is cited with apparent approval in Winsor v. Mills,19 but the supposition can scarcely be indulged, for the decision in Winsor v. Mills is clearly right, since the option in that case was not a present option, but one to arise after the perpetuity period, viz., whenever the owners of the property should offer it for sale, if they ever should. How could the Massachusetts courts hold an immediate reserved option void and an unlimited possibility of reverter or of entry for condition broken good, both of which that court has done? 20 That would be saying a grant to A and his heirs till the grantor or his heirs ask for a reconveyance reserves a good estate to the grantor; but a grant to A and his heirs, reserving to the grantor and his heirs a right to repurchase at any time for a stated price, gives A an absolute fee, and the reservation is void. Even in this day of free assaults on the courts, such a disgraceful course of conduct should not be presumed against any court till it has been guilty. The supreme court of West Virginia, which has just affirmed the last proposition, has never yet affirmed the first, thought it might be assumed that it would do so should occasion require, since the court in this case admits it is "committed" to that doctrine, and since no decision by any American court has yet held a possibility of reverter on conditional limitation or on breach of condition subsequent and entry to be governed by the rule against perpetuities. All the cases have held these rights to be vested particles of the conveyed estate, reserved to the grantor, not a contingent interest to arise.22

21

The rule against perpetuities is a rule of public policy, not a matter of form.

19 (1892) 157 Mass. 362, 32 N. E. 352. 20 Tobey v. Moore (1881) 130 Mass. 448; First Universalist Soc. v. Boland (1892) 155 Mass. 171, 29 N. E. 524, 15 L.R.A. 231.

21 Woodall v. Bruen (1915) — W. Va. 85 S. E. 170.

22 See the Massachusetts cases above cited, and Hopkins v. Grimshaw (1897) 165 U. S. 343, 41 L. ed. 739, 17 Sup. Ct. Rep. 401; Van Rensselaer v. Ball (1859) 19 N. Y. 100; Wakefield v. Van Tassell (1903) 202 I11. 41, 66 N. E. 830, 95 Am. St. Rep. 207, 65 L.R.A. 511; Palmer v. Union Bank (1892) 17 R. I. 627, 24 Atl. 109. Also assumed in Methodist Protes

If a particular disposition can be accomplished by one means it may be done by another means, so far as this rule is concerned. In this connection the language of Lord Chancellor Nottingham in the first gospel of this creed is worthy of note. He said: "All men are agreed (and my Lord Chief Justice told us particularly how) that there is a way in which it might be done, only they do not like this way; and I desire no better argument in the world to maintain my opinion than that; for, says my Lord Chief Justice, suppose it had not been thus: If Thomas die without issue, living Henry, then over to Charles, but thus: If it happen that Thomas die without issue in the life of Henry, etc., then this term shall cease, and there shall a new term arise and be created to vest in Charles in tail; and that had been wonderful well, and my Lord of Arundel's intention might have taken effect for the youngest son. This is such a subtilty as would pose the reason of mankind; for I would have any man living open my understanding so far as to give me a tolerable reason why there may not be as well a new springing trust upon the same term to go to Charles, upon that contingency, as a new springing lease upon the same trust; for the latter doth much more tend to perpetuity than the former, I am bold to say it." 23

The Irish courts have also held that conditions subsequent are not within the operation of the rule against perpetuities; 24 and while there have been decisions in the lower English courts to the contrary,25 they are discredited by the the decisions of the higher English courts,26 the opinions of English writers on real property, and the whole history of English real property law. In his

tant Church v. Young (1902) 130 N. C. 8, 40 S. E. 691.

23 Norfolk's Case (1682) 3 Ch. Cas. 1, 22 Eng. Reprint, 931.

24 Atty. Gen. v. Cummins [1905] 1 Ir. R. 406.

25 Dunn v. Flood, L. R. 25 Ch. Div. 629, 53 L. J. Ch. N. S. 537, 49 L. T. N. S. 670, 32 Week. Rep. 197; Re Hollis' Hospital [1899] 2 Ch. 540, 68 L. J. Ch. N. S. 673, 47 Week. Rep. 691, 81 L. T. N. S. 90.

26 Cooper v. Stuart (1889) L. R. 14 App. Cas. 286, 58 L. J. P. C. N. S. 93, 60 L. T. N. S. 875, in the Privy Council on appeal from New South Wales.

