Page:The Green Bag (1889–1914), Volume 15.pdf/350

 Restraints on Marriage. can be evaded by a change in the form of words." This very doubt would seem to im pose the necessity of solving if. However, his reason for failing to do so would appear to be quite evident, when the concession made on the record is borne in mind, for, when once made, it mattered not what the reason was so far as the case in hand was concerned. It was governed not by the gen eral rule, but by that rule as modified by the admission in the record. The only point de cided by the Master, and not admitted by the concession, was "If the rule were really one of policy you never could evade it by a change in the form of words." Where, there fore, as is now universally the case, it is re cognized that the rule prohibiting general re straints on marriage is one of policy, it can not be evaded. As Lord Mansfield said, in Long v. Den nis, 4 Burr. R., 2052, "Conditions in restraint of marriage are odious, and are therefore held to the utmost rigor and strictness. They are contrary to sound policy." "Unqualified restrictions on marriage are discouraged on grounds of public policy, and instead of aiding them by applying liberal rules of construction, the courts have been disposed to construe them strictly, in such manner as will favor the persons on whom, the restraints are laid." (Waters v. Tazewell, 9 Md., 291, 309.) "Where a condition is in restraint of mar riage generally, it is deemed to be contrary to public policy, at war with sound morality, and directly violative of the true economy of social and domestic life. Hence such a con dition will be held utterly void." (Maddox v. Maddox, u Grat., 804, 807.) Authorities to the same effect are legion. The rule is, therefore, one of policy and not of construction. Indeed, an admission that the question is one of construction is self-destructive, for on what ground could the general rule be upheld in that event? It cannot be on ground of policy for, as we

309

have already seen, public policy and rules of construction are not agreeable one to the other; they have no feature in common. Rules of construction are devised in order to glean purpose and intent; public policy carries its purpose and intent emblazoned on its face, and depends not upon intent, but upon ten dency. Where sound policy is involved, rules of construction are unnecessary and tend to confuse rather than to enlighten. Where rules of construction are employed, public policy has no application. It follows then that the objection to general restraint of marriage must and does rest on grounds of policy, or else it has no foundation upon which to repose, and the prohibition must be absolute, extending to everything tending to restrain marriage, or it must leave the priv ilege of so doing untrammeled, uninfringed and unimpaired. There is one class of cases requiring some slight additional consideration, namely, whether or not the intention of the provision is to prevent marriage or to provide for the grantee until marriage. It is thought that special reference should, perhaps, be made to this case, since the purpose of the provision is so very commendable, and one which it would seem proper to encourage. But, un fortunately, the tendency here, as elsewhere, is to prevent the grantee from marrying. And that tendency is the grand criterion in, all these cases. What is the tendency or ef fect of the provision? Does it unreasonably restrain marriage? Is it such a restraint as operates for the protection of the party re strained, or is it such as to foster the evils so graphically depicted in Lowe v. Peers, 4 Burr. R., 2225? All these are proper ques tions, but the inquiry into the intention of the grantor can throw no light whatever upon the subject. If the courts could give effect to the wishes or intentions of the parties, when ascer tained, rules of construction would be of con siderable assistance to them in attaining the