunction ; and the question 
 with regard to the will arose merely incidentally. 
 His lordship, in opening the case, says — “An im- 
 portant question arises in this case, and I must 
 say, in as indirect, if not irregular a manner, as it 
 well could, considering the interests of the parties.’ 
 So that he shows in the first place he had not 
 the proper parties before him, and that it was 
 not necessary for the decision of the case. An 
 appeal was said to be pending before the House 
 of Lords on the question in Ibbetson v. Ibbetson, 
 but still the matter was shortly discussed in fact 
 on the will, and then his lordship went over his 
 recollection of the authorities, or what he called 
 his impressions on the various matters ; and 
 afterwards he stated, that he decided the case 
 on the other ground of want of equity. He said 
 on the second day, as reported in Connor and 
 Lawson’s Report, “ It is not necessary to decide 
 the point of construction, and therefore the ob- 
 servations I made on it were extra-judicial.” 
 However, my lords, it so occurred that from 
 
 the suggestions thrown out by his lordship in that 
 case, the parties took the hint, and the proper 
 parties filed their bill immediately after he 
 pronounced those observations ; and then, when 
 the question in this case came before the Master 
 of the Rolls, the observations of Sir Edward 
 Sugden were published before the time his honor’s 
 decision took place. My lords, I admit, in one 
 part of his judgment, Sir Edward Sugden puts 
 the case on its real grounds : he says, “ To sup- 
 port this view, they must contend that the limi- 
 tation is made of separate and distinct gifts to 
 individuals, and is not a single gift to a class ; 
 they have to divide the clause, making two gifts : 
 in the first place, one to this particular person, 
 and then in certain events, a series of gifts over, 
 which it is admitted would be void ; and there 
 can be no doubt that in this way of construing the 
 will , a valid gift is made to Lord Dungannon .” 
 Now if I am right in the observations I have 
 made to your lordships, that is precisely what 
 we are authorized to do ; and certainly he states 
 the proposition truly, that that is the real test, 
 the real mode of ascertaining the validity of the 
 appellant’s title. Now surely, my lords, you can 
 interpret this will without doing violence to the 
 testator’s intention ; without contravening one 
 iota of that intention ; without upsetting or vio- 
 lating any rule of law ; without resorting to all 
 or any of those analogies forced in upon this 
 case to overbear the case, and overlay it. You 
 can give a simple construction that preserves the 
 rule of perpetuity inviolate, and yet completely 
 effectuates the testator’s intention. Sir Edward 
 Sugden goes on to say, “ The first question is, 
 am I authorized in point of intention in the first 
 place, and construction in the next, to extract 
 a distinct limitation and apply it to Lord Dun- 
 gannon?” Why, my lords, when you get the 
 intention, and then apply the simple rule to it, 
 there is an end of the difficulty. Then he re- 
 fers to the case of Ware v. Polhill, and the cases 
 on accumulation, which he said he had not read 
 lately, but, as he recollected them, they were 
 authorities against Lord Dungannon. These 
 would be equally applicable if the will be construed 
 as containing a series of bequests , and yet in such case 
 he admits the first limitation would be valid. This 
 whole discussion by Sir Edward Sugden was 
 very short ; the case was disposed of in the hurry 
 of the Court of Chancery, on a bill dismissed on 
 another ground, namely, dismissed for want of 
 equity, and then on the next morning his lord- 
 ship candidly admitted that the observations he 
 made on the previous day on the will, were 
 extra-judical, and that he decided the case on the 
 other ground, and did not mean to decide it upon 
 the question of construction. My lords, there 
 are a number of observations in his judgment 
 which I need not particularly advert to ; because 
 they are in effect, the arguments I have been 
 endeavouring to combat in this case. 
 
 Lord Chancellor — I never heard that word 
 applied to the Court of Chancery : that it passed 
 in the “ hurry” of the Court of Chancery. 
 
 Lord Brougham — We never speak of the speed 
 of a broad-wheeled waggon. 
 
26 
 
 mr. napier’s argument, 
 
 Mr. Nopier — I said, my lords, in the “ hurry,” 
 though perhaps I may not have expressed exactly 
 what I mean. As far as my limited acquaint- 
 ance extends in the practice of the court, on a 
 bill and answer, where evidence is read, a ques- 
 tion of this description, involving a mere question 
 of law, is not disposed of with the same formality 
 and deliberation that is usual in a court of com- 
 mon law, when the question is on the record. 
 
 Lord Chancellor — It appears to have been 
 most elaborately discussed before the Lord 
 Chancellor. It is stated that all the cases that 
 were cited before the Vice-Chancellor, were 
 cited before him, with the addition of several 
 which are set out in the report. 
 
 Mr. Hodgson — I think Mr. Napier is speaking 
 of what had occurred in Ireland in Ker v. Lord 
 Dungannon. 
 
 Lord Chancellor — If Mr. Napier would pay 
 a visit to our courts he would find it different. 
 
 Mr. Napier — I never had the honour of prac- 
 tising in your lordships’ Court of Chancery, and 
 I do not suppose I ever shall ; but I should 
 suppose, from the example I have had of the 
 kindness and patience with which your lordships 
 have heard me here, that I should have equal 
 pleasure in appearing in any other court where my 
 Lord Lyndhurst presided. But I say, my lords, 
 the present question was not deliberately decided ; 
 I mean in the case of Ker v. Lord Dungannon. 
 With respect to Tollemache v. the Earl of Co- 
 ventry, his lordship admitted, though he said it 
 was the decision of a single judge, it must bind 
 all other courts, and of course it must bind him. 
 He understood, at all events, what was decided 
 in it, because he had been at one time counsel 
 in the cause; it should have been a governing 
 authority, and there would have been an end of 
 the matter; but after citing these authorities, 
 which he says were on the very point, he leaves 
 it with an observation. With regard to that case, 
 he says, “ I do not understand the grounds of 
 this reversal, particularly that portion of Lord 
 Brougham’s judgment respecting an attainder 
 or abeyance of the peerage, for the argument 
 would have applied as well to the first grandson 
 as to the other; but the authority of the House 
 of Lords, although, I admit, upon the sole 
 authority of one judge, must bind all other 
 courts.” Now, if it was an authority on the 
 point, I submit it is a direct authority against 
 the view that is suggested here. I submit it is 
 a distinct authority for the appellant, as I put 
 it to your lordships ; and if it is to bind other 
 courts, so it will bind here as being a sound 
 decision ; and the view on which I have put it, if 
 I am right in that view, is conclusive. I have, 
 then, all these authorities fortifying my view of 
 the law, that my client ought to take. Then he 
 goes on to show how little he intended to give 
 any kind of binding decision upon this question. 
 He says, after alluding to the various authori- 
 ties, “ Without any very direct authority to 
 guide me, I have a strong impression that the 
 gift is altogether void, and that principle and 
 authority, as far as they go, are against my 
 modelling the gift so as to pick out of it a valid 
 
 limitation to Lord Dungannon; but, like the 
 Vice-Chancellor in Ibbetson’s case, 1 may not 
 find it necessary to decide the question.” The 
 Vice-Chancellor had left it open, whether Sir 
 Charles took absolutely or for life. Sir Edward 
 Sugden says, it may not become necessary for 
 him to decide the question ; and it did not be- 
 come necessary, because he dismissed the bill 
 for want of equity; and accordingly he said the 
 next morning, that the observations he had 
 made on the construction of the will were extra- 
 judical. But when the Master of the Rolls came 
 to deal with it, he takes up those observations and 
 he applies those observations in his j udgment. He 
 goes through the different cases, Ware v. Polhill, 
 and the cases of accumulation. He alludes to the 
 case of Tollemache v. the Earl of Coventry, and 
 says, it was not decided in that case that the 
 third took absolutely. He takes up Tregonwell 
 v. Sydenham, and he tells us what the case was, 
 but he gives no answer to the observations taken 
 from the judgment of Lord Eldon and Lord 
 Redesdale. No- doubt the case was as he states 
 it ; but those observations were made as bearing 
 on a particular part of the case, and therefore, 
 the application of those analogies of accumula- 
 tions, and those cases of powers, and those cases 
 of a class which have been brought to bear in 
 that way — if I have been successful in the argu- 
 ment I have urged — I need not take up your 
 lordships’ valuable time by going through these 
 judgments. Your lordships can apply these 
 observations I have made, if they are sound and 
 right in themselves. Sir Edward Sugden ad- 
 mits, that if you can read the limitation in the 
 way he put it, as embracing a series of indivi- 
 duals — then, taking] it in that way, it actually 
 makes out a good gift to Lord Dungannon. 
 Now, why should you not read it in that way ? 
 The very objection which has been put of the 
 succession of minorities — what is that but admit- 
 ting that it may be so read? What is the very 
 essence of the objection put, but breaking it up 
 into a series of individual gifts ? 
 
 Now, my lords, with regard to personal estate, 
 (and I am very happy to say I have nearly 
 closed my observations) — with regard to personal 
 estate, is it less liberally dealt with than free- 
 hold estate? — No such thing, but quite the con- 
 trary. The origin of executory bequests demon- 
 strates this ; for with regard to personal estate, 
 the judges transposed the limitations actually ut 
 res magis valeat quam pereat , as it is said in Man- 
 ning’s case. But there is a class of cases with 
 respect to personal estate, and for the sake of 
 brevity I would refer your lordships to the 
 summary of the law given in the 2nd vol. of 
 Preston on Abstracts, 171 ; he says, “ If a term 
 for years be bequeathed to A. for life, and after 
 his death to the first and other sons unborn suc- 
 cessively, and the heirs of their bodies ; and on 
 failure of such issue to B. for life, and after his 
 death, to his first and other sons successively, 
 and the heirs of their bodies. These limitations 
 to B. and his first and other sons, as depending 
 on, and to take effect after the failure of the 
 estates of the first and other sons of A. (being 
 
DUNGANNON V. SMITH. 
 
 27 
 
 merely chattel interests and consequently not 
 creating estates in tail,) are too remote, and 
 therefore void. But the law, foreseeing that 
 there may not be any child of A., considers 
 the limitation to B., and his first and other sons, 
 as intended to take effect in the event that there 
 should not be any child of A., and it construes 
 the limitation in the same manner, as if penned 
 in these terms; and the limitation is good in the 
 alternative that there shall not be a child of A. 
 
 Now, observe, my lords, the strength of my 
 case here is this, that I do not ask your lord- 
 ships, as it were, to divide a single contingency 
 into two, under one of which my claim might 
 be good, and under the other bad. I am not 
 obliged to go that length in this case, because, 
 under no possible view could there be any claim- 
 ant before my client. He is first, and must take 
 first if at all. His claim must precede every 
 other ; therefore, in that respect it is not like 
 the case of Proctor v. the Bishop of Bath and 
 Wells. The void devise there might have been 
 preceded by an estate too remote ; but it is 
 impossible in this case, that that could be so. 
 In any case, under no possible contingency could 
 there be any claimant preceding my client, so as 
 to shift off the claim of my client. 
 
 Now that being so, let me just call your lord- 
 ships’ attention to one great principle applicable 
 to all these cases. Suppose it could be shown 
 that there is a way in which you can defeat the 
 claim of the first member of this series; sup- 
 pose that they could be successful in showing 
 there is a mode by which you may defeat and de- 
 stroy all the limitations of this will ; and suppose 
 I show there is another mode, in which you can 
 support some of these limitations ; which of the 
 two are you to adopt ? My lords, on this sub- 
 ject I 'may refer your lordships to the most 
 able, and I must say, eloquent observations of 
 Lord Brougham, in a case in this house — the 
 case of Langston v. Langston, in 2nd Clarke and 
 Finnelly, 243 — “There are two modes,” he says, 
 “ of reading an instrument, where the one de- 
 stroys and the other preserves. It is a rule of 
 law, and of equity following the law in this 
 respect, (for it is a rule of common sense, which 
 I trust is common to both sides of Westminster 
 Hall,) that you should rather lean towards that 
 construction which preserves, than towards that 
 which destoys. Ut res magis valeat quam pereat 
 is a rule of common law and common sense, and 
 much the same principle ought surely to be 
 adopted, where the question is not between two 
 rival constructions of the same words appearing 
 in the same instrument, but where the question is 
 on so ready an instrument, as that you may either 
 take it verbally or literally as it is, or with a some- 
 what larger and more liberal construction, and by 
 so supplying words, as to read it in the way by 
 which you have every reason to believe that 
 the maker of it intended it should stand; and 
 thus, according to the rule ut res magis valeat quam 
 pereat , to supply, if you can safely and easily do 
 it, that which he per incuriam omitted, and that 
 which, instead of destroying, preserves the instru- 
 ment — which, instead of putting an end to the 
 
 instrument and defeating the intention of the 
 maker of it, tends rather to keep alive, and con- 
 tinue, and give effect to that intention.” 
 
 Now, my lords, your lordships will find that 
 that rule was more pointedly applied in the case 
 of Thelluson v. Woodford, 4th Yesey, 312 ; 
 and there is a passage which applies so particu- 
 larly to the present case, that 1 cannot forbear 
 stating it to your lordships. It is in the judg- 
 ment of Mr. Justice Lawrence — “It has been 
 asked in the argument, how can the court know 
 the testator did not intend to use the first de- 
 scription of persons in its most extended sense ? 
 It certainly is a sense which the words will 
 bear; but surely it is not reasonable that the 
 court should adopt that construction which will 
 defeat the will, and give to his heir-at-law, and 
 next of kin, what it was most unquestionably 
 his intention they should not enjoy. Bead this 
 with reference to the rules of law, and there 
 can be no doubt — and it is a rule, that where 
 words are capable of a two-fold construction, 
 even in the case of a deed, and much more in 
 the case of a will, such a construction shall be 
 received as tends to make it good.” 
 
 Now, my lords, if that applies where the words 
 are capable of receiving a two fold construction, 
 a fortiori, here where there is no ambiguity in 
 the words at all — when I do not ask your lord- 
 ships to strain them, or to vary them, and there- 
 fore the real question in this case is, is this will 
 capable of being construed in such a way as to 
 support the intention of the testator, quoad, the 
 first member of this series ? The one construc- 
 tion your lordships are called upon to give, by 
 the respondents, is, that which defeats and 
 destroys the will. It takes away vested interests 
 which were made upon the faith of the supposed 
 integrity of the will. In the year 1837, the tenant 
 for life dies. The next object of the testator’s 
 bounty then enters upon the enjoyment; he holds 
 the property ; he has it for several years ; he 
 uses it for its legitimate purpose, of making a 
 family settlement ; and then, after all those ar- 
 rangements are perfected, and after the most 
 sacred relations of life have been contracted on 
 the faith of the validity of that bequest : when par- 
 ties cannot be restored to their original position ; 
 when vested rights have become* irrevocably 
 vested — your lordships are called upon to turn 
 upon all that has been done, and by a retro- 
 spective decision, to trample it under foot ; to 
 defeat and destroy the entire, upon what I must 
 call a verbal quibble, a special demurrer to this 
 will, for it is nothing better. Does this con- 
 struction validate a single title, or any vested 
 interest ? Is it necessary to effectuate and pre- 
 serve a single title in the land? — No. What- 
 ever it does, it must destroy ; it cannot support. 
 But the other construction is just and rational : 
 it contravenes no decision rightly understood ; 
 it interferes with no rule of law ; it effectuates 
 the intention of the testator ; it sustains all those 
 important arrangements of property which have 
 been completed : it does not defeat the desires 
 of the dead, nor disappoint the expectations of 
 the living. 
 
28 
 
 mr. napier’s argument, 
 
 But, my lords, a question was put, as I un- 
 derstand, in the course of the argument yester- 
 day, which I wish to answer ; for I desire to 
 meet this case in all its parts. I may, my lords, 
 have entertained a mistaken view of it, but I 
 am anxious that the arguments which have 
 brought the fullest conviction to my own mind, 
 should be conveyed intelligibly to your lordships ; 
 I wish to meet every objection that can be put, 
 and see if I cannot answer them all ; for I be- 
 lieve that this case, the more thoroughly it is 
 examined, the more clear will it appear to be in 
 favour of my client. It is only necessary to 
 relieve it from the pressure that has been put 
 upon it; to get rid of that incumbrance of 
 strained analogy which weighs down the case, 
 which of itself is simple and plain enough, when 
 regarded by the plain light of common under- 
 standing. 
 
