have been illegal then, had become lawful now, in consequence of a change in the degree of probability that it might lead to corruption. The tendency is alone to be considered; and unless the possibility is so remote as to justify us in affirming that there is no tendency at all, the point is conceded. As he could not regard the argument on the improbability in this case, so neither could he the suggestion that such conditions may have respect either to lawful or unlawful proceedings, and that they ought to presume that lawful only are intended. His Lordship then referred to the remarkable case of Earl of Kingston v. Pierrepoint, in which 10,000l. was left to procure a peerage "by all lawful means," to the cases of wagers, and of the parish children; and said, that it would make no difference, so long as unlawful means might be resorted to upon lawful means failing; for the encouragement to wrong-doing would still be held out, and it might be effectual, notwithstanding any qualification added by way of guard. The possibility of a crime being committed would make a condition at once be deemed illegal which had a tendency in that direction. As the stern voice of prerogative had been said to be replaced by the gentler accents of influence on the part of the Sovereign, so on that of the subject the ruder forms of corruption have assumed the less repulsive features of intrigue. But as regards the duties and functions of the Legislature, the law and constitution are inflexible; its members, whether by hereditary or elective right, are there only to consult circa ardua regni, and though in their corporate capacity they can, like the Sovereign, do

no wrong, individually, they may be seduced or deterred from the due discharge of their office. All history showed that members of the Legislature might be moved by selfish motives, and it was notorious that even in pure times, the conduct of men high in both Houses of Parliament had been, all but avowedly, shaped by the desire of obtaining title or a step in the peerage. It was very possible that neither the individual nor the Minister might swerve from the line of duty; it was even far from probable that either would; but the law regarded possible events not more unlikely than these, and, taking security against the infirmity of human nature, regarded the tendency as well as the act, and removed the motives to cffending that it might not have to punish the offence. Upon these grounds, he entirely agreed with the proposition of his noble and learned Friend (Lord Lyndhurst), namely, to reverse the decree now under appeal.

Lord TRURO said, he had arrived at the same conclusion, and mainly for the same reasons as his hon. and learned friend. The will devised the estate to trustees. with direction that a settlement should be made embodying the limitations and uses mentioned in the will, but making them subject to the provisoes of the will for the determination thereof; and in a subsequent and distinct part of the will, the proviso in question was inserted, being one of those referred to in the limitations. The question which arose upon that proviso was, whether it should be construed to have the effect of a condition precedent or of a condition subsequent; a distinction which became of exceeding import

ance in reference to the second question their Lordships had to decide, that was, whether the proviso or condition was a proviso which the law would allow to bind the estate. Assuming for the present that the condition was illegal and void, he would remark upon the construction of the clause on that footing. There were certain rules or principles of construction connected with the right decision of this case. The intention of the testator was the governing principle in the construction of wills, and that intention was to be gathered from the whole will, and not from particular passages; in trusts executed, the intention was to be collected from the language of the will itself; in trusts executory a greater freedom was allowed, but not mere conjecture, or in contradiction to express words: again, though the Court would frequently alter the position of words and clauses, and put other meanings upon them than those which they prima facie imported, yet this was never done to give effect to an unlawful intent, or in any case where such alteration or interpretation was not really necessary. Moreover, where a gift is good in itself, but was followed by an unlawful or repugnant condition in a distinct clause, the gift was upheld, and the condition or qualification, which alone was obnoxious, was rejected. The first part of the proviso in question, which professed to cause the cesser of the use or estate, was, in his opinion, in the nature of a condition subsequent, and not of a condition precedent. The condition, taken as a whole, was not in the nature of a condition precedent; no estate was to arise on its fulfil

ment.