Tenures, Littleton says: "If a man by deed indented enfeoffs another in fee simple, reserving to him and his heirs yearly a certain rent payable at one feast or divers feasts per annum, on condition that if the rent be behind, etc., that it shall be lawful for the feoffor and his heirs into the same lands or tenements to enter, etc., .. in these cases if the rent be not paid at such time, or before such time limited and specified within the condition comprised in the indenture, then may the feoffor or his heirs enter into such lands or tenements, and them in his former estate to have and to hold, and the feoffee quite to oust thereof." Litt. § 325. Lord Coke said the same thing, viz., "If I enfeoff another of an acre of ground upon condition that if mine heir pay to the feoffee, etc., 20 shillings, that he and his heir shall reenter, this condition is good; and if after my decease my heir pay the 20 shillings, he shall re-enter; ... and so if a man have a lease for years and demise or grant the same upon condition, etc., and die, his executors or administrators shall enter for the condition broken." Co. Litt. *214b. And to the like effect are the English writers generally since.

So far as the English courts are concerned it is believed that it can fairly be said that the doctrine of London Southwestern R. Co. v. Gomm, if it ever extended farther than the decision in Winsor v. Mills, has been abandoned or

27 Southeastern R. Co. v. Associated Portland Cement Mfrs. [1900] 1 Ch. 12.

"27

restricted within the scope of Winsor v. Mills, by the later cases. When a man selling a strip through his land to a railway reserved the right at any time he desired to construct a tunnel and maintain a passage through this strip under the railway, this was held not to violate the rule against perpetuities, for the reason that "it is not a right to arise at some future time, it is an immediate right; the conveyance was made subject to a legal reservation of the easement; in the present case the plaintiffs themselves entered into the contract to grant, and granted the easement of tunneling.' Let no one be misled by the fact that the grant was of an easement instead of an absolute estate. An easement to arise at a future time is as vicious as any other future estate. The easement in this case was to arise only when use of it should be desired, which is as future as any present option. To sum up what we have found by this inquiry, it has been shown that the notion that an unlimited option to buy violates the rule against perpetuities is a heresy unsupported by legal history, not capable of being reconciled with the decisions on kindred questions, serves no public necessity, unduly restricts legitimate business, upsets vast and numerous settlements, estates, etc., and should be absolutely and everywhere repudiated.

John Bord.

"They assumed the relation with the United States which had before subsisted with Great Britain. This relation was that of a nation claiming and receiving the protection of one more powerful; not that of individuals abandoning their national character and submitting as subjects to the laws of a master."

C

HIEF JUSTICE MARSHALL, who wrote the opinion of the court in Worcester v. Georgia, 6 Pet. 515, 8 L. ed. 483, Marshall's Constitutional Opinions, 712, was probably better qualified to speak of the early history of the Indians, their former relationship with Great Britain and her Colonies, as well as their status under the Constitution of the United States, than any other man. The law as interpreted by Justice Marshall in Cherokee Nation v. Georgia, 5 Pet. 1, 8 L. ed. 25, and in the "Worcester" Case, was the corner stone upon which the Congress and the courts have since built their uncompleted structure for the management of the Indians. Had the Congress kept more clearly in mind the words of the great Chief Justice, supra, the American Indian to-day would be much farther advanced in civilization, more self-reliant, happier, and in every way of greater benefit to himself and to the government. True, many of the Indians have substantial weath; but, generally speaking, he and his wealth are handled in such manner as to compel him to rely entirely on his "master" for his guidance in every particular. He is managed to-day under a system adopted by the government

nearly a century ago, and which he has, strange to say, considering the handicap, outgrown. That that department of our government having the Indian in charge has his best interests at heart will not be questioned by those who have had an opportunity to observe its work, but because of its great antiquity, its enforced lack of elasticity, its failure to keep abreast of the spirit of congressional legislation, the Indian is paying a penalty unknown to the great mass of thinking men throughout the United States, and to but comparatively few members of Congress. The proper advancement of the Indian service, for the benefit of the Indian, means that within a comparatively short period the Indian Bureau will be whittled down to comparatively but a few employees.

In handling the Indian problem, the Congress is dealing with human souls, and the best and most enlightened methods should be used, to the end that the Indian may become self-reliant and assertive of those rights which will make of him a real beneficiary of modern enlightenment. This can only be done by the appointment of a Congressional Commission to work out an up to date plan for the handling of the Indian-men who will be guided by that same fearless attitude as was the great Chief Justice in leading the court in the "Worcester" Case.

