prevent marriage has been called the blackest of all political sins. Lowe v. Peers, 4 Burr. R., 2225. But it is essential to remember, in this connection, that this objection is one which forces its way through flesh and bone, to the very heart and life of the question at issue. It does not depend upon whether 01 not a certain provision "tries" to prevent marriage, but the question rather is, Is that its tendency? This rule has not been estab lished by nice and close reasoning. The ques tion has never been a close one, but its foundation and framework are so plainly vis ible throughout the whole superstructure that he who runs may read. The doctrine is one based on principles of policy, the object whereof is the promotion of the common welfare. Being a question of policy it can not, at the same time, be one of construction, for public policy cannot be overcome or assisted, strengthened or weakened by any consideration outside of itself. Rules of construction are not at home in this field of the law. They are like the proverbial bull in the china shop, making no end of trouble and doing no amount of good, but contam inating and destroying whatever they come in contact with. ' The law looks not to the form of the pro vision, but to its substance, where questions of public policy are concerned; it is the gen eral tendency which, alone, is considered, and if found to contravene the policy of the law, then the door to temptation is summar ily closed, without further inquiry, refusing to either admit or recognize it in any of the courts of the land.1 Where the policy of the law is concerned, there is but one question for the court, and that—Is the nature of the contract such as might have made it injurious to the common welfare? In other words, is that its 1 Tool Co. v. Norris, 2 Wall. 45, 40;Oscanyan v. Arms Co., 103 U. S. 261; State v. Johnson, Admr., 52 Ind. 197; Clippinger v. Hepbaugh, 5 W. & S., (Pa.) 315; Brown v. The First National Bank of Columbus, 137 Ind. 668.
tendency? It matters not that any particular contract is free from the taint of evil. The law looks to the general tendency of the class to which it belongs.2 Such being the case, how can it be material whether a particualr provision "tries" to pre vent marriage, or is in the form of a condi tion or of a limitation, a condition precedent or subsequent; whether it concerns realty or personalty, or is accompanied by a gift over or not—so long as the only question open to consideration is what is the natural tenden cy of such a provision? In Bellairs v. Bellairs, L. R., 18 Eq. 516, Sir George Jessel, M. R., recognized the im propriety and futility of any further inquiry in this class of cases, saying, "Now if the rule were really one of policy you never could evade it by a change in the form of words. But it is admitted you can so evade it; that if you put it in the form of limitation—if, for example, you had given this life interest to this young lady until she married, and then upon marriage had given it over—it is not disputed that that would have been good. Therefore, it seems to be a rule of construct ion. The reason of the rule may have been policy." In substance, then, the Master of the Rolls said: It seems to be a rule of con struction because it is conceded that you can evade it by putting it in the form of a limita tion. It was this concession that made it seem to be a rule of construction, and it is in disputable that change of effect by alteration of form, without affecting substance, can be attained only by rules of construction. But the Master of Rolls, in the same breath, adds: "The reason of the rule may have been poli cy;" though he did not proceed to ascertain what the reason actually was, satisfying him self with suggesting what it may have been. And there seems to be some inconsistency here. If "the reason of the rule may have been policy," it may well be asked how "it 1 Greenhood on Public Policy, p. 5; Brown ». The First National Bank of Columbus, supra.
