Introduction of Uses attributed to Clergy-adopted by Laity. 440

was expressly taken away, such matters apparently must have been left only to the influence of the confessor.

The introduction of what may be called fidei-commissary trusts, or as they are now designated Uses, that is, trusts created by conveyances to one or more persons and their heirs, with the intent that the legal estate should remain with them, and that another should receive the profits and have the dominion over the estate, is generally and with reason attributed to the clergy (a). It is certain that, from a very early period, the bishops and heads of religious houses, as one contrivance for evading the laws prohibiting alienations in mortmain (b), procured lands to be conveyed in fee simple to some friendly hand, upon trust that they and their successors should be permitted to enjoy the profits (c).

The laity were not long behind in resorting to this contrivance, as regards both lands and chattels, to enable them to defeat creditors of their executions, and for other fraudulent purposes (d), frequently it seems selecting some person as their feoffee, who from his station and power might aid them in setting the law at defiance (e).

*Uses, therefore, properly so called, like the Roman fidei-com[*441] missa, had their origin in a design to evade the provisions of the law (f), and as regards the clergy and laity, as it would seem, wholly for purposes of fraud; hence, perhaps, arose the antipathy which was entertained against them in early times by the common law judges.

But conveyances to uses were afterwards (g) put in practice by the laity for less objectionable purposes. During the civil wars occasioned by the claims of the rival Houses of York and Lancaster, every person who could be accused of having sided with the defeated party was liable to attainder, and by consequence to the confiscation of his estates. To avoid this hazard, secret conveyances to uses, or upon special trusts, appear to have been resorted to by persons of every rank and condition (h).

(a) 2 Bla. Comm. 271-2; Cruise, i. 331. (b) The restriction against such alienations, without license from the crown, exist ed before the conquest, according to Sir W. Blackstone, 2 Comm. 269. The 36th clause in the Magna Carta, 9th Hen. III., which repeated a similar clause in one of his former charters, prohibited gifts to religious houses; and Mr. Hallam considers that this was the first restraint on alienation in mortmain, imposed by law. By the statute 7 Edw. I. de religiosis, alienations, in mortmain, were in more express terms absolutely prohibited, though, not as it was construed, so as to prevent the exercise of the prerogative of granting a license, 2 Bla. Comm. 270, 271; 2 Inst. 74, which was confirmed by stat. 7 & 8 Will. III. c. 37.

(c) V. int. alia, 2 Bla. Comm. 328; Burgess v. Wheate, 1 W. Bla. 156; S. C. 1 Eden; Lord Redesdale, 4 Bli. N. S. 107.

(d) Sanders on Uses, i. p. 13; the stat. 50 Edw. III., c. 6, gave the right to take the lands and chattles in execution, as if no such fraudulent gift had been made. This is the first statute that notices the taking the profits by one where the estate at law is in

another, Bac. Read. 25. The covenous feoffments, noticed in 52 Hen. III. c. 6, do not appear to have been of this nature, Sanders on Uses, 6th ed. p. 10.

(e) See 1 Rich. II. c. 9. For the same purpose the system of Commendation had been resorted to by the Romans, and their barbarian successors, sup. p. 47, in many instances, no doubt, the two contrivances

were concurrent.

(See Bacon's Read. 25.

(g) By the better opinions the trusts mentioned in the 50 Edw. III. c. 6, and 1 Rich. II. c. 9, and 2 Rich. II. c. 3, were in fact Uses, notes 41 & 48, Bacon's Reading, p. 103 & 111. But the first mention of the word Use (Oeps), in any statute, is in that of the 7th Rich. II. c. 12, Lord Bac. Read. p. 23. The Statute 15 Rich. II. c. 5, by the direction "shall alien them to some other use," (a auter oeps,) indirectly sanctioned Uses for lawful purposes; and these terms would, I presume, include all such lawful trusts as were ordinarily resorted to, therefore special trusts as well as uses.

(h) Fenwick, J., 15 Hen. VII. 13, said, that when the stat. 2 Hen. V. c. 3, stat. 2, (under

441

Jurisdiction over Uses in the Court of Chancery.

In the reign of Edw. IV., at which time this mode of conveyance had become fully established, the judges expressly held that an use was not forfeitable by attainder (a); this would of course confirm the practice.

