tinction was made between real and personal property;' but under the feudal system of land tenure, introduced into England by William the Conqueror, all the land of England came to be owned by the king. In the year 1086 all the great landowners in England attended the king at Sarum and consented to become his tenants, and did homage to him, and promised him in return for the use of the land either knight services, or other services required by the king and his household. These great landholders then followed the same system with respect to those living on their land. Thus all land was said to be enfeoffed, or intrusted to the tenant; and the mode of transferring land in this period was by feoffment (referring to the agreement or covenant between lord and tenant) accompanied by livery of seisin. Livery of seisin was accomplished by the person enfeoffed of the land actually occupying it or having it handed over to him symbolically by a twig or piece of earth from the land in the presence of witnesses.2 The inheritance of land was carefully safeguarded to prevent it from coming into the hands of enemies of the king. This was done by the system of wardship, laws regarding the inheritance of land, and a system of taxation of the devolution of land.3 By wardship in the case of land held in knight's fee or by military tenure as it came to be called, was meant that in case the legal heir to the land was a minor at the time of death of the tenant, the land went under the control of the lord as likewise did the person of the heir. The lord was the guardian of the property and of the person of the heir until he came of age. But he was a guardian who did not have to render an account at the end of the guardianship. Wardship in the case of land held

1 Reeves, History of English Law, Vol. I, p. 11.

2 Ibid., Vol. I, pp. 90-4. Feoffment originally meant the granting of a feud or fee, that is a barony or knight's fee, for which certain services were due from the feoffee to the feoffor; this was the proper sense of the term; but by custom it came afterwards to signify also a grant of a free inheritance to a man and his heirs, referring rather to the perpetuity of estate than to the feudal tenure. Feudal tenure was hereditary by the time of William the Conqueror. Cf. Walsh, History of English and American Law, pp. 43-4.

Reeves, History of English Law, Vol. I, pp. 11, 105, 235, 260, 284, and Vol. II, pp. 62, 110, 149, 207, 231, 235, 305, and Vol. III, pp. 301 and Walsh, op. cit., pp. 61-3.

in socage (land held by virtue of other than military services to the lord) passed to the nearest relatives of the deceased who could not inherit the property, where wardship was required. Guardians of the latter type, that is of land in socage, were required to render an account at the end of the guardianship after 1267 by the Statute of Marlborough. Thus under the feudal system of land tenure, the right to devise land by testamentary disposition was taken away, and not only that, but the inheritance of land was made very costly through feudal dues (heriot and relief) and by reason of the wardships in the case of military tenure under which the lords did not have to render accounts and there was widespread "milking of trusts." This situation, accompanied by the fact that England was developing into a commercial nation and men went on journeys in connection with merchant adventures, and the fact that the crusades took tenants into distant lands, led to the invention of the use, whereby a tenant would leave his land in trust with an eccelesiastic, or with the Knights Templar, or with a guild pending his return. That such trusteeships did exist seems to be clearly evidenced and land was "enfeoffed to the lord to the use of an incoming tenant" or was enfeoffed to the church by one who is going to the Holy Land "ad opus puerorum suorum." A statute of Richard I (1189-99) recognizes the use as property.2 In the second quarter of the thirteenth century the use was employed as a device to enable the Franciscan friars to enjoy property without ownershipsince the rules of their order prescribed absolute poverty.3 Maitland says that in the fourteenth century the use was extensively employed to evade the rigors of the feudal system and to make wills in favor of charity or younger children.* He traces the use, as a purely English institution, back to Domesday Book-at least he says the term ad opus meaning "to the use of" appears in Domesday Book. It is probable that this was simply a way to express feudal tenure at

1 Holdsworth, History of English Law, Vol. I, pp. 238-40.

2 Walsh, History of English and American Law, p. 199; and Sanders, Uses and Trusts, p. 1.

Maitland, F. W., Equity, pp. 24-6; and Walsh, op. cit., pp. 199–200. 4 Equity, pp. 26-7. Cf. Spence, op. cit., Vol. I, p. 441.

first; but in the fourteenth century, in connection with personal property, ad opus is used to describe cases of agency and bailment.

3

Another cause giving rise to the trust is said to have been the Statutes of Mortmain which were designed to put a stop to the increasing amount of land owned by the church. In fact some authorities declare that the desire to evade the Statutes Mortmain constituted the immediate cause for the introduction of the use. However, Maitland does not seem to assume that the use was suddenly invented at the time of the Statutes Mortmain, but on the contrary says, "I must ask you not to believe that either the mass of the nation or the common lawyers of the fourteenth and fifteenth centuries looked with disfavor upon uses. No doubt they were troublesome things . . . and statutes were passed against those who employed them for the purpose of cheating their creditors or evading the law of Mortmain." His remarks immediately following imply that the use was an important economic custom of the time-that it was very popular. Around the year 1500 according to the estimates of reliable historians, more than half the land of England was held in trust. During the War of the Roses (1455-85), many partisans of the houses of York and Lancaster disposed of their property in trust as a precaution in the event of the defeat of their own side, and

1 The Statutes of Mortmain, passed in 1279, put in more positive form restrictions against the giving of land to religious houses. Such restrictions had existed for many years before 1279. According to Blackstone the restriction against such alienations, without license from the crown, existed before the Conquest. Blackstone, Sir. W., 2 Commentaries, p. 269. The 36th clause of the Magna Charta (9th Henry III, 1216–72) prohibited gifts to religious houses. See Spence, Equitable Jurisdiction of the Court of Chancery, Vol. I, p. 440, note c.

