If, therefore, B. refused to account to his cestui que CHAPTER II. law judges re fused to notice uses. use (b) (A. or C.) for the profits, or wrongfully conveyed The common the estate to another, this was merely a breach of confidence on the part of B., for which the common law gave no redress; much less did that law acknowledge any right in A. (or C.) to the possession or enjoyment of the land. The ordinary judicature knew no other proprietor than B.; to him, and to him alone, attached the privileges and liabilities of a landholder; for he it was, to whom the possession was legally delivered. To have regarded A. (or C.) in any other light than that of a mere stranger to the soil, would have been to subvert a system raised upon investiture and tenure. It was accordingly decided at a very early period (c), that the common law judges had no jurisdiction whatever in regard to the use. But, under the auspices of an ecclesiastical chancellor, the use, though alien to the soil, took root in our civil jurisprudence, and attained to a degree of influence and importance which at length almost superseded the ancient polity. Means were soon devised for compelling B., the owner in point of law, to keep good faith towards A. or C., the owner in point of conscience. The King, in his Court of Chancery, assumed jurisdiction to extort a disclosure upon oath of the nature and extent of the confidence reposed in B., and to enforce a strict discharge of the duties of his trust. Hence EQUITY arose. From this period, when the right of A. (or C.) became cognizable in the Court of Chancery, we may speak of him as the equitable or beneficial owner, and of B. as the legal owner. But in order to preserve a clear perception of the twofold character of the system, we must keep steadily in view the fact that B. had still the real right, to (b) Cestui a que use, he to whose use the property was conveyed. (c) 4 Edw. 4. Uses upheld Chancery, as charging the and enforced in conscience of but not the the legal owner, land. CHAPTER II. Opposite characters of the equitable ownership. be enforced, on one side of Westminster Hall, by judgment of law in rem, which went at once to the possession of the land itself, while A. (or C.) had nothing more than a mere right in personam, to be enforced on the other side of the Hall, by subpoena (d), directed against the individual trustee. The Chancery, in assuming jurisdiction over the use, left untouched and inviolate the ownership at the common law. It exercised no direct control over the land, but only coerced and imprisoned the person of the legal owner who obstinately resisted its authority. It usurped none of the powers or functions of a court of law, but, leaving to the latter the redress of wrongs done to the realty, confined its jurisdiction to matters of trust and confidence, which could not be reached by the arm of ordinary justice. Now, a moment's reflection will point out the essenlegal, and the tially different nature of the legal, and of the equitable ownership; of the estate in the land, and of the use. The latter, being the creature of conscience, the offspring of moral obligation, could not be the subject of tenure; it could yield no fruits, owe no duties to the lord. It was neither liable to forfeiture, nor susceptible of livery. As the rules of tenure, to which we have adverted, were inapplicable to this secret and subtle agent, often created by a breath and destroyed by an oath, the ownership might be moulded and shifted, through the medium of the use, to answer various purposes unattainable at law. Contingent dispositions of the use were not exposed to those accidents to which contingent remainders were liable. The use, too, might be transferred without any of the ceremonies requisite to convey the land. Uses not amen In short, by the introduction of uses, as well the cardi (d) Richard. 2; 4 Bligh's Parl. Rep. O. S. 118. CHAPTER II. of the common nal maxims of the feudal policy, as many of the subordinate rules of property, were virtually defeated. The clergy, able to the rules who were prohibited by law from purchasing land, but law: who could now take the profits to any extent without becoming the legal owners of a single rood, increased their possessions. The factious baron vested his estate in a few confidential friends, and committed treason with comparative safety. The peaceful proprietor, adopting the same precaution, enjoyed and disposed of the beneficial interest, unvexed by the exactions of the lord, and regardless of the rules of the common law. That system, of which the foundations were laid in the soil, which was held together by tenure, and which directed the whole force of its policy to bind, regulate, and manifest the relationship of lord and vassal, could find nothing congenial in the unsubstantial use. It had never contemplated the possible existence of the beneficial interest as a naked