But perhaps the most powerful reason for resorting to feoffments upon trust was (b), that it afforded a means of regaining the power of devising real estates, and charging them by will with portions for younger children, and other purposes of convenience (c), which, as we have seen, was wholly extinguished by the effect of the laws affecting real property which were established at the Conquest: for the technical reasons connected with tenure and livery of seisin, which prevented alienation of the legal estate by devise (d), were wholly inapplicable to the devise of an use which was merely a direction as to how the legal tenant [*442] should dispose of the estate or the profits, and did not affect to interfere with the descent of the legal title or with the legal possession (e). It is to be observed that the then existing law as to wills of personal estate, afforded an analogy on which to rest devises of uses; for a will of personal estate, as we have seen, was in effect a gift of a benefi cial interest or use only, the legal interest being in the executor (f): however, from whatever cause, as will hereafter be more particularly noticed, uses in fact became devisable.

SECTION III.-Origin of the Jurisdiction of the Court of Chancery as to Uses and Trusts.

Whatever might be the purposes for which feoffments in trust were made, the Courts of Common Law did not recognize them as giving any right in regard to the land or its profits (g). At law, the creation of uses and trusts of land was treated as wholly repugnant and void (h), a confidence contrary to a man's own feoffment could not be regarded (i); besides, the cestui que trust having, as it was held, neither jus in re nor jus ad rem (k), there was no form of action at the common law which could possibly have afforded any remedy, either as regards the land or

which, though contrary to the words, it was held that a cestui que trust might be empanneled as a juror,) was passed, the greatest part of the land of England was in feoffment to uses; Co. Litt. 272, is to the same effect. Rich. III., as is well known, from the statute passed in consequence in the early part of his reign, held the estates of a vast number of persons as feoffee to uses.

(a) See Mich. 5 Edw. IV. 7; private Acts were passed when the lands in use were to be forfeited, Bac. Read. 23.

(b) Such feoffments would embrace trusts in the largest sense, though the use would, no doubt, be reserved to the feoffor during his life.

(c) See Sugden's Introd. to Gilbert on Uses, p. xliii.; Bla Comm. 329; Cruise, i. 405, § 36.

(d) V. supra, p. 136, Lord Coke in Wilde's case, 6 Rep. 17 a, gives this additional reason for prohibiting alienation by devise,

"for the ancient common law did favor him whom the common law made heir, that be be in as good estate to serve the Commonwealth."

(e) Co. Litt. 111 b, Harg. note, Bacon's Abr. VII. 80, 6th edition; Gilbert on Uses, 35, Sugd. ed. 70; Com. Dig. Uses, A. VI. p. 427, 4th edition.

(f) V. supra, p. 189.

(g) From Littleton, sect. 462, 463, it appears that the relation of cestui que trust was to some extent recognized; but feoffee to uses could maintain an action of trespass against his cestui que trust, 4 Edw. IV. 8, S. C. Fitz. Spa. 13.

(h) See Gilbert, by Sugden, p. 2; Sugden on Powers, i. 3.

(i) This was finally settled, 4, Edw. IV. 8, Bro. Feoff. al Uses, pl. 45; Sanders on Uses, p. 20; Cruise, i. 395. (k) Bacon, Read. 5.

Jurisdiction over Uses in the Court of Chancery.

442

the profits. If the law had interfered at all, it could only have been by giving a personal remedy for a breach of the confidence reposed (a).

It will have been anticipated that trusts in fact became cognizable in the Court of Chancery alone, how and when we have now to consider.

As regards conveyances to trustees, with a view to the trustee and his heirs continuing to be permanently seised of the legal estate, but for the benefit or use of religious bodies, which as before observed [*443] were properly uses in the more modern acceptation of the term, no doubt, on their first introduction, persons were chosen as feoffees who could be well trusted (b); and the moral and spiritual influence of the clergy was a powerful instrument to secure, on the part of their trustees, a due performance of the trust. But there were other trusts for their benefit, such as obits and gifts of the use of lands on condition to pay a salary to chantry priests (c), where they had not the selection of their trustees, and these trustees might not always be willing to perform the trust: perhaps it was with a view to some additional check upon their own trustees, that the clergy were so anxious to secure to themselves jurisdiction over questions of breach of faith (fidei læsio) (d). Deprived of this resource we might possibly have found the abbots and monks among the first of the applicants to the Clerical Chancellors for aid in securing the faithful performance of the duties of their trustees; but the statute 15 Rich. II. c. 5, which denounced the evasions of the Statutes of Mortmain, through the medium of feoffinents to uses, as illegal, was passed concurrently with the establishment of the Court of Chancery in that reign (e). This put a stop to all such applications on the part of the clergy, if any such had ever been made.

