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The Transformation of Trusts as a Legal Category, 1800–1914

Published online by Cambridge University Press:  28 October 2011

Gregory S. Alexander
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Extract

Sometimes we are least aware of that which most affects us. So it seems with respect to legal categories. Lawyers do not take legal categories very seriously today. But they should. Legal categories are central to legal reasoning; indeed it is almost impossible to imagine legal reasoning without the use of categories. Categorical thinking affects every area of law. In constitutional law, for example, equal protection analysis turns crucially on categories of affected interests. Specialists in landlord-tenant law debate whether the implied covenant of habitability is a property doctrine or a contract doctrine. And if the public/private distinction is dead, as some reports have suggested, it rules us yet from its grave. Legal categories are not simply housekeeping devices. They inhibit our imagination of what is acceptable, indeed, of what is possible. They take on a quality of givenness and thereby disempower us. We can retain control over categories, and ultimately over our own legal imagination, only by reminding ourselves that we have created them and are capable of remaking them.

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Articles
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Law and History Review , Volume 5 , Issue 2 , Fall 1987 , pp. 303 - 350
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Copyright © the American Society for Legal History, Inc. 1987

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References

1. E.g., in re Griffiths, 413 U.S. 717 (1973) (‘strict scrutiny’ applied to ‘suspect classifications’); Mississippi Univ. for Women v. Hogan, 458 U.S. 718 (1982) (‘middle-level’ scrutiny applied to gender classifications); Craig v. Boren, 429 U.S. 190 (1976) (same). The whole topic of the steady growth of categorization in constitutional doctrine is discussed in Nagel, Robert,‘The Formulaic Constitution’, 84 Michigan Law Review 165 (1985)CrossRefGoogle Scholar.

2. For a critical discussion of this categorical distinction as a theme in recent landlordtenant scholarship, see Chase, Edward, ‘The Property-Contract Theme in Landlord and Tenant Law’, 13 Rutgers-Camden Law Journal 189 (1982)Google Scholar.

3. See Kennedy, Duncan, ‘The Stages of the Decline of the Public/Private Distinction’, 130 University of Pennsylvania Law Review 1349 (1982)CrossRefGoogle Scholar (‘When people hold a symposium about a distinction, it seems almost certain that they feel it is no longer a success.’)

4. E.g., Flagg Brothers v. Brooks, 436 U.S. 149 (1978). See also note 19 infra.

5. In applying the term ‘Classical’ to this period I am following Duncan Kennedy's lead. See Duncan Kennedy, The Rise and Fall of Classical Legal Thought, 1850–1940 (1975) (unpublished ms.); Kennedy, Duncan, ‘Toward an Historical Understanding of Legal Consciousness: The Case of Classical Legal Thought in America, 1850–1940’, 3 Research in Law and Sociology 3 (1980)Google Scholar; Kennedy, Duncan, ‘Form and Substance in Private Law Adjudication’, 89 Harvard Law Review 1685, 1728–31 (1976)CrossRefGoogle Scholar. However, my use of the term is slightly broader than his. I use it generically, referring to all legal writers who contributed to the classification enterprise during this period as ‘Classical'. Kennedy applies it to a distinct mode of legal thought during the same period that attempted rationally to order the entire legal system on the basis of a limited set of core ideas. Some of the writers to whom I refer as Classicists in fact were partial (but only partial) critics of the system of thought that Kennedy brilliantly describes. Holmes, for example, criticized some aspects of Classicism, particularly its pretense to scientism, while adhering to other of its beliefs. See note 23 infra.

Two particularly clear discussions of Classical legal thought are Grey, Thomas, ‘Langdell's Orthodoxy’, 45 University of Pittsburg Law Review 1 (1983)Google Scholar [hereinafter cited as Grey] and Gordon, Robert, ‘Legal Thought and Legal Practice in the Age of American Enterprise, 1870–1920’, in Professions and Professional Ideologies in America, 1730–1940, (Chapel Hill, 1984) 70Google Scholar.

6. The basis for Equity's involvement with trust doctrine, of course, was its historically exclusive jurisdiction over the enforcement of trusts.

7. See Grey, supra note 5 at 48.

8. Costigan, George, ‘The Classification of Trusts as Express, Resulting, and Constructive’, 27 Harvard Law Review 437 (1914)CrossRefGoogle Scholar.

9. See text accompanying notes 151–161 infra.

10. Thomas Grey has elucidated the relationship between legal categories and legal concepts:

[O]ne can distinguish the classificatory categories that demarcate bodies of law (e.g., tort, contract, crime) from the operative concepts used in the principles from which decisive rules are derived (e.g., consideration, proximate cause, malice).

Grey, supra note 5 at 9, also at 9 n.28.

11. My point here is that arranging categories is not a process distinct from defining the scope of a category. Rather arrangement is inherent in the definition of categories. What also needs to be stressed is that while we tend to think of categorical definition and arrangement as something that is done consciously by legal scholars, it is sometimes also the consequence of doctrinal evolution. This is true in the case of trusts, where the external boundary lines were drawn largely by courts and the internal arrangement made by legal writers.

12. While Classical legal thought as a whole can be understood as a coherent ordering of the legal system, my reference to ‘the Classical ordering’ should not be misunderstood to suggest legal scholars during the Classical period consciously coordinated their efforts to generate a single arrangement of the law. For the most part they worked in isolation of each other, although they certainly understood their shared methods and values. And their work on categorical ordering operated at differing levels of generality, much of it, like Costigan's, classifying only one area of law at a time. But we can now see how all of these individual efforts hung together to constitute in effect one general ordering of the entire system.

13. I have deliberately chosen the word ‘interpretation’ rather than ‘explanation’ because I want to avoid metahistorical questions such as cause and effect relationships between legal ideas and material interests and the extent to which Classical lawyers ‘intended’ their categorical arrangements to serve the ideological role I describe. My method here is essentially that which Richard Rorty describes in his essay ‘Nineteenth-Century Idealism and Twentieth-Century Textualism,’ in Rorty, Richard, Consequences of Pragmatism (Minneapolis, 1982) 139Google Scholar. Realizing the controversial nature of this approach, I nevertheless will not defend it here, in the interest of getting on with the substantive claim itself.

14. See note 48 and accompanying text, infra.

15. Grey, supra note 5 at 47. The following discussion draws on Grey's illuminating remarks on Classical legal ordering, ibid. at 47–50.

16. For a particularly clear statement of the Classical view of this distinction, see Pollock, Frederick, ‘Divisions of Law’, 8 Harvard Law Review 187, 197 (1894)CrossRefGoogle Scholar: ‘The distinction between law relating to persons and law relating to things may seem to the modern reader … not to be a real one ….’ In this article Sir Frederick Pollock attempted to connect several of the distinctions familiar to late nineteenth century lawyers with Roman legal classification, specifically, Justinian's Institutes.

17. Duncan Kennedy has discussed these Blackstonian distinctions and explained their oddity to modern eyes in his critique of Blackstone's structure, Kennedy, , ‘The Structure of Blackstone's Commentaries’, 28 Buffalo Law Review 209 (1979)Google Scholar.