Nor was it a conditional

limitation; because, although it proposed to defeat a use or estate, it did not create a new estate or interest in the room of the use or estate so defeated. Neither was it simply in the nature of a condition subsequent; because it not only defeated one estate or interest, but it proceeded to provide that the property should go over to the objects of the ulterior limitations. In truth, as a whole, it was what the testator had designated it, a proviso for the determination of the use directed to be limited to the heirs male of Lord Alford; and it was also a proviso which thereby, and by an express provision, accelerated the subsequent estates or interests. The first part of the proviso was in the precise form of a condition subsequent, penned in the regular technical way; whereas, had it been a condition precedent, it would customarily have formed an introductory part of the clause whereby the estate to which it was annexed would be created, and upon the fulfilment of it an estate would arise. It was precisely in the same form with other provisoes of the will which were beyond dispute conditions subsequent. Upon these grounds, and others of an exceedingly technical nature, which his Lordship set forth at length, Lord Truro said he had come to the conclusion that the proviso was of the nature of a condition subsequent, and would operate as such if legal; but if it were illegal, it must be rejected, as if it were not contained in the will, and the gift would remain unaffected by it. His Lordship was of opinion it was illegal and void. Amid the general free disposition of property, it could not be denied that such dispositions were subject to

some limits or restraints, and that the law would not uphold such as had a tendency prejudicial to the public weal. This law had been expressed in different language, but all to the same import, as applying to matters against the liberty of the land, contrary to law, and against the public good. He would assume that a disposition of property by will, equally with a disposition of property in any other form, which had a tendency injurious to the public interest or good, the law would not uphold; and the law looked not to the probability of public mischief occurring in the particular instance, but to the general tendency of the disposition. His Lordship then referred to the injurious tendency of the bequest in this instance, as an inducement to Lord Alford to pursue undue means of procuring the title; and referred to the notorious fact in respect to the many peerages which had been conferred within the last two centuries, that they had invariably, with the exception of those given for direct public service, been bestowed upon the adherents of the Minister of the day. He entertained the opinion that persons ought not to be allowed to dispose of their property in any manner which furnished a motive to conduct in relation to acts of State independent of a sense of right and duty. He would admit that the object sought was not illegal, and that illegal and improper means might not be used to obtain it; but he did not think the testator could have contemplated any legitimate means by which it could be acquired. The intentions of the testator, however, could not be material ingredients in the question; the tendency of the devise was the

only consideration, and that tendency was the application of his great wealth to the furtherance of his object in a manner which others had found to facilitate the attainment of similar objects, and to political conduct, irrespective of proper motives.

Upon these grounds he thought the proviso by which the limitation to the heirs of the body of Lord Alford is made to depend upon the acquisition of the title of Marquess or Duke of Bridgewater was illegal, and was in the nature of a condition subsequent; and that, as the will contained a perfect limitation to the heirs of the body of Lord Alford, full effect must be given to such limitation; and, therefore, that the decree which had been made in the cause must be reversed.

Lord ST. LEONARDS said he en tirely concurred in the grounds as stated by his noble and learned friends. The questions, as had been repeatedly stated, were two; one upon the nature of the condition itself, whether it were a condition precedent or a condition subsequent; and the other as to its legality or illegality. It was of the highest importance to ascertain exactly what was the nature of these limitations, before they considered what were the particular provisions of the will. It was late to refer to first principles, but they lay in a few words, and were essential to the proper understanding of this case. Under the common law, persons could not create such estates as were now made; they could not raise a fee upon a fee, or a possibility upon a possibility. When uses were introduced, the law was entirely changed, and they were enabled by means of them, which were founded origi

nally upon trusts, to introduce all those modifications of property which were now so well known to the law. It was important to ascertain what a contingent use is, because the learned Judges seem to have based their opinion as to the first point on the idea, that what does not exist cannot be defeated. Now, in point of fact, a use is a thing simply of confidence. Where a man has a legal interest, he treads with a landlord's tread upon the land, and he has it only as by force of law; but when you come to the use of a legal estate, which gives a right to the beneficial interest, the possession of the estate may be in one person, and the use or confidence in another. When, therefore, a man has a use, it is simply that there is a confidence placed in some person who has the legal estate, to permit the other person to have a usufructuary interest. When the Statute of Uses came in and transferred uses into possessions-that is, made uses possessions-and gave to the equitable owner, to him who had the use, the legal estate, then it was a simple transfer by force of the statute of the legal estate, which we call the seisin, to serve those uses. What, then, did the contingent use become? It did not alter its character, except in this respect, that the legal estate was carried to it, and so it was made, in that sense, a contingent estate. That became a vested estate, which was before a simple use or confidence. So a contingent use rests in confidence, and when the time arrives for the contingency to take effect, the statute executes that use or confidence, and gives the legal estate. I have no doubt that a contingent use is a confidence, a trust, and therefore VOL. XCV.

