his favourite resort was the sea-coast, where he amused himself with his boat, and frequently remained till the calls of business became pressing. He would then at once shake off his indolence, vigourously apply himself to his papers, and despatch them with astonishing rapidity.

This case,

which

Dialectics appear to have been his favourite study, and after he became engaged in business, he delighted to apply his refined logic to legal topics. This is evinced by his arguments in the very singular cause of the representatives of General Stanwix and his daughter; in which a father and his daughter were cast away in the same vessel, and not a person on board was saved, and the question was, which should be presumed to have died first. seemed to mock every principle of judicial decision, was brought before the court of Chancery, in the year 1772,1 and met with a singular discussion. In the arguments which Mr. Shadwell published in Mr. Fearne's posthumous works, it was (that gentleman tells us) our author's intention to try what could be advanced on it with some appearance of reason. But he was not actuated by a parade of logical ingenuity. The compositions adverted to were never shown by the author but to a few select friends. They were merely a work of amuse

ment.2

Mr. Fearne's general indifference to pecuniary emolument, the absorption of his time by scientific pursuits, and (we believe) the failure of some mechanical speculation which his philosophical discoveries had induced him to form, clouded the evening of his days. Like Lord Bacon, and from a similar cause (in part), he died poor. The profession, however, were gainers by that event, as but for it they would probably have never been presented with his valuable posthuma, which were published by Mr. Shadwell for the benefit of Mrs. Fearne.

The professional character of Mr. Fearne stands almost without a rival. His essay on the most abstruse doctrine of the law of real property, "Contingent Remainders and Executory Devises," is generally considered as a most beautiful

1 Reported in 1 Bl. Rep. 640.

2 See Mer. 308.

2 January 21, 1784, ætat 45, worn out, it is said, in mind and body.

combination of logical accuracy and profound legal learning.1 And these are not its only merits. The style of it, which is peculiar, not to say original, has not merely perspicuity and exactness, but much vivacity and elegance; and the complete success it met with, is a striking proof how effectively subservient literature and science may be to the illustration of the most abstruse departments of our law. The last edition. of this work, by Mr. Butler, is not, in our opinion, altogether worthy of his great abilities. The repetition of the propositions of the text at the bottom of the page, almost totidem verbis, answers no useful purpose; and there are, we think, some glaring inaccuracies in his numerical analysis.

The logical groundwork of the Essay on Contingent Remainders, even to the definition and primary classification of the topics, we must, however, presume to question. We cannot but think that its author was somewhat hasty in the assumption of his premises. For example, he defines a contingent remainder to be "a remainder limited so as to depend on an event or condition, which may never happen or be performed, or which may not happen or be performed till after the determination of the preceding estate." But a little reflection will show that this definition does not comprise remainders contingent merely on account of the person;—as in a limitation to two for life, remainder to the survivor of them; where there is no contingent event or condition, but a present capacity in the remainder to take effect in possession whenever the particular estate determines by the death of the first of them. We would accordingly define a contingent remainder to be a remainder which is limited to a person who is not ascertainable at the time of the limitation, or which is referred for its vesting or taking effect in interest, to an event which may not happen till after the determination of the particular estate. We shall also presume to attack Mr. Fearne's classification; and our objections are two-fold. First, that as it comprises that class of remainders, which are contingent only on account of the person, it does not fall within his own defini

1 Not being a professional man (observes the late Doctor Parr, in a letter to Mr. Butler, vol. ii. of that gentleman's Reminiscences,) I was continually foiled by the Essay on Contingent Remainders. But I saw enough to convince me that his powers of reasoning were gigantic.

tion, from which it is professedly deduced; that definition (as has above been shown) applying only to remainders contingent on account of the event. Secondly, that it is totally arbitrary, as it assumes, without a shadow of proof, that a difference in the events on which contingent remainders depend, makes a difference in the remainders themselves. The reverse of this we affirm to be open to strict and clear demonstration. If A. makes a feoffment to the use of B. till C. returns from Rome, and after such return of C. then to remain over to D. in fee, (which is an instance of Mr. Fearne's first sort of contingent remainders); if lands be given to A. in tail, and if B. come to Westminster Hall on such a day, to B. in fee (which exemplifies his second sort of contingent remainders); if a lease be made to J. S., and after the death of J. D. the lands to remain to J. W. in fee (which illustrates his third sort); it is very certain that the remainders of D. B. and J. W. are not in the slightest degree distinguished by the law; for the nature of the event does not affect the qualities of the remainder. We therefore reject this classification, and form another on what (as we think) is its only rational basis, viz. a difference in the qualities of the contingent remainders.1 Hence our division would be four-fold. The primary one would be into such remainders as are contingent on account of the event, and such as are contingent on account of the person; because these differ in some of their qualities, a contingent remainder being devisable when the event only is uncertain, but not when the person is unascertained. [This was decided by the cases of Roe v. Jones, 1 Hen. Bl. 30. Moor v. Hawkins, 1 H. Bl. Rep. 33. and Jones v. Perry in error, 3. T. Rep. 88.] Our secondary division of contingent remainders would be into those which are at common law, and those which are by devise or by way of use; and this we derive from the difference between contingent limitations in common law conveyances, and limitations in wills and conveyances to the former kind, when vehicles of the fee, putting it in abeyance, and the latter not.