18. This whole topic of the transformation of the law/Equity distinction very much needs closer study. Some preliminary ideas are sketched out in Grey, supra note 5 at 47–48, and Kennedy, Rise and Fall of Classical Legal Thought’, supra note 5 at part III: 52, 55. Some primary sources include, on the American side, Langdell, C. C., Summary of Equity Pleading (Cambridge, Mass., 2d ed., 1883) 27–42Google Scholar and on the English side, Pollock, Frederick, ‘The Transformation of Equity’, in Essays in Legal History (Vinogradoff, P., ed., London, 1913) 286Google Scholar. It is worth noting here that while Classical writers like Langdell reduced the distinction to a matter of remedies, Realists like Thurman Arnold later resuscitated the law/Equity distinction, transforming it into a dichotomy between two theories of adjudication, by rule and by discretion:

The origin of equity and its persistence today are not due to the hatred of Roman law, or the conservatism of English judges, but rather to the fact that any system which is compelled to reconcile its decisions with its formulated rules must have an escape from those rules. Equity furnished that escape originally. If we are to continue with abstractions, equity must continue to furnish that escape today, even though the two courts are consolidated …. If the tradition of common law requires abstractions, that same tradition requires that equity be free from them in order to make legal abstractions more elastic.

Arnold, Thurman, ‘The Restatement of the Law of Trusts’, 31 Columbia Law Review 800, 822–23 (1931)CrossRefGoogle Scholar.

19. See, e.g., Pollock, supra note 14, at 192 (‘A … division accepted by almost all systematic writers is that of public and private law.’)

For contemporary views on this distinction, see the recent symposium in 130 University of Pennsylvania Law Review 1289 (1982)CrossRefGoogle Scholar.

20. See, e.g., the famous unsigned article by Holmes, , ‘The Theory of Tort’, 7 American Law Review 652 (1873)Google Scholar and Bigelow, Melville M., Elements of the Law of Torts for the Use of Students (Boston, 1878)Google Scholar. Bigelow expressly acknowledged his debt to Holmes's article for his classification of tort duties. See ibid. at v.

21. See, e.g., Williston, Samuel, ‘Mutual Assent in the Formation of Contracts’, 14 Illinois Law Review 85, 85–87 (1920)Google Scholar.

22. Some of these were the subjects of Realist critiques. Among the more famous of these critiques are Cohen, Morris, ‘Property and Sovereignty’, 13 Cornell Law Review 8 (1927)Google Scholar and Hale, Robert, ‘Coercion and Distribution in a Supposedly Non-Coercive State’ 38 American Political Science Quarterly (1923) 470CrossRefGoogle Scholar. One of the greatest ironies of modern legal thought is that for all our post-Realist sophistication, we frequently take these distinctions seriously, acting as though the Realist movement had never occurred.

23. ‘Codes, and the Arrangement of the Law’, 5 American Law Review 1 (1870)Google Scholar; ‘Misunderstandings of the Civil Law’, 6 American Law Review 37 (1871)Google Scholar; ‘The Arrangement of the Law–Privity’, 7 American Law Review 46 (1872)Google Scholar.

My reference to some of these individuals, especially Holmes and Gray, as ‘Classical’, along with such scholars as Langdell and James Barr Ames, may come as a surprise to some readers. I do not mean to create the impression that there were no significance differences in their respective views. Holmes, for example, was an early critic of certain elements of Langdell's jurisprudence. For my immediate purposes, however, the similarities exceed the differences, and to underscore these similarities, specifically with respect to the importance of legal classification, I find it useful to group them together as ‘Classical’ writers. See note 5 supra. At the same time, I do think there has been a tendency to exaggerate the extent to which Gray deviated from Classical orthodoxy.

24. See text accompanying note 34 infra. The trans-Atlantic character of the interest in classification is indicated further by the Austin's influence on Holmes and other Classical writers. As evidence of Austin's influence, Gray described Austin's The Province of Jurisprudence Determined as ‘considerably in vogue’ between 1861, when Austin's widow republished it, and 1874, when Maine ‘dealt it a severe blow in his last two lectures on the “Early History of Institutions”‘. Gray, John Chipman, ‘Some Definitions and Questions in Jurisprudence’, 6 Harvard Law Review 21, 22 (1892)CrossRefGoogle Scholar. Austin's influence on Holmes’ thinking is discussed in detail in deWolfe Howe, Mark, Justice Oliver Wendell Holmes, vol. II: The Proving Years, 1870–1882 (Cambridge, Mass., 1963) 66–85CrossRefGoogle Scholar.

25. See Holmes, Oliver Wendell, ‘Codes, And the Arrangement of the Law’, 5 American Law Review 1, 3 (1870)Google Scholar. Reacting to the codification movement, Holmes in this essay argued that ‘the most considerable advantage which might be reaped from a code is this: that being executed at the expense of government and not at the risk of the writer, and the whole work being under the control of one head, it will make a philosophically arranged corous juris possible’. Ibid. at 2.

26. Wigmore, John H., ‘The Tripartite Division of Torts’, 8 Harvard Law Review 200 (1894)CrossRefGoogle Scholar (reacting to Holmes's article, ‘Privilege, Malice, and Intent’, ibid. at 1).

27. Keener, William A., Treatise on the Law of Quasi-Contract (New York, 1893) 16–25Google Scholar. Keener's discussion of the division of contracts into express, implied in fact, and implied in law paved the way for Costigan's later classification of trusts. In particular, his treatment of quasi-contract was the model for Costigan's handling of constructive trust, which is directly analogous to quasi-contract. As I shall discuss in Part IV, both of these concepts were problematic in Classical thought because of their apparent regulatory (i.e., intent-overriding) and communal character. Costigan moved beyond Keener in the sense that he defused the problem not only by isolating the concept from the other types of trusts but also by revising its theoretical foundation (unjust enrichment) in a way that reconciled constructive trust with the other types of trusts. See text accompanying notes 158–61, infra.

28. David Sugarman has discussed the central role of classification in nineteenth-century English legal thought in his excellent study of scholarship produced by the elite English legal academics during the Classical era, Sugarman, David, ‘Legal Theory, the Common Law Mind and the Making of the Textbook Tradition’, in Twining, William, ed., Legal Theory and the Common Law (Oxford, 1986) 26Google Scholar.

29. E.g., Holland, Thomas Erskine, Essays upon the Form of the Law (London, 1870)Google Scholar; Holland, Thomas Erskine, The Elements of Jurisprudence (London, 2d ed., 1882)Google Scholar.

30. E.g., Salmond, John, Jurisprudence, or the Theory of the Law (London, 1902)Google Scholar.

31. E.g., Markby, William, Elements of Law, Considered with Reference to Principles of General Jurisprudence (London, 2d ed., 1874)Google Scholar.

32. Pollock, Frederick, ‘General Introduction’, Encyclopedia of the Laws of England, 12 vols. (London, 1897) i: 7 n.2Google Scholar.

33. Student notebooks: Burleigh, L. A., ‘Notes on Property taught by Prof. J. C. Gray, 1891–92’ (Harvard Law School, Manuscripts Collection) 5Google Scholar. Austin Wakeman Scott's student notes from Gray's 1908–1909 Property course include substantially the same definition: ‘Property treats of [the] transfer and creation of transferable rights in rem.’ Scott notebook at 1.

34. To cite just one example, L. A. Burleigh's notes include the following statement of Gray's distinction between law and Equity is historical ….. [T]he main distinction today between law and equity is undoubtedly that which Mr. Langdell insists on so much in his book on Equity Pleading, and that is in the form of remedy.’ Burleigh notebook, supra note 33 at 96.

Gray's emphasis of the in rem/in personam distinction reinforces his standing as a Classic. Duncan Kennedy points out that virtually all of the Classical writers, English and American, agreed that the starting point for the new arrangement of law should be the in rem in personam distinction. Kennedy explains this view as influenced by the will theory. Kennedy, ‘The Rise and Fall of Classical Legal Thought’, supra note 5 at iv, 31–35.

35. Holmes, Oliver W., ’Introduction to the General Survey’, in Collected Legal Papers (New York, 1920) 298–301Google Scholar.

36. This phrase is attributed to Holland, T. E. by Holmes in his unsigned review of Holland's ‘Essays upon the Forms of Law’ 5 American Law Review 114 (1870)Google Scholar.