 Now, my lords, it was said, can you, on the 
 death of the testator — can you say 'who will be 
 the first taker ? Who is to take, and when ? 
 How are you to find him out? Now, there is 
 no better plan of trying the validity of any 
 part of this will than just to conceive we were 
 dealing with it upon the very day after the tes- 
 tator died. And, my lords, it certainly is ra- 
 ther inconsistent'with the respondent’s reasoning ; 
 and I should say respectfully, also with the ob- 
 servations made in Ibbetson v. Ibbetson, about 
 the tenant in tail having actually attained twen- 
 ty-one ; because, if the event is not to be called 
 in aid, in support of the will, it should not be 
 called in aid to defeat it. But just see what 
 the different possible events are : and I call upon 
 the other side to give a construction upon their 
 view of it, applicable to all the different events. 
 First, there might be no heir male ; well, if there 
 were none, of course the trust is at an end. 
 There might be an heir male who would then 
 have attained twenty-one ; if there should be, 
 if you are allowed to refer to that, why cadit 
 queslio , because he is in a condition to take 
 everything. But then (and lastly) there might 
 be a minor heir male. Suppose that to be so. 
 Then, upon the death of the grandson, what are 
 you to do with the rents and profits ? Is the 
 estate of the minor then wholly void ? Why ? 
 Is he to take nothing ? How does he claim? — As 
 heir male simply, and entitled to the rents and 
 profits ? What is to take the equitable estate 
 from him ? Under what circumstances is it to 
 go over? Why, it is said he may die under 
 twenty-one. Is he to take nothing because he 
 may die under twenty-one ? — because his es- 
 tate must commence, and may terminate within 
 the legal period. But he may live until twenty- 
 one. There is another contingency ; what then ? 
 You say, having regard to the subsequent part 
 of the clause, you import that the intention of 
 the testator was, that the first individual who 
 must certainly take, is to lose the estate if he 
 dies under twenty-one. Be it so ; but suppose 
 he lives until twenty-one, which is another con- 
 tingency as legal and as proper to be provided 
 for, as his dying under twenty-one ; because 
 they both stand on the same footing, namely, 
 
 that both must happen, if at all, within the 
 twenty-one years after the death of the living 
 person. Suppose he lives until twenty-one, 
 what is to take the estate out of him ? Is he 
 first to take the estate, and lose it at twenty-one, 
 because the trustees are ordered to make an 
 assignment, and give him the legal estate ? What 
 is to determine his interest ? If he passes the 
 bounds and lives until twenty-one, a contingency 
 which the testator had a clear right to provide 
 for : and if you take up the subsequent part of 
 the clause, and say, there was an implied bequest 
 over, to take it out of him, if he died under 
 twenty-one ; because he must take it indivi- 
 dually, and lose it individually ; why then you 
 must take the whole intention implied and bor- 
 rowed out of that part of the clause which as 
 much respects his living until twenty-one, as 
 his dying under twenty-one. Therefore, my 
 lords, in this part of the case (it is the im- 
 portant part of it,) I wish that your lordships 
 should clearly understand the way I put it ; 
 that you can derive an implication of the be- 
 quest over, in the event of the first person, who 
 must take, dying under twenty-one, there is an 
 equal implication, that if he lives until twent y - 
 one, he should then get an assignment of tiie 
 legal estate, and complete the entire ownership, 
 equitable and legal ; that is, as much within the 
 proper limit as the other : and if he survives 
 liis minority ; if the event on which it was to 
 go over, videlicet, his dying under twenty-one, 
 does not occur, I beg to know -what is to deter- 
 mine that estate, which must, under every pos- 
 sible view, go to the first heir male in the first 
 instance, after the grandson’s death ? It is not 
 any heir male attaining .twenty-one, who is to 
 become entitled : that I have shown already ; it 
 is the first of several persons successively, an- 
 swering a given description ; a limitation, which 
 in its nature must go by steps to each member 
 of the series, successively ; each claim being of 
 necessity disposed of before the next can arise ; 
 so that I would be glad to know what construc- 
 tion they give it, on their view of it ? If you 
 are to derive the testator’s intention, out of the 
 clause, then take the entire intention — collect 
 it clearly out of the clause, viz. : — “ until some 
 such person attains twenty-one,” (and after- 
 wards ;) “but if no such person attains twenty- 
 one,” take, if you will, the intention out' of that; 
 then of course, for the purpose of showing the 
 possibility of the succession of minorities, you 
 must individualize ; and if you individualize so 
 much as implies the dying under twenty-one, 
 you must equally individualize what implies the 
 attaining twenty -one ; and then the whole goes 
 by steps ; and both contingencies are equally 
 applicable to the claim of each person in that 
 series : and therefore, when it is attempted to 
 derive one implication for the purpose of saying, 
 oh! the first heir male may die a minor, and 
 he is to take nothing : my lords, then I resort 
 to the other part of the plain intention which is 
 implied, and he may, I say, not die a minor, 
 and then he takes everything : and I re-kindle 
 the taper by the very breath which had extin- 
 
DUNGANNON V. SMITH. 
 
 29 
 
 guished it. My lords, in Beard v. Westcott, 
 the son of the grandson might have died under 
 twenty-one ; was the bequest to him invalid in 
 its origin, on that account ? But what con- 
 struction will they give to it, in their view of 
 it ? If it is to go* by intention borrowed out of 
 that clause, how can they get the intention that 
 the minor is to take nothing ? Where is such 
 an intention to be found? There may be a 
 minor heir male. That is the most unfavourable 
 state of facts that can be put as a possibility ; 
 that is the most unfavourable possibility they can 
 suggest ; and then bringing to bear the inten- 
 tion, if you are to derive it out of what is said 
 to be the void part of the will, as they contend : 
 then, does that warrant them in saying that the 
 first heir male is to take nothing ; that he is to 
 take nothing, because his estate must commence 
 on the death of the grandson, the tenant for 
 life : and he is to take nothing at all because 
 he may die a minor ? 
 
 Now, then, my lords, these are the different 
 possible events ; and a trust is provided for the 
 first heir male, which, as to him, must fail or 
 take effect within a life and twenty-one years. 
 And I now ask the other side, in their view of 
 it, what construction they will give for these 
 events : — The first heir male having attained 
 twenty-one ; the first heir male a minor at the 
 death of the grandson ; next the death of that 
 heir male under twenty- one ; or lastly, that heir 
 male attaining twenty-one? There are the 
 several contingencies that must arise (if at all) 
 within the legal range for which the testator 
 had a right to provide, for which he has admit- 
 tedly provided. I beg to know then what con- 
 struction they give for these several contingen- 
 cies ? I beg to know, are they prepared to 
 say that on each and every of these contingen- 
 cies the first heir male is to take nothing ? He 
 is to take no estate, either legal or equitable, 
 according to their argument, and why ? — Not 
 even from the intention borrowed out of the 
 subsequent clause, which they say is void, 
 which only at the very utmost implies that the 
 property shifts over if he dies under twenty-one ; 
 but they say, oh ! the effect of that however is, 
 that he takes nothing at all ; that whether 
 twenty-one or not twenty-one, no matter in 
 what position he may be placed, he takes no 
 estate, equitable or legal, of any kind ; that 
 although in every position you can place him, 
 he must be in a condition to take and complete 
 his title in omnibus , within a life and twenty- 
 one years, yet it is still asserted, that from the 
 death of Arthur Trevor, the grandson, the 
 tenant for life, there is a complete intestacy. 
 My lords, what case, what reason, what prin- 
 ciple is there to support such a construction, 
 which seems to be contrary to all legal principle 
 and all analogy, and not supported by any case 
 or decision of any kind ? 
 
 Now, my lords, there is this curious circum- 
 stance to be observed. Suppose that on the 
 day the testator made his will, there had been 
 two or three persons in the room, and he had 
 stated in general language his wish with regard 
 to the disposition of his property. Suppose 
 
 that one person made the will in the form it is 
 in, that another made it in the expanded form 
 in which I put it, and that a third had confined 
 the first clause to a single heir male, leaving the 
 second as it stands. Suppose there had been 
 three instruments penned in this way, could it 
 have been contended gravely that any one of 
 those three might not have been executed as 
 the last will of the testator ? With regard to 
 two of them, this limitation would be clearly 
 good, and yet the verbal question then arises 
 upon the third. As I said before, it is a mere 
 special demurrer to this will, from the parti- 
 cular mode in which it is expressed. My lords, 
 allow me to read a passage from Plowden, 344, 
 the case of Brett v. Bigden ; it is there said — 
 “ In wills, the intent or effect is more to be 
 regarded than the form ; for the effect is, that 
 the heir shall have it, and the form of the limi- 
 tation is, that he shall have it by descent. And 
 sooner than the form and effect shall perish 
 together, the effect shall take place and the 
 form shall perish, which is more agreeable to 
 the will of the devisor and to sound reason.” 
 So that I have it here, that whether you take 
 this limitation as indivisible, until some such 
 person attains twenty-one — that is, until some un- 
 ascertainable person attains tw'enty-one (if not 
 applicable to any individual), then it is a limitation 
 to the heirs male for the time being for ever ; that 
 is a good bequest of the chattel interest to the 
 first member of that class. If on the other 
 hand you are obliged to derive out of it an im- 
 plication to defeat the absolute interest in the 
 first man, -with reference to the contingency of 
 attaining twenty-one, then you make it divisible 
 and individualize it ; you expand it into a 
 series, and then of course, according to what 
 has occurred, the first having attained twenty- 
 one, his title, as I put it to your lordships, is 
 fully supported, just as if his case stood alone. 
 
 Now, my lords, in this case there is no deci- 
 sion against us ; so Sir Edward Sugden himself 
 admits, for he says he has no direct authority 
 to guide him ; by which I understood him to 
 mean no direct authority to guide him in the 
 way he inclined to decide the point ; because he 
 mentions several authorities as bearing on the 
 case, which he does not seem to nke, as they 
 sustain the bequest to the appellant. There is 
 certainly no authority against us. Well then, 
 my lords, you have the great principle applica- 
 ble to cases of this kind — that even supposing 
 the law originally might have been more accu- 
 rately stated in that leading decision of Lord 
 Hardwicke’s, yet it has become the basis of 
 many settlements of leasehold property in this 
 country, and in Ireland. My lords, there is an 
 observation made, I believe in the case of 
 Dormer v. Fortescue, by Chief Justice Willes, 
 where he mentions that if he could not make 
 the case consistent with the rules of law (which, 
 said he, I humbly hope I have done), he should 
 prefer to overturn the rules of law rather than 
 to destroy the settlements of property. My 
 lords, if there be any cases in which the courts 
 should deal with a protecting and indulgent 
 spirit, it is where personal estate is bequeathed 
 
30 
 
 Mil. NAPIER* S REPLY, 
 
 by a will. The instrument, my lords, according 
 to the settled maxims and rules of our law, is 
 one which always receives a benignant interpre- 
 tation, because the circumstances under which 
 it may have been prepared are such as to render 
 it necessary, according to the course of human 
 affairs, that it should be indulgently dealt with. 
 It is not like the case of a deed, solemnly and 
 deliberately framed, but it is often made in the 
 closing hours of life, when the testator is broken 
 by disease, or enfeebled by debility and ex- 
 haustion ; and the rule your lordships shall lay 
 down, must govern all cases of wills. But that 
 is not all ; the subject matter is personal estate ; 
 the property which I may almost say is conse- 
 crated to the sacred purposes of family provi- 
 sions, and peculiarly set apart for the tender 
 portion of the household; and my lords, that 
 being the case, having here to deal with a last 
 will, with a settlement of personal estate, which 
 has always been more liberally dealt with than 
 freehold : seeing the clear and undisputed in- 
 tention of the testator, I do not want your 
 lordships to break through any rule of law, or 
 to disturb any settled principle, but I want you 
 not to commit the double sacrilege on the will 
 and the settlement — not to retreat upon lifeless 
 rules, but rest on living principles, on wise and 
 ancient maxims ; to exercise your reason and 
 good sense, first, in the interpretation of the 
 will, and by the sound application of the rules 
 of law, for the purpose of carrying out that 
 intention as far as it can lawfully be carried 
 into effect, to sustain and support a just and 
 righteous claim. 
 
 "My lords, I have learned from the judgments 
 of some of your lordships, by whose wisdom I 
 have often been instructed, that our law is a 
 science. It is and it ought to remain a science, 
 
 a great practical science ; the science, my lords 
 that regulates the rights of social life. But it 
 is not by minute quibbling brought to bear on 
 men’s last wills that you will elevate the law, 
 and commend it as a science. It is not by ex- 
 ercising legal subtlety and ingenuity to defeat 
 the most sacred provisions of mankind that you 
 will dignify the character of our law ; and when 
 I address here men of learning and understand- 
 ing, is it merely to see how far subtlety is to 
 break down testamentary dispositions of pro- 
 perty, based on judicial authority, at least on 
 what was assumed to be settled law by the 
 sound and elevated mind of Lord IIardwicke« 
 My lords, I have too much confidence in the 
 wisdom of this house, in the learning and integ- 
 rity of your lordships, to anticipate that this 
 judgment will be affirmed. On the contrary, I 
 do say, that from the first to the last, in this case 
 I have had an unabated confidence of its final 
 triumph. I have had from the first an unabated 
 confidence that this bequest, when soundly con 
 sidered, as it will be on this occasion, will be 
 upheld. Your lordships will establish the rule 
 of construction in such a manner, that it will not 
 be left to reel under the puny blow of ignorance 
 or sophistry; but you will base it on a deep 
 foundation, you will interpret the will as men 
 of sense and rational understanding. You will 
 apply the rules of law as learned judges ought 
 to do, for the advancement and furtherance of 
 justice, in consonance with the sound policy of 
 the law, in support of the intention of the testa- 
 tor — defeating nothing, disturbing nothing 
 
 upholding rights which are sacred, vested, and 
 irrevocable ; and, my lords, in that confidence 
 I leave the case with your lordships, humbly 
 praying that this order may be reversed. 
 
 Reply. — Tuesday, 24th June, 1845. 
 
 Mr. Napier, in reply — My lords, in this case, 
 in consequence of the long apprenticeship I have 
 served to it, my learned friend Mr. Hodgson has 
 kindly consented that I shall occupy the position 
 of the reply ; authorising me at the same time 
 to state his entire concurrence in the views we 
 both propounded in opening this case, and which 
 I am now prepared, I trust satisfactorily, to en- 
 force. 
 
 My lords, I am much encouraged by the 
 remembrance of the very kind and patient man- 
 ner in which your lordships heard my humble 
 argument in the opening ; and now that we are 
 about to have this rule settled on a clear and 
 satisfactory foundation, I trust, before I leave 
 this bar, I shall enable your lordships to see 
 your way clearly (if you do not already see it) 
 to the simple and to the just conclusion. The 
 natural tendency of the legal mind is to lean 
 in the first instance against any limitation that 
 “looks like a perpetuity.” It saves a great deal 
 of trouble. It is very convenient to reject a 
 
 limitation of 'that description, on the ground 
 that it looks like a perpetuity, because it saves 
 the trouble, which is the duty of u every court to 
 encounter, to endeavour, if they possibly can, 
 and as far as they can, to give effect to the 
 intention of a testator. But 1 respectfully urge 
 it as the duty of every court, a duty from which, 
 I am sure, no English judge will ever shrink, 
 and the question, therefore, here must be, is this 
 clause of the will capable of receiving such a 
 construction as will give effect to the intention 
 of the testator, so far as it is required to give 
 effect to it, without contravening any known 
 rule of law? My lords, the rule of intention is 
 as strong a rule, it is as binding a rule upon 
 your lordships, as the rule of perpetuity. You 
 have no more right, give me leave respectfully 
 to say, to violate the one than the other; and , 
 therefore , that construction which will make both 
 rules take effect, is the construction which ought to 
 be adopted. 
 
 My lords, if I have rightly understood the 
 
DUNGANNON V. SMITH. 
 
