of these defenceless trusts, they were created *290 *under an appeal to him, as rogote per salutum, or per fortunam Augusti. Augustus was flattered by the appeal, and directed the prætor to afford a remedy to the cestui que trust; and these fiduciary interests increased so fast, that a special equity jurisdiction was created to enforce the performance of the trusts. This "particular chancellor for uses," as Lord Bacon terms him, who was charged with the support of these trusts, was called prætor fidei commissarius. If the testator, in his will, appointed Titius to be his heir, and requested him, as soon as he should enter upon the inheritance, to restore it to Caius, he was bound to do it, in obedience to the trust reposed in him. The Emperor Justinian gave greater efficacy to the remedy against the trustee, by authorizing the prætor, in cases where the trust could not otherwise be proved, to make the heir, or any legatee, disclose or deny the trust upon oath, and when the trust appeared, to compel the performance of it." The English ecclesiastics borrowed uses from the Roman law, and introduced them into England in the reign of Edward III. or Richard II., to evade the statutes of mortmain, by granting lands to third persons to the use of religious houses, and which the clerical chancellors held to be fidei commissa, and binding in conscience. When this evasion of law was met and suppressed by the statute of 15 Richard II., uses were applied to save lands from the effects of attainders; for the use, being a mere right in equity, of the profits of land, was exempt from feudal responsibilities; and uses were afterwards applied to a variety of purposes in the business of civil life, and grew up into a refined and * Inst. 2. 23. 1. Vinnius, h. t. Bacon on the Statute of Uses, Law Tracts, 315. b Inst. 2. 23. 12. • Blacks. Com. 328. Saunders on Uses and Trusts, 14. regular system. They were required by the *advancing state of society, and the growth of *291 commerce. The simplicity and strictness of the common law would not admit of secret transfers of property, or of dispositions of it by will, or of those family settlements which became convenient and desirable. A fee could not be mounted upon a fee, or an estate made to shift from one person to another by matter ex post facto; nor could a freehold be made to commence in futuro, nor an estate spring up at a future period independently of any other; nor could a power be reserved to limit the estate, or create charges on it in derogation of the original feoffment. All such refinements were repugnant to the plain, direct mode of dealing, natural to simple manners and unlettered ages. The doctrine of livery of seisin rendered it impracticable to raise future uses upon feoffment; and if a person wished to create an estate for life, or in tail, in himself, he was obliged to convey the whole fee to a third person, and then take back the interest required. Conditions annexed to the feoffment would not answer the purpose, for none other than the grantor, or his heir, could enter for the breach of it; and the power of a freeholder to destroy all contingent estates by feoffment or fine, rendered all such future limitations at common law very precarious. The facility with which estates might be modified, and future interests secured, facilitated the growth of uses, which were so entirely different in their character from the stern and unaccommodating genius of feudal tenure. Uses, said Lord Bacon, "stand upon their own reasons, utterly different from cases of possession." Bacon's Law Tracts, 310. Lord Bacon's Reading on the Statute of Uses, has a scholastic and quaint air pervading it; but is very instructive to read, because it is profoundly intelligent. They were well adapted to answer the various purposes to which estates at common law could not be made subservient, by means of the relation of trustee and cestui que use, and by the power of disposing of uses by will, and by means of shifting, secondary, con*292 tingent, springing, and resulting *uses, and by the reservation of a power to revoke the uses of the estate, and direct others. These were pliable qualities belonging to uses, and which were utterly unknown to the common law, and grew up under the more liberal, and more cultivated principles of equity jurisprudence. The contrast between uses and estates at law was extremely striking. When uses were created before the statute of uses, there was a confidence that the feoffee would suffer the feoffor to take the profits, and that the feoffee, upon the request of the feoffor, or notice of his will, would execute the estate to the feoffer and his heirs, or according to his directions. When the direction was complied with, it was essentially a conveyance by the feoffor, through his agent the feoffee, who, though even an infant or feme covert, was deemed in equity competent to execute a power, and appoint a use. The existing law of the land was equally eluded in the selection of the appointee, who might be a corporation, or alien, or traitor, and in the mode of the direction, which might be by parol. As the feoffee to uses was the legal owner of the estate, he had complete control over it, and he was exposed to the ordinary legal claims, debts, and forfeitures, to dower, curtesy, wardship, and attainder. When uses were raised by conveyances at common law • Lord Bacon says, that these properties of a use were exceedingly well set forth by Walmsley, J., in a case in 36 Eliz., to which he refers. Bacon's Law Tracts, 307. Co. Litt. 271, b. note. operating by transmutation of possession, the uses declared in such conveyances did not require a consideration. The real owner had divested himself of the legal estate, and the person in whom it was vested, being a mere naked trustee, equity held him bound in conscience to execute the directions of the donor. If, however, no uses were declared, then the feoffee, or releasee, took, to the use of the feoffor or releasor, to whom the use resulted; for if there was no consideration, and no declaration of uses, the law would not presume *293 that the feoffor or releasor intended to part with the use. But in the case of covenants to stand seised, and of a bargain and sale, which did not transfer the possession to the covenantee, or bargainee, the inheritance remained in the contracting party; and it was a mere contract, which a court of equity would not enforce, for a use could not be raised when the conveyance was without a sufficient consideration. The same principle applied to the case of a release, which was a conveyance operating at common law. Uses were alienable without any words of limitation requisite to carry the absolute interest; for, not being held by tenure, they did not come within the technical rules of the common law. A use might be raised after a limitation in fee, or it might be created in futuro, without any preceding limitation; or the order of priority might be changed by shifting uses, or by powers; or a power of revocation might be reserved to the grantor, or to a stranger, to recall and change the uses. Uses were descendible according to the rules of the common law in the case of inheritances in possession. They were also Bacon on Uses, Law Tracts, 312. Sugden on Powers, 5, 6. 1 Co. 87, b. 100, b. Bro. Feoff. al. Use, pl. 30. Jenk. Cent. 8. Ca. 52. Co. Litt. 237, a. Preston on Estates, vol. i. 154. devisable, as they were only declarations of trust binding in conscience; and Lord Bacon, in opposition to Lord Coke, who, in Chudleigh's case, had put the origin of uses entirely upon the ground of frauds invented to elude the statutes of mortmain, maintained that uses were introduced to get rid of the inability at common law to devise lands. It is probable that both these causes had their operation, though the doctrine of uses existed in the civil law, and would naturally be suggested in every community by the wants and policy of civilized life. The wife could not be endowed, or the husband have his curtesy of a use, nor was the use available by writ of elegit or other legal process in favour of the creditor of cestui que use. Lord Bacon complained that uses were "turned to deceive many of their just and reasonable rights." Uses were certainly perverted to mischievous purposes; and the complaint is constant and vehement in the old books, and particularly in Chudleigh's case, and in the preamble to the statute of uses, against the abuses and frauds *294 which were practiced by uses prior to the statute of uses. It was the intention of the statute to extirpate such grievances, by destroying the estate of the feoffee to uses, and reducing the estate in the use to an estate in the land. There was a continual struggle maintained for upwards of a century, between the patrons of uses and the English parliament, the one constantly masking property, and separating the open legal title from the secret equitable ownership, and the other, by a succession of statutes, endeavouring to fix the duties and obligations of ownership upon the cestui que use. At last the statute of 27 Hen. VIII., commonly called the statute of uses, transferred the uses into pos ! Bacon's Law Tracts, 316. b 4 Co. 1. Bro. Abr. tit. Executions, 90. |