37. deWolfe Howe, Mark, Justice Oliver Wendell Holmes, vol. 2: The Proving Years, 1870–1882 (Cambridge, Mass., 1963) 62–68CrossRefGoogle Scholar.

38. It is important to note that despite their common desire for a rational arrangement of the law, the Classical arrangers identified different functions for their arrangements. Specifically, while Langdell called for ‘scientific’ classifications, Holmes's plea was for a ‘philosophical’ classification. The difference was significant, for, as Thomas Grey had pointed out, Holmes rejected Langdell's aspiration for achieving formality in the law through conceptual ordering. That is, in Holmes's view, although conceptual ordering of legal principle was important, legal principles themselves did not decide cases. See Lochner v. New York, 198 U.S. 45, 76 (1905) (‘General principles do not decide concrete cases.’) Grey, supra note 5 at 8–9, n.27, 44. Mark deWolfe Howe argued that Holmes, call for a philosophical ordering derived less from his affiliation with the philosophical pragmatists than it did his interest in Austin's command theory of the law. Howe, supra note 32 at ii, 61–95.

39. Ibid. at 65–66.

40. DeWitt Andrews, James, ‘Classification and Restatement of the Law’, 14 Illinois Law Review 465, 622 (1920)Google Scholar.

41. Letter from O. W. Holmes to John Norton Pomeroy, quoted in Howe, supra note 32 at ii: 16.

42. Ibid. Realists later turned this criticism in on Classical reasoning itself. A particularly apt example is Thurman Arnold's attack on the first Restatement of the Law of Trusts. Arnold did not object to classification efforts as such but instead to the method used in the Restatements, which he described as based on definitions and deductions from definitions. He proposed that cases should be arranged ‘descriptively'. Echoing the Classics' own line of attack against the pre-Classical arrangements, Arnold stated:

[N]one of the [Restatement's] classifications follow the lines of any particular set of comparable situations, to which a general policy is applicable.

Such classifications do not make the task of the lawyer easier by confining his citations to relevant cases. Instead they compel voluminous briefs and treatises, reconciling the different problems forced under the same abstraction …. If the restatement is to clear away the debris and make a new arrangement possible, it must abandon definitions in favor of a simple descriptive process of the purposes for which this logical machinery is used in different kinds of cases.

Arnold, supra note 18 at 814. On Arnold's role as a Realist see Kalman, Laura, Legal Realism at Yale, 1927–1960 (Chapel Hill, 1986)Google Scholarpassim.

43. E.g., Shearman, Thomas G. & Redfield, Amasa, A Treatise on the Law of Negligence (New York, 1869)Google Scholar (chapters arranged topically include ‘Bridges’, ‘Canals’, ‘Fences’, ‘Highways’, ‘Railroad Fences’, and ‘Telegraphs’). Holmes, unsigned review of the second edition of this work appears in 5 American Law Review 343 (1871)Google Scholar.

44. This statement appears in Holmes, unsigned review of The Code of Iowa in 7 American Law Review 318 (1873)Google Scholar.

45. ‘The Arrangement of the Law–Privity’, 7 American Law Review 46, 47 note (1872)Google Scholar.

46. Realists like Karl Llewellyn later turned this argument on its head by pointing out the greater practical value of narrow categories. Appreciating Holmes, criticism of categories that emphasize accidental elements, the Realists developed narrow legal categories along ‘functional’ lines. See Twining, William, Karl Llewellyn and the Realist Movement (Norman, Okla., 1985) 46–50Google Scholar. Thurman Arnold's critique of Austin Wakeman Scott's Restatement of Trusts is an apt example of functional classification. See note 42 supra and 93 infra.

47. Langdell, C. C., Cases on Contracts (Boston, 2d ed., 1879) viii–ixGoogle Scholar. Langdell and other Classics occasionally carried the connection between classification and legal ‘science’ to the point of analogizing legal classification and classification in the natural sciences. Pound, who first studied botany at Nebraska under the leading botanist of the time, Charles E. Bessey, before turning to law, later attacked this analogy and the underlying conception of legal classification:

Before the nature of biological classification was well understood, it was often assumed that the unfolding of the idea, which was the reality behind the phenomenon, might be revealed by logical classification. But this is an attempt to explain biological classification philosophically through the idea realizing itself in evolution. It is in some such sense that we are expected to attain ‘reality’ through classification of law.

Obviously the principles of biological classification are quite inapplicable to the classification of law …. The assumption that there is some fixed ultimate reality behind legal precepts, which we may discover through analysis or through a combination of history and analysis, cannot vouch the analogy of taxonomy in biology …. Biological classification has found a surer basis for itself, and there is no reason why legal classification may not do the same.

Pound, Roscoe, ‘Classification of Law’, 37 Harvard Law Review 933, 937–38 (1924)CrossRefGoogle Scholar. Pound's own theory of classification was pragmatic, in contrast with Langdell's. He explicitly ‘disclaimed] belief that any classification is possible that will enable us to solve problems of substantive law or that will help us much in the solution of such problems'. Instead, ‘legal precepts are classified in order to make the materials of the legal system effective for the ends of law”. Ibid. at 939, 944.

48. For a more detailed discussion of this sense of the term ‘ideology’, see Geuss, Raymond, The Idea of a Critical Legal Theory: Habermas and the Frankfurt School (Cambridge, 1981) 9–11Google Scholar.

49. The phrase is Richard Rorty's. He applies it to Cartesian epistemology, while purports to ‘ground’ knowledge and to ‘mirror’ nature. See Rorty, Richard, Philosophy and the Mirror of Nature (Princeton, 1979) 15–127Google Scholar.

50. The original statement of this set of antinomies and its relevance to legal thought is Duncan Kennedy's comprehensive study of Classical legal thought. Kennedy, The Rise and Fall of Classical Legal Thought, supra note 5. My paper builds on Kennedy's analysis by studying in detail the development of one specific legal category.

51. Atiyah, Patrick S., The Rise and Fall of Freedom of Contract (Oxford, 1979) 134Google Scholar.

52. 2 Swans. 454, 36 Eng. Rep. 690, 3 Chan. Cas. 40, 22 Eng. Rep. 955 (1682).

53. For a discussion of the connection between the recognition of contingent remainders and the creation of settlements that restrained alienation, see Bonfield, Lloyd, Marriage Settlements, 1601–1740: The Adoption of the Strict Settlement (Cambridge, 1983) 24–35CrossRefGoogle Scholar.

54. Chudleigh's Case, 1 Co. 120a, 76 Eng. Rep. 270 (1595); Purefoy v. Rogers, 2 Wms. Saund. 380, 85 Eng. Rep. 270 (1670). See generally Haskins, George, ‘Extending the Grasp of the Dead Hand: Reflections on the Origin of the Rule Against Perpetuities’, 126 University of Pennsylvania Law Review 19, 30–31 (1977)CrossRefGoogle Scholar.

55. 12 Edw. IV 19, pl 25 (1472).

56. Another datum of the legal ‘policy’ favoring free alienability that legal historians routinely cite is the rule associated with Shelley's Case, 1 Co. 93b, 76 Eng. Rep. 206 (1581). This rule basically provided that a conveyance to A for life and then to A's heirs created no contingent remainder in favor of unascertained persons A's unascertained heirs) but a remainder in A.

57. Cro. Jac. 592, 79 Eng. Rep. 504 (1620).

58. Doderidge stated that the decision would lead to a ‘mischievous kind of perpetuity”. Ibid., 79 Eng. Rep. at 506. Eighty years after the decision Chief Justice made this observation of the new indestructible executory interests: ‘These executory interests had not long been countenanced when the judges repented them; and if it were to be done again, it would never prevail.’ Scatterwood v. Edge, 12 Mod. 278, 287, 88 Eng. Rep 1320 (1699).