 31 
 
 arguments of my learned friends upon the other 
 side (and I think they are not very consistent in 
 some respects with each other) — if I have rightly 
 understood my learned friend Mr. Turner’s argu- 
 ment, it amounted to this — with that ability which 
 always distinguishes him, he pointed out with 
 very great clearness his view of this case, and 
 he stated that there were two trusts here ; that 
 there was first a trust with regard to the devo- 
 lution of what he called the intermediate profits, 
 and that then there was a subsequent independ- 
 dent trust of the direction to convey the legal 
 estate. My lords, he dealt with these two trusts 
 on different and distinct grounds. He did not, 
 as I understand his argument, contend that the 
 first trust was a void trust. He did not main- 
 tain at your lordships’ bar, that the trust with 
 regard to the profits was a void trust ; but his 
 answer to that part was this : — “ You cannot claim 
 under that trust, because you have attained 
 twenty-one. That trust only applies to minors, 
 you have nothing to do with it. You are 
 driven to claim under the direction to convey, 
 and the trust as to that is a void trust, and, 
 therefore, your claim cannot be brought in point 
 of fact within the valid trust ; and with regard 
 to the other trust, it is void.” My lords, that 
 was not exactly the argument of my learned 
 friend, Mr. Butt. Mr. Butt contended that 
 the will must be construed as at the death of 
 the testator. What becomes then of the fact of 
 the appellant having attained twenty-one ? Are 
 they at the same time to say, you must construe 
 this limitation at the death of the testator with 
 reference to possibilities, not to actual events ; I 
 will not give you the benefit of the events that 
 have occurred ; but I will use the events to in- 
 validate your title ? I admit and insist that it 
 is the true rule of law, to construe with refer- 
 ence to all possibilities; and there is no doubt 
 you cannot construe the will with reference to 
 the event that has occurred, provided that event 
 might have occurred under circumstances which 
 would render the limitation void. Well, then, 
 you cannot defeat the will with reference to the 
 events that have occurred. You must construe 
 the will with reference to all the possible events ; 
 and if the will has provided a distinct and spe- 
 cific trust, within the limits that must take 
 effect, if at all, under every possibility with 
 reference to my client, within the life in being 
 and twenty-one years — if it does that, it has 
 done all that the law requires. Well, then, if 
 it is to be construed irrespective of events, we 
 must put aside the fact of the appellant having 
 attained twenty-one, and construe the will with 
 reference to the several possible events. How, 
 both my learned friends seem to admit, that 
 there might be a severance of the intermediate 
 direction. They admit to a certain extent, 
 though they quarrelled with it a little afterwards, 
 but they both seemed to say, that it was not 
 necessary for their argument to go the length 
 of stating, that you could not sever, as they 
 called it, that intermediate direction. My learn- 
 ed friend, Mr. Butt, argued that the interme- 
 diate trust was wholly void, and why ? Because 
 
 it might continue for an indefinite period — not 
 that it might commence at a remote period, but 
 that it might continue beyond the limits ; and 
 therefore he argued that because the trust 
 might continue for an indefinite period, it was 
 altogether void. So that, between the two, the 
 intermediate direction is entirely void, and the 
 trust to convey is void; and therefore they 
 argue, putting their arguments together, that 
 both the limitations, namely, the intermediate 
 direction, with regard to the profits, and the 
 further direction, with regard to the legal estate, 
 are wholly void ; and so they make out the case 
 which they attempt to make by their bill, 
 and which, give me leave to say, they must 
 make out, if they succeed here — namely, that 
 construing the will as on the day the testator 
 died, the whole and entire trust, from and after 
 the death of the tenant for life, was void, which 
 is not very consistent with the way in which 
 my learned friend, Mr. Turner, felt compelled 
 to put his view of the case, as to the trust of 
 the profits. 
 
 How, my lords, that being so, they saying and 
 insisting by their bill that the entire of this is 
 void from and after the death of the tenant for 
 life — for they are bound to make that out — they 
 claim here as upon an intestacy, from and after 
 the death of the tenant for life — they are bound 
 to establish that position to the satisfaction of 
 your lordships, and to show that there is no 
 mode of dealing with this will by which you 
 can, in point of intention, give this property to 
 my client, the first heir male after the death of 
 the tenant for life, without violating the rule 
 against perpetuities. How, my learned friend 
 Mr. Turner then must argue this as if he had 
 been arguing on the day the testator died, and 
 before he knew what would be the event that 
 has actually taken place. What could be said 
 then? You could not then know, of course, 
 what possible events would actually happen. 
 The day the testator died you could only say 
 this : when the tenant for life dies (the grand- 
 son), there may be an heir male or there may 
 not be an heir male. If there be not an heir 
 male, then the trust is entirely at an end, and 
 of course the next of kin will claim : well then, 
 what is the only other possible event ? Why, 
 there may be an heir male immediately upon 
 the death of the grandson. How, then, that 
 heir male must either be of age or under age. 
 Well then, cannot he claim the profits if he is 
 under age? Ho, my learned friend Mr. Tur- 
 ner must say ; and why ? Because he might 
 have been of age. Well, then, he might claim 
 the entire if he is of age ? Ho, Mr. Butt would 
 say ; because he might have been under age. 
 Well, but I say, I do not care which he is; there 
 is a trust for him; in either event: I defy you to 
 escape from the conclusion, that for that first 
 heir male, whether of age or under age, there 
 is immediately after the death of the grandson, 
 and without a moment’s interruption, a necessary 
 trust for him individually , for him preferably , for 
 him primarily. I say that is not only the na- 
 tural but it is the necessary construction of the 
 
32 
 
 mr. napier’s reply, 
 
 words ; and you cannot give them any other 
 meaning. I say that is the key to this case — I 
 say that decides this case ; because, unless the 
 trust then wholly fails, you must at once deal 
 with the first heir male individually, primarily, 
 and necessarily, and under every possibility. 
 
 Well, then, my lords, if that be so, I avail my- 
 self of the concession, which after all, my learned 
 friend Mr. Butt was obliged to make, and 
 which he could not escape from ; and your lord- 
 ships will find it is put by Sir Edward Sugden 
 himself, that after all, the case must come round 
 to this : whether, in point of interpretation of I 
 that clause in the will, you can give this mean- 
 ing to it, that it virtually meant a series of 
 bequests, that it was a provision in effect for a 
 series of successive contingencies. Now, that 
 is wholly independent of the rule of perpetuities. 
 
 I admit that according to one construction the 
 rule of perpetuities will fasten upon the clause, 
 that is, by treating it altogether as one single 
 indivisible bequest, and this will defeat the be- 
 quest altogether. But in the other interpreta- 
 tion of it, treating it not technically but accord- 
 ing to its real meaning, as virtually including a 
 series of contingencies successively to arise — 
 it will, as Sir Edward Sugden fairly and properly | 
 admits, support the first bequest ; and therefore 
 it brings the question not so much to a discus- 
 sion of the perpetuity rule, but what is the 
 meaning of the will, what is the interpretation 
 of the language, and how would this property 
 go if there were no perpetuity will at all. 
 
 Well, then, my lords, although you could say 
 and must say that on the death of the tenant 
 for life there is a necessary trust for the first 
 heir male, whether he be of age or under age ; 
 and although it is the necessary meaning that 
 he must first take, to some extent at least, with- 
 out the suspension of the enjoyment of the rents 
 and profits for one instant — (and that gets rid at 
 once of those cases of accumulation which my 
 learned friend Mr. Turner very properly stated 
 depended upon the suspension of the enjoyment 
 of the rents and profits ; here they are not sus- 
 pended for one moment ; the very moment the 
 breath is out of the tenant for life, that very 
 moment the heir appears, and that heir is enti- 
 tled then to have the rents and profits, therefore 
 there is no suspension) — although you can pre- 
 dicate that, and although you can predicate that 
 no other person can by any possibility either 
 take or claim before the first heir male, nor any 
 person take or claim at all unless this first heir 
 male dies under twenty-one, and although you 
 can also predicate that his claim and title in all 
 its parts and in every possible circumstance 
 from first to last must take effect (if at all) within 
 a life and twenty-one years within the proper 
 limits, and must precede every other — that it 
 cannot by possibility be preceded by any other, 
 is independent of every other, and in all respects 
 as if it stood alone ; yet you are called upon to 
 say that that is void in its creation, whilst by 
 holding it to be valid as to the first heir male, 
 you entirely consummate the intention of the 
 testator, and do not and cannot thereby violate 
 
 the rule against perpetuities. It is impossible 
 that this can violate the rule against perpetuities. 
 The dealing with that first man’s case cannot 
 be different in any respect from what it would 
 be if it stood there single and alone ; because 
 although the others depend upon it, it does not 
 in any respect depend upon them ; therefore, 
 the title of that person is in all respects to be 
 consummated within the legal period. It is the 
 intention of the testator that no other person 
 should take unless that first person dies under 
 twenty-one ; therefore you have the entire in- 
 I tention of the testator preserved. I am not 
 making by this argument a new will for the 
 testator, give me leave to say ; but the old will 
 of 1770 is that which I am calling upon your 
 lordships to interpret and give effect to, namely, 
 by giving the property to the person who was 
 the heir male for the time being, on the death 
 of the grandson, and who has not died under 
 twenty-one ; there being no other person who 
 could claim under the language of the will, un- 
 less the first person died under twenty-one ; the 
 first heir’s case depending upon no possible event 
 but on the event of his surviving until twenty- 
 one — a period within the legal limits. I say 
 that consummates the entire intention of the 
 testator ; it does not and cannot violate the 
 rule against perpetuities. 
 
 Now, my lords, it is admitted here that if 
 you can thus deal with the individual case of 
 the first heir male, as if it stood alone, that all 
 is right ; can you ddPthat, or can you not ? My 
 learned friend Mr. Butt’s concession on this part 
 of the case is very inconsistent, give me leave 
 to say, with the three views he put of this case ; 
 first, he says, this will is a great plan or scheme 
 for evading the rule of perpetuities ; secondly, 
 he says, that he is not bound to contend that 
 the trust of the profits is not divisible ; and 
 thirdly, he says, it is void, as being indefinite 
 in its continuance. My lords, if it be void as 
 being indefinite in its continuance, how does 
 that consist with his admission that you can 
 sever the gifts ? If it is to go by succession, 
 from one to the other, of course that may go on 
 indefinitely ; and I shall have a word to say 
 upon each of these rules. It is very easy to lay 
 down these rules in general language ; but if 
 you apply these rules in the manner in which 
 you have been called upon to apply them, as 
 tests of the validity of a limitation, you would 
 sweep away two-thirds of the testamentary dis- 
 positions of the country. With regard to the 
 suggestion about a great plan of evading the 
 rule of perpetuities ; is that a ground ? Then 
 the whole will should be condemned, and go by 
 the board ; why should any part of it stand, if 
 that is a ground for defeating it ? Here is the 
 will ; and it is said, it is a great plan for evading 
 the rule against perpetuities. Are you upon that 
 ground to take away every limitation out of the 
 will, and make it an entire intestacy ? No ; 
 you must deal with each separate limitation in 
 it ; and you must apply the rule of law to each, 
 because you must see if the particular limita- 
 tion can be maintained ; and it is your duty to 
 
DUNGANNON V. SMITH. 
 
 33 
 
 give effect, to the greatest extent, to the clear 
 intention of the testator, if you can do so with- 
 out violating any rule of law. 
 
 Well then, my lords, bringing the question 
 now to its true point, is this virtually a series of 
 contingencies, or is it not? Of course your 
 lordships’ will observe, there is but one gift to 
 take actual effect. Does that aid, or does it 
 at all interfere with my argument ? — It assists 
 my argument most materially ; because it shows 
 that each was a substituted or alternative gift 
 for the preceding; and that only one was to take 
 effect. It being a question on the meaning of 
 the will, your lordships will observe that the 
 meaning of the will cannot be altered by the 
 rule about perpetuities ; for, supposing the rule 
 of perpetuities were repealed by statute, the 
 meaning of the will must be the same ; and the 
 interpretation of it must be the same, whether 
 the rule of perpetuities exist or not. Well, then, 
 if the real question depends on the meaning of 
 the will, your lordships cannot be much assisted 
 by cases with regard to the rule of perpetuities. 
 Then the question will come to this : did the 
 testator mean, when the tenant for life, the grand- 
 son, dies, in the first instance to give the profits 
 of that estate to the person who should then be 
 heir male ; and if he died under twenty-one, 
 and only in that event, to give it over to the 
 next heir male ? 
 
 Now, it is said, however, that there is no 
 preference shown to the first man. My lords, 
 I deny that. I say that in the very nature of it 
 there is, and must be preference, according to 
 priority ; and if you find that there is a neces- 
 sary trust for the first person, that satisfies that 
 specific description of heir male ; that there is a 
 trust for the individual so designated who is 
 at once, and without any interruption, to take 
 the rents and profits, on the death of the tenant 
 for life ; does not that mark out a preference 
 with regard to that man, that he is the first ob- 
 ject of the testator’s bounty ; and that the others 
 are only to receive a benefit from the testator, 
 in the event of that first person dying under 
 twenty-one. He is therefore the first object. 
 Then the next is the second object ; and the 
 very nature of the succession necessarily implies 
 a preference according to priority. Nov/, if 
 that be the real view of it, (and it is admitted 
 by Sir Edward Sugden, and conceded by my 
 learned friend, to be the real view of it,) then 
 what need have you of authorities to interpret a 
 man’s will ? So far as the authorities supply 
 you with rules of construction, you use them to 
 get at the meaning ; and, my lords, I quoted at 
 a former part of my argument, a passage from 
 the judgment of Lord Denman, where he says, 
 we are aware of no authority, and none has 
 been cited, which affects to impose a limit upon 
 the power of the court to get at the real meaning 
 of the testator. Observe that here there is no 
 difference about the legal and popular acceptation 
 of the words ; and therefore, where there is no 
 difference with regard to that, you construe the 
 will as ordinary men would do ; you apply or- 
 dinary understanding, merely preventing your 
 
 legal ingenuity from puzzling your common 
 sense ; and applying ordinary intelligence, in 
 order to ascertain the meaning of the testator. 
 Then, when you haAm fixed the meaning, (be- 
 cause you must first do that, you must come 
 down to the level of common understanding ^ 
 and it has been the pride of judges in modern 
 times, to avail themselves more of common 
 sense than Avas usual in earlier times,) you must 
 then, my lords, as men of practical intelligence, 
 candidly ascertain Avhat the testator meant when 
 he used that language in his will. Upon the 
 death of the grandson, to Avhom was that pro- 
 perty to go ? In a case to which I adverted, 
 which has not been commented upon, or an- 
 SAvered, by either of my learned friends, that is 
 the case of Doe v. Permewen, lltli Adolphus and 
 Ellis, the very question almost came before the 
 court of Queen’s Bench ; and Lord Denman 
 there said, having regard to the general inten- 
 tion of the testator, they should read the will 
 in a manner that avoided the difficulty, and with- 
 dreAv the case from the operation of this very 
 rule of perpetuity, and Avere thus enabled, in 
 that way, to give effect to Avhat Avas the manifest 
 intention of the testator. 
 
 Noav, my lords, a great deal of observation has 
 been made upon some of the cases that have been 
 cited. I shall feel it my duty, rather, in place 
 of going into an inquiry on those cases, one 
 after another, to move the previous question ; 
 to apply myself to the interpretation of the will, 
 Avhich is the real question. It is not necessary 
 to read a dissertation upon case after case, Avhere 
 it is conceded in the same breath, that the real 
 question depends on the interpretation of the 
 instrument ; and Avhere, therefore, you have 
 nothing to do but to use plain understanding, 
 aided of course by those rules of construction, 
 that are settled Avith regard to getting at the 
 meaning ; and then see Iioav our cases bear upon 
 this part of the argument. Observations were 
 made Avith regard to the case of Forth v. Chap- 
 man ; but Avhat Avas the object Avith which my 
 learned friend Mr. Hodgson quoted the case of 
 Forth v . Chapman ? It was to show that it is 
 the duty of the courts, and alAvays has been 
 their habit, to endeavour to give such a con- 
 struction to the language that the testator has 
 employed, as to withdraAV the real meaning of 
 the testator from the technical operation of the 
 rule, that might otherwise fatally fasten upon 
 his Avords. The courts first have regard to 
 Avhat Avas his real meaning, and then, having 
 discovered what Avas his real meaning, they so 
 deal Avith the instrument as to withdraw that 
 which is the actual meaning and intention of 
 the testator, from the operation of the rule. 
 And could there be a stronger case than the 
 case of Forth v. Chapman, Avhere they applied 
 the words “ dying Avithout issue ” to tAvo periods 
 of time, for the purpose of preventing the ope- 
 ration of a rule, that otherwise Avould have 
 defeated the intention of the testator. 
 
 My lords, what Avas the other case of Gower 
 v. Grosvenor ? Lord IlardAvicke there shows 
 that he would derive that which Avas necessarily 
 
 D 
 
MR. NAP] Ell S REPLY, 
 
 3-1 
 
 implied out of the words, though not actually 
 expressed, for the same purpose, to give effect 
 to what was the obvious and natural meaning of 
 the testator ; for one would think here that the 
 respondents considered that the meaning could 
 only be expressed in one set of words ; one 
 would think here you were not at liberty to add 
 the dot of an /, or the stroke of a T. Why, my 
 lords, the words of a will are but signs of a 
 man’s ideas ; and when you get at his real inten- 
 tion, and his virtual meaning, you are enabled 
 to apply the rules of law ; but you cannot stir 
 one step in applying the rule of perpetuity, 
 until you have fixed and settled the meaning of 
 this will, before you think of the rule of per- 
 petuities. It is your duty to put it as it were 
 out of your heads in the first instance, and to 
 see what is the interpretation of the will ; to as- 
 certain how the property would go, in what 
 channel the property would go, and in what 
 line of devolution, if the rule of perpetuities had 
 never been heard of. 
 
