religion; in this class we find the true criminal, the only person who possesses the actual mens rea or wicked mind. This is the criminal class and it is the business of legislation to ascertain and segregate and so eliminate this class. Theirs is the disobedience of death, the disobedience that turns living matter, matter capable of progress, into dead matter. But the ascertainment of this class is a subject for scientific investigation. Members of this class masquerade in the other classes and the scientific lawyer must not allow sentiment to interfere with progress, must not allow constitutional development to be used as a screen for dangerous crime or for intolerable excess. When the wicked mind hides behind the demand for the suffrage, or the demand for economic change, the demand must not shelter the criminal. Great causes must not be allowed to shelter the enemies of progress. The whole future of civilization depends on the unerring detection and elimination of the criminal class. It is of the proper nature of law to be ruthless. Equity is the mere confession that the law is in need of amendment. There is not, and there ought not to be, equity in nature. The true object of progress is so to frame the law as to make it necessarily merciless to the real criminal, to the man or woman who deliberately sins against the law of adaptability. Such a law everyone who is worthy of preservation would obey and the reason that it would be obeyed is because in obedience, and only in obedience, lies the path of individual, or national, and of international progress. We thus see that the basis of sanction in law, if ascertained according to the above analysis, does in fact lead, by pure a priori reasoning, to the whole network of questions in municipal and international law that have arisen during the last century and more particularly in the last quarter of a century and lays down principles that, in theory at least, are capable of solving those questions. It is suggested that in this fact, in the approach through pure theory, to the actualities and discon environment. tents of this present time, there lies a confirmation of the theory advanced. A theory of institutions has been advanced that has given us our present position. If we may assume for the moment the truth of the theory, the importance of it in the sphere of international law is plain. It is often contended that international law is valueless by reason of the apparent absence of sanction, of the absence, that is to say, of a law-giver capable of punishing the wrong-doer. The answer, however, is complete. The law-giver, the wielder of sanction, is in many senses no friend to law if we understand law in the way hereinbefore set forth. The law-giver is at the most only a little stronger than the law-breaker. The law in that sense is at the best a mere measure of sin. But humanity at large, nations at large, ask nothing better than adaptation to If international law can give this to nations, if it can guide, as the true business of all law is to guide, nations into the respective spheres of activity that will reveal their innate capacity for progress, then international law is not only not useless, but the most useful tool that the fruitful mind of man has ever fashioned. The vast bulk of law-breakers, be they nations or individuals, seek not extinction but life and more abundant life. breakers are either those who have outstripped the existing rules originally intended to fit them to their environment, or those who still lag behind those rules. For these two classes of law-breakers it is not the wielder of a coercive sanction that is necessary. Indeed the coercive sanction is a sign of weakness rather than of strength. What is needed is not the creation. of a Tyrannus but the formulation of a law that will in fact adapt the man or the race to his environment; and, at the same time, the creation of an educative system that will gradually but ever more and more rapidly hasten the progress of the laggard, whether it be of the laggard man or the laggard race or the laggard law. The coercive sanction must remain to deal with those who will not or cannot realize the law The vast bulk of law of their own being. the law of progress which is written large in every human heart. But coercive sanction does not produce obedience. It reduces wrongdoers to automata or destroys them. The sole value of a coercive sanction, so far as other persons are concerned, is its educative force and to educate by means of terrible examples is after all an expensive and very ineffective form of education. We may sum the matter up as follows: while for the individual we need a reformed criminal law, while for all nations we need a continually progressive municipal law perpetually re-adapting man to his economic environment, at the same time we need for the groups that we call nations a law that is fitting them to their ever varying environment, enabling them, each in their several ways, to express to the full extent their national consciousness and formulating the conditions of mutual support, which are as much conditions of survivalship in groups of nations as in groups of men. Hence international law answers a purpose of the profoundest importance in the progress of civilization. It will educate nations to adapt themselves with the minimum of friction to their economic- and therefore their humanistic-environment. The conclusion of the whole matter is a curious but inevitable paradox. In so far as law requires to be enforced, it, to a very real extent, ceases to be a law. A large proportion of crime is the product of the friction that arises in the process of adaptation. Society is in a notable measure responsible both for crime and wickedness and always pays the penalty. It is responsible in so far as it has not adapted itself and its people to the environment that makes for progress. The basis of sanction, the thing that has been behind all law, is not force. The basis of sanction is the free determination of the human will to adapt itself to its environment and so to survive. The basis of obedience is this free determination of the human will. From the determination we see branch out the twin sources of religion and law, the one representing the determination to survive after death, the other the determination to persist, in racial form, upon the earth. Neither of these sources is based upon force; in so far as the lawyer depends upon the sword, in so far as the priest depends upon the stake, he has failed to appreciate the meaning of law and has misapprehended the purposes of God. J. E. G. DE MONTMORENCY. VOL. XXXVIII. C.L.T.-21 OPTIONS OF PURCHASE. II. We have, then, to proceed now to consider whether apart from the dictum of Jessel, M.R., in London and South Western R. W. Co. v. Gomm, the description of the rights of the holder of an option of purchase of lands can properly be called an interest in land. It may be granted at once that the right does not strictly amount to an estate in the land within the meaning of the common law. It is by no means a jus in rem, it is rather a jus in personam, but the group of persons against whom it is available is so comprehensive that it has very much the appearance of a jus in rem and is well described as a nondescript equity, an equity that gives a claim to a specific piece of property. No equitable estate is a jus in rem. The rights of one person, the bona fide purchaser of the legal right without notice of the equitable right, prevent the interest of cestui que trust from being regarded as a real estate. Few people, however, will cavil at the right of a beneficiary under an express trust being called an estate, still less at it being called an interest. Interest is a nomen generalissimum. Interest is a word of a very large and comprehensive nature (see Grant v. Ellis).1a “Interesse is vulgarly taken for a tearme or chattle reall, and more particularly for a future tearme, in which case it is said in pleading that he is possessed de interesse termini. But ex vi termini in legall understanding it extendeth to estates, rights and titles that a man hath of, in, to, or out of lands." It will not be difficult to show that the owner of an option of purchase has an interest in the lands over which the right exists of the same quality as the interest of a beneficiary under an express trust, i.e., an interest enforceable against any person who claims 1 20 Ch. D. 562, 579. The dictum is quoted at length in 36 C. L. T., pp. 454-5. 1a 9 M. & W. 113. |