59. 3 Ch. Cas. 1, 22 Eng. Rep. 931 (1682).

60. E.g., Pells v. Brown, Cro. Jac. 592, 79 Eng. Rep. 504, 506 (1620) (dissent).

61. 3 Ch. Cas. at 14, 20, 213, 22 Eng. Rep. at 939, 943, 944.

62. Atiyah, supra note 51 at 134.

63. See Bonfield, supra note 53 at 58, 71. There is an important recent debate concerning the role of the strict settlement in the formation and preservation of landed family dynasties in eighteenth-century England. The most influential statement of the argument stressing the importance of the strict settlement to dynasts is Sir Habakkuk's, John now-classic paper, ‘English Landownership, 1680–1740’, 10 Economic Historical Review 1 (1940)Google Scholar. He has stated his views more recently in ‘The Rise and Fall of English Landed Families, 1600–1800’, Transactions of the Royal Historical Society, 5th Series, vols. 29 and 30, at 187, 123. Habakkuk's critics include Eileen Spring (see, e.g., ‘The Family, Strict Settlements, and Historians’, in Rubin, G. R. and Sugarman, D., eds., Law, Economy, and Society: Essays in the History of English Law, 1750–1914 (Abindon, 1984)Google Scholar) and Lloyd Bonfield (see Bonfield, supra note 47). See also Stone, Lawrence, The Family, Sex and Marriage in England 1500–1800 (London, 1977)Google Scholar. Because that debate centers on the social and economic consequences of the strict settlement, as distinguished from legal thought and legal ideology, it is largely irrelevant to this paper.

64. The conventional historical wisdom stresses the importance of two decisions from the law courts in resolving the status of the remainder in trustees and hence securing the success of the strict settlement, Duncomb v. Duncomb, 3 Lev. 437 (1697) and Dormer v. Packhurst, 6 Bro. P.C. 351 (1740). See, e.g., Simpson, A. W. B., An Introduction to the History of the Land Law (Oxford, 1961) 214–15Google Scholar. Professor Bonfield has convincingly argued, however, that Chancery had settled the matter before the common-law courts even had an opportunity to address the issue. In these two common-law cases, then, we have an instance of the law following Equity, rather than, as the old maxim had it, the other way around. See Bonfield, supra note 53 at 71–81.

65. For a conventional account of the rise of the married women's separate equitable estate in England, see Holdsworth, William, The History of English Law, 16 vols. (London, 1927) v: 309–15Google Scholar. For recent, and excellent, discussions of the law of married women's separate estates in colonial America, see Basch, Norma, In the Eyes of the Law: Women, Marriage, and Property in Nineteenth-Century New York (Ithaca, 1982) 70–112Google Scholar and Salmon, Marylynn, ‘The Legal Status of Women in Early America: A Reappraisal’, Law and History Review 1 (1983) 129, 146–51CrossRefGoogle Scholar.

66. Gray, John Chipman, Restraints on the Alienation of Property (Boston, 2d ed., 1895) 138–40Google Scholar.

67. 1 Bro. C.C. 16, S.C. 2 Dick. 560 (1778).

68. 3 Bro. C.C. 339, 1 Ves. Jr. 189 (1791).

69. Gray, John Chipman, Restraints on the Alienation of Property (Boston, 2d ed., 1895) 139Google Scholar.

70. Jackson v. Hobhouse, 2 Mer. 483, 488 (1817). The early English cases are discussed in Hart, Walter G., ‘The Origin of the Restraint upon Anticipation’, 40 Law Quarterly Review 221 (1924)Google Scholar.

71. Two more examples of Equity's protective tendency in the eighteenth century are its enforcement of so-called ‘secret’ trusts and its protection of expectant heirs. With respect to the first, Chancery decisions held that a person to whom a decedent had devised property had to comply with the oral understanding under which the decedent had devised the property even though the Statute of Wills seemed to proscribe such oral modifications of wills. See, e.g., Barrow v. Greenough, 3 Ves. 152, 30 Eng. Rep. 943 (1796); Drakeford v. Wilks, 3 Atk. 539, 26 Eng. Rep. 1111 (1747). These decisions were protective in two senses. First, they protected the testator's reliance on the devisee's oral representations to carry out the testator's secret dispositive. Second, the purpose of these secret testamentary trusts typically was to protect a second and illegitimate family of the decedent's.

With respect to the second example, throughout the eighteenth century the Court of Chancery very closely scrutinized agreements that expectant heirs made to capitalize their expectancies by selling their birth rights for substantially less than the discounted present value (for ‘brown paper and old ginger’, Measure for Measure, Act IV, scene iii). Both the social practice and Chancery's unwillingness to countenance these improvident bargains are discussed in P. S. Atiyah, supra note 51 at 172–77 and Dawson, John P., ‘Economic Duress–An Essay in Perspective’, 45 Michigan Law Review 253, 267–68 (1947)CrossRefGoogle Scholar.

72. 18 Ves. 429, 34 Eng. Rep. 379 (1811).

73. 4 Beav. 115, 49 Eng. Rep. 282 (1841).

74. The American Legal Realists’ attack on the law of property was largely directed against its notorious formalism. As an example, see the critique of the traditional analysis of restraints on alienation in McDougal, Myres and Haber, David, Property, Wealth, Land: Allocation, Planning, and Development (Charlottesville, 1948) 159–62Google Scholar.

75. 34 Eng. Rep. at 379.

76. Ibid. at 381.

77. Ibid.

78. Ibid.

79. This theory conceives the function of Equity to be filling in lacunae, procedural or substantive, in the structure of legal rules. This means that Equity aims at achieving comprehensiveness and completeness in the legal system, rather than moral acceptability. See Grey, supra note 5 at 6–10. On this view, Equitable rules find a civil-law analogue in Francois Geny's hermeneutical analysis of the gap problem in statutory law, expressed his influential book, Method of Interpretation and Sources in Positive Private Law trans, by Mayda, Jaro (St. Paul, Minn., 2d ed., 1954)Google Scholar. See also Kiss, Geza, ‘Equity and Law: Judicial Freedom of Discretion’, in Science of Legal Method: Selected Essays (Boston, 1917) 146–58Google Scholar (‘[T]he problem of how to apply the law cannot be solved scientifically except by considering the problem of unprovided cases.’).

80. Michael Chesterman, in an illuminating discussion of Saunders v. Vautier, points out that by this time premature termination of trusts raised ‘relatively novel concerns of equity’. Chesterman, , ‘Family Settlements on Trust: Landowners and the Rising Bourgeoisie’, in Rubin, G. R. and Sugarman, D., eds., Law, Economy and Society, 1750–1914: Essays in the History of English Law (Abindon, 1984) 124, 152Google Scholar. This was because the case coincided with a transformation in the form that trust property took. The traditional practice of settling specific, usually family, land in a trust was being replaced at the time by a new trust practice, trusts of investments. These new trusts did not presuppose, as did the old trust of land, that the trustees would hold any specific asset. Rather they were flexible vehicles for settling the rising forms of non-landed wealth, including intangible personally such as government stock. Since these forms of wealth were unknown at common law, the old legal rules that developed around trusts of land were not as obviously relevant. Conceding Chesterman's observation, my argument is that compatibility between trust and property still remained an issue in the trust termination matter because of the ideological significance of freeing the trust beneficiary from a restriction imposed by the ‘dead hand’ of the settlor.

81. The court concluded that postponement of the time when the beneficiary could possess the trust estate did not impose any requirement that he survive to that time. This conclusion followed the constructional principle announced in Clobberie's Case, 2 Vent. 342, 86 Eng. Rep. 476 (Ch. 1677).