 Now, my lords, upon this, the vital part of this 
 case, I have not heard one word of argument. 
 I have listened with the most anxious attention 
 and the deepest respect to my learned friends, 
 for both of whom I feel the most unfeigned 
 respect. I have attended to all their arguments 
 in this case, and I have not yet heard one word 
 of argument from them to show on the language 
 of this will, taken with reference to its meaning 
 and its genuine and candid interpretation, that 
 it does not virtually include a series of bequests ; 
 that it does not contain in effect — first, a bequest 
 to the first heir male of Arthur Trevor, the 
 grandson, then to the next heir male, if the first 
 died under twenty-one, and only in that case, 
 that there was to be no second member of that 
 series ^unless the first died a minor. I have heard 
 no argument whatever upon that admittedly the 
 vital part of the case ; nor have I heard it argued 
 at your lordships’ bar, that that is not the true 
 meaning and interpretation of this will. My 
 lords, if it be the true meaning, there is an end 
 of the case ; if that be the meaning it is a series 
 of bequests ; then that is the true intention of 
 the testator, and the property would go in that 
 line if there was no rule of perpetuities. Then 
 what becomes of all the cases of accumulation 
 and powers and gifts ? They are all consigned 
 to the tomb of the Capulets ; for they have then 
 nothing to do with this case so far as the first 
 limitation is concerned to the first heir male : 
 for then it stands out in bold relief from that of 
 every other ; the claim in its nature is primary, 
 individual, and personal, unconnected with any 
 other ; he is the proper object in the first instance 
 of the' testator’s bounty, and the others being only 
 provided by way of substitution in case of the 
 first failing in event. 
 
 My lords, some cases were mentioned with 
 regard to interim gifts ; and I own I was a little 
 surprised to hear those cases relied upon as 
 authority applicable to the present case, because, 
 if I understand those cases aright, (your lord- 
 ships are. more familar with them than myself,) 
 they were c\ses in which, what was annually 
 
 given to the party in the interval was not the 
 produce of the fund or property that was after- 
 wards transferred. A certain annual sum was 
 given in the interval, and then afterwards there 
 was a principal sum given, but the very ground, 
 as I understand it, of Lord Cottenham’s decision 
 in the case of Watson v. Hays, was that what 
 was given in the interval was not necessarily 
 the produce of the subsequent fund ; therefore, 
 they were not connected as principal and interest ; 
 but here the gift is first of rents and profits, of 
 what? of the property which is bequeathed. 
 My lords, we are told about a distinction between 
 the gift and the profits, and what they speak 
 afterwards of, as the corpus. Give me the rents 
 and profits of land, and I will give any man the 
 corpus of the legal estate to enjoy, whilst I enjoy 
 the produce. If you give an heir male the rents 
 and profits, conveying the legal estate to trustees, 
 you give him a good equitable estate in the real 
 corpus ; and what he will be mainly interested in, 
 is the enjoyment of the rents and profits. But 
 that is not ad idem with the case of giving a kind 
 of annuity before a certain fund is given, where 
 there is no essential connexion between the 
 annuity given in the meantime, and the fund 
 that is afterwards conveyed. Therefore when 
 my learned friends are driven to rely upon such 
 cases as these, and when the known ability and 
 industry of my learned friends, and the vast ex- 
 perience of my learned friend Mr. Turner, can- 
 not supply a better authority than that to make 
 out his proposition, I say he has no authority to 
 support the proposition, except so far as his own 
 reasoning upon principle may tend to support it. 
 Now, my lords, a passage has been already men- 
 tioned to your lordships, to which I wish to call 
 your attention, in Sir Edward Sugden’s judgment 
 in Ker v. Dungannon. It is in Drury and W arren, 
 in page 531. My lords, I did not mean, nor 
 could I ever mean to detract from the authority 
 of Sir Edward Sugden ; for no man in any place 
 or at any bar could depreciate his high character 
 and learning ; but on the contrary, it was because 
 I felt the weight of his authority, but thinking 
 it had been originally brought to bear against 
 my client in a way which I am sure it appears 
 from what occurred afterwards in the case 
 he himself regretted, he having without de- 
 liberate consideration expressed an opinion that 
 it was not necessary to do ; and by the way, if 
 I might presume to say such a thing, it is the 
 duty of every judge to be careful to avoid going 
 beyond, especially in a matter of title to pro- 
 perty, what the necessity of the particular case 
 may require ; but I subscribe fully at this bar 
 and at every bar, to the weight of the authority 
 of that eminent and distinguished judge, and 
 no man will do so more cordially than myself : 
 but no one will more candidly and fearlessly 
 comment upon any observation of that learned 
 judge or any other judge; I will do it respect- 
 fully, but I will do it candidly, and when it is 
 my duty to my client, I will not shrink from it 
 from any false feeling of delicacy. But here I 
 adopt his authority upon this part of the case ; 
 and, my lords, it shows that it’ this part of the 
 
DUNGANNON V. SMITH. 
 
 case had obtained a little more consideration, he 
 might perhaps have, felt it was not necessary to 
 go into other parts of it, with regard to bringing 
 to bear certain cases which he thought had some 
 application, from a general recollection of them, 
 but which will appear from his own admission, 
 if we are right upon this part of the interpre- 
 tation of the will, have no application to it what- 
 ever. He says, “ To support this view, they 
 must contend that the limitation is made up of 
 separate and distinct gifts to individuals, and is 
 not a single gift to a class ; they have to divide 
 the clause making two gifts, in the first place, 
 one to this particular person, and then, in certain 
 events, a series of gifts over, which, it is admitted 
 would be void, and there can he no doubt , that in 
 this way of construing the will , a valid gift is 
 made to Lord Dungannon .” Now my lords, that 
 is my proposition. I say we can, and we must, 
 and we ought to construe the will as a series of 
 distinct gifts, and nothing else. But your lord- 
 ships see the way I am putting it, and that that 
 is wholly independent of the rule of perpetuities, 
 because it just comes to this, if you can interpret 
 that clause of the will as virtually including a 
 series of gifts in the different contingent events, 
 then it is good with regard to the first, though 
 it is void with regard to others. If you are 
 obliged to interpret that clause as one single in- 
 divisible gift, to a class within the meaning of 
 Leake v. Robinson, which is the case he refers 
 to, then of course it is bad, and the operation of 
 the perpetuity rule must depend on the previous 
 question of interpretation. I therefore submit, 
 that when we concede on both sides, that the 
 question of interpretation decides the case, we 
 have really nothing to do with cases upon per- 
 petuities, we have only to try the case on the 
 material issue : viz., >vhat is the true interpre- 
 tation of the will. 
 
 Now, is it in the language of Sir Edward 
 Sugden, “ made up of separate and distinct 
 gifts to individuals,” or is it “ a single gift to a 
 class ? ” My lords, I may as well advert to it 
 here, because this part of the case appears, I 
 think, to have been a little misapprehended by 
 the Master of the Rolls in his judgment. He 
 says that a son of Lord Dungannon would have 
 answered the description of heir male as well as 
 Lord Dungannon. No doubt he would ; that 
 is to say, suppose the present Lord Dungannon 
 had died in his father’s life-time, leaving a son, 
 that son would have been the heir male on the 
 death of the tenant for life. But does that vary 
 the case ? The question is, whether on the 
 death of the tenant for life the description of 
 heir male of the body points at a particular in- 
 dividual. And if a gift to the son of the tenant 
 for life could have been good, a gift to the heir 
 male of his body is equally good, because the 
 one could enable you to ascertain the person at 
 the time the gift begins as well as the other ; so 
 that the heir male of the body at the time of the 
 death of the tenant for life, is a specific descrip- 
 tion of an individual. Now, no one can doubt, 
 I think, that the heir male of the body at the 
 death of the tenant for life, was the first indivi- 
 
 oo 
 
 dual contemplated by the testator after the 
 death of the tenant for life; who was the 
 second ? There can be only one heir male at 
 a time ; he contemplates a second heir male ; in 
 what event ? on the event of the first heir male 
 dying under twenty-one. Well, then, with 
 regard to the second object of bounty, he is not 
 generally an heir male, but the second object of his 
 bounty is the person who may be heir male upon 
 the death of the first under twenty-one years, 
 and so on, from person to person. Now, my 
 lords, I ask, does not every one of these claim 
 under a distinct title ? The first claims on the 
 death of the tenant for life ; the description 
 given can only apply to himself, and to no other, 
 because it says, “ from and after the death of the 
 tenant for life, to the heir male for the time 
 being,” that is, in the first instance, (because I 
 may assume now it means from time to time) ; 
 the heir male, in the first instance, who is then 
 heir male on the death of the tenant for life — 
 that is one person. And even conceding now 
 to my learned friends their argument, that he is 
 to be twenty-one to take absolutely, then on 
 that heir male attaining twenty- one, no doubt 
 the whole remains indefeasibly in him. Well, 
 then, is there a gift over to the second person ? 
 There is upon one only contingency. What is 
 that contingency ? The death of the first under 
 twenty-one. Well then, it is a part of the second 
 man’s title that the first dies under twenty-one. 
 So far the title of the second man is dependent 
 on the title of the first, but not vice versa ; there- 
 fore, in the language of Sir Edward Sugden, you 
 have separate and distinct gifts to individuals. 
 And now, my lords, what will demonstrate that 
 is this : suppose that the rule of perpetuities had 
 been repealed by statute, and that you were 
 asked how is this property to go on the death of 
 the tenant for life, Arthur Trevor, the grand- 
 son ? It goes first and foremost to the imme- 
 diate heir male ; if he dies under twenty- one 
 (but only in that event ) it goes to the next : if he 
 does not die under twenty-one there is no next 
 heir male ; there is only one ; but if he dies 
 under twenty-one it goes to the next. If the 
 second dies under twenty-one it goes to another, 
 each man being heir male at a certain point. 
 Well, then, the property does go to a series of 
 individuals ; the property does go, on a certain 
 series of events, successively provided for. Then 
 he has provided not a single gift to a class 
 within the meaning of Leake v. Robinson, but 
 he has provided for a series of successive con- 
 tingencies, which may or may not arise. There 
 may never be a second heir male, because the 
 first may not die under twenty-one ; therefore 
 whether any other person will take any interest 
 at all but the first, you cannot tell ; but you 
 know it is certain with regard to the first man, 
 inasmuch as if ever there be an heir male, there 
 must be one on the death of Arthur Trevor the 
 grandson, the tenant for life ; you know with 
 certainty with regard to him, because he has not, 
 to wait for any person dying under twenty-one; 
 his title is not connected with the title of any 
 person, it is not bound up with the title of any 
 D 2 
 
36 
 
 MR. NxVPIER’s REPLY, 
 
 person, and therefore with regard to him there 
 is that individual bequest in the first instance. 
 My lords, give me leave to ask, with great respect, 
 how does that differ from a single separate gift 
 to the first heir male ? How does it differ if 
 you take his case out and put it alone ; is it to 
 suffer, because (to use the language of Sir 
 Edward Sugden) “ the testator has afterwards 
 endeavoured to embrace further objects ? ” Sup- 
 pose I provide by my will for one object, which, 
 if it stood alone, is clearly good. Suppose then 
 I go beyond that, and endeavour to provide for 
 ulterior contingencies, which ulterior contingen- 
 cies form no part whatever of the first man’s 
 title. My lords, in the name of reason and 
 common sense, I ask, what effect is that to have 
 upon the first man’s gift ? If his case is com- 
 plete in itself, it does not require the aid of any 
 other with which it is not essentially and vitally 
 connected; although, if the first contingency hap- 
 pens, and if the first person dies under twenty- 
 one, there may arise a conflict between the next 
 of kin claiming generally, and the person claim- 
 ing under those ulterior provisions, which ought 
 not to have been provided for ; and the truth 
 is, the real way of dealing with all these cases 
 is this, when you have expressed in detail the 
 limitations of the will, draw your pen across 
 every part of the will that contains what is 
 void — strike it out. No case has been cited, 
 and no case can be cited, in which a subsequent 
 void limitation has re-acted upon an antecedent 
 independent limitation and made that antecedent 
 independent limitation bad ; but the reverse is 
 the case, as in the case of Proctor v. the Bishop 
 of Bath and Wells, which I will advert to by 
 and by ; for whatever there may be in the 
 first instance of bad limitation, every thing 
 beyond that limitation goes ; and wherever you 
 strike out a bad limitation for remoteness, you 
 sweep away every thing beyond and after it, 
 but it cannot re-act on what goes before it. 
 
 Now, your lordships perceive, then, how that 
 will simplify this case, and how it shows the 
 danger of yielding to all these analogies which 
 have no real bearing on a case like the present, 
 which is solved by the simple question of inten- 
 tion and interpretation ; and now just look at 
 it in this way — just invert the order of the argu- 
 ment. Suppose the testator had in so many 
 words expressed and expanded the series of 
 contingencies on the face of the will. If he had 
 done that, then would have come the argument, 
 whether that was valid or void ; then it would 
 have been said, the accumulation cases now 
 bear upon that ; and why ? because this is an 
 indefinite trust. Here you begin on the death 
 of the tenant for life, and you say the first heir 
 male is to take until he attains twenty-one ; but 
 if he dies under twenty-one, then it is to go to 
 the next, and so on. Now that may just con- 
 tinue in the same way as at present. What 
 difference is there ? Is the estate of the first 
 heir male to be made better or worse by the 
 circumstance of the particular language in 
 which the testator’s meaning is expressed ? He 
 states it in certain language — he might have put 
 
 it in other language ; you might write three or 
 four instruments, all expressing the same thing, 
 in different language. Is it to depend on the 
 particular instrument he signs in point of lan- 
 guage, whether his intention is to be adjudged 
 by the courts to be valid or void? Suppose 
 three courts to be sitting together, having three 
 wills expressing the same meaning ; are they to 
 come to different conclusions as to the validity 
 of the limitations ? Suppose that one court to 
 have this will, taking it as it is ; suppose then 
 another court to have it expanded into a series ; 
 and suppose a third court to have it to the first 
 heir male alone, are they to come all to different 
 conclusions in this case, though they all, in 
 interpreting the single case before them, have 
 no doubt of what the testator’s meaning is ? 
 Well, then, if you take it expanded in the way 
 I put it, will the accumulation cases destroy 
 the entire ? Most clearly not. With regard to 
 the first bequest to the first heir male to take 
 until twenty-one, would the accumulation cases 
 destroy that, because there was ^ further provi- 
 sion, that if he died under twenty-one, the next 
 was to take, and so on, upon the ground that 
 that might continue indefinitely. No ; and Sir 
 Edward Sugden admits that, and admitting that, 
 I do not see much use in burying the case (which 
 is clear upon this plain, intelligible, simple view 
 of it) under a load of authority, which I say, 
 with the greatest respect, can have no other in- 
 fluence in this case, but to overlay it, and im- 
 pede a true adjudication of the real question. 
 
 My lords, I think I cannot have a better test 
 of the soundness of the argument s that have been 
 put in this case than this, take the clause in 
 question, and express it out in that way ac- 
 cording to its undisputed meaning : take and 
 write down the meaning in expanded detail ; it 
 is the best way in the world in which you can 
 come to a right conclusion in this case ; take a 
 sheet of paper and express that, according to 
 what in your own conscience and in your own 
 candid understanding you believe to be the tes- 
 tator’s meaning ; express that meaning in the 
 most perfectly scientific legal language ; and then 
 taking it in that way, see whether any of their 
 cases which have been cited, or those objections 
 which have been made, or those tests that have 
 been put, would enable you to decide that the 
 first bequest is a bad bequest. They say there 
 might be a succession of minorities ; well, that 
 may happen as well where the first bequest would 
 be good, according to Sir Edward Sugden’s own 
 admission ; because if you take it as a series of 
 separate and distinct gifts, there might be a 
 series of minorities, and the trust may go on in 
 that way indefinitely, that is to say, if the rule of 
 perpetuities does not stop it at a certain point. 
 But my lords, the answer to all that is, that the 
 intention of the testator, gathered from his 
 language, is not severing one bequest into two 
 parts, it is not saying, applying the rule of per- 
 petuity to a single bequest, we will hold it good 
 pro tanto and reject the excess ; but it is saying 
 this, in the meaning and intention of the testator, 
 there is for each member of this series in sue- 
 
DUNGANNON V. SMITH. 
 