As regards conveyances upon trust on the part of the Laity, it seems that notwithstanding the establishment of the Court of Chancery as a Court of Equity and Conscience, the laity did not venture to apply to this court for a remedy in cases of breaches of trust during the reign of Rich. II., or indeed his immediate successor at least no bills filed for that purpose in those reigns have yet been discovered; it was too soon to attempt to interfere with that sacred thing termed franc tenement before a comparatively secret tribunal. Even in the succeeding reign (f) the Commons complained that many grantees and feoffees in trust alienated and charged the tenements granted, for which, they said, there was no remedy, and they prayed that one might be provided by Parliament (g).

However, in the reign of Hen. V., at which time, as we have seen, the greater part of the lands in England was held by feoffees in trust, it was no longer possible to leave the fulfillment of trusts to the influence of the mere dictates of honor, or the coercion of the confessor. The *Chancellor, therefore, as a Judge for matters of Conscience, was applied to, and the applications were entertained (h). Still the

(a) And accordingly, as after mentioned, at one time such actions were brought. (b) Bacon's Read. p. 17.

(c) See Bacon's Reading, p. 18. (d) V. supra, p. 118. In the early bills in the Calendars published by the Record Commissioners, vol. i., trusts treated as

cases of good faith and conscience.
(e) Supra, p. 440.

[*444]

(f) 4 Hen. IV. Rot. Parl. p. 511.
(g) See Hallam, M. A. iii. p. 211.

(h) See Cal. vol. i. p. 13; vol. ii. p. 3. The applications are put specifically on the ground of want of remedy at law. "Natu

444

Remedy originally afforded as regarded the Trustee.

recorded instances in this reign are not numerous, but there are many in the reigns of Hen. VI. and Edw. IV. (a).

The advantages of the peculiar jurisdiction of the Court of Chancery, as applicable to such cases, must soon have been discovered. Decrees were made ordering conveyances to be executed by the trustee, according to the directions of the cestui que trust (b); also decrees for the carrying into execution the trusts declared by the will (c) of the feoffor (d)..

Many of the trusts so ordered to be executed, were created for making a provision for the family of the owner, the payment of his debts, and other beneficial purposes (e), all of which must have failed but for the jurisdiction exercised by the Court of Chancery, unless indeed the Council could have been prevailed upon to interfere. This must have greatly tended to mitigate the complaints against the jurisdiction, which, as we have seen, were at one time so vehemently urged (ƒ).

[*445] *SECTION IV.-Extent of the Remedy originally afforded by the Court of Chancery so far as regarded the Trustee.

Down to the time of Hen. VI., the cestui que trust could only proceed in the Court of Chancery against the feoffee in trust himself; indeed it was insisted by the Common Law Judges in the reign of Edw IV., that a subpoena did not lie against the heir of the trustee (g); afterwards, by universal consent, it was extended to his heir, and then to alienees with express notice of the trust (h), or without valuable consideration, in which case notice was implied. But a purchaser of the legal estate for valuable consideration bond fide, without notice, might then, as now,

ral justice said, that he who breaks his trust does wrong, so cestui que use was driven into Chancery, ('the general conscience of the realm, that is, Chancery,' Fenner, J., cited Bacon, Read, p. 10,) by breach of faith," Lord Mansfield, Burgess v. Wheate, 1 Eden, 218.

(a) The bills from Hen. VI. downwards, filed for other purposes, also occasionally recite conveyances upon trust. V. int. al. Cal. ii. p. 40.

(b) See Decrees for Conveyances, Cal. ii. p. 21. 28, temp. Hen. VI.; ibid. vol. i. p. 90. 94, temp. Edw. IV.; ibid. ii. p. 38, temp. Hen. VI. against the heir of the feoffee: this case proceeded to rejoinder; several such cases are referred to in Bro. title Con

science.

(c) One of the earliest bills is by a widow against a feoffee in trust, complaining of his refusal to make an estate to her according to the will of her husband and father in law, Rothewater v. Wychingham, Cal. ii. p.3, temp. Hen. V.

(d) Cal. vol. ii. p. 23, temp. Hen. VI.; ii. p. 51, temp. Edw. IV.; i. p. 115, temp. Rich. III.; in p. 114, is a bill against a feoffee to raise a portion; et v. p. 117, cited below; Cary, p. 14, ed. 1650, 15 Hen. VII. 12.

(e) See Cal. i. p. 21, temp. Hen. VI. In the same reign there is a decree for a con

veyance to be made according to the will of the grandfather, giving a married woman an estate tail, ii. p. 40. Cal. i. p. 117, temp. Rich. III. is a decree for sale, and a direction that the proceeds be applied in payment of debts, and then if sufficient in payment of legacies according to the directions of the will of the feoffor, Ryppe v. Chevyn, Coke v. Garnon, i. 114, temp. Rich. III. is a bill by husband and wife against feoffee in trust, to raise the wife's portion.