82. Lord Pawlet's Case, 2 Ventris 366 (1685).

83. Curtis v. Luken, 5 Beav. 147, 49 Eng. Rep. 533 (Ch. 1842).

84. Ibid.

85. Ibid. at 156, 49 Eng. Rep. at 536.

86. See text accompanying notes 62–64 supra.

87. Equity continued to enforce strict settlements and trusts for married women into the nineteenth century, of course. My point is that the protectionist ethic that had led Equity judges to enforce these devices in the late seventeenth century and throughout the eighteenth century substantially eroded during the mid-nineteenth century and that the emergence of the Sounders doctrine clearly signalled this change.

88. This state of compatibility existed in American as well as English law through most of the nineteenth century. Indicating this compatibility, John Chipman Gray in 1883 stated that the symmetrical treatment of restraints on equitable and legal interests was ‘settled law’. Gray, John C., Restraints on the Alienation of Property (Boston, 1883) iiiGoogle Scholar. With few exceptions, American courts applied the English Brandon and Saunders doctrines. E.g., Gray v. Obear, 54 Ga. 231 (1875) (applying Saunders); Thompson v. Ballard, 70 Md. 10, 16 Atl. 378 (1889) (same); Philadelphia v. Girard, 45 Pa. 9, 27 (1863) (same); Smith v. Moore, 37 Ala. 327, (1861) (applying Brandon); Tillinghast v. Bradford, 5 R.I. 205 (1858) (same); Mebane v. Mebane, 39 N.C. (4 Ired. Eq.) 131 (1845) (same).

Begin with Justice Miller's famous dictum in Nichols v. Eaton, 91 U.S. 716 (1875), however, American courts sharply deviated from the English dead-hand trust doctrines. During the three decades American state courts adopted the so-called spendthrift trust doctrine and the Claflin doctrine. I have discussed these developments at length in Alexander, Gregory S., ‘The Dead Hand and the Law of Trusts in the Nineteenth Century’, 37 Stanford Law Review 1189 (1985)CrossRefGoogle Scholar.

89. L.R. 18 Eq. 11 (Ch. 1874).

90. 18 Ves. 140, 34 Eng. Rep. 271 (Ch. 1811).

91. 10 Ves. 522, 32 Eng. Rep. 947 (Ch. 1805).

92. The continued force of this trust model is indicated by the way in which the study of trusts is structured in modern law-school casebooks and by the organization of the Restatement (Second) of the Law of Trusts. The familiar format identifies three constitutive ‘elements’—trust property, trustee, and beneficiary—and structures the study of legal disputes involving the creation of trusts according to these elements. For example, the trust property requirement is used to distinguish trust from other forms of consensual legal obligations, including agency, debt, and bailment, that involve lower standards of duty.

93. Thurman Arnold attacked the nineteenth-century ordering of trusts, which he associated with the Restatement of Trusts (see Arnold, supra note 18 at 802 n.4), on precisely this ground. Conceptual abstractions, which led to the categorical distinctions between trust and debt, trust and bailment, and the like, ignored the functional differences and dissimilarities among the usages of the term ‘trust’. He wanted to reverse trust's development, in effect advocating the death of trust by ‘mov[ing] away from ‘Trusts" as a body of definable principles’. Ibid. at 802 n.5. A glance at any of the most popular law-school casebooks on trusts and estates indicates how little of the Realist critique was integrated into mainstream legal thought except to the extent that Trusts is now seldom offered as a free-standing course. Austin Wakeman Scott's treatise on trusts is devoid of virtually any Realist influence.

94. See Friedman, Lawrence, ‘The Dynastic Trust’, 73 Yale Law Journal 547 (1964)CrossRefGoogle Scholar.

95. This principle grew out of the conception of Equity as merely a supplement of the common law.

96. 34 Eng. Rep. at 272.

97. Ibid.

98. In an illuminating discussion of the paradoxes in Eldon's legal thought, Patrick Atiyah indicates why it is so misleading to apply labels like ‘conservative’ to figures during this period. P. S. Atiyah, supra note 51 at 362–69.

99. The case has a reputation as a curiosity, in part because of Eldon's failure to raise this legal question. See, e.g., Scott, Austin Wakeman, The Law of Trusts, 6 vols. (Boston, 3d ed., 1967) i: 236–37Google Scholar; Stone, Harlan F., ‘The Nature of the Rights of the Cestui Que Trust’, 17 Columbia Law Review 467, 474 (1917)CrossRefGoogle Scholar; Forrest v. Forrest, L.R. 34 Eq. 428, 432 (1865).

100. It is, of course, possible that his decision did not follow from legal reasoning at all but instead simply on sympathy with Mowbray's predicament, a situation with which he is not likely to have been altogether unfamiliar. Plucknett's observation that Eldon's ‘scrupulous character would not permit him to decide a case until he had exhausted all its possibilities and examined it from every angle’ (Plucknett, Theodore F. T., A Concise History of the Common Law (Boston, 5d ed., 1956) 707Google Scholar) notwithstanding, Eldon was not beyond reaching legal conclusions on the basis of pure bias. See P. S. Atiyah, supra note 51 at 362.

101. E.g., Antrobus v. Smith, 12 Ves. 39, 46; Edwards v. Jones, 1 My. & Cr. 647, 671.

102. Lord Cottenham's statement in Jeffreys v. Jeffreys, Cr. & P. 138, 141, 41 Eng. Rep. 443 (1841) that ‘the court will not execute a voluntary contract’, of course, postdated Pye, but the notion did not originate in that case.

103. The protean character of the term ‘volunteer’ is suggested by Lord Henley's discussion of the consideration requirement in Equity:

I say I know no instance where a court of equity has compelled a man to execute what was a mere act of volition. But I think the present was not a mere voluntary agreement, and the court will… attend to slight considerations for confirming family settlement and modifications of property. They pay a regard to reasonable motives and honorable intentions…. They consider the ease and comfort and security of families as a sufficient consideration.

Wycherley v. Wycherley, 2 Eden 175, 177–78 (1763). It is possible that Eldon took much the same view of the situation before him in Pye.

104. The importance of the issue of equitable gifts in the United States was indicated in an unsigned book review by Holmes written in his capacity as editor of the American Law Review. Reviewing the tenth edition of Story's Commentaries on Equity Jurisprudence, Holmes observed: ‘There are few recently developed doctrines of more interest than that of the voluntary assignment of equitable choses in action. Whether this was not a contract, and so void for want of consideration; how there could be a gift when no delivery was possible; whether there must not be a delivery of the indicia, or an instrument under seal, or notice to the debtor or to the assignee,—these were some of the questions which were raised and passed upon…. [I]t is only recently that the rule has been satisfactorily stated….’ 5 American Law Review 115, 115–16 (1870)Google Scholar.

105. Pound, Roscoe, ‘Consideration in Equity’, 13 Illinois Law Review 435, 678 (1919)Google Scholar. This article is an attack on what Pound called the ‘analytical theory’ which ‘assumes that the whole of the body of law came into existence at one time by one stroke’. Ibid. at 680. Pound's own theory was adaptive: the Chancellors adapted ‘such theories and doctrines as were at hand’. Ibid. at 681.

106. This, at least, is the common view of Pye. See, e.g., Wellman, Richard V., Waggoner, Lawrence W. and Browder, Olin L. Jr., Palmer's Trusts and Succession (Mineola, N.Y., 4th ed., 1983) 471Google Scholar.

