Page:Harvard Law Review Volume 8.djvu/229

213 REMOTENESS OF CHARITABLE GIFTS. 213 within a certain period, be conveyed by a good title. But I cannot think it possible that Lord Cottenham used the word " inalien- able" in such a narrow way, thus confining the rule within such meagre limits, rendering it of little practical value, and defeat- ing what seems to me its raison d'etre. It is true, of course, the rule incidentally does prevent property being rendered " inalien- able," but this it accomplishes simply through the fact that, were it not for the rule, remote future interests could be created, but, as these interests cannot be created, the property must be " alienable " within the limits of the rule. The right of alienation is, of course, involved, if the right is understood to mean that the one having the present interest has the power to exercise the right, and to do as he may see fit with the proceeds. The one object of the rule is, of course, to prevent the tying up of property, to use Mr. Fox's words, and I can quite agree with him if by " tying up " Mr. Fox means the property cannot be alienated and the proceeds disposed of in any way it may be desired by those having a present interest within the limits of the rule. Mr. Fox does not mean this, — if he does, he agrees with Professor Gray. It seems to me that in not one of -Mr. Fox's cited cases is the question of the right of alienation directly involved. The words " perpetuity " and " inalienable " were considered from the standpoint of a postponement of a vested interest: it is a perpetuity unless it vests absolutely within the limits of the rule ; it is a perpetuity unless there is a vested in- terest which can alienate absolutely, within the limits of the rule. Of course, giving property in perpetuity, in perpetimm, is giving it forever, and if property is given forever it cannot be " alienated " from that purpose. Now, the rule is to prevent a " perpetuity " in the sense of the giving of property to one object or purpose for- ever; the rule is also to prevent the making of an "inalienable" gift ; for a gift if a perpetuity is " inahenable," and if " inalien- able " it is a " perpetuity." I have always thought, and Mr. Fox's citations have strength- ened my opinion, that the rule was intended to subserve the public policy of fixing a limit beyond which one's disposal of one's property shall cease; in other words, public policy intends that after a certain time one's property shall not be tied up, — that it must pass free and untrammelled to some one who can employ it in any way this some one may choose ; if property can be tied up beyond the limits fixed by the rule, it would be a colossal check