(f) The remedy provided by the common law, where lands, devisable by custom, were devised to executors or others for payment of debts, and they failed in their duty, was an entry by the heir, Litt. § 383, this of course equally defeated the trust. V. sup. p.

345. 347.

(g) 8 Edw. IV. 6, Bacon's Read. 23; Cary, p. 22. One of the bills in the Calendars (ii. p. 38), of the time of Hen. VI., is by a husband, against heir of feoffee in trust of land settled on the plaintiff for life, to compel him to convey, with replication and rejoinder.

(h) Contrary to the rule of law which was established so early as temp. Edw. III, Bacon, Read. 15, that "wheresoever the common law findeth consideration given, it dischargeth covin," ibid.

System of Equitable Jurisprudence formed.

445

holdthe land discharged of any trust or confidence; the only remedy was against the feoffee, or his executor if the feoffee were dead (a).

If the feoffee to uses died without heir, or committed a forfeiture, or married, neither the lord who entered for the escheat or forfeiture (b), nor the husband who retained the possession as tenant by the curtesy, nor the wife to whom dower was assigned, was liable to perform the trust, because they were not parties to the transaction, but came in by act of law, or in the post, and not in the per, as it was said, though doubtless their title in reason was no better than that of the heir against whom the remedy was extended. It was the same as regards any other person who obtained possession, not claiming by any contract or agreement with the feoffee, between whom and the cestui que use, therefore, there was no privity. "Where there was no trust, there could be no breach of trust." The remedy against a disseisor, therefore, was not in Chancery at the instance of the cestui que trust, but at law at the instance of the feoffee (c); and it was part of his duty to pursue his legal remedies at the desire of the cestui que trust.

As regards the cestui que trust also, privity was in some sense essential to his obtaining relief; thus, on the death of the original cestui que trust, in the case of a simple trust or use, the right to sue a subpoena *was held to descend to the heir as representing his ancestor; but neither a wife, a husband, nor judgment creditor was entitled to this privilege (d).

[*446]

The Courts of Common Law having at length recognized uses and trusts as proper and legitimate subjects of the Chancellor's jurisdiction, the judges, during the reigns of Hen. VI. and Edw. IV., and their successors, were called in, as has already been noticed (e), to advise and assist the Chancellor in his decrees (ƒ), and a system of equitable jurisprudence for the regulation of uses in their creation, enjoyment, and transmission, was formed. I propose now to take a a general view of the doctrines which prevailed as to Uses and Trusts prior to the Statute of Uses; this is important, indeed necessary, for obtaining a just understanding of the nature of uses executed by that statute, and the right apprehension of the nature of equitable trusts; for in those doctrines are to be found the rudiments of the equitable system now administered in regard to Trusts, of which an account will be given in a subsequent Chapter.

(a) Choke, J., 35 Hen. VI. Fitz. Spa. 19; 5 Edw.IV. 70, Ellesmere, 83; Bacon's Abr. VII. p. 72 ; Com. Dig. Uses, A. VI. p. 427; 11 Edw. IV. 8, Bro. Feoff. al Use, 10, Bro. J.; Cary, p. 22; Vide infra, Remedy against Executors of Trustee, and supra, p. 424.

(b) As he might, Y. B. 11 Hen. VIII. 24. "The king, or lord by escheat, cannot be seised to an use or trust, for they are in the post, and are paramount the confidence." -Jenk. Ca. XCII.

(c) 2 Bla. Comm. 330; Cruise, i. 399; Gilbert on Uses, p. 376. 429. The lord on the other hand was not entitled to be aided by subpoena, to have his escheat on failure of heirs of the cestui que trust, 5 Edw. IV. 7; Cary, p. 15.

(d) See Finch's case, 4 Inst. 85, 42 & 43 Eliz. This case deserves remark, as showing how pertinaciously the judges still endeavoured to keep the law of the real property in their own hands; though Popham, J., admitted that covin, accident, and breach of confidence were within the proper jurisdiction of the Court of Chancery, ib. 86. (e) Supra, p. 383.

(f) It was with the sanction of Fortescue, C. J., that the remedy by subpoena was extended against the heir of the feoffee, see Bacon's Abr. VII. p. 72, (B. 1.) Lord Ellesmere, in his Treatise, p. 79, et seq., has collected many of the decisions in which the judges assisted.