2 Holland, T. E., The Elements of Jurisprudence, p. 250. He says in part. "The Statutes of Mortmain, passed to prevent the alienation of lands to religious houses, led to the introduction of 'uses,' by which the grantor alienated his land, to a friend to hold 'to the use' of a monastery, the chancellors giving legal validity to the wish thus expressed." But he then says that this practice was stopped by 15 Ric. II, c. 5, and "uses' continued to be employed for other purposes."

'Equity, pp. 6-7. Cf. in agreement, Walsh, op. cit., p. 200, and Spence op. cit., Vol. I, pp. 439–41.

thereafter the custom was more and more widely adopted.' In 1442, in Rolls of Parliament there appears the statement: "The said Feffees have no title ner interest thereynne, but only upon trust, and to his use to execute his will." 2 Indeed the rise of the use or trust in land must have played an important part in the break-up of the feudal system, although authorities on economic history have not mentioned it as a factor.

In the case of land, trusteeship was sanctioned largely by ties of friendship, religious sense of duty, or by the "king's conscience" through the Chancellor, since they were not recognized by the common law. As early as the reign of Edgar (959-975), a law was enacted to the effect that if a law is too oppressive, a subject shall appeal to the king for mitigation.3 According to Ingulph (a writer who was contemporaneous with Edward the Confessor and William the Conqueror) the function of the chancellor as a remedial jurist was present in the office at least from the time of Edward the Elder (901924).4

The Chancellor was usually an ecclesiastic, being the king's chancellor and at the same time holding a high office in the church-for example, the archbishop of York was frequently also the chancellor. The king was regarded as "the source of justice and the ultimate resource on appeal for such equity as he is pleased to dispense," 5 and the king referred the cases to the Chancellor. This system was slightly modified towards the end of the thirteenth century when the large number of such petitions presented to the king occasioned such a “weight and load of business" that an ordinance was passed to the effect that such petitions were henceforth to be made to the Chancellor direct and if the affairs are so great, "or if they are of Grace, that the Chancellor and others cannot do it without the King, then they shall bring them with their own hands before the King, to know his pleasure; so that

1 Encyclopedia Brittanica, Vol 27, p. 331.

2 New English Dictionary on Historical Principles, Vol. X, Pt. I, p. 432. Robertson, The Laws of the Kings of England, p. 25.

Spence, Equitable Jurisdiction, p. 78. Cf. Robinson, op. cit., p. 64. Also Holdsworth, op. cit., Vol. I, pp. 24-5.

5 Stubbs, Constitutional History, Vol. I, Ch. 11, pp. 337-8.

no petitions shall come before the King and his Council but by the hands of his said Chancellor and other chief ministers. ." Within a century following this, a regular court of equity developed out of these functions of the chancellor, that is, sometime between 1399 and 1422, according to one authority.2

The use finally found protection in the Chancery. It is remarked by Lord Bacon and repeated by Lord Mansfield that before the time of Edward IV (1461-83), there are not six cases to be found relating to the doctrine of uses. But it is observed that in or about the reign of Edward IV the courts of equity began to reduce uses to something of a regular system. There seems to be no record of any decree in favor of a cestui que use before 1446.5

With reference to wills of personal property, in contrast to real property, there were a few striking developments before the Statute of Uses. Such wills, under the feudal system, were "not only legal but usual; for, unless death was so sudden that there was no opportunity for confession, to die intestate was probably to die unconfessed; and of the future state of a person who has thus died there could be no sure and certain hope. We have seen there are traces of this feeling as early as the reign of Canute. It was intensified after the Conquest."" The Coronation Charter of Henry I (1101) provides that his subjects shall be permitted to make wills concerning their

1 Robinson, op. cit., pp. 472-3.

2 Ibid., pp. 910-11. "Although there be as yet no traces of the chancellor having a separate court of his own, either for common law or equitable jurisdiction, it is certain that in the time of Henry II (1154-89), he was looked up to as a high judicial authority, and he occasionally went the circuit as a justice in eyre, or of assize." Robinson, op. cit., p. 269. Ancient writers such as Glanvill, Bracton, Briton, Fleta, never allude to the chancery as a court of equity. Yet the distinction was recognized between law and equity as early as the time of Glanvill, and was inherent in the double character of the judicature. Fleta mentions the hearing of petitions as one of the principal duties of the chancellor and his clerks. Robinson, op. cit., p. 465.

3 Holdsworth, op. cit., Vol. I, pp. 238-40.

♦ Robinson, op. cit., p. 916.

Myrfyrne v. Fallan, Col. ch. xxi.

"Holdsworth, op. cit., Vol. III, p. 418.