 37 
 
 cession, a certain provision made applicable to 
 particular cases. Apply the rule of perpetuity, 
 and you will find it does not touch the case, 
 nor can it touch the case of the first member of 
 that series ; and then inasmuch as his case is in 
 its nature separate from and independent of 
 those that follow, his case cannot be invalidated, 
 nor his title cut down, because the rule of per- 
 petuities does affect the case of the subsequent 
 members of the series. 
 
 My lords, there is no possible position, and this 
 is the substance of the argument (so far as the rule 
 of perpetuity is concerned) that I wish to en- 
 deavour to press upon your lordship, s’mind — you 
 cannot conceive any possible position in which 
 the claim of the first member of that series, the 
 first heir male, or of any part of his claim, could 
 be put, in which it would be too remote in any 
 part of it by any possibility imaginable. If you 
 would make it depend on his being twenty-one, 
 supposing I make the amplest concession on that 
 part of the case to my learned friends, supposing 
 I admit all that for them, you cannot suppose 
 any possible state of circumstances, directly or 
 indirectly, by reference or dependence, affecting 
 his claim, that will make it too remote. What ■ 
 was the case of Proctor v. the Bishop of Bath | 
 and Wells, upon which they rely? Why there ! 
 was a bequest to the first son of A. B., who 
 should take holy orders, and then a bequest over : 
 why, my lords, there at the testator’s death the | 
 prior bequest was void ; and you will find re- 
 marked in the note of that case, the distinction 
 with regard to that very thing, with respect to 
 the contingency. In the argument it is said 
 there is “ a rule of law, that where there are two 
 limitations in a will, and the former is avoided, 
 either from the nature of its original creation, | 
 or by matter ex post facts , the latter shall have 
 effect.” Then they say in a note, “ This position 
 seems to be founded upon the dicta of C. J. Lee, 
 in Andrews v. Fulham, and Lord Hardwicke 
 in Avelyn v. Ward. But it will appear on ex- 
 amination of these cases, and the others in which 
 the same principle is recognised, that it is not 
 applicable to a devise over, limited after a prior 
 devise, which prior devise is originally void 
 from the remoteness of the contingency on which 
 it depends.” There the first devise was void; 
 that which by possibility might precede the one 
 that was in question ; and of course every sub- 
 sequent devise was necessarily void. That could 
 not apply to the case of the first heir male, 
 because you cannot suppose any claim to precede 
 his phis is in all respects as if it stood alone. 
 That answers, I think, every objection ; because, 
 take any one of the objections that have been 
 put at the bar, as testing the validity of the ap- j 
 pellant’s title, and apply it then to a set of limi- | 
 tations, which Sir Edward Sugden admits and ! 
 Mr. Butt concedes would give a good estate j 
 here to the appellant; and if you do, then these j 
 cases, if they apply, would upset that very estate, j 
 There might be a succession of minorities ; the 1 
 trust might continue indefinitely ; there would ; 
 be the same uncertainty as to whether the first 
 person would take, that is to say, whether he 
 would be living at the death of the tenant for | 
 
 life, and whether he might not die under twenty- 
 one, and whether the estate would go over ; and 
 that uncertainty is just the same, and must be 
 the same, according to their own argument ; 
 because if you are to consider the will at the 
 death of the testator, you cannot tell what events 
 will happen, you are not bound to say, this will 
 necessarily take effect. I may give a popular 
 illustration : suppose I give an estate to the first 
 man who appears on the cross of St. Paul’s, 
 within twenty-one years after the death of a 
 living person ; why you may have to wait until 
 the end of the twenty- one years, to see whether 
 there will be any bold adventurer who will get 
 there, and then when a person does first appear 
 there within the time he gets the estate ; and 
 you might put many instances of that description. 
 If the description applicable be such as to find 
 out the person when he appears within the 
 prescribed limits, then of course it is good. 
 Therefore all the observations about uncertainty 
 apply as much whether you expand it into a 
 series or not ; and if it be good as to the first 
 when it is expanded into a series, and if in that 
 case the objections cannot apply, because it is 
 admittedly valid, then that gets rid of the entire 
 of these cases, and every one of the objections 
 which have no proper application. If I am 
 right upon this part, as to the interpretation of 
 the will, that it does really and virtually mean 
 a series of distinct gifts or bequests upon these 
 several and successive contingencies — of course 
 providing as he did, not knowing what event 
 would happen, he provides for a series of suc- 
 cessive contingencies ; but intending then, as in 
 the very nature of it he must have intended, 
 and could have intended nothing else, that the 
 first heir male should be the primary object of 
 his bounty, because if he attains twenty-one no 
 other person is to take. 
 
 Now, my lords, if I have made myself per- 
 fectly intelligible with regard to the distinctness 
 of the title of the several persons, you will see 
 at once how it must be exactly a series of dis- 
 tinct bequests ; because no two of that series 
 have a common title. With regard to every 
 man subsequent to the first, a part of his title 
 is the death of ’his predecessor under twenty-one, 
 and a necessary part of his title ; therefore no 
 two can have a common title. It is no argu- 
 ment to say, what he meant was abstractedly an 
 heir male attaining twenty-one ; for that in 
 itself does not determine the claimant ; because, 
 in the case I put before, suppose two or three 
 had attained twenty-one, and suppose a con- 
 troversy between the personal representative of 
 two of them, and the one who was then twenty- 
 one, then living ; is there to be no principle, or 
 ground of selection ? Why. there is a selection 
 made ; and what is that preference, and that 
 selection ? Why the first ? Then suppose 
 there was the personal representative of the 
 first, and the personal representatives of the 
 second and the third who had attained twenty- 
 one ; and suppose a controversy about the per- 
 sonal estate ; could it be said, you have no 
 means of choosing ; here there are three, who 
 have all attained the age of twenty-one — heirs 
 
38 
 
 MR. NAPIER’S REPLY, 
 
 male, and twenty-one ? They are all here in a 
 class, it might be said, with a common title : 
 here they are as one class, as in Leake v. Ro- 
 binson : here they are all having a common 
 title, and all to take ; but being a common title, 
 the infirmity of one man’s claim affects the 
 title of the others. Is there to be no pre- 
 ference ? Then what is that preference ? Why 
 the first was intended to take, and unless he 
 died under twenty-one, there could be no second : 
 therefore, I say, he was the primary object of 
 the testator’s bounty ; because, if he was not, 
 it could not, in this way, give him the estate ; 
 so that in the first instance, he is absolutely 
 the object of the testator’s bounty ; the others 
 are only conditionally the object of the testa- 
 tor’s bounty* that is as a series of alternatives, 
 each in the event of the other dying under 
 twenty-one : and therefore the first must be 
 singled out as the individual, primary, peculiar 
 object in the first instance of the testator’s 
 bounty. But, my lords, see the difficulty other- 
 wise that my learned friends get into. Suppose 
 Lord Dungannon had been a minor when the 
 grandson died ; what then ? Is he to take 
 nothing ? Why not ? Then if he takes the 
 rents and profits, is he to hold them until twen- 
 ty-one, and then lose them ? Suppose, he being 
 a minor, takes the rents and profits — attains 
 twenty-one ; is it the testator’s intention that he 
 is to lose them at twenty-one, unless he gets 
 the trustees to convey to him the legal estate ; 
 the conveyance of the legal estate being nothing 
 more nor less than the implied duty of the 
 trustees. Of course it is their duty, when the 
 trust is at an end with respect to the rents and 
 profits, to convey the legal estate. It is a cu- 
 rious thing when you come to talk of a great 
 scheme for defeating the rule against perpe- 
 tuities, that in this will the trustees are charged 
 with respect to taking renewals ; the trustees 
 so empowered, are confined to individuals, in 
 esse , at the death of the tenant for life ; 
 because they were only to be the trustees 
 who were originally named ; or persons substi- 
 tuted during the minority of the grandson ; 
 therefore, he certainly, so far as that contem- 
 plated the legal estate, only remaining outstand- 
 ing during the life of the existing persons. But 
 it is not worth while observing upon that any 
 further. But then, suppose the case of the 
 minor. My learned friend Mr. Turner, could 
 not say that he is not in a condition to take. 
 Then, he ought to take as a minor. He takes 
 the rents and profits — he attains twenty-one ; 
 suppose he died before he got the conveyance ; 
 suppose he died at twenty-two, and the estate 
 had not been conveyed to him. The moment 
 he attains twenty-one, there can be no further 
 object of bounty — no second member of that 
 series; all that is within the limits: his whole 
 estate there is completely within the limits of 
 the law : and then is it to be said, oh ! but it 
 was possible you might have been twenty- one 
 when the grandson died. That is, you shall 
 not take any estate at all, because you might 
 have been in a position in which, according to 
 
 the acknowledged intention, you would have 
 been entitled to [take everything ; therefore 
 you shall take nothing. IVhy? If I am a 
 minor, have I not a right to the rents and pro- 
 fits ? — Ho. Why? Because you might have 
 been of age ; you might have been in a condition 
 to take everything? And therefore, because 
 you might have been in a position to take every- 
 thing given by this will, in which you would 
 have been therefore the only object of the tes- 
 tator’s bounty; because that might have been 
 the case, therefore you shall take nothing ! 
 
 Lord Campbell. — Will you just allow me to 
 put this question. Suppose that the first taker 
 had died before twenty-one, what then would 
 have happened, according to the intention of 
 the testator ? 
 
 Mr. Napier. — The testator meant this : that 
 the first heir male, on the death of Arthur 
 Trevor, the grandson, should take the rents and 
 profits ; and the legal estate, when of the age of 
 twenty-one ; but if he died under twenty-one, 
 then the rents and profits should go to the next. 
 That, your lordship observes, is admitted to 
 be a good limitation, if so expressed. Well, 
 then, if he dies under twenty-one, then an 
 event has happened upon which there is a fur- 
 ther limitation over. The dying under twenty- 
 one, and attaining twenty- one, were two con- 
 tingencies for which the testator had a right to 
 provide. He had a perfect right to provide for 
 them both ; on the same ground, that they were 
 both contingencies, which must happen, if at all, 
 within a life and twenty-one years. Therefore 
 he provides, on the death of Arthur Trevor, the 
 grandson, for the heir male to take the rents and 
 profits ; but if a certain contingency happens, 
 namely, his dying under twenty- one, then they 
 go to the next. That contingency suppose does 
 happen. Why then if it does happen, the next 
 claimant asserts his title ; but if it does not 
 happen, the estate remains with the first ; and 
 it is perfectly allowable for him to do that ; to 
 take the estate out of the first heir male, and 
 limit it over in a certain event ; and then, with 
 regard to the person who claims under that 
 limitation over; if the attainment of twenty-one 
 be a part of his absolute title, of course the ob- 
 jection to his title might prevail, because a 
 second heir male in the series ; though he might 
 attain twenty-one within the limits, he might 
 not ; but this cannot aifect the validity of the 
 claim of the first of series. I admit, with regard 
 to the second, the question might arise, because, 
 although he might attain every part of his qua- 
 lification, within the limit, he might not ; and I 
 am quite willing to admit, and no lawyer would 
 at all attempt to controvert the rule, that where 
 by possibility the claim of the individual might 
 fall outside the limit, it will not be saved by 
 the fact of its falling within it ; that I freely 
 admit; and that is what is meant by saying 
 that the event is not to construe the will ; but 
 if the limitation over on the first heir male, 
 dying under twenty-one, be valid, then, under 
 the most unfavourable possibility, he takes for 
 his life at least ; if invalid, then the estate of the 
 
DUNGANNON V. SMITH. 
 
 39 
 
 first is perhaps absolute ; at all events, that 
 must at least give the first man a life estate ; 
 you cannot give him less than a life estate. It 
 is perfectly allowable to give him a life estate, 
 though you could not give him a life estate, 
 with a limitation over, to take effect at 
 a period that might be more remote than twen- 
 ty-one years after a life in being. The case of 
 Hayes v. Hayes has been referred to ; but that 
 case, I .believe, every body knows, is not worth 
 any lawyer troubling himself to make any ob- 
 servations upon ; for whether mis -reported or 
 not, I believe it is quite apocryphal ; and there 
 is no use therefore in troubling your lordships 
 with comment upon it. 
 
 Now, my lords, all these objections will apply 
 just as 'well to the case put by Sir Edward 
 Sugden, in which he admits the bequest to the 
 first heir male would be valid. If, therefore, all 
 these objections will apply as well to that case, 
 it shows they are not tests of the validity of the 
 title of the present Lord Dungannon ; because 
 they can only be brought to bear against him 
 in case they are inconsistent with the vali- 
 dity of his title ; the moment you find that the 
 same objection may be made in a case in which 
 his title is admittedly valid, you get rid of the 
 objection altogether. 
 
 Now, then, when it is said we are forced to 
 go on the direction to convey, I deny that. 
 The direction to convey is nothing more than 
 the implied duty of the trustees, and it is merely 
 clothing the equitable title with the legal estate. 
 When they imply that limitation over, the very 
 objection they make themselves is founded on 
 the ideal series of minorities, and that very limi- 
 tation over implies an absolute interest in the 
 first heir male as he attained twenty-one ; and 
 so it remains with him. There is a limitation 
 over if he dies under twenty-one ; then, if he 
 does not die under twenty-one, he retains the 
 equitable estate, and is entitled to a legal con- 
 veyance. So that the very ground of their ob- 
 jection shows we are not obliged to fall back 
 simply and only upon the direction to convey ; 
 which direction to convey is merely clothing the 
 equitable interest with the legal estate, for 
 otherwise if he attained twenty-one, he must 
 then get a new equitable estate, or else he has 
 nothing but an equitable right to a conveyance 
 of the legal estate, from and after twenty-one, 
 though no person then can take over, because 
 the event upon which the limitation over of the 
 equitable estate is to take effect has not hap- 
 pened; so that the only valid event in which it 
 could be taken out of him, has not happened. 
 Then if the only valid event in which the limi- 
 tation over could take effect, has not happened, 
 that shows he has an absolute equitable interest, 
 and that the direction to convey is merely instru- 
 mental and auxiliary to that title. The will 
 itself (in the language of Lord Lyndhurst in 
 Phipps v. Ackers) is an equitable conveyance, 
 and the direction to convey conforms to the 
 right. He has the equitable estate, therefore, 
 in that mode of putting it ; it has not been de- 
 feated by the event happening on the only 
 
 ground upon which the limitation over could 
 at all take effect. 
 
 My lords, there was a question something like 
 this before Lord Mansfield, and he said that it 
 would be a shame to quote cases upon it ; but 
 although he said it would be a shame to quote 
 cases upon it, he did refer to the case of Tom- 
 kins v. Tomkins — a well known case, with which 
 your lordships are familiar — where there was 
 a trust of this kind to A. B. until twenty-one, 
 but if he dies under twenty-one, then to C. D., 
 then A. B. has the absolute estate he not dying 
 under twenty-one. This view of the case sweeps 
 away all the cases of accumulations and powers, 
 and all the other analogies which have been 
 scattered over this case, and reduces it to that 
 single and simple question with which I started. 
 
 Now, let me make a few observations upon 
 that rule which seems to be supposed to govern 
 all these cases, about a succession of minorities. 
 Is that a test of the validity of a limitation, that 
 there might be a succession of minorities ? I 
 have already referred in my opening to the 
 well known case of Beard v. Westcott, to illus- 
 trate the proposition, where there was a bequest 
 to a grandson for life ; and when there was a 
 bequest to his unborn son, if he attained twenty- 
 one, and a bequest to his issue male, and where 
 the court held it was a perfectly good limitation, 
 as to the unborn son, but bad as to the issue 
 male of the unborn son. Why was that? 
 There might have been a series of minorities 
 there equally. Was it all bad upon that ac- 
 count? No ; why in the case of any estate tail, 
 there may be a succession of minorities. In the 
 very case put by my learned friend, Mr. Butt, 
 of the implied alternative in personal estate 
 after an estate tail, there may be a succession 
 of minorities ; and it is not a true and correct 
 rule to say, that because there may be a succes- 
 sion of minorities, therefore the first gift is not 
 to take effect ; therefore, you are not to pro- 
 nounce it valid, otherwise Beard v. Westcott 
 was badly decided. The unborn son there 
 might never have attained twenty-one ; but 
 that did not decide it to be a bad limitation as 
 to the unborn son, and why ? Because he must 
 attain the age of twenty-one, if he attained it at 
 all, within the legal period. Does not that prin- 
 ciple apply to this case ? Your lordships will 
 find, therefore, in that way of putting it, it is 
 not at all a case of severance of one single be- 
 quest, but here it is a series of distinct bequests. 
 You do not sever any one, but you divide the 
 whole clause into what it really means, a series 
 of distinct limitations. 
 
