teenth Amendment operates on personal rights and matters of status, it can hardly be claimed that it protects no one who is not personally within the territory of the state. Should a state deny to such a person, who is not one of its citizens, the equal protection of its laws, by changing his status, both in respect to one of its citizens and to the community, it assumes to have jurisdiction over him by that very denial. If the proceeding has any force whatever, it is because of this assumption, and if a non-resident is thus swept into the de facto jurisdiction of a legislature, he certainly comes within the spirit of the amendment.12

In 1911 the legislature of Connecticut granted a divorce on the husband's petition. The wife had become incurably insane since her marriage. The divorce was not to take effect until he gave a bond, with surety for $1500, to the town where he lived, conditioned for her partial support. The Superior Court had no power to grant divorces for the cause of supervenient insanity. The Governor returned the bill without his approval, and his veto, which was mainly based on the provisions of the Fourteenth Amendment, was sustained. Adverse reports have been made on all subsequent applications for divorces made to the legislature in 1911 and 1913.

The doctrine of Maynard v. Hill 13 was explained in Haddock v. Haddock 14 as only affirming that a legislative divorce of a domiciled citizen was valid within the jurisdiction of the government which granted it. Other states were free to recognize it as effectual or not.

It is certain that it would not be entitled to their recognition under the generally accepted rules of international private law. 15 In Maynard v. Hill 16 the effect of the Fourteenth Amendment on the states was not in question. It was a question purely of the rights of the United States, exercised through one of its political

12 See, however, Blake v. McClung, 172 U. S. 239, 261, 19 Sup. Ct. 165 (1898); 176 U. S. 59, 65, 20 Sup. Ct. 307 (1900).

13 Supra.

14 201 U. S. 562, 569, 574, 26 Sup. Ct. 525 (1906).

15 See Wharton on the Conflict of Laws, 3 ed., I, § 237, f; Convention pour régler les Conflits de Lois et de Juridictions en Matière de Divorce et de Séparation de Corps,

Art. 7.

16 Supra.

agencies a territorial government - and affecting landed property situated in the territory.

The whole drift of modern institutions is away from unconfined legislative power. The grant of legislative divorce is one of the extremist forms which it can assume. It does not belong to the social life of the twentieth century.

NEW HAVEN.

Simeon E. Baldwin.

IT

GENERAL POWERS AND PERPETUITIES.

T is a familiar rule that a limitation of a future interest in property that restrains the owner from alienating the property absolutely is not valid unless it is to vest, if at all, within the legally prescribed period from the time when the instrument containing the limitation takes effect. This period is fixed by the duration of a life or lives then in being and twenty-one years afterwards. If the person or persons to whom the limitation is made, or the extent of their interests, are to be ascertained by a subsequent appointment, a literal application of the rule so expressed would make it necessary in all cases to compute the time as if the appointment had been written into the original instrument containing the limitation, for, until the appointment is made, the limitation is incomplete. But, as the object of the law's anxiety against perpetuities is the restraint of alienation, Lord St. Leonards says, "an important distinction is established between general and particular powers. " He proceeds as follows:

"By a general power we understand a right to appoint to whomsoever the donee pleases. By a particular power it is meant that the donee is restricted to some objects designated in the deed creating the power, as to his own children. A general power is, in regard to the estates which may be created by force of it, tantamount to a limitation in fee, not merely because it enables the donee to limit a fee, which a particular power may also do, but because it enables him to give the fee to whom he pleases; he has an absolute disposing power over the estate, and may bring it into the market whenever his necessities or wishes may lead him to do so. . . . Therefore, whatever estates may be created by a man seised in fee may equally be created under a general power of appointment; and the period for the commencement of the limitations, in point of perpetuity, is the time of the execution of the power, and not of the creation of it."