right abstracted from the land. When it required that there should always be a freeholder in possession; that a new tenant should not be introduced without the knowledge of the lord; that the tenant should render service and tribute to the lord; injoining, therefore, as well regularity in the order of substitutions, as publicity of conveyance, and visiting with forfeiture acts of insubordination,-it plainly excluded, no less by its institutions than by its genius, the mere beneficial right. Where land was conveyed to A., to the use of B. -nor liable to for life, it would have been absurd to hold, that, if B. arrogated to himself the ownership of the fee, his use was forfeited-forfeited, wherefore and to whom? The use was matter of confidence between himself and his trustee A., being held by the tenure of A.'s honesty. So, where land was conveyed to A., in fee, to the use of B. for life, and after B.'s death to the use of the unborn forfeiture, CHAPTER II. as to the modi fications of ownership; children of C., or to the use of B. in fee, and on pay-nor restricted ment to him by C. of 107., then to the use of C., it would have been equally unreasonable to require, in the former case, that the children of C. should be in existence to take the benefit at the very instant of B.'s death, and to prohibit, in the latter case, the eventual shifting of the benefit from B. to C. With what show of equity could A., the trustee, have refused to fulfil the one destination, because it did not immediately succeed, or the other, because it tended to abridge the preceding destination; or, indeed, have refused to obey any reasonable direction of the owner? Again, if land was conveyed to A. and his heirs, to the use of B. and his heirs, was it possible, that, on a sale by B. to C., there could be any solemn delivery of the use? or that, on the death of B. without an heir, the lord could claim the use in right of his original dominion over the soil? While, therefore, the land itself remained under the yoke of tenure, the use issued forth a new creation, free to receive every varying impression, and, admirably fitted by its ductility and secrecy, for many salutary as well as many fraudulent purposes. -or the form of conveyance. Equitable in terests were devisable. Opprobrious Among the benefits conferred by uses upon the landowner, the power of disposition by will (e), a power which seems necessary to complete the idea of property, but which to our own times belongs the merit of maturing and consolidating (f), was one of the most valuable and important. The land itself was not yet devisable, but the legal owner was bound in equity to observe the testamentary destination of the person to whom the use or beneficial right belonged. So utterly repugnant were uses to the principles of the (e) So, trusts, fidei-commissa, and hæreditates fidei-commissariæ, were introduced among the Romans to evade certain restraints on Just. testamentary disposition. (f) Vict. c. 26. (Post, common law, or rather, so hostile was the spirit of that CHAPTER II. stowed upon law to the facilities which the use held out, that the lan- epithets beguage of the old books and statutes in speaking of this uses. novelty, is the language commonly of reproach, and sometimes of horror. Contemporary lawyers and legislators describe uses as subtle and crafty, devised by fraud to cheat the king and all other lords; to deceive purchasers, to raise trouble and unquietness between the subjects of the realm. By those enthusiasts in the cause of feudality, they are even styled impious, although nurtured in the bosom of the church, and enforced in Chancery as obligations binding on the consciences of men. Contracts creating uses were now frequently substi- Equitable contuted for conveyances of the land. Under the old law uses. tracts, raising SALE. alienation was rare; when a sale did take place, the land was conveyed at once by open delivery to the purchaser. But uses introduced the practice of making an BARGAIN and agreement to sell, which bound the conscience of the vendor, who, continuing in the legal possession, was considered as holding it to the use of the vendee. EQUITY would not enforce a gratuitous agreement (nudum pactum), but lent its aid to a purchaser who gave a valuable consideration in money or money's worth. The existence of that necessary ingredient was implied in the very name of the transaction, a BARGAIN AND SALE (g). STAND SEISED. Sometimes the legal owner, desirous of settling his COVENANT TO estate on marriage, or of fixing it in his family, covenanted to hold and dispose of the land to uses in conformity with the intended destination, instead of making either a direct legal settlement upon the objects, or a legal conveyance to trustees for their benefit. EQUITY enforced the obligation, so far as the uses were sustained by the con (g) Post, Vol. II., App. Prec. No. 17, n. |