 My lords, I do not see how you could say 
 with any more certainty, if the testator had 
 said that he intended this to go on the death of 
 Arthur Trevor, the grandson, to the heir male 
 in the singular number until twenty-one, and if 
 he dies, then to some other person. If he had 
 said it in those words you could not say with 
 more certainty in that case, that he intended it 
 for a particular individual, than you can in the 
 present case. The certainty is the same in both 
 cases. You can show that in each case that 
 
40 
 
 mr. napier’s reply, 
 
 description must find a particular person ; and 
 that if like an heir apparent he lives to the 
 period the testator intended, he will take ; be- 
 cause no other person can at all claim until you 
 see whether he will live during that period. You 
 have the same certainty in the bequest in that 
 instance that you have in the present. 
 
 Now, my lords, just let me shortly refer to 
 the authorities that have been relied upon, I do 
 not mean, because your lordships have so pa- 
 tiently heard the case and all the points have 
 been so fully brought before you, to trouble 
 you at any great length, or by going much over 
 the same ground, with regard to the observations 
 that have been already made; because your 
 lordships will see at once, that in this view of 
 putting it, it is not necessary to discuss the 
 cases on accumulation and other cases at all. 
 At the same time your lordships observe, that 
 although my friend Mr. Turner relied on them 
 for one purpose, andT think the right purpose, 
 and my friend Mr. Butt for another, Mr. Turner 
 relied on them rather to show that the direction 
 to convey was too remote, he did not use the 
 accumulation cases for the purpose of showing 
 the intermediate trust was bad; and indeed 
 (with great respect I say it to my friend Mr. 
 Butt) it would be impossible he could have 
 done that successfully, because with regard to 
 perpetuity it is the commencement of the es- 
 tate you consider; and in those cases the effect 
 is where you are seeking to engraft upon a limi- 
 tation of the property, a trust to suspend the 
 enjoyment of the rents and profits and to carry 
 them away from the first person intended ; to 
 take his estate from him, to do a thing incon- 
 sistent with the enjoyment that he ought to 
 have in right of his title. When you come to 
 carry off the rents and profits from him in that 
 way, the very nature of the thing does not allow 
 you to sever, and the whole must be invalid ; 
 because wherever rent is to be received under 
 such a trust you ought to be able to determine 
 the moment you receive the rent whether it is 
 to be spent or accumulated; and my lords, 
 while it remains contingent whether it ought 
 ever to have been accumulated or not : in the 
 very nature of it you cannot perform the trust 
 at all ; but your lordships should observe, my 
 learned friend did not make the slightest allu- 
 sion to the case of Phipps v. Kelynge, where 
 the very distinction is taken. It is in a note 
 to the case of Lord Southampton v. The Mar- 
 quess of Hertford, in second V esey and Beanies, 
 where there was no suspension of the rents and 
 profits ; but where the party who had the pro- 
 perty in him had, though in an indirect way, 
 got the produce of the land that Avas purchased 
 by the rents and profits. There Lord Camden 
 held you could sever, and Sir William Grant 
 says that there was room for severance in that 
 case ; but he says the form of this deed dees 
 not permit it. Why? Because the form of that 
 deed (for it Avas a deed in Lord Southampton v. 
 The Marquess of Hertford) Avas to take away 
 the property from the first taker and carry it 
 over to another. What did the court do there? 
 
 They virtually struck out the void trust; and 
 what Avas the effect of that ? To make the gift 
 Amid ab initio ? No. It left it entirely in the 
 first person who had the property in him, and 
 that divesting proviso to take away the estate 
 Avas not alloAved to prevail. In truth, although 
 not exactly like the case of W are v. Polhill, it 
 is something analogous to it. If this case was 
 objectionable on the ground of remoteness sim- 
 ply, the only Avay Avould of course have been to 
 have relied on that simply, without assigning a 
 particular reason and a very special ground for 
 the decision. Sir William Grant goes into it 
 most elaborately to show that the very peculiar 
 nature of that trust and the character of the 
 property prevented him from severing in that 
 case. 
 
 My lords, there is the case of Leake v. Robin- 
 son, to which I Avish to call your attention a 
 little more minutely, because as I understand it 
 is upon that case (the case of Gee v. Audley, 
 and the others cited in it of course depend on 
 the same principle) they contend that this is an 
 indivisible gift. Now, I pray your lordships, 
 attention for a few moments to that case, to see 
 how far it bears at all upon the present. In 
 Leake v. Robinson there Avas a class of persons 
 to take together, and no one Avas to take until 
 the class was formed ; therefore all had a com- 
 mon title, no man had any peculiar case there,, 
 but all had one common title; you could not. 
 ascertain the particular intention of the testator 
 with regard to any one. There was no severance 
 of their portions, so that it could be said so much 
 was intended for one and so much was intended, 
 for another ; but they were all grouped together 
 in one collective class, to take at a period at 
 which the limitation was too remote. But, my 
 lords, what I want to observe with regard to> 
 that case is, that supposing there was no perpe- 
 tuity rule, you Avould just have been in the 
 same difficulty ; you could not have predicated 
 Avith regard to any one, Avhat the testator’s indi- 
 vidual intention Avas with regard to him ; and. 
 therefore that case depended on this, that inter- 
 preting the will — interpreting the instrument 
 Avithout reference to the rule of perpetuities at. 
 all, you could not say Avhat the testator intended, 
 with regard to any one ; and therefore, that al- 
 Avay brings it back to the interpretation, and in; 
 every one of these cases you must first interpret 
 it, and then you apply the rule. If you could 
 not break up the entire intention and ascertain 
 what Avas the intention Avith reference to any 
 one, of course the rule of perpetuities vitiated 
 the Avhole, as there Avere some of them Avith 
 regard to whom it was too remote, and there the 
 title of each was affected by the title of every 
 other. But if your lordships can in the present 
 instance, independent of the perpetuity rule, 
 see a distinct individual intention Avith regard 
 to one of them — with regard to the first, and 
 you are not obliged to have any resort to the 
 titles of the others, in order to say Avhat Avas 
 intended with regard to the first, I just reverse 
 | the order of Sir EdAvard Sugden’s language 
 I with regard to that case ; I say it is a case 
 
DUNGANNON V. SMITH. 
 
 41 
 
 tvhich may apply in terms, but does not apply 
 in principle. 
 
 My lords, I do not think it necessary to 
 advert much to the observations that have been 
 made upon the cases I cited of Taylor v. Bid- 
 dal, and the other cases that I adverted to 
 before ; but I may just say this, I did not cite 
 Taylor v. Biddal as a decision upon this point, 
 but I cited it for this purpose, that the objection 
 here, that the person was to be both heir of the 
 body and twenty-one, was apparent in that 
 case, for there both of these were necessary. 
 The person who was heir of the body might 
 have died a minor, leaving an heir, who might 
 have died also a minor ; and certainly that case, 
 if it be a leading case, and has come often under 
 the observation of the courts, this same objec- 
 tion which seems very much open upon the face 
 of it, never has been adverted to. I do not say 
 more upon it than that. 
 
 Then, my lords, with regard to Trafford v. 
 Trafford, my learned friend Mr. Butt laboured 
 long and very elaborately to show that Lord 
 Hardwicke did not at all decide what we con- 
 tend for in that case. My lords, if he did not 
 assume it to be the law, Lord Eldon certainly 
 treated him very badly,' because Lord Eldon, in 
 his observations upon that case, quarrelled with 
 Lord Hardwicke’s doctrine ; he quarrelled with 
 it in several respects ; he stood alone on the 
 occasion, when he was over-ruled in this house, 
 in the Newcastle case. And, my lords, when it 
 is said Lord Eldon adverted to this as being a 
 case of an executory trust, give me leave to 
 say, if he quarrelled with that case, in this view 
 of it, assuming it to be an executory trust, or 
 that Lord Hardwicke so considered it, and that 
 his doctrine as to the limitation was open to 
 objection ; though I have great respect and 
 deference for any opinion of my Lord Eldon, I 
 will not fall down and blindly worship him, 
 where my understanding satislies me he mis- 
 stated the law of the land. My lords, I think 
 Lord Hardwicke did assume the law in this 
 respect to be what we have insisted ; and if you 
 observe, Lord Eldon adverts there to what Lord 
 Hardwicke had decided in Gower v. Grosvenor, 
 where he took out the implication with regard 
 to the testator’s meaning. Remembering then 
 his examination of Taylor v. Biddal, his decision 
 in Gower v. Grovesnor, as reported in Maddock, 
 where it is well reported, it furnishes a good 
 key to the liberality of his elevated and accom- 
 plished mind, when he was dealing with the 
 case of Trafford v. Trafford ; and I am not afraid 
 here, or in any court, to throw Lord Hard- 
 wicke’s assumed law into the scale against the 
 dictum of Lord Eldon. 
 
 My lords, curiuosly enough both parties seem 
 to claim possession of Tollemache v. The Earl 
 of Coventry ; and my learned friend Mr. Butt 
 seems to think it is a decisive authority for 
 him ; but according to my view of it, it is a dis- 
 tinct authority for me. Look at it for a mo- 
 ment, with regard to the third Lord Vere, and I 
 say, with the greatest respect, it is impossible 
 for your lordships to decide the present case in 
 
 favour of the respondents, without over-ruling 
 the reasons upon which this House gave the 
 absolute title to the third Lord Vere. Now 
 just take that case, and take the principle that 
 you must construe at the testator’s death, and 
 take the principle which was referred to, of the 
 abeyance of the peerage. When you come to 
 construe at the testator’s death, could you say 
 to the person who afterwards became the third 
 Lord Vere, that he would certainly be Lord 
 Vere ? Could you say to that individual that 
 he would fill the character? It is necessary, 
 in order to understand the case, to advert 
 particularly to the ground upon which Lord 
 Brougham puts it, the possible abeyance of the 
 peerage, and the distinction between the des- 
 cent of the peerage and the ordinary descent 
 from man. Now, as to the third Lord Vere, 
 you could only say of him, individually, upon 
 the death of the testator, that if he lived he 
 would fill the character in which he was to 
 take. Well then, might you not here say, that 
 on the death of Arthur Trevor, the grandson, 
 there will, if ever, be an heir male of his body, 
 and that heir male of the grandson, if he lives 
 for twenty-one years, must fill the full character 
 in which he is to take indefeasibly — and all this 
 is within the proper limit. How is it possible 
 for your lordships to decide this case in favour of 
 the respondents without over-ruling the whole 
 principle upon which that decision turned ? 
 And, my lords, is it not' manifest from Sir Ed- 
 ward Sugden’s observations, where he refers to 
 this very case, that he conceived it was an 
 authority in that way ; for he says, he never 
 could understand the ground of that part of the 
 reversal. My lords, I 'maintain that you must 
 over-rule the only principle upon which Tolle- 
 mache v. The Earl of Coventry was decided, 
 unless you decide here in favour of the appellant. 
 I ask, with the greatest respect, on what prin- 
 ciple can you uphold the title of the third Lord 
 Vere, that will not uphold the title of Lord 
 Dungannon ? On the death of the testator, the 
 time at which you must construe it, that indi- 
 vidual who afterwards became Lord Vere, you 
 could not tell whether he would be Lord Vere 
 or not ; he was certainly the heir apparent, and 
 if he lived he would be Lord Vere, but that was 
 all you could tell ; and therefore the only ground 
 upon which you could uphold his claim was, 
 that that individual would, within the limit, if 
 he lived (but that was absolutely necessary, if 
 j he lived for a certain time), fill the character. 
 
 [ Now the heir male who would appear at the 
 death of Arthur Trevor, the grandson, if he 
 lived to the age of twenty- one years, must 
 exclude every other competitor whatever — every 
 other substitute, every other claimant. My 
 lords, with the greatest respect, therefore, I 
 say, you cannot decide, consistently with the 
 principle of this case, any thing else but this, 
 that the man v)ho must , if he lives , fill the character 
 within the time, is entitled to take. How other- 
 wise can you support the title of the third Lord 
 Vere ? If then that be the principle of that 
 j case, and if ypu cannot otherwise consistently 
 
42 
 
 MR. NAPIER’S REPLY. 
 
 with that decision decide any thing else, ought 
 not the judgment of this House, in that case, to 
 be binding, so far as it supplies the principle ; 
 and is not. every case an authority for every 
 principle upon which the decision of the case is 
 founded. 
 
 My lords, something however has been said 
 about 'repressing new inventions — but this is no 
 new invention ; and I cited to your lordships 
 precedents from books of conveyancing, to show 
 that this is no new invention. But the case 
 with regard to the peerage law was a new inven- 
 tion. But whether it be a new invention or 
 whether it be an old invention, I take the prin- 
 ciple of the decision, and not any observations 
 which were made upon it in that respect. I 
 take the principle of the decision ; I take the 
 only principle upon which the title of the third 
 lord was based, and I say that principle neces- 
 sarily leads to the conclusion, that if you can 
 predicate of a particular man who appears 
 within the period allowed by law, that if he 
 lives he will, within that period, necessarily and 
 exclusively satisfy the description of the person 
 who is intended to take altogether, then his 
 title, like that of an heir apparent, must be 
 good. 
 
 My lords, your lordships will see in a moment, 
 taking another view of this case, how simply it 
 may be dealt with — that is, to take the gramma- 
 tical meaning of the words in the will, and fol- 
 lowing them out just simply and grammatically. 
 “ To the heir male for the time being.” To the 
 person who shall take by descent, as heir male 
 for the time being ; only one person is to take 
 at a time. Well, then, that must apply to an 
 individual firstly; the heir male is just the de- 
 scription and nothing else. “The heir male for 
 the time being,” that describes in the first 
 instance the individual. Well, then, take the 
 next branch of it, “ Until some such person 
 attains twenty-one.” That implies that more 
 are contemplated, and that the more contem- 
 plated are to arise in the event of the preceding 
 dying under twenty-one. Well, then, that gives 
 the absolute estate to the first to go over, if he 
 dies under twenty-one. So that following the 
 grammatical meaning of it, taking it by steps, 
 you have it complete. The grammatical mean- 
 ing, the natural interpretation, the necessary 
 result on looking at the language of the will, 
 all concur, and conspire, and combine together, 
 to work out that meaning of it which it is admit- 
 ted, if the will bears it, must save it from the 
 operation of the perpetuity rule. It is not a 
 gift to a class. There is no common title be- 
 tween any two. There is no case of a gift to a 
 class in which there is not a common title, at 
 least between two. If each man has a distinct 
 title, a peculiar title, and a personal title, it is 
 impossible then to call it a gift to a class, and 
 you might as well say, that a corporation sole 
 and a corporation aggregate mean the same 
 thing. It is a gift to a succession of individuals 
 upon contingencies, whether you take it gram- 
 matically, or whether you take it upon rational 
 and plain understanding. Can you, my lords, 
 
 come to any other conclusion upon the interpre- 
 tation of that instrument, than that it is a gift 
 to a succession of persons upon a series of con- 
 tingencies, and therefore safe from the operation 
 of this perpetuity rule ; at least, so far as re- 
 lates to the first member of that series. 
 
 Well, my lords, see now in another view, 
 although a more technical view, how it all comes 
 to work out at last the real intention. Take it 
 “ until some such person attain twenty-one, and 
 then to convey.” If that is an indefinite event, 
 it is to the heir male for the time being until an 
 indefinite event , and then to convey. If you give, 
 then, to the heir male for the time being until 
 an indefinite event, what estate does that give 
 to the head of the class ? My lords, it is said 
 that that is an indefinite event ; well, then, of 
 course, that part of the trust is not determinable. 
 It is strange, then, to talk afterwards of there 
 being a person attaining twenty-one, and that 
 circumscribes it ; surely you cannot treat it as 
 indeterminable in one view, and determinable 
 in another view : that would give a base fee in 
 the case of freehold. Now what estate does 
 that give, when you circumscribe the limitation 
 by an indefinite event of that character? Does 
 it give no estate at all? The very case on 
 which they mainly rely, is a distinct authority 
 the other way, and that is the case of Ibbetson 
 v. Ibbetson. If this objection is to be made, that 
 it is a gift to a class, should any person there, 
 any member of the class, have taken at all under 
 a general bequest, which is said to be wholly 
 void ? How was the class composed in that 
 case? There was a general bequest of the 
 chattels to the person or persons successively, 
 who, from time to time, should be entitled to 
 the possession of the freehold estate, under or 
 by virtue of the settlement on the testator’s 
 marriage, or under or by virtue of the limitations 
 of his will. Well, then, there was a class com- 
 posed of a series of individuals, as to some of 
 whom, the limitation would be too remote. 
 Now, in that case, where the class is composed 
 of a number of individuals, as to some of whom 
 the limitation would be ]too remote, all the 
 members of that class, according to the argu- 
 ment, are put into the] same predicament ; the 
 title of any one is bound up with the title of 
 every other. How end it happen that Sir Charles 
 Ibbetson, the first of the class, took an estate 
 for life, at least in the chattels, and that the 
 Vice-chancellor of England said, it was not 
 necessary for him to determine whether he took 
 them absolutely or not ? My lords, suppose a 
 gift of chattels to the heirs male of A. for the 
 time being, until the heir male of B. attains 
 twenty-one, what estate does that give to the 
 first heir male of A.? It is indeterminable; 
 there is no legal end to it ; it is indefinite ; and 
 as it would create a base fee with regard to 
 freehold, must it not give absolute interest to 
 the first person of the class, the first heir male ? 
 Suppose you give it to the heir male simply — 
 that would give it absolutely. Suppose you 
 add until a certain event, “ until the heir of B. 
 attains twenty-one” — that does not shorten it* 
 
DUNGANNON V. SMITH. 
 