Worcester v. Georgia, upholding the rights of the Cherokees as against the state of Georgia, shook the government to its foundations, but it saved the Indian for the time. The then President is reported to have said of the decision: "Mr. Marshall has made the decision, now let him execute it." Mr. Justice

Story, who was a member of the Supreme Court, and participated in the decision, in a letter to Professor Ticknor, said: "The decision produced a very strong sensation in both Houses; Georgia is full of anger and violence. Probably she will resist the execution of our judgment, and, if she does, I do not believe the President will interfere, unless public opinion among the religious of the eastern, western, and middle states should be brought to bear strong upon him. The rumor is that he has told the Georgians he would do nothing. I, for one, feel quite easy on the subject, be the event what it may. The court has done its duty. Let the nation now do theirs. If we have a government, let its command be obeyed; if we have not, it is well to know it at once, and look to consequences." To his wife Justice Story says: "I confess that I blush for my country when I perceive that such legislation, destructive of all faith and honor towards the Indians, is suffered to pass with the silent approbation of the present government of the United States;" and again: "I never in my whole life was more affected by the consideration that they and all their race are destined to destruction. And I feel, as an American, disgraced by our gross violation of the public faith towards them." Story, Life & Letters, II., 79, 84.

Chief Justice John A. Shauck, speaking of Worcester v. Georgia, says: "Marshall had devoted a third of a century to the duties of his high office when he came to Worcester v. Georgia, the last of his great opinions. The years had brought to his intellectual powers not failure, but fruition. This

is not entitled to be considered his greatest opinion, because others involved questions much more vitally affecting the nation. Juridical literature does not suggest another whose resources would have been adequate to the production of this opinion. It is the opinion of the philanthropist, the champion of treaty obligations, the historian of the colonies and of the Revolution, the master of the law among nations, and the father of constitutional interpretation." Note to Marshall's Constitutional Opinions, page 722.

We have able and fearless men in our Congress to-day, and the members of the bar can do no greater favor to the American Indian than to urge for a Commission of Senators and Congressmen, who will work out a modern plan that the Indian may become a real American citizen, and not subject to the laws of a "master," except as all citizens are subject to the law.

Preston A. Shinn,

HENEVER a lawyer gets up to make a speech, on requirements for admission to the bar, be he in Maine or California, Michigan or Florida, he will as a general rule close his remarks by pointing to the lone state of Indiana as the "horrible example." Speeches of this kind are for the most part delivered before bar associations, lawyer's conventions, or law schools, so the false impressions they give are to a certain extent localized, which is something to be thankful for.

The speaker will point with pride to the ever-increasing admission requirements in the various states, speak of the improvement the demanding of an A. B., or at least two years' college work, will effect in the making of the young lawyer, and point out with some heat how the profession is elevated by these stringent requirements.

Then turning his attention for a few brief moments to the deplorable condition in the one outlaw state, poor old Indiana, in the matter of admission requirements, and shaking his head, he will inform his hearers that there is a constitutional provision in said benighted state, that places the one requirement of a good moral character on the aspirant for legal honors.

The innocent bystander on one of these occasions might be led to the conclusion that Indiana, as far as courts were concerned, was a howling wilderness, that legal knowledge was a thing not to be found, that the populace settled their differences by resort to the wager of battle or the knotted club, and the practice of law unknown.

He might also get a vision of the whole state of Hoosier dom being admitted to

the bar en masse, excepting only the few that were not forthcoming with the "good moral character" credential. He might conclude from this that every second man met in the state of Indiana would be a member of the bar. But do the facts and the legal history of the state warrant this conclusion?

The first surprising fact that stares one in the face, on examining this subject, is, that stringent admission requirements do not appear to be much of a bar to men wishing to enter the practice of law. New York, Illinois, and Washington are fairly representative of the advanced states in admission requirements, and each of the above-named states has more lawyers per capita than Indiana. Then take New Jersey, Massachusetts, and Ohio, which are possibly somewhat higher in their requirements, and, strange to say, these states have but a fraction less lawyers per captia than Indiana.

The one northern state that seems to have cut her lawyers per capita by stringent admission requirements is Pennsylvania, with her one lawyer to each 1,068 persons, while Indiana has one to each 751 of population. But one is led to believe that the character of Pennsylvania's population, i. e., the foreign element, has something to do with this shrinkage in the number of lawyers.

particularly in the South, that have quite There are a great number of states, easy admission requirements, yet there are no greater number of lawyers per capita than in Pennsylvania.

From this comparison one is led to the conclusion that rigid admission requirements are not the bar to the many that their advocates would have us believe. But the stickler for severe re

quirements may reply that the purpose of these requirements is not to bar good men from entering the field of law, but to keep a certain class out or make them