money, or of money into land. In this case also, as in that of a covenant to purchase and settle land, a question always arises as to the extent of the equitable conversion caused by the trust or duty.

We have seen that an unilateral covenant to purchase and settle land can, upon principle, cause an equitable conversion only in favor of persons on whom the land is covenanted to be settled, not in favor of the covenantor, or those claiming under him. So also, and for the same reason, an unilateral trust or duty to convert land into money, or money into land, can, upon principle, cause an equitable conversion only in favor of the cestui que trust, or the person for whom, or in whose favor, the duty is to be performed, not in favor of the creator of the trust or duty, or of those claiming under him. We have also seen, however, that, in respect to a covenant to purchase and settle land, the authorities. do not at all support this view, but hold that every covenant to lay out money in the purchase of land, and to settle the land, causes an equitable conversion of the money into land as much in favor of the covenantor and those claiming under him, as it does in favor of those on whom the land is covenanted to be settled and those claiming under them; and it may now be added that the authorities present the same view in respect to equitable conversions caused by a trust or duty to convert land into money, or money into land.1

We have also seen that according to the authorities the extent of the equitable conversion caused by a covenant to purchase and settle land is measured, not by the extent of the right or rights which the covenant creates in the land to be purchased, but by the extent of the actual conversion which the covenant makes necessary. How do the authorities answer this question in respect to an equitable conversion caused by a trust or duty to convert land into money, or money into land? Or, rather, how do they answer it in respect to such a trust or duty created by a will, for in respect to a trust created by deed they do not answer it at all. C. C. Langdell.

CAMBRIDGE, Jan. 14, 1905.

[To be continued.]

1 Smith v. Claxton, 4 Madd. 484 (second devise); Jessopp v. Watson, 1 Myl. & K. 665; Hatfield v. Pryme, 2 Coll. 204; Clarke v. Franklin, 4 Kay & J. 257; Richerson, In re, [1892] 1 Ch. 379.

THE DEVELOPMENT OF JURISPRUDENCE DURING THE PAST CENTURY.1

THE

HE term "jurisprudence" has been used with so many meanings, and each meaning is so vague, that it is necessary at the outset of any discussion of it to limit in some way the meaning intended to be put upon it. By jurisprudence, as used in the programme of this Congress, I understand to be meant the whole. body of law of the European and American nations, regarded as a philosophical system or systems; in short, the science of justice, as practised in civilized nations. My own topic, therefore, is to describe the changes in the law or in the understanding of the law in the civilized world during the past century.

So broad a subject cannot, of course, be treated exhaustively, nor can any part of it be examined in detail. My effort will be merely to suggest, in case of a few branches of law where the changes seem to be typical, the course and reason of those changes.

If we compare the condition of the law at the beginning of the century with its present condition, we shall gain some idea of the amount of change in the law itself and its administration. In England conservatism and privilege and the dread inspired in the heart of the people by the excesses of the French revolution conspired to retain in the law the medieval subtleties and crudities, though the reason of them had been forgotten and the true application of them often mistaken. The criminal law was administered with ferocity tempered by ignorance; all the anomalies and mistakes which have disfigured its logical perfection are traceable to the period just before the beginning of the last century. Criminal procedure was still crude and cruel. The accused could neither testify nor be assisted by counsel; legally, death, actually, a small fine or at most transportation, was the punishment for most serious offenses. The amount of crime in proportion to the population was enormously greater than now; there were no preven

1 Address delivered before the Congress of Arts and Science, at St. Louis, September 20, 1904, in the Division of Jurisprudence.

tive measures, no police, not even street lights. The law of torts occupied almost as small a place as it did in the proposed codes; the law of contracts was so unformed that it was not certain whether Lord Mansfield's doctrine that a written commercial agreement needed no consideration, would prevail or not. Business corporations were hardly known; almost the whole field of equity was hidden by a portentous cloud. Lord Eldon had just become chancellor. What the law of England was, such with little difference was the law of our own country. Its application to the complex life of the present was not dreamed of; and it had to be greatly changed before it could be adapted to the needs of to-day. Yet to say, as did Bentham, that it was rotten to the core and incapable of amendment was grotesquely incorrect; to say, as one of his latest disciples did, that it was the laughingstock of the Continental nations is strangely to misread history. In 1803, with all its imperfections and crudities, it was probably the most just and humane system of law under which human beings were then living.