 43 
 
 because that is an indefinite event ; and being 
 a gift of personal estate, the gift is absolute, 
 there being no valid limitation over. My lords, 
 I have quarrelled and still quarrel with what 
 is laid down in the judgment in Ibbetson v. 
 Ibbetson, and I repeat again, without meaning 
 any disrespect to the high authority of the emi- 
 nent judge who decided it, that I never could 
 understand, nor have I ever heard yet an intel- 
 ligible exposition of it, how this is to be law — 
 that if there be a single event, which construing 
 the will at the death of the testator you say is 
 in its nature too remote , that that being the event 
 to determine one estate, and to commence an- 
 other, in substitution of the first, you first say, 
 that is too remote an event, and, therefore, it is 
 not a good legal event for the purpose of origi- 
 nating the new estate ; but it is a definite and 
 good event for the purpose of determining the 
 previous estate? My lords, I say the event 
 must have its own nature, irrespective of 
 whether it is the end of one or the beginning 
 of another ; and if it is too remote for the pur- 
 pose of originating the new substituted estate, 
 which is to be a shifting estate in lieu of the 
 other, it must equally be too remote with 
 regard to determining the first ; and, therefore, 
 it leaves the first absolute, indefinite, and un- 
 qualified. Accordingly, in that case of Ibbetson 
 v. Ibbetson, the Vice-chancellor intimated that 
 he would give no opinion whether Sir Charles 
 took absolutely, or whether he took only for 
 life ; and even there you could not have said 
 with certainty, whether any person would take 
 absolutely. You could not say, whether there 
 would be a first taker at all ; the same difficulties 
 remain; but the first member of that class, 
 either took for life or he took absolutely. If he 
 took any estate, then I have this principle — that 
 the head of the class is to be differently dealt 
 with from the other members of the class ; be- 
 cause the subsequent members of that class 
 could not have taken, and, therefore, as Sir 
 Charles Ibbetson took to some extent at least, 
 and he might have taken absolutely, that point 
 being left undecided, that case upsets the prin- 
 ciple, where you have a class composed in that 
 way, that you are not to deal with the head of 
 the class upon different grounds from other 
 members of it. So with regard to Tollemache 
 v. the Earl of Coventry ; so with regard to 
 Mackworth v. Hinxman ; and the principle laid 
 down by Sir John Leach, that eminent and dis- 
 tinguished judge, who was, I believe, most con- 
 versant with this branch of the law, and all ques- 
 tions connected with it ; he met the very case by 
 saying, the party might take in class where it 
 was a case of succession, and the proposition, as 
 he lays it down is perfectly true with reference 
 to the case in which it was stated, as your lord- 
 ships will find on examining the facts of the 
 case. If there be a collateral person who might 
 come in and claim remotely before the other, 
 you will find it perfectly true with reference to 
 the facts of the case, in which the observation 
 was made ; but at all events, it shows, according 
 to the view of that distinguished and eminent 
 
 judge, that where there was a succession, the 
 principle of class did not apply, because some 
 members of that class might take. That is 
 enough for me if the principle is admitted, 
 because my client is at the head of the class, and 
 he could not take outside the limit. 
 
 My lords, the last refuge, however, of my 
 learned friends was, that a part of the clause 
 negatived the intention of benefitting my cleint 
 unless he attained twenty-one. That is per- 
 fectly answered if this be a series of bequests, 
 because, if it be a series of bequests, and as he 
 has attained twenty-one, and as he must have 
 attained that age within the time, that puts an 
 end to the argument. But is there any such 
 intention on the face of the will as is contended 
 for by the respondents ? Their case is, that he 
 takes nothing ; their case is, that you are bound 
 to say, that on the day the testator died the 
 first heir male would take nothing. Now if 
 they go to the ground of intention, where is 
 the intention on the face of that will, that he 
 should take nothing ? If you take the clause 
 that Mr. Turner says is void, and strike it out, 
 or expunge it from the will, then the legal 
 operation of what remains leaves the estate firm 
 and fast in my client, because there is nothing 
 to take it out of him ; the absolute estate goes 
 to him for an indeterminable period. If you 
 take it according to its real meaning, his case is 
 separate and distinct, and the intention is fully 
 satisfied. But take it in any way you like, take 
 the legal operation of the clause, take the in- 
 tention undeniable on the face of the instrument, 
 expunge the part that is said to be is invalid, 
 deal with it in any of these ways, and in every 
 one of them you find that you have still an ab- 
 solute estate in my client, who was the first heir 
 male of the grandson, and who has attained 
 twenty- one. I might have used other argu- 
 ments perhaps in this case ; but I do not seek 
 to appeal to your lordships’ feelings against your 
 sober judgment. I do not ask you to decide 
 this case for my client unless upon substantial, 
 legal, and intelligible grounds. Chief Justice 
 Willes, upon an occasion to which I before ad- 
 verted, said, in delivering in this house the 
 opinion of the judges, “ My lords, the effect of 
 the rule might be to interfere with many estates, 
 and if I had not been able to make the case 
 consistent with the rules of law, which I humbly 
 hope I have, I would have preferred to break 
 those rules rather than disturb settlements.” 
 My lords, that was not the observation of a 
 heated imagination ; it was the sober reflection 
 of his profound and enlightened mind, at a time 
 when, I might almost say the light of justice was 
 beaming on his brow ; he was prepared to fling 
 from his arms the tables of the law, and smash 
 them in holy indignation, as he contemplated the 
 perilous idolatry of technicality and form. I do 
 not ask your lordships to go that length. I do 
 not ask your lordships to set up popular views 
 in contradiction to sound legal interpretation ; 
 my case is founded upon the oldest, the most 
 venerable principles of the law ; not upon the 
 dictum of any judge, but on the maxims of 
 
44 
 
 mr. napier’s reply, &c. 
 
 greater antiquity than judges themselves. I do 
 not send your lordships to muddy analogies, 
 but up to the pure source of principles, as wise 
 as they are simple; “ peter e fontes quam sectari 
 rivulos ; I ask you to interpret this instrument 
 according to the old settled maxims, which pro- 
 tect testamentary dispositions. Men making 
 wills cannot always adopt technical forms or 
 scientific precedents ; they must often pen with 
 trembling hand the wishes of a throbbing heart : 
 and a court of law always stoops its ear to the 
 veriest whisper of their intention, and labours to 
 give it effect. I therefore appeal to your lord- 
 ships upon these grounds, to give effect in this 
 case to the intention, so far as it is legal ^ap- 
 peal to your lordships, as your solemn duty to 
 give effect to it, where no higher rule of 
 law forbids the application of that paramount 
 rule of intention. There is nothing to prevent 
 the plain and simple discharge of that sacred 
 and responsible duty; your lordships can in this 
 case give perfect effect to that intention without 
 interfering in the slightest degree with the rule 
 of perpetuities ; your lordships can do it whether 
 you have regard to that principle of taking it as 
 a succession of bequests, or whether you have 
 regard to the legal operation of the clause, giving 
 an indeterminable estate to a class of heirs male, 
 and your lordships must overrule the principle 
 of decided cases, unless you give the appellant 
 the absolute interest. 
 
 My lords, why should I be struggling at this 
 bar to induce your lordships to do that which 
 the courts admit it is their duty to struggle 
 themselves to do, namely, to give effect to the 
 obvious meaning and intention ; and in order to 
 do so, to withdraw the testator’s real meaning 
 from the technical operation of a rule where the 
 
 reason of that rule is in no way interfered with, 
 where it cannot be interfered with, where there 
 is no argument to grapple with, but what is 
 based on technicality and misapplied analogy; 
 where it is said to be a gift to a class where there 
 is no class, where there is a gift which so far as 
 intended to take effect as to one person, is a good 
 gift in itself ; and your lordships are called on 
 here to defeat the entire of that clause, and to 
 lay down a rule applicable to the dispositions of 
 testators, which must be dangerous in its con- 
 sequence, retrospective in its operation, alarming 
 in its inevitable results. My lords, ■when your 
 lordships consider what a quantity of property 
 in this country has passed from generation to 
 generation under testamentary dispositions, and 
 when you consider the nature of such dispositions, 
 is it strange that we have always found the 
 eminent judges of the land from time to time 
 saying this — we must always look to what was 
 the obvious intention of the testator ? The old 
 principle of the common law, interest reipublicce 
 suprema hominum testamenta rata liaberi , older and 
 more venerable than any other rule suggested 
 here. I ask your lordships to carry it out in its 
 application as a primary and fundamental rule ; 
 the rule that upholds is more to be revered 
 than that which destroys. I do not ask your 
 lordships to contravene or interfere with the 
 other rule which spoliates, but to disappoint its 
 spoliation in a case where it is an intruder. May 
 I then, my lords, simply and confidingly rely 
 in this case, that your lordships will reverse the 
 order of the court below ? 
 
 My lords, I cannot retire from your lordships’ 
 bar without thanking you for the kindness and 
 the patience with which you have listened to 
 I the argument. 
 
PAPERS ON LEGAL EDUCATION. 
 
 IMPERIAL LAW SCHOOL OP ST. PETERSBURG. 
 
 The following account of this institution is trans- J 
 latecl from a notice, by Mr. Stockhardt, one of the 
 professors, published in the Rev. Etr. Sf Er. for 
 October, 1 837 , and American Jurist, January, 1839. 
 
 The imperial laAv school of Saint Petersburg, 
 was established in the year 1835, by an organic 
 statute ( ustaph ) officially promulgated. The first 
 idea of this institution is due to the Prince d’ Ol- 
 denburg, the head of the department of justice in 
 the council of the empire, and a senator and 
 lieutenant general of the army. The prince has | 
 devoted to this object one million of roubles. I 
 The organic statute appoints the founder the 
 curator of the new school, which is of so high ! 
 importance for Russia; and this choice, which j 
 satisfies all the conditions requisite to accomplish 
 the object of an establishment destined to exert 
 a powerful influence over the destinies of a vast 
 empire, is at the same time a pledge of its pros- 
 perity and an element of success. The purpose 
 of the institution of the imperial law school is, to 
 form, for the whole extent of the empire, j nris- 
 consults, and especially magistrates, versed in the 
 knowledge of law and formed to the practice of 
 jurisprudence. Hitherto, the Russian juriscon- 
 sults, with some rare exceptions, have been formed 
 by practice alone ; and, in regard to their know- 
 ledge, limited almost exclusively to the forms of 
 jurisprudence, they might be compared with the 
 Praymatikoi of ancient Greece. The law school 
 is destined to fill the ranks of the magistracy and 
 of the jurisconsults with men penetrated by the 
 spirit, the science, and the sanctity of their mis- 
 sion. It is this consideration of practical interest 
 which has caused the school of law to be placed 
 within the attributions of the ministry of justice. 
 The studies of the pupils, however, are in a more 
 special, manner, to be directed to a knowledge of 
 the functions of the senate, which is the most 
 eminent and most important judiciary body of 
 the empire. This consideration, added to that of 
 the division of casts recognised by the constitution 
 of the empire, explains the disposition of the 
 statute, which declares those young men only to 
 be admissible to the school of law, who belong to 
 the Russian nobility. 
 
 The following is a succinct account in detail of 
 the internal organization of this scientific estab- 
 lishment. 
 
 The pupils are either supported at the expense 
 of the goverment ( boursiers de la couronne), or at 
 their own expense (pensionnaircs); and both classes 
 are lodged in the school, in order that their edu- 
 cation and their conduct, as well as their instruc- 
 tions, may be subjected to the proper superin- 
 tendence and direction. The school is a true 
 judicial seminary; but no other establishment in 
 the universe can be compared with it, in point of 
 magnificence and sumptuousness. The school has 
 its church, its ministers of religion, its physicians, 
 its police, its regents for each class, its chancery ; 
 in one word all the personnel necessary to a com- 
 plete administration. All the persons employed 
 in the institution are under the orders of the 
 director, who is a counsellor of state in ordinary 
 service, Mr. de Poschmann ; the special direction 
 of the scientific department is confided to an 
 
 inspector, the baron de Wrangell, who is also a 
 counsellor of state. 
 
 The pupils of the school of law are to receive 
 all the principles of the intellectual and moral 
 instructions, as much as possible, within the 
 school; for the principal object of the establish- 
 ment is to obtain a perfect unity of views and 
 tendencies ; and this end would be impossible, if 
 the divers influences, which must become deeply 
 rooted in the mind of young persons of a certain 
 age, by a residence in a great city like St. Peters- 
 burg, were allowed to subsist. It is therefore 
 established as a principle, that none but young 
 men of such an age, as gives the assurance of an 
 entire purity of manners and of an entire facility 
 in yielding themselves to the doctrines taught, 
 can be admitted to the imperial school. The age 
 of admission is fixed at twelve years. The con- 
 ditions of intellectual aptitude consist in an ac- 
 quaintance with the Latin language, and Avith 
 the most important modern languages, (as the 
 French and German) with history, geography and 
 mathematics. 
 
 The pupils of the school (the number of Avhich 
 is fixed at one hundred and fifty) are distributed 
 into six classes, besides a preparatory class, des- 
 tined to those of the newly admitted pupils who, 
 though they give the best proofs of capacity, are 
 notAvithstanding deficient in some of the prescribed 
 branches of study. 
 
 The duration of the course of each class is fixed 
 at one year ; so that the complete course of studies 
 lasts six years. The pupils who annually leave the 
 school, after having terminated their course, per- 
 form a noviciate of at least six years in judicial 
 practice. 
 
 In the preparatory class are taught the Russian, 
 Latin, German and French languages, history, 
 geography, and mathematics. The religious in- 
 structions, and the schools of music, of design, 
 and of calligraphy, are frequented by all the 
 classes. 
 
 In the sixth class, the studies commenced in 
 the preliminary class are continued, in a more 
 thorough manner, with the addition also ol the 
 Greek language. 
 
 In the fifth class, besides these different branches 
 of study, the English language, the physical 
 sciences, and natural history, are taught. 
 
 A knowledge of all these modern languages is 
 generally acknowledged as necessary to complete 
 the education of a finished jurisconsult ; but it is 
 especially indispensable in Russia, where the habits 
 of the higher classes of society have in some sort 
 naturalized all the languages of the globe. 
 
 In the fourth class, the study of philosophy and 
 statistics is commenced. 
 
 When the school was first established, it Avaa 
 found impossible to organize any more than these 
 four inferior classes, devoted to the preliminary 
 studies; with , the third class alone; the study of 
 law was to commence. 
 
 But the Prince d’Oldenburgh desired much to 
 see the pupils of the fourth class initiated in the 
 studies destined to form the object of their career; 
 and, by his express order, a course of introduction 
 to the study of law was given by the writer of 
 
46 
 
 PAPERS ON LEGAL EDUCATION. 
 
 this notice, who was invested with the professor- 
 ship of the encyclopedia of law. The text of his 
 lectures will be published forthwith. 
 
 With this year, therefore, the pupils began to 
 be familiarized with the sources of the Horn an law, 
 and Mr. Schneider, counsellor of state, charged 
 with the department of Homan law, explained to 
 them the Institutes of Justinian. 
 
 In the third class, the pupils continue the study 
 of foreign languages, history, geography, mathe- 
 matics, philosophy and statistics; but they, at the. 
 same time, attend a course of the encyclopedia of 
 law, a course of Roman law, of the history of the 
 Russian law, and a course of political economy. 
 As to the courses of religious instruction and the 
 fine arts, it has already been remarked, that they 
 are frequented by all the classes of the law school. 
 
 In the two last classes, the philosophical studies 
 are pursued, but the time devoted to them is 
 naturally more limited; and historical studies 
 are particularly attended to. 
 
 In regard to the special studies of law, instruc- 
 tion is given, in the second class, in the Roman 
 law, and in the following designated parts of the 
 national law, namely: 1, constitutional law, and 
 
 | the law of casts ; 2, administrative law (central 
 | and provincial authorities) ; 3, civil law ; 4, cri- 
 minal law. In this class, also, the exercises of 
 practical jurisprudence are commenced. 
 
