Page:Harvard Law Review Volume 12.djvu/52

32 32 HARVARD LAW REVIEW. State legislatures to pass statutes of this class almost without limit- ation of extent. There is, however, a strict limitation in respect of the form in which the legislative power can be exercised ; and yet there is great inattention to this limitation, in the framing of such statutes, and in passing titles under them. The principles upon which the efficacy of legislation of this kind turns, are few and simple. They may be summarized as follows : (a) Under the principles of general equity jurisprudence, a decree in equity oper- ates only upon the defendant, and cannot be made effectual with- out jurisdiction of his person, {b') Except, perhaps, in a limited class of cases, where the rule of suing only representative defend- ants may be invoked, the defendants must be in existence, and as- certainable and known, {c) The State legislatures have the power of making extensions of ancient equities and equity procedures, and such extensions have the force, and are entitled to all the recogni- tion, of the ancient equities and procedures. (<af) This legislative power covers all the ancient equities relating to the clearing of titles, {e) Under this power a State may, by statute, dispense with all the limitations existing in the ancient equity jurisprudence, and may provide for a decree operative as against non-residents, persons not in being, and persons unknown, or not ascertainable, and may provide for the operation of the decree directly in rem upon the land, or for the setting up of a substitute, or quasi-trustee* to give a deed of release in behalf of possible hostile claimants not personally within the jurisdiction. The phraseology necessary to the effectuality of such statutes has been repeatedly declared by the Supreme Court of the United States, and notwithstanding the difficulty originally existing in the subject, nothing has been easier, for a considerable time past, than to insert in a new statute the phrases essential to its validity, the chief of which is a provision in terms that the decree shall operate directly upon the land, or that there shall be a substituted grantor. Nevertheless, throughout the country there are statutes of this class, which are drawn without the least attention to these principles, and titles are constantly being made under them without the slightest regard to the question of their constitutionahty. In the Massachusetts legislation there is no uniformity in this respect: some of the modern title-clearing statutes have been drawn in strict accordance with the constitutional requirements, while others make no provision either that the decree shall operate in rem upon the land, or that there shall be a substituted releasor. The writer has