and

Legal Miscellany.

PUBLISHED BY THE D. B. CANFIELD COMPANY LIMITED, PHILADELPHIA. SUBSCRIPTION, ONE DOLLAR A YEAR.

Copyrighted 1889. Entered at the Post Office at Philadelphia as second-class matter.

Vol. I.

May 15, 1889.

No. 5.

WILLIAM HENRY RAWLE, M. A., LL. D.

BORN AUGUST 31ST, 1823: DIED APRIL 19TH, 1889.

One hears of the death of Wm. Henry Rawle with peculiar feeling, because in his personal experience he represented, and was, at the last, one of a small class, who represented the professional men of at least three generations back, and was influenced by the higher traditions of a remoter time, influenced by much good that has no effect now. These had guided the development of his instincts. On either side of his house, and by social alliance also, there were great lawyers, men known in the history of the State, and known as of the integrity which wins success by its own force, as men upon whom honors were thrust, of unfaltering courage, strangers to methods of time-serving, and successful because gifted and useful. He had no questionable tie, nor even any indirect connection with men of devious ways. He was remarkable for the natural strength of his faculties, which showed heredity, and for his inherited purity, bravery, delicacy and polish. His learning, which was as broad and as deep as that of any man ever at this bar, he acquired for himself.

His power was exercised in his early career in the management of causes at nisi prius, and in the disposition of a great variety of office settlements, of a kind of which many are unfamiliar to the practitioner of to-day; in real estate law and in commercial law alike, he was eminent at an early age, active in his advocacy, remarkable at once for his ready grasp, and the prompt and ardent application of his ideas. His mind

was urgent and unwearied. The merchant's questions, of general average, maritime liens, bottomry bonds, customs dues, neutral flags, exchange, were put to him ere the commerce of the port had failed and the sea-trade of the world had been changed by the general use of steam, the telegraph and the freer use of banking. He studied the doctrines of partnership with the zeal of an enthusiast; indeed, all that he did in life was with such zeal; and in such zeal he broached, thirty-five years ago, a theory of agency in one of his notes to Smith on Contracts, that, I have heard him say, he had been doubtful of afterwards, perhaps perturbed about afterwards, till some twenty years ago he found it emerge from obscurity to high favor in the House of Lords. He was ever thinking, and never failed to work out his thought. In real estate law it is not enough to say he was a master; rather it may be said, as the word may well be used with the allowance due to the unimaginative nature of his vocation and to the impossibility of original work, apart from direct legislation, that he was a genius; in fertility of resources in matters of estates, in settlements of legal titles, in the creation of trusts and powers, in novel combinations of known legal expedients to meet unusual family needs, he was a genius; as Lord Thurlow showed himself in five words; Sir Orlando Bridgman in a clause; Egerton in a series of Chancery rules; and Sir Wm. Jones in a volume. He had a training and a practice in branches of the law much applied in his early life, but almost unknown in application at the time of his death. His brief in asking for a writ of Audita Querela, in Schott v. McFarland, reported by Mr. Brightly, is an interesting illustration of this.

The power thus nurtured and disciplined accommodated itself to the changes taking place in the character of the services demanded of good lawyers. He advanced to the last. His course was a forward one always. His eagerness to appreciate the spirit of the time, and his readiness to keep abreast of all development, to enjoy, encourage and guide it, were remarkable in a man bound to a profession that is of necessity conservative, and cautious as to any deviation from precedent. He did more for equity in Pennsylvania than any other one man; and he did this against opposition, and the

scornful protest of two powerful jurists, one of them a great one. He had, it is true, the countenance and aid of two other great judges of his day. But his eminence in equity would in time have asserted itself without encouragement, as his wisdom in affairs of conscience and social order knew no abatement in its insistance under any disappointment.

This was due to the inherited strength of his faculties. He also fell heir to the traditions of the Temple, and had heard one grandfather enlarge upon them: the traditions of the Revolution, and had learned all the quarrels of Federalism and Republicanism from another: the traditions of his own State, with the legal history of which he was intimately acquainted. He wrote thoroughly well on subjects of commercial law, and on subjects of real estate law, in his notes to Smith and to Williams; he made a remarkable book on Covenants for Title, and he depicted Equity in Pennsylvania in two addresses, showing his learning in the easy flow of a style as unaffected, copious, lucid, delightful as Professor Wilson's, Dr. Brown's, or James Beattie's. Sir George Jessel said, in a famous judgment, that there were “modern doctrines of equity," as distinguished from the early doctrines: "The doctrines are progressive, refined, altered, and improved; and if we want to know what the rules of equity are, we must look, of course, rather to the more modern than the more ancient cases." Rawle's special power, his genius, lay in the direction of progression, the refinement, the alteration, if necessary, the constant and brave improvement of the application of the doctrines of equity; in a mastery of the more ancient cases, and in the formulation or the development of those more modern. He was an unerring guide to any one who wanted to know what were the rules of equity. One may well paraphrase Sir George Jessel, and say that in Pennsylvania, if you wanted to know what the rules of equity were, you must look, of course, rather to Mr. Rawle than to the ancient cases.

Mr.

All lawyers were once classified by Sir James Mackintosh, in words that meant, the technical and the broad; he was writing his judgment of Lord Mansfield, at sea, on his way home from India in 1811, as he wrote sketches of many other eminent men, and thus improved, and forgot, the time; and on Decem

ber 23d, he had noted in his diary, "I have sketched Wilkes and Churchill. I have some thoughts of next trying Lord Mansfield, and then, perhaps, Young and Thomson." Between that day and Christmas he tried Lord Mansfield, and certainly enjoyed an admirable success. He pictured him correctly and with exquisite grace; his calm mind, luminous, orderly; his temper, mild; his dignity, understanding, taste; he dwelt on his power as an orator, and his value as a magistrate; and then he had to mention his course in liberalizing the law. "It was the general tendency of his mind to enlarge and liberalize the ancient law. * * All lawyers are inclined either to rules or to convenience." And Lord Mansfield had his hearty approval, in that he knew the rules, but inclined to the convenience, as his painter had learned by personal experience, and as those of us have seen who have read the judgments delivered by that authority. It is not the object of this paper to describe Mr. Rawle's cases and to criticise them, or any of them; but in the reports we find evidence of the fulness of his character, in his regard for rules when need be; and in his disregard of form, in favor of breadth, of equity, of convenience, on what he thought was urgent occasion. One may smile over the acuteness shown by him and his colleague in Coulter v. Repplier. These two and their opponent were long famous as piercingly acute men.

That was the fourth reported case, I think, of his practice in the Supreme Court, and it was argued in December, 1850. Two actions were brought by Repplier and others against Coulter, for the recovery of moneys due for wharfage, and of moneys due for coal; and for Coulter the pleas to which we need look were payment and set-off. The plaintiffs held a wharf and sold coal. The defendant got there both coal and storage, and was sued for the apparently good reason that he had not paid his bills. The set-off was claimed on account of a loss which Coulter declared he had sustained by the act of the plaintiffs, who did not safely keep on storage a certain one hundred tons of coal belonging to him, but, without authority, sold the same to a stranger; so that it was declared for Coulter that, even if he owed for storage and coal, there was due him on the other hand far more, for coal thus diverted and lost.