107. Richardson v. Richardson, L.R. 3 Eq. 686 (Ch. 1867); Morgan v. Malleson, L.R. 10 Eq. 475 (Ch. 1870).

108. Osmere v. Sheafe, Carth. 307, 90 Eng. Rep. 78 (1694).

109. Roe d. Wilkinson v. Tranmere, Willes 682, 125 Eng. Rep. 1381 (1758).

110. Scales v. Maude, 6 D.M. & G. 43 (1855).

111. Ibid. at 51.

112. Jones v. Lock, (1865) L.R. (1 Chan. App.) 24, 28 (1865).

113. It is interesting to note that Richards was decided just one year after passage of the Judicature Act of 1873, which institutionally merged the courts of law and Equity. 36, 37 Viet. c. 66 (1873). Jessel, who decided Richards, is credited with piloting the Act through the House of Commons as Solicitor General prior to his appointment as Master of the Rolls in 1873. Holdsworth, William, A History of English Law, 16 vols. (London, 1966) xvi: 121Google Scholar. Although we should heed Holdsworth's caution against exaggerating the effect of the Act on substantive law, ibid. at xv: 134–36, it is nevertheless tempting to speculate that in Richards Jessel took the opportunity to demonstrate the indirect, if not direct, effect of the Act on eliminating doctrinal conflicts between law and Equity.

114. 10 Ves. 522, 32 Eng. Rep. 947 (Ch. 1805).

115. Eldon's focus on Pye on general donative intent is characteristic of legal informality. Perhaps informality is best explained in this context indirectly by contrasting with the following example of legal formality, taken from Charles Fearne's treatise on contingent remainders: ‘Surely it is better that the intentions of twenty testators every week should fail of effect, than that those rule should be departed from upon which the general security of titles and quiet enjoyment of property so essentially depend.’ [cited in Fifoot, C. H. S., Lord Mansfield (Oxford, 1963) 178Google Scholar. ]His approach to the trust powers matter in Morice does seem to be distinctly more formalistic. This contradiction is but one in the career of a truly complex historical figure.

116. 9 Ves. at 399 (1821), 32 Enq. Rep. at 947. 113. 32 Eng. Rep. at 955.

117. 32 Eng. Rep. at 955.

118. 8 Ves. 561, 570 (1803).

119. Craker v. Parrett, 2 Freeman 18, 2 Chan. Cas. 228 (1677); Gibson v. Kenyon, 1 Vernon 66 (1682); Woolaston v. Swetnam (1677), Yale, D. E. C., Lord Nottingham's Chancery Cases, vol. 2, Case No. 770, 79 Selden Soc. 587 (London, 1961)Google Scholar.

120. Mosley v. Mosley, (1673) Rep.t.Finch; Clarke v. Turner, 2 Freeman 198 (1694); Warburton v. Warburton, 1 Bro. P.C. 1 (1702).

121. 7 Ves. 125 (1802).

122. Ames, James Barr, ‘The Failure of the Tilden Trust’, 5 Harvard Law Review 389, 395 (1892)CrossRefGoogle Scholar. In his famous debate with Ames over Morice v. The Bishop of Durham John Chipman Gray explicitly defended the decision on the basis of preserving the categorical distinction between a power and a trust. Similar to the reasoning behind Richards v. Delbridge, Gray argued that an invalid trust could not be treated as a valid power:

When a power is given… an appointment under the power is good, although there is no one who can compel the exercise of the power; there is no duty intended to be imposed on the donee of the power to exercise it. But when there is is an intention to impose a duty, to create a trust, then the doctrine of Morice v. The Bishop of Durham is that… if there is no cestui que trust, the trust is invalid.

Gray, J. C., The Rule against Perpetuities (Boston, 3d ed., 1915) 909aGoogle Scholar. See also Gray, J. C., ‘Gifts for a Non-Charitable Purpose’, 15 Harvard Law Review 509, 513, 514 (1902)CrossRefGoogle Scholar.

123. See McPhail v. Doulton, [1970] 2 W.L.R. 1110.

124. I will not attempt here to establish that there was a connection between the ethic of individualism and contract law in nineteenth-century England. I am content to rely on P. S. Atiyah, supra note 51, where the connection is made convincingly in my opinion.

125. Two aspects of this literature are worth mentioning. First, virtually all of it is English. The first treatise on the law of trusts written by an American was not published until 1872, although it became very influential within the American legal professional almost immediately after its publication. The work was Perry, Jarius W., A Treatise on the Law of Trusts and Trustees (Boston, 1872)Google Scholar. Prior to the appearance of Perry's work, American lawyers and courts in the nineteenth century primarily used American editions of the famous English treatises.

The second point about the early trusts literature is that virtually all of it was, until the very end of the nineteenth century, professional rather than academic. The treatises genuinely were, as the titles of several indicated, ‘practical’; they were written by practitioners with practical, not academic objectives.

For an interesting discussion of the changing forms of legal treatises, see Simpson, A. W. B., ‘The Rise and Fall of the Legal Treatise: Legal Principles and the Forms of Legal Literature’, 48 University of Chicago Law Review 632 (1981)CrossRefGoogle Scholar.

126. Among the early professional writings on trusts are the following works: Gilbert, Geoffrey, The Law of Uses and Trusts Collected and Digested in a Proper Order from the Reports of Adjudged Cases, in the Courts of Law and Equity and Other Books of Authority Together with a Treatise of Dower (London, 1st ed., 1734)Google Scholar; Cruise, William, An Essay on Uses (London, 1st ed., 1795)Google Scholar; Sanders, Francis W., An Essay on Uses and Trusts and on the Nature and Operation of Conveyances at Common Law, and of Those Which Derive Their Effect from the Statute of Uses, 2 vols. (London, 4th ed., 1824)Google Scholar.

127. Among these works are the following: Lewin, Thomas, A Practical Treatise on the Law of Trusts and Trustees (London, 1st ed., 1837)Google Scholar; Hill, James, A Practical Treatise on the Law Relating to Trustees, Their Powers, Duties, Privileges, and Liabilities (London, 1st ed., 1845)Google Scholar; A. Underhill, A Concise Manual of the Law Relating to Private Trusts and Trustees (London, 1st ed., 1878); Godefroi, H., A Digest of the Principles of the Law of Trusts and Trustees (London, 1st ed., 1879)Google Scholar.

128. These are the treatises associated with Hill and Lewin, see note 127 supra.

129. Indeed the appearance of a separate course on trusts in the law school curriculum was itself a sign of trust's autonomous status in late-nineteenth century legal consciousness. Austin Wakeman Scott pointed out that before James Barr Ames first introduced his separate Trusts course at Harvard Law School in 1882 the subject was covered in a general course on Equity. Some fifty years later, Scott wholly approved Ames's innovation:

It is believed that the importance of the subject and the peculiar characteristics of the trust justify its treatment as a separate subject for study.

Scott, Austin W., ‘Fifty Years of Trusts’, 50 Harvard Law Review 60 (1936)CrossRefGoogle Scholar. Ames's influence on Scott, his former student and then colleague, is evident in Scott's arrangement of the Restatement of Trusts, of which he was Reporter, and in much of his scholarship.

130. Ames, James Barr, A Selection of Cases on the Law of Trusts (Cambridge, Mass., 1st ed., 1882)Google Scholar.

131. An important factor that influenced trust's emergence as a discrete legal subject in the law school curriculum was the decline of the conception of Equity as a broad system of jurisprudence, encompassing and integrating many different topics. Increasingly through the nineteenth century legal texts defined Equity technically. Under this influence Equity as a subject became narrower, as legal writers pruned from it a variety of topics that they thereafter treated as autonomous legal subjects. These included trusts and mortgages, to name just two. Despite its increasingly narrow scope, however, Equity remained a staple of the law school curriculum throughout the first several decades of the twentieth century. At Harvard, for example, Sidney Post Simpson declared that Equity would remain a separate course as long as he ‘had anything to say about it’. Kalman, Laura, Legal Realism at Yale, 1927–1960 (Chapel Hill, 1986) 64Google Scholar.

