escheats, aids, etc., which were special privileges imposed upon the tenants as burdens of tenure, and the evasion of which constituted the alleged perpetration of fraud. Inasmuch as the State can impose whatever conditions and limitations upon tenancies of land it pleases, uses and trusts issuing out of land may be abolished altogether. And although the limitation of the operation of the statute to uses issuing out of freehold estates in lands was the result of a technical construction of the statute, induced by the opposition of bench and bar to the statute itself, and not by any consideration of constitutional limitations upon the power of Parliament or of the American legislature to enact the statute; if the question were to be raised anew, the application of a statute, abolishing uses and trusts, to personal property may be resisted on the ground that it is unconstitutional to prohibit the creation of trusts in personal property. The owner, as well as the purchaser of personal property, has a right to have the property in question conveyed to trustees to be held in trust; and the liberty and right of property of both are invaded in an unconstitutional manner, when a legislature undertakes to prohibit the creation of trusts in personal property.

In New York all passive trusts have been abolished, and only certain active trusts, enumerated in the statute, are now permitted. All other express trusts are converted by the statute into legal estates by the transfer of the seisin and estate to the cestui que trust. So far as the statute limits the creation of active trusts in personal property, the constitutionality of the law must depend upon the evil effect upon others of the creation of such a trust. No active trust in personal property can be prohibited which does not have some immoral or illegal purpose. It may be

1 The term "personal property," it must be observed, is used in this connection in the sense of chattels personal, including movable property of all kinds, but excluding chattel interests in lands.

? Tiedeman on Real Prop., § 470; N. Y. Rev. Stat., p. 727.

different with passive trusts. Since such legislation, as the New York statute just mentioned, is, whenever copied, usually accompanied with the statutory removal of all disabilities in respect to separate property from married women, there can be no sound or substantial reason for the existence of passive trusts. The creation of them may not produce any direct or positive harm, but they certainly tend to complicate the administration of the law, and for that reason the prohibition of them may possibly be justified.

Another case of regulation of the creation of interests in personal property, which may be subjected to serious criticism, is the application of the rule against perpetuity to personal property. In limiting the creation of future interests by will, the application of the rule can be easily justified, for the power to dispose of any property by will, in any manner whatever, depends upon the legislative discretion. But in its application to future interests in personal property, created by conveyances inter vivos, it is hard, if at all possible, to find any constitutional justification for such legislation. Personal property is the product of man's labor, and he has the right during his life to make whatever use of it, or to dispose of it to any one, in any way, and under any terms that he pleases, provided that in so doing he does not inflict or threaten the infliction of any wrong or damage on others. It may be said that the prosperity of a country is advanced when the national wealth is not accumulated in the hands of a few, and the rule against perpetuity operates as a check upon such dangerous accumulations. But if such a reason served as a justification of this exercise of police power, it would justify the more severe, but, in principle, similar legislation, which would compel a man to confine his earnings to a certain amount, a regulation which has been urged by some labor reformers

1 See ante, § 119, and post, § 136

as a solution of the present industrial problems. There is no trespass, direct or indirect, upon the rights of others, in limiting a future interest in personal property, beyond a life or lives in being. And since the power to make such perpetual limitations of personal property does not depend, as does the like power in respect to real property, in any sense upon the sanction or grant of the State, it cannot be curtailed or taken away.

The application of the ordinary constitutional limitations to the exercise of police power in cases like these, may excite surprise, and is certainly novel. The general impression, both professional and popular, has been that there is no limitation upon the power of the legislature to regulate such matters. The long acquiescence in the legiti macy of such legislation tends to confirm the accepted doctrine, in opposition to the view here advocated. But if it be true that no regulation by the government of the natural rights of the individual is constitutional, which does not promote the public welfare by the prevention of a trespass upon the rights of others, it must be conceded that in cases like these, the limitations upon the power of the government have their full force and effect, and that it is the duty of the courts to see that the legislature in the exercise of its police power keeps within these constitutional limitations.

§ 136. Regulation and prohibition of the sale of personal property. It is one of the absolute rights of the individual to be free from unreasonable restraints upon the sale or transfer of his personal property. The right to sell or transfer one's property is as much an inalienable right as that of enjoyment of the property free from unnecessary restrictions. Of course, the right to sell may be subjected to whatever regulations may be needed to prevent any threatened injury to the public or to third perIn the discussion of the police regulation of trades

sons.

and employments, the regulation and prohibition of the sale of personal property, as a trade or occupation, have been discussed at length; and, inasmuch as all such regulations are designed to control the sale of merchandise, as a trade, they are considered and criticised in the character of restraints upon the liberty of exercising a lawful calling, rather than as an invasion of the rights of property. In the main, the same objections apply to a police regulation, whether it is considered to be an infringement of personal liberty or of the rights of property. It will, therefore, not be necessary to discuss all such regulations in detail in this place, as it would be hardly more than a repetition of what has already been written. But in the application of the principles there set forth, as limiting the police regulation of employments and of the sale of personal property, a distinction should be drawn between the selling of personal property as a trade, and as a solitary or occasional exercise of a right of ownership. The sale of certain personal property, as a trade, may be liable to become harmful to the public, and for that reason may properly be subjected to police regulation; whereas the mere act of selling the article of merchandise, independently of being the ordinary occupation of the seller, would contain no element of danger to the public, and therefore cannot be subjected to any police regulation whatever: and wherever the twoacts can be separated, the regulation must be confined to those cases in which the selling, on account of its frequency, or of its connection with the sale of other similar articles of merchandise, assumes the character of a trade or occupation. Regulations for the prevention of fraud are, prob. ably in every case, applicable to the unusual, as well as the ordinary, sale of personal property; so that, for example, in order to make a valid sale, as against a second purchaser,

1 See ante, chapter IX, and particularly §§ 89, 93, 95, 96, 101, 102, 103.

See, especially, §§ 89, 102, 103.

the possession must be delivered, independently of the frequency or infrequency of the act. But there are other cases of police regulation, which are designed to correct evils, which only arise in connection with the prosecution of a trade or occupation. Thus, for example, the sale of unwholesome food by a grocer may be prohibited altogether, in the course of his regular business, for his business is the sale of food for human consumption; and the sale by him of unwholesome food to his regular customers will almost necessarily inflict injury on the public health. And so would the sale of such food be likely to prove harmful to the public, if it should be sold by any casual owner for the purpose of being used as an article of food. But if it were sold, independently of one's business as a vendor of human food, for some other lawful purpose, its sale could not be prohibited, for it contains no element of danger to the public health.

Conceding the position maintained in a previous section,1 that the sale of liquor in saloons, to be drunk on the premises, is the only case of the sale of intoxicating liquors which may be prohibited; and that the ground for the justification of prohibition in that case is the fact, that liquor saloons are the resort of all the more or less lawless elements of society, and consequently the public peace is endangered by their presence in the community; it is easy to understand how the prohibition of liquor saloons may be justified, and yet the application of the prohibitory law to an unusual or single case of the sale of liquor, to be drunk on the premises, by one who is not a saloon keeper, may be resisted on constitutional grounds. The latter case could not threaten a disturbance of the public peace, any more than the intemperate use of liquor, in whatever way it may be procured, is likely to do so. The cases, in which this distinction would

1 See ante, § 103.