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is an estate, first in equity and then at law, but which, before the event arises, is just as capable of being defeated by a matter subsequent as any vested estate in the possession of any person. These, in his Lordship's opinion, were not conditions" at all; it was a case of contingent limitations, with a series of shifting or secondary uses, limited upon these contingent limitations. This relieved the case from much of the difficulty imported into it, in considering these provisoes as if they were conditions at common law. Conditions intended to defeat an estate were odious in law, and if the estate is to be defeated, it must be so by clear and express terms, within the limits of the instrument creating it. So in this case they must collect the meaning of the testator from the very words which he had used; before they discarded the ordinary meaning of the language used, they must be satisfied that they were called upon to mould those words, by taking them not in their common and ordinary import as words of science, and they must be satisfied that they do not, in their ordinary signification, convey the meaning which the testator had, and to which they, by law, might give effect. He would here observe, that this was certainly not an executory trust. Now, he would say, that no legal instrument had ever been drawn with a more perfect knowledge of the subject, and if the draftsman had erred with regard to the legality of the subsequent condition, he had erred in very great company; but there was no colour belonging to this trust of an executory trust, properly so called-for which his Lordship gave his reasons at great length, and with exceeding technicality. X

After stating that the framer of this will had introduced one of the most perfect series of limitations that it was possible for the law to enable him to introduce, his Lordship then proceeded to examine these limitations, and the contingencies on each, with great minute ness; and said that there was not a single proviso throughout this will that was not consistent with itself, and with every other part of the will; and if they attempted to dislocate it, and to introduce contingencies where there are clauses of cesser, they would produce all the mischief he had pointed out, and which would lead to inextricable confusion. It was wholly indifferent as to the intention of the testator, whether they prevented the use from arising, or whether they allowed it to vest for a moment, and then to be divested. The law provided with the utmost care for the vesting of estates, to save estates from being destroyed, of which there was a remarkable instance in the case of Plunkett v. Holmes; and he would call to their Lordships' attention numerous cases which, if the rule now proposed by the learned Judges had been adopted, must have been decided in a directly opposite way. (Here his Lordship cited and commented upon some remarkable decisions from the old Reports.) These cases seemed to him clearly to prove, that not only was the introduction of the contingency, selected and culled out of the provisoes, not warranted by law, but that the law did, in cases of infinitely more difficulty, actually strike out positive contingencies, and give vested estates in order to effect an intention. As these cases appeared to him quite conclusive on the subject, he had come to the

conclusion to recommend their Lordships to hold that this, if it is to be called a condition, is a condition subsequent, and not a condition precedent. As to the second point in this case, whether the condition is contrary to public policy, his Lordship examined the question at great length, placing in stronger light the principles which had been already deduced by other noble and learned Lords from the decisions bearing on the point. There was much in the point urged by counsel, as to the embarrassment such a proviso as this would create to the Crown. It was, moreover, an insult, an indig nity to the Crown, that a man should point out a particular title he will have, and the particular limitations to be attached to that title. What, again, could be more painful than the pressure put upon the parties? It was a dangerous power to be placed in the hands of any man, with such a temptation to use it-such a temptation was almost irresistible-it was more than they were justified in laying before any men. They were not justified in raising so fearful an issue. His Lordship then commented upon public policy; the doctrine regarding restraints on trade, wagers, on legacies, and devises for immoral or illegal purposes, and the doctrine of perpetuities, all which were grounded on considerations of public policy. In the Duke of Norfolk's case, their Lordships reversed the decree of the Lord Keeper, and established that of the Earl of Nottingham, and on the grounds of public policy. In this case Lord Nottingham was asked,

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Where will you stop?" and he answered, "I will stop wherever I find a visible inconvenience." Why should not grounds