132. See Part I. A. supra.

133. For an excellent discussion of the role that classification played in Classicism's desire to make the legal system a formal conceptual order, see Grey, supra note 5 at 1, 8–10, 47–50.

134. The single best discussion of the influence of the late-nineteenth century idea of science on Classical American legal thought of which I am aware is Grey, supra note 5 at 1, 16–32. Grey argues, persuasively in my judgment, that among the sciences geometry provided a closer model than the new evolutionary biology. For geometry, but not taxonomic biology, was like law in using ‘its intellectually ordered system not only to classify specimens but also to solve problems.’ Ibid. at 30.

135. The Classical lawyers explicitly wrote about the need for ‘scientific’ classification schemes. See, e.g., Langdell, C. C., Summary of the Law of Contracts (Boston, 2d ed., 1880) viii–ixGoogle Scholar. Holmes emphasized the need for a ‘philosophical’ arrangement of the law. His vision was unscientific, or at least unLangdellian, in the sense that he did not think that it was possible to derive legal judgments from abstract concepts and categorical arrangements alone: ‘Law is not a science, but is essentially empirical. Hence, although the general arrangement should be philosophical, even at the expense of disturbing prejudices, compromises with practical convenience are highly proper.’ Holmes, , ‘Codes, and the Arrangement of the Law’, 5 American Law Review 1Google Scholar, reprinted in 44 Harvard Law Review 725 (1931). See also Holmes, O. W., The Common Law (Howe, M., ed., Cambridge, Mass., 1963; 1st ed. 1881) 104Google Scholar and Holmes, O. W.Collected Legal Papers (New York, 1920) 195–97Google Scholar.

136. Lewin, Thomas, A Practical Treatise on the Law of Trusts and Trustees (London, 1837) 21–22Google Scholar.

137. Compare, for example, Perry's discussion of this distinction in one paragraph, while devoting entire chapters to the ‘implied’, ‘resulting’, and ‘constructive’ categories. Perry, supra note 125 at 11, 112–23, 124–65, 166–230.

138. Lewin, supra note 136 at v.

139. See note 97, supra.

140. Pomeroy, John Norton, A Treatise on Equity Jurisprudence, 3 vols. (San Francisco, 1886)Google Scholar.

141. See text accompanying note 152–59, infra.

142. Pomeroy, supra note 100 at ii: 602–604.

143. Maitland, F. W., Equity and the Forms of Action (Chaytor, A. H. and Whittaker, W. J., eds., Cambridge, 1932)Google Scholar. The influence of Maitland's view on the arrangement of trusts is evident in Pomeroy's discussion quoted in the text. See text accompanying note 142 supra.

144. Costigan credited Maitland with the classificatory scheme that is set out at text accompanying note 148 infra, but Maitland himself acknowledges that the scheme is just a synthesis of discussions by other writers, particularly Lewin. See Costigan, George, ‘The Classification of Trusts as Express, Resulting, and Constructive’, 27 Harvard Law Review 437 (1914)CrossRefGoogle Scholar (‘A conventional statement of the matter and a common arrangement of the terms were given by Maitland…’).

145. I do not mean to suggest that Maitland was a ‘Classical’ writer in the sense in holding to most, or any, of the major points with which Classical legal thought is associated. However, he did share common interests and methods with important American Classical figures like James Barr Ames, and in fact he corresponded with them.

146. George Purcell Costigan, Jr., was a transitional figure, bridging the late Classical period and Legal Realism. He was a law professor for thirty-four years, from 1900 to 1934. An 1894 Harvard Law School graduate, he evidently was influenced by Langdell and Ames. His early essays reflect a characteristically Langdellian concern with legal classification and definition. For example, one essay, ‘A Plea for a Modern Definition and Classification of Real Property’, 12 Yale Law Journal 425 (1903)CrossRefGoogle Scholar, argued that by remodelling the classification of real property interests, ‘much can be done… to simplify the treatment of real property’. Ibid. at 439. This article also reflects Gray's influence in its suggestion that the law-school property course should be structured on the basis of a scheme for classifying property interests. See text accompanying notes 33–34 supra. Orrin McMurray, in an obituary upon Costigan's death in 1934, suggested that while Costigan's early writing ‘follow[ed] the Harvard tradition of the nineties… [by] improving classification and definition in the law’, his later scholarship reflected an outlook that McMurray termed the ‘free school of jurisprudence’: ‘Down with the “legal estate”, divide the loss “fifty-fifty”!’ McMurray, Orrin, ‘George Purcell Costigan, Jr.’, 24 California Law Review 1, 3 (1935)Google Scholar. Albert Kokourek's evaluation of Costigan's work is similar, although more probing:

Legal truth in 1894, when Professor Costigan graduated from the Harvard Law School, somehow seemed to be simpler than it appeared in 1914, when he was at the height of his powers. Twenty years later, when he laid aside forever the familiar green bag…, the legal truth of the generation before had in some respects became [sic] an alien thing. What we mean to suggest here… is the transition from the conceptional attitude of the era of those great masters, Ames, Gray, and Thayer, and their epigones, among whom Professor Costigan was certainly not the least, to what has been called ‘realism’ by some of its followers, and romanticism by some of its detractors. In this respect, however, the story of the law has not been different from that of mathematics, physics, or astronomy.

Kokourek, Albert, ‘In Memoriam—George Purcell Costigan’, 29 Illinois Law Review 769, 771 (1935)Google Scholar.

147. Maitland's classification was largely derived from Lewin's treatise. Although he did not invent the scheme, Lewin certainly contributed to its widespread acceptance among English and American trust lawyers. Maitland especially drew on his chapter on trusts created by operation of law. See Lewin, supra note 136 at 168–224.

148. Maitland, supra note 143 at 53. In the United States, both Perry's and Pomeroy's treatises similarly classified resulting and constructive trusts as created by operation of law. However, both are equivocal about the precise role of law in the creation of these trusts, mixing together positive acts of law (will of the state) and private intentions (will of the individual). For example, Perry describes resulting trusts as trusts ‘which result in law, from the acts of parties whether they intended to create a trust or not….’ Perry, supra note 125 at 97 (emphasis in the original). Later, his description of constructive trusts more clearly separates constructive trusts from the other three types on the basis of the irrelevance of private intention in its creation: ‘[Constructive trusts] differ from other trusts in that they are not within the intention or contemplation of the parties at the time the contract is made from which they are construed by the court, but they are thrust upon a party contrary to his intention and against his consent.’ Ibid. at 136. On Pomeroy's classification, see text accompanying notes 140–42 infra.

149. Maitland, supra note 143 at 75–76.

150. Ibid. at 76.

151. Costigan, supra note 144 at 462.

152. In this sense, Costigan's reformulation of the theory of the constructive trust can be linked to what Morton Horwitz describes as ‘a general attack upon “equitable” standards that began much earlier in the nineteenth century’. Horwitz, Morton, ‘Book Review’, 42 University of Chicago Law Review 787, 789 (1975)Google Scholar (reviewing Grant Gilmore, The Death of Contract).

153. Pomeroy, supra note 140 at 602.

154. For this discussion, I have benefitted from Duncan Kennedy's unpublished work, The Rise and Fall of Classical Legal Thought, 1850–1940 (1975), especially chapters III and IV.

155. I do not mean to suggest that the discovery theory of adjudication was peculiar to pre-Classical English or American legal thought. My point is simply that it was decidedly more influential prior to the Classical period.