On the Continent, feudal rights characterized civil law; torture was the basis of the administration of criminal law. And in no country of any size had the people yet obtained what had been given to Englishmen by their greatest king more than six hundred years before, a common law. Each province throughout southern and western Europe had its custom, each land-owner his own jurisdiction. The rigor of the criminal law had been somewhat modified in France by the legislation of the revolution, and just at the beginning of our century the Civil Code, first of the French Codes, was adopted. These codes, temporarily or permanently impressed on a large part of Europe outside of France, constituted the beginning of modern legislative reform.

The spirit of the time molds and shapes its law, as it molds and shapes its manner of thought and the whole current of its life. For law is the effort of a people to express its idea of right; and while right itself cannot change, man's conception of right changes from age to age, as his knowledge grows. The spirit of the age, therefore, affecting as it must man's conception of right, affects the growth both of the common and of the statute law. But the progress toward ideal right is not along a straight line. The storms of ignorance and passion blow strong, and the ship of progress must beat against the wind. Each successive tack brings us nearer the ideal, yet each seems a more or less abrupt departure

from the preceding course. The radicals of one period become the conservatives of the next, and are sure that the change is a retrogression; but the experience of the past assures us that it is progress.

Two such changes have come in the last century. The eighteenth had been, on the whole, a self-sufficient century; the leaders of thought were usually content with the world as it was, and their ideal was a classical one. The prophets of individuality were few and little heeded. But at the end of the century, following the American and French revolutions, an abrupt change came over the prevailing current of thought throughout the civilized world; and, at the beginning of the period under discussion, the rights of man and of nations become subjects not merely of theoretical discussion but of political action. The age became one of daring speculation. Precedent received scant consideration. The American revolution had established the right of the common people to a voice in the government. The French revolution had swept feudal rights from the civilized world. Although the French Republic was just passing into the French Empire, it was an empire which belonged to the people, and one of which they were proud. The Emperor was the representative and the idol, not of an aristocracy, but of his peasants and his common soldiers. The dreams of Napoleon himself, to be sure, were not of an individualistic paradise, where each man's personality should have free play and restraint on his inclinations be reduced to the minimum; but so far as he' was able to put his centralizing ideals into execution he raised but a temporary dam, which first spread the flood of liberty over all Europe and was finally swept away by the force of the current.

Starting from this point, the spirit of the time for more than a generation was humanitarian and individualistic. In political affairs independence was attempted by almost every subordinate people in the civilized world, and was attained by the South American colonies, by Greece, and by Belgium. In religion freethinking prevailed, and every creed was on the defensive. In society women and children were emancipated. Slavery was abolished, and the prisons were reformed. It was a destructive rather than a constructive age, and its thinkers were iconoclasts.

But a change, beginning with the second third of the century, was gradually accomplished. The application of the forces of steam and electricity to manufacture and transportation has had a greater effect on human life and thought than any other event

of modern times. The enormous power exerted by these forces required great collections of labor and capital to make them effective. Association became the rule in business affairs, and as it proved effectual there, the principle of association became more and more readily accepted in social and political affairs, until it has finally become the dominating idea of the time. The balance has swung; the men of our time are more interested in the rights of men than in the rights of man; the whole has come to be regarded as of more value than the separate parts. Beginning with the construction of railroads, the idea attained a firm standing in politics in the sixties. Whereas before that time the movement had been toward separation, now it was toward consolidation. People felt the tie of nationality stronger than the aspiration for individual development. The unification of Italy and of Germany, the federation of Canada, the prevalence of corporate feeling in America which, first passionately expressed by Webster, prevailed in '65, mark the principle of association in political affairs. business the great combinations of capital have been the salient features of the change.

In

Professor Dicey, in a most suggestive series of lectures a few years ago, pointed out many ways in which the English law had been affected by this progress of thought during the nineteenth century. Since the thought of the whole world has been similarly affected we should expect to find, and we do find, that not merely English law but universal jurisprudence has developed in the direction of the progress of thought, during the first period in the direction of strengthening and preserving individual rights, both of small states and of individuals, during the second period in the direction of creating, recognizing, and regulating great combinations, whether of states or of individuals. Let us develop this line of thought by examining the progress of law in a few striking particulars.

The most striking development of the law of nations during the last century has been in the direction of international constitutional law, if I may so call it, rather than of the substantive private law of nations. At the beginning of the period the fundamental doctrine of international law was the equality of all states great or small, and this idea, as one might expect, was fully recognized and insisted on during the first fifty years of the century. There was little development in the law otherwise. Each nation adopted and enforced its own idea of national rights, and was powerless to