ed, the feoffee would re-enter, or bring an action to recontinue the possession . "where the SECT. I. Definition of the use. SECT. II. Distinct on be trusts. (3.) II. Sir Francis Bacond says, "trust is not special, nor transitory, but ge- tween uses and "neral and permanent, there it is a use." A feoffment was made in fee, by which the possession, or seisin, was transferred to the feoffee; and a confidence, or trust, was placed in him to permit the feoffor, or any other person, and his heirs, to receive the rents and profits; and also to make such legal estates, as he or they should direct. This confidence was the use for the feoffee had a permanent estate in fee on the lands, subject to the use, or distribution of the profits. The fiduciary or beneficial interest was commensurate to the legal estate. But a trust did not make this regular division of property into use and possession; it signified, that the grantor had executed a conveyance of the lands, by which he had not only transferred the possession; but also the use, or right to take the profits; reposing a personal trust in the grantee, that he would retain both, in order to answer some special purpose. Thus if he made a conveyance in trust, or to the intent, that the grantee should convey to a third person, the trust placed in the grantee was not to • See Year Book 2 Edw. * See Bacon, Uses, 9. 4. 2. b. SECT. II. pay over the profits, but to dispose of the Distinction be- profits and the possession. tween uses and So if a man had enfeoffed another to the intent, or in trust, to be re-enfeoffed; or to the intent to be vouched; or to the intent to suffer a recovery ; none of these intents, or trusts, were uses. The trust above described is called by Sir Francis Bacon, "the special trust lawfuli." But there is a special trust unlawful, which, he says, was created to the intent, "to de"fraud creditors, or to get men to maintain suits, or to defeat the tenancy to the præ 66 cipe, or the Statute of Mortmain, or the "lords of their wardships, or the like'; and "those are termed frauds, covins, or collu"sions." In another place he adds (speaking of the special trust lawful), "And this we call confidence, and the Books do call them, in" tents; and therefore these three are to be distinguished, and not confounded; the covin, confidence, and use. Upon the introduction of uses, the Court of Chancery assumed an exclusive jurisdic Bacon, Uses, 8. h2 Salk. 676. See Shep. Touch. 526. i Bacon, Uses, 8. * Page 9. SECT. II. tween uses and tion over them; and during the exercise of that jurisdiction previously to the statute of Distinction beuses, its decisions were not free from the trusts. scruples of the common law: and from considerations arising from the laws and principles of tenure, and from the nature of the limited and inferior estates of tenants in tail, for life, and for years, it was determined, that neither tenant in tail, for life, nor for years, could stand seised to a use. The trust therefore declared upon the estate, or seisin, of a tenant, having a limited interest, was not, strictly speaking, a use a. It must follow, that if the Court of Chancery did not acknowledge the beneficial interest of the cestuique trust, he was without remedy; and