156. Another feature of pre-Classical thought that helped to avoid the sense of conflict in property law was the influence of so-called technical reasoning. Although pre-Classical writing generally objected to ‘technicality’, the law of property was the one area in which writers were willing to accept a certain degree of technicality as unavoidable and even desireable. I discuss how technicality influenced the pre-Classical handling of the problem of restraints on alienation in Gregory S. Alexander, supra note 88, at 1189, 1209, 1227.

157. As Duncan Kennedy notes, the will theory was positivist in the sense that its adherents never acknowledged that judges decided on the basis of their own personal views. Even when overriding individual will, judges followed someone else's directives, if not the individual's, then the sovereign's. This is why even though intention-overriding devices like the constructive trust were judge-made, American will theorists never perceived such doctrines as undemocratic. Those doctrines merely implemented some larger policy whose preeminence had been dictated by the legislature or community norms.

158. Costigan, supra note 144 at 448 n.30 and 452. The influence of the will theory on Costigan's rearrangement is even more clearly evident in the way that he revised the category of resulting trusts. Costigan argued that many courts, and also scholars like Pomeroy, had incorrectly applied the label ‘resulting’ to certain situations that analytically, although not historically, involved constructive trusts. Briefly, the argument was as follows.

Since resulting trusts are intention-inferring trusts and constructive trusts are law-imposed trusts, genuine resulting trusts exist only where trust intent is established on the basis of a presumption of fact, i.e., of the transferor's probable intent. But where the transferor's intent to create a trust is demonstrated by actual proof, rather than through a presumption, there is no analytical basis for calling the trust intention-inferring. In such situations, the trust is not the resulting variety but rather is constructive. The court enforces the transferor's express trust intent in order to prevent fraudulent retention of the trust property by the transferee who is claiming the property for himself. Ibid. at 455–59.

Costigan made the same argument for distinguishing between resulting and constructive trusts in another article published during the same year, ‘Trusts Based on Oral Promises to Hold in Trust, to Convey, or to Devise, Made by Voluntary Grantees’, 12 Michigan Law Review 427 (1914)Google Scholar. In this article he argued that where property had been transferred on the basis of an oral (and therefore, under the Statute of Frauds, unenforceable) promise to hold in trust, relief could not be granted for breach of the promise by declaring a resulting trust, since the existence of an express promise meant that there was nothing to infer. Such a situation properly belonged in the category of constructive trusts, which are not inference trusts, but a device for avoiding unjust enrichment. The real problem was whether a constructive trust could be declared where the promise was honestly made but later breached. Costigan's answer was that although there was an honest acquisition of legal title, breach of the promise resulted in a dishonest acquisition of the equitable title of the intended beneficiary, putting the case into the realm of fraud in the acquisition and thereby warranting constructive trust relief. Ibid. at 433–34.

For discussion of how under the influence of the will theory contracts theorists previously had narrowed the ‘implied’ contract category to contracts implied in fact, see Horwitz, Morton, The Transformation of American Law, 1780–1860 (Cambridge, Mass., 1977) 185Google Scholar (W. W. Story's 1844 contracts treatise ‘completely obliterated “implied in law” contracts by insisting that all implied contracts were those “implied in fact”’) and Duncan Kennedy, The Rise and Fall of Classical Legal Thought, supra note 154 at iv, 17 and iv, 24.

159. Costigan, The Classification of Trusts, supra note 144 at 449–50 (footnote omitted).

160. Ibid. at 450.

161. Section eight of the Statute of Frauds explicitly dispenses with the requirement of a writing to prove trusts that are created by operation of law. 29 Car. 2, c. 3, s 8 (1677). Costigan began his article by stating that this limitation on the scope of the Statute of Frauds is one immediate reason for reworking the familiar arrangement of trust types. Having concluded that resulting trusts are not implied by law might seem to have put Costigan in a quandry about the continued applicability of section eight to these cases. By a truly magnificent sleight-of-the-hand maneuver, however, Costigan dismissed the problem with great ease:

That assumption [by the authors of the Statute of Frauds that a resulting trust is implied by law] is wrong, but section eight of the Statute of Frauds was framed by those who believed it to be the right assumption, and, in consequence, resulting trusts have properly been deemed trusts which ‘arise or result by implications of law’ within the meaning of those words in that section. While resulting trusts properly fall under that section, the wording of that section should not prevent a realization that resulting trusts are after all implied in fact and not implied and that no trusts are properly to be called ‘implied by law’.

Costigan, supra note 144 at 450 n.31. Costigan's discussion, in his Michigan Law Review article, of the availability of constructive trust relief in cases of breached oral promises to hold property in trust illustrates the same approach to the theory of constructive trusts. See note 157 infra.

162. Costigan, The Classification of Trusts, supra note 144 at 452–53.

163. In his Michigan Law Review article on oral promises to hold in trust, Costigan explicitly repudiated this distinction, stating, ’[T]he old view that fraud at the time of making the promise was actual fraud, and that fraud at the time for performance was constructive fraud, is unsound. In both cases the fraud is actual fraud. Fraud in retention is just as much actual fraud as is fraud in acquisition, and, as actual fraud, calls just as strongly for redress [through the constructive trust device].’ Costigan, ‘Trusts Based on Oral Promises’, supra note 158 at 437–38.

164. Costigan, The Classification of Trusts, supra note 144 at 463.

165. As part of his critique of the Restatement of Trusts, Thurman Arnold advocated scrapping the distinctions among express, resulting and constructive trusts altogether. Trusts, he argued, rather should be classified into two types: ‘(1) Where the trust device is intentionally used to convey property; (2) where it is used by way of analogy to enable the court to give a remedy which the logical implications of some rule of law might deny.’ Arnold, supra note 18 at 814.

Mainstream legal thought has never assimilated Arnold's proposal. For example, the Second Restatement of Trusts retained virtually intact the structure and method of its predecessor. Austin Wakeman Scott, who was Reporter of both Restatements and hardly an admirer of Legal Realism, defended his method and scheme against Arnold's attack in Scott, Austin Wakemann, ‘The Restatement of the Law of Trusts’, 31 Columbia Law Review 1266 (1931)CrossRefGoogle Scholar. More than any other individual, Scott was responsible for carrying James Barr Ames, conception of trust law into the second half of the twentieth century. Scott's name still dominates the field of trusts as completely as any other figure does any other legal subject. The intellectual history of trust law in the twentieth century would be largely a study of his thought.

166. The charitable trust is perhaps an even more obvious locus of the communal vision within trust law. Trust law explicitly acknowledges the special character of trusts created for charitable purposes by exempting them from rules that invalidate non-charitable trusts, including the Rule against Perpetuities and the requirement of definite beneficiaries. Even more significant is the cy pres principle, through which the Chancellor would remedy certain defects in charitable, but not private trusts. The ‘public’ values served by these trusts transcended the need to maintain the noninterventionist posture of the legal system in private arrangements. Here again classification prevented it from undermining trust's individualism by drawing the now-familiar categorical distinction between ‘private’ and ‘public’, i.e., charitable, trusts. The central problem with the charitable trust, however, was the fact that its hybrid character—neither purely public, nor purely private—prevented courts from drawing this categorical line cleanly. Eldon's difficulty in determining in Morice v. The Bishop of Durham whether ‘objects of benevolence and liberality’ was a charitable purpose cannot be dismissed as an indication of his intellectual limitations. For a study of the dilemma posed by this categorical distinction, see Everett J. Bowman, Intimations of Ideological Change in the History of Cy Pres (unpublished ms., 1979). See also Katz, Stanley N., Sullivan, Barry and Beach, C. Paul, ‘Legal Change and Legal Autonomy: Charitable Trusts in New York, 1777–1893’, Law and History Review 3 (1985) 51CrossRefGoogle Scholar.