These views had been previously expressed by Mr. Butler in his notes to Coke upon Littleton,2 and the only dissent from them

1 Sugden on Powers (8 ed., 1861), 394, 396.

2 Coke upon Littleton, 271 b (note 231, VII, 2); 379 b (note 330).

came from Mr. Powell in his notes to the 4th edition of Fearne's Executory Devises in 1795.3 He asserted that, where the disposition was merely an exercise of the power, capable of taking effect by virtue of the power only, the principle, "that the uses limited by the power must be such as would have been good, if limited by the original deed," applied with equal force to a general, as to a particular, power; for, if it were otherwise, such general power of appointment might, in the execution of it, have the same tendency to a perpetuity as a particular power. He illustrated this as follows:

"Thus if A. owner of an estate in fee simple in lands, were to limit them to the use of such person or persons (generally) for such estate or estates, &c. as he (A.) should appoint, and in the mean time, and subject to such power, to the use of B. in fee; and then A. exercised his power in favour of C. a person unborn at the time of the creation of the power for life, remainder to his first and other sons in fee, so as to make the sons of C. take by purchase, he would thereby be enabled to tie up the property beyond the period of a life in being, and twenty-one years after, computed from the time at which the instrument creating the power bore date.”

But he added that the inconvenience of a perpetuity would be avoided where the general power of appointment and the legal estate were vested in the same person by the deed creating the power and limiting the legal estate.

4

Lord St. Leonards referred to this contention and, after quoting the words of the illustration, observed that

"neither with regard to the limitations themselves, nor to the estate limited in default of appointment, is there any objection whatever on the ground of perpetuity. In regard to the limitations, they are merely such as a man seised in fee might create; and, as the power is equivalent to the fee, the same estates may be created by force of both. To take a distinction between a general power and a limitation in fee, is to grasp at a shadow whilst the substance escapes. By the creation of the power, no perpetuity, not even a tendency to a perpetuity, is effected. The donee may sell the estate the next moment; and when he exercises the power in strict settlement as if he were seised in fee, he creates those estates only which the law permits with reference to the time at which they were raised."

3 2 Fearne, Executory Devises, 4 ed., 375, 376.

• Sugden on Powers, 395–396.

5

The law stood in this way until 1869, when a distinction was for the first time made by James, V. C., in respect of a general power exercisable only by will in the case of In re Powell's Trusts. A testator had bequeathed £5000 in trust for his daughter, Mrs. Hall, for life and after her death for such persons as she should appoint by will. The daughter by her will appointed the fund upon trust for her daughter (who was unborn at the testator's death) for life, and afterwards for her daughter's children. As to the validity of the trusts after the death of Mrs. Hall's daughter, James, V.C., said:

"A general power to be exercised at death does not constitute ownership. The money was tied up during the whole of Mrs. Hall's life. The rule of perpetuities, therefore, does apply. Where a general power is equivalent to ownership the rule of perpetuities does not apply; but here the money is tied up during the life of the donee."

This is the whole of the judgment upon this point as given in the Weekly Reporter, and the report in the Law Journal is to the same effect more shortly expressed. The only reason mentioned for the decision is that the money was tied up during the whole of Mrs. Hall's life. But that is no reason at all, for the law allows property to be tied up for one life. It might as well be said, if the power had been to appoint by deed after she attained the age of 50 years, that the money was tied up for so many years. If the decision was right, the reasons must be found elsewhere than in the judgment.

The correctness of this decision was attacked in Rous v. Jackson, in which the same question arose in 1885 and was examined by Chitty, J. He referred to Sugden on Powers and said: "He draws no distinction between a power exercisable by deed or will or by will only, and it appears to me to make no difference by what instrument the power is made exercisable." He also referred to Butler's note in Coke upon Littleton, and said that he thought there must be some slip in the decision in In re Powell's Trusts, and that the case was wrongly decided. The appointment was therefore held to be valid.

6

18 Wkly. Rep. 228; 39 L. J. Ch. 188 (1869).

29 Ch. D. 521; 54 L. J. Ch. 732; 52 L. T. 733; 33 Wkly. Rep. 773 (1885). The counsel were Rigby Q. C., and Stirling (both afterwards Lord Justices) on one side, and Macnaghten, Q. C., (afterwards Lord Macnaghten) and Whately, on the other side.