uses;

This is not so much an aggression on the legal reputation

Is it not in any science absurd to adopt any other criterion of identity and diversity than this?

as on the logical merit of this far-famed essay. After what has been said, we leave the reader to his own opinion of the justness of our criticism.

One of the most singular misapplications of Mr. Fearne's reasoning powers was in his reading on the statute of enrolments. His object there was to prove that a grant of a remainder or reversion, for a pecuniary consideration, is at the present day a bargain and sale, and consequently void without enrolment. The sophistry of his arguments is now universally acknowledged. The grant of a remainder or reversion before the abolition of attornments was precisely analogous to a feoffment with livery of seisin. The pecuniary consideration then did not alter the operation of the deed, and make enrolment requisite ; and the statute of 4 Ann. c. 16. s. 9. simply made a grant without, exactly what it was before with, attornment. See the very late case of Doe v. Cole, 1 Manning & Ryland, 33.

Mr. Fearne's fault, as a legal writer, was, we conceive, a want of that patient spirit of analysis and research, which can alone be depended on for laying well-founded premises; though we by no means intend to say that he was wholly deficient in this spirit, or did not occasionally, and, as it were, by fits and starts, possess it in an eminent degree. But he was certainly far from being what Lord Thurlow once styled him,1 one of the most accurate of writers. His excellence consisted in accurate discrimination, in subtle ratiocination, in melting down the huge and shapeless masses of seemingly indigested and incongruous doctrines, and casting them into regular forms, in detecting anomalies, and crushing them, when pernicious, with the combined and irresistible force of sarcasm, reason, and authority. Lord Mansfield had almost as much cause to dread Mr. Fearne on the legal, as his invisible enemy, Junius on the political, arena. The celebrated case of Perrin v. Blake illustrates this. His lordship (then chief justice) thought fit to deny with some indignation his having given as counsel an opinion which Mr. Fearne had ascribed to him on

1 In Pering v. Phelips, 1 Ves. J. 256.

2 Lord Mansfield, however, did not (as Dr. Parr and many others supposed) persecute Mr. Fearne. See Butler's Reminiscences, vol. ii.

the subject of the devise in that case, and which was at direct variance with his lordship's judicial determination. This circumstance properly induced Mr. Fearne to publish the opinion,1 and to demonstrate its authenticity by shewing the source from which he got it; and the strain of irony in which he lamented that he should have been so fatally imposed on by appearances, would have done credit to the pen of Swift. This letter, with the opinions of Mr. Murray, and other eminent counsel, on the litigated will of W. Williams, was published with the fourth edition of the Essay on Contingent Remainders, but has been omitted from the subsequent editions.

Mr. Fearne, however, in his ironical attack on Lord Mansfield's decision in Perrin v. Blake, was not exactly consistent with himself. His ground of complaint was the desire of that great judge to break through those strict rules of law by which, whatever might be the intention of testators, limitations in wills assuming a certain form, produced a certain effect. And this complaint was just, as without a doubt it is more desirable that property should be secured by firm and settled rules, than that the intention of testators should be effectuated. But if Lord Mansfield was on this ground culpable for setting his shoulder to the rule in Shelly's case, how much more so was Mr. Fearne himself for endeavouring,3 on similar principles to those on which Lord Mansfield reasoned, and by arguments deduced from common sense, and abstract fitness, to subvert the maxim of the common law with respect to abeyance, confirmed as it is by a multitude of decisions, and, we believe, unshaken even by a judicial dictum. There is scarcely a remark of his on Lord Mansfield which does not apply with ten-fold force to himself.

This appeared about 1780, and is said to easiness, who, however, took no notice of it. 2 See Cont. Rem. 165.

have afforded Lord Mansfield some unChalmers, vol. xiv. 162.

3 Cont. Rem. 361.