 In the last class, finally, the pupils receive in- 
 struction in ; the law of seignorial jurisdictions, 
 in procedure, in legal medicine, financial law, the 
 law of police, administrative law, the provincial 
 laws of countries incorporated with Russia (for 
 example, the German law), and, lastly, in mathe- 
 matics applied to law. The principal object of 
 the labours of this last class is judicial practice; 
 for the young men of this class- are to enter im- 
 mediately upon the exercise of judiciary functions. 
 
 The plan of the imperial school is perfectly 
 adapted to the wants of Russia; but it is not 
 definitively settled, so far at least as to preclude 
 the introduction of such changes, as experience 
 may show to be useful. 
 
 The imperial school, we think, will soon create 
 for itself relations of scientific commerce with 
 learned Europe, and will form a sort of juridical 
 academy, which will receive with zeal the labours 
 submitted to it by foreign jurisconsults. 
 
 VIEWS OF THE JUDGES OF THE 
 
 SUPREME COURT OF THE UNITED STATES, IN REFERENCE TO LEGAL EDUCATION, 
 AS COMMUNICATED IN A LETTER FROM PROFESSOR GREENLEAF, 
 
 OF HARVARD UNIVERSITY, TO THE PRINCIPAL OF THE DUBLIN LAW INSTITUTE. 
 
 My Dear Sir Your very kind letter which I 
 
 received a few days since, afforded me great plea- 
 sure, mingled, however, with regret at the infor- 
 mation it contained, of the suspension of class 
 instruction in the Dublin Law Institute. I showed 
 it to my colleague and friend, Judge Story, who 
 expressed similar regret. We had both antici- 
 pated much benefit to the cause of legal educa- 
 tion from that institution; judging from the 
 prospectus and other papers you obligingly sent me 
 more than a year ago. We both commenced the 
 study of law, many years since, amidst the drud- 
 gery and interruptions of a lawyer’s office, peru- 
 sing, with what diligence we could, ourBiackstone, 
 Coke, and the other books at that time put into 
 the hands of students; and have more recently 
 had ample opportunity to mark the difference of 
 progress and acquisition, so much in favour of our 
 pupils at this law school, during the last ten years. 
 Our students have access to a law library of nearly 
 eight thousand volumes, comprising all the English 
 and American reports and treatises, to Avhicli we 
 are now adding those of Ireland and Scotland. 
 My own time is given constantly to the classes, 
 and that of Judge Story, when he is not sitting in 
 court. They are met by one of us daily, and are 
 closely examined, in rotation, upon the portion of 
 text studied by the class, and instructed by oral 
 expositions and commentaries; and every week 
 we hold a moot court, where a cause is argued by 
 four students, which is presented usually in the 
 form of a motion for a new trial, or verdict sub- 
 ject, to a special case, or some other of the ordinary 
 modes, in which legal questions are presented; 
 and an opinion is ultimately delivered by the 
 presiding Professor. The students also distribute 
 themselves into societies, which meet weekly or 
 oftener for the discussion of legal questions, and 
 we are furnished with the law periodicals of 
 England and France, as they are published. By 
 these methods the attention of students is con- 
 stantly drawn to the law, as a science, in its 
 
 Harvard University, 27 th November, 1843. 
 principles, its rules, and minuter details of ad- 
 ministration, which are mastered with a facility 
 and readiness, and in a spirit of sound philosophy, 
 to which the student in his private clerkship is 
 almost totally a stranger. 
 
 I have recently conversed with the editor of 
 the North American Review, who has promised 
 me an article on legal education for the April 
 number, that for January being already made'up. 
 It will adopt the views known to be entertained 
 not only by Judge Story and myself, but also by 
 all the judges of the Supreme Court of the United 
 States, and by nearly the whole bench of the 
 highest tribunals of the several States. In our 
 experience, the advantages of associated or col- 
 legiate instruction in the science of law, followed 
 by six to twelve months attention to the ‘ ‘ mani- 
 pulations” of practice in a lawyer’s office, are 
 beyond all comparison superior to any other 
 method of instruction we have ever known. And 
 it cannot be, that it can long remain out of favour 
 either in Ireland or England. If it should once 
 gain the attention of Parliament, with the appro- 
 bation and support of the principal legal cha- 
 racters in each House, the course of legal education 
 may be regarded as safe. 
 
 Should you wish Judge Story’s opinion on this 
 subject directly from himself, I presume he would 
 readily give it in reply to a letter, should you 
 think proper to address one to him. With sincere 
 thanks for your kindness, — I remain, dear Sir, 
 faithfully and respectfully yours, 
 
 Simon Greenleaf. 
 
 Professor Greenleaf in a subsequent communi- 
 cation, dated February 28, 1844, adds, — “It is 
 most extraordinary that, while it is conceded on 
 all hands that the sciences of Theology and of 
 Medicine are cultivated most successfully in public 
 institutions and schools, this advantage should be 
 denied to the Law; and still more strange that this 
 denial should be made in England alone.” 
 
PAPERS ON LEGAL EDUCATION. 
 
 LETTER FROM THE LATE HONORABLE JOSEPH STORY, 
 
 ONE OF THE JUSTICES OF THE SUPREME COURT OF THE UNITED STATES TO THE 
 PRINCIPAL OF THE DUBLIN LAW INSTITUTE, 
 
 Dear Sir — The pamphlets which you so obligingly 
 sent me, together with your letter, did not reach 
 me as early as might have been expected, owing 
 to my absence in attending the annual session of 
 the Supreme Court at Washington; this is my 
 apology for the apparent neglect, in my not 
 having before returned my thanks for the favour 
 you have done me. 
 
 I have read with great interest the papers res- 
 pecting the Dublin Law Institute, which you have 
 sent me. I have been long persuaded that a more 
 scientific system of legal education, than that 
 which has hitherto been pursued, is demanded by 
 the wants of the age and the progress of juris- 
 prudence. The old mode of solitary, unassisted 
 studies in the Inns of Court, or in the dry and 
 uninviting drudgery of an office, is utterly inade- 
 quate to lay a just foundation for accurate know- 
 ledge in the learning of the law. It is for the most 
 part a waste of time and effort, at once discouraging 
 and repulsive. It was, however, the system in 
 which I was myself bred ; and so thoroughly 
 convinced was I of its worthlessness, that I then 
 resolved if I ever had students, I Avould pursue an 
 opposite course. It was my earnest desire to 
 assist in the establishment of another system, 
 which induced me to accept my present professor- 
 ship in Harvard university, thereby burthening 
 myself with duties and labours,. w r hicli otherwise 
 I would gladly have declined. 
 
 The system pursued by my learned brother, Mr. 
 Professor Greenleaf and myself, in our juridicial 
 instructions has had the most entire success. The 
 Law Institution here has flourished far more than 
 I ever dreamed it could in a country like America, 
 where the administration of law, is not as with 
 you concentrated in Dublin or in Westminister, 
 or Edinburgh, but spreads over the whole territory. 
 
 Our system of instruction is not founded upon 
 
 Cambridge, near Boston, May , 15, 1844. 
 written lectures — (which, I am persuaded, is a 
 very inadequate mode), but upon oral lectures 
 connected with the daily studies of the students 
 in the various works which|they study, and in 
 the lecture room where they are all assembled in 
 •classes, and where they undergo a daily examin- 
 ation ; and every lecture grows out of the very 
 pages of the volume which they are then reading. 
 In this way difficulties are cleared away, additional 
 illustrations suggested, new questions propounded, 
 and doubts raised, and occasionally authorities criti- 
 cised, so that the instructor and the pupil move 
 along pari passu, and the pupil is invited to state 
 his doubts, and learns how to master his studies. 
 
 Whether the like system would answer as well 
 with you, I am unable to say, but I can scarcely 
 suppose that it could fail, and I may add ; that 
 our pupils are all satisfied with it, and make a 
 progress in their studies — so cheering and so 
 marked that it will not be relinquished. 
 
 I should heartily rejoice to know that the Dublin 
 Law Institute should have the highest success in 
 achieving the same purposes. I am aware that 
 any change is likely to meet with much opposition 
 from those who are accustomed to the old system, 
 partly from prejudice and partly from, what I am 
 sorry to say that I fear is but too common in our 
 profession, a disposition to resist innovation even 
 when it is an improvement. If Parliament should 
 aid your efforts, I should indulge higher hopes of 
 your triumphant success. 
 
 For your kind and flattering personal remarks, 
 I beg to return you my sincere acknowledgments. 
 If I have done aught to advance the cause of 
 jurisprudence it will be the most ample reward of 
 my labours which I could wish. 
 
 Believe me, with the highest respect, 
 
 truly your obliged friend and servant, 
 Joseph Story. 
 
 T. Kennedy, esq., Principal of the 
 Dublin Law Institute. 
 
 LETTER FROM THE LATE GEORGE J. BELL, 
 
 LAW PROFESSOR IN THE UNIVERSITY OF EDINBURGH, TO THE 
 PRINCIPAL OF THE DUBLIN LAW INSTITUTE. 
 
 Sir, — I am glad to see, that with the spirit and 
 energy which belongs to your country, you are 
 promoting an institution which promises to do 
 honor to all concerned, and to advance ‘the 
 best interests of society in the improvement of the 
 law. It has been the reproach of English lawyers, 
 and I fear also of the lawyers of Ireland, that 
 they have confined their studies to their own 
 municipal system, and even in that study have 
 followed rather in the train of Nisi Prius pro- 
 ceedings than the philosophical course of legal 
 principle ; and that, unlike the lawyers of every 
 other country, they have neglected to extend their 
 reading to the works of the jurists who treat of 
 more general jurisprudence. I do not despair of 
 seeing a new fashion in this respect, derived 
 from your exertions, and from the animating 
 example of the lawyers of America. 
 
 In Scotland our legal institutions proceed on a 
 systematic plan of education, grounded on the 
 great principles of general jurisprudence, as ap- 
 plicable to the situation, interests and concerns of 
 a commercial country. There arc in the Univer- 
 
 Edinburgh, 3, Park Place, 23 rd May, 1843. 
 sity of Edinburgh three courses of study. One of 
 Roman law, and the principles of general juris- 
 prudence, as illustrated in that admirable system. 
 Another of the municipal law of Scotland, as 
 connected on the one hand with the Roman juris- 
 prudence and feudal law, on the other with the 
 mercantile law, as understood and recognized in 
 the several countries of the commercial world. The 
 criminal law also forms a proper part of this course. 
 
 A third course of study has been recently ad- 
 mitted into our University, having for its object 
 the study of the principles and history of Deeds of 
 conveyance. 
 
 In these several courses the students are ex- 
 amined orally, and in some cases by written 
 questions. 
 
 I must not be tedious in these explanations, 
 but you will easily see from the habits and course 
 of our studies, how entirely I must approve of the 
 institution you have founded, and to which I wish 
 all possible success. 
 
 I have the honor to be, Sir, Yours faithfully, ij 
 George Jos. Bell. 
 
48 
 
 PAPERS ON LEGAL 
 
 UNIVERSITY OF IU.INOI9-URBANA 
 
 RESOLUTIONS OF C( 
 
 APPOINTED BY ROYAL COMMISSIOI 
 
 3 0112 062031429 
 
 RECOMMENDED 
 
 TO HIS LATE MAJESTY WILLIAM IV., ON THE COURSE OF THE STUDY OF LAW IN EDINBURGH. 
 
 Attending to the nature of the subject, and the 
 evidence before us, we have formed an opinion 
 that the course of the study of law in the Univer- 
 sity of Edinburgh should include attendance for 
 three sessions, according to the following resolu- 
 tions : — 
 
 “Civil Law That the student shall attend the 
 
 class of civil law in the first year. 
 
 “ That the class of civil law shall meet for 
 lecture for one hour each day, on five days in the 
 week, and for three hours in the course of the 
 week for examinations and exercises.” 
 
 “ Scotch Law — That the student, in the second 
 and third year of the course, shall attend the 
 class of Scotch Law. 
 
 “ That the course of lectures on Scotch Law 
 shall be continued during two sessions, forming 
 two classes, one for the students in the first year 
 of Scotch Law, and the other for the students in 
 the second year of Scotch Law. That each class 
 shall meet for one hour each day on six days in j 
 the week; on five days for lecture, and on one 
 'day for examinations and exercises.” 
 
 * * * * * le 
 
 In the progress of society, the subject of the 
 municipal law of Scotland has now become so 
 extensive, that after due investigation, we are 
 satisfied that, even with the important aid of the 
 class of conveyancing, the whole brandies of it 
 cannot be effectually comprehended in one course 
 of lectures during a session of six months. * * 
 
 In this, as in other professions, it is necessary 
 to provide a regular course of instruction, so that 
 law may be studied as a liberal and enlightened 
 science. It may be true that many students de- 
 sire only to acquire the rudiments of law, and the 
 materials for immediate practice, perhaps in the 
 inferior courts. Erom this cause, if the course 
 shall not be recast, many important subjects may 
 be entirely omitted. International law, and other 
 important branches of the science, may not engage 
 the attention of the professor : and thus students 
 are gradually accustomed to enter on practice at 
 the bar without any acquaintance with the general 
 principles of jurisprudence, and with limited and 
 contracted views of the subject of their profession. 
 We apprehend that it is essentially necessary to 
 prevent the natural operation of this external 
 cause from lowering the course of study, and that 
 the professor, as a part of his regular duty, should 
 have time for teaching the science of law in the 
 manner in which it should be taught for making 
 an accomplished and enlightened advocate. 
 
 The real interests of the community may be 
 most materially sacrificed, if the course of study 
 of law shall be adapted wholly to the supposed 
 convenience of a portion of the students. The 
 
 country is deeply interested in the character, the 
 independence and influence of the advocates to 
 whom the defence of their property and liberties 
 may be entrusted ; and it will be in vain to hope 
 that the independence and 'character of the bar 
 can be maintained, if the study of law is not con- 
 ducted on an enlightened and philosophical plan. 
 
 The great extension of the subject only renders 
 it the more important to provide that the instruc- 
 tion of the students shall not be limited to the 
 details of a technical art, and the philosophy and 
 science of law sacrificed, in order to furnish ma- 
 terials for the manual of a practitioner. 
 
 To these considerations it is more important that 
 attention should be paid, because the study of law 
 at a university, ( even if it should not be required 
 as necessary for the practice of the profession, is 
 fully established by universal custom, as the 
 course of preparation actually followed by the 
 generality of students. Hence the manner in 
 I which the subject may be taught in the universi- 
 ties will necessarily determine, in a very great 
 degree, the mode in which it will be generally 
 studied. 
 
 We have allotted one hour in each week for ex- 
 amination and exercises in eacli of the law classes. 
 We have already fully explained our reasons for 
 requiring examination iivail the classes generally; 
 and we have no doubt of the expediency of it in 
 the classes of law. Tire practice ought of course 
 to be enjoined as to all regular students. But it 
 is not intended" that it should be applied to per- 
 sons advanced in life, who may choose to attend 
 the lectures in law as a subject of general know- 
 ledge, and who may intimate, at entering the class, 
 their wish to be exempted. The certificates given 
 to such persons will be qualified accordingly. 
 
 It appears to us to be expedient that during the 
 first year of the study of lav/ at the university, 
 the student should attend the class of civil law 
 alone ; and in order to secure this object, we recom- 
 mend that the class of civil law, and the first class 
 of the professor of Scotch Law, should meet, as at 
 present, at the Same hour. 
 
 A class of lectures on conveyancing has been 
 recently introduced . into the University of Edin- 
 burgh. Looking to the very great extent of the 
 subject of Scotch Law, we are of opinion, that 
 this class forms a useful addition to the means of 
 instruction previously provided, and that it ought 
 to he included in the regular course of study. 
 This class ought to be attended in the third year 
 of the course, and should be taught six days in 
 the week, five for lecture, and one for examina- 
 tions and exercises. 
 
 The Session for the Law Classes should be ex- 
 tended to six months. ***** 
 
 Report Signed 25 th October, 1830. 
 
 Bosebery, Chairman 
 
 Gordon 
 
 Haddington 
 
 Aberdeen 
 
 Melville 
 
 C. Hope 
 
 Wm. Bae 
 
 D. Boyle 
 
 Geo. Cranstoun 
 
 James W. Moncreifp 
 
 John Hope 
 
 Thos. Taylor 
 
 George Cook 
 
 H. Home Drummond. 
 
 See report of Commissioners for valuable recommendations in reference to ‘'Examinations, Prizes, and En- 
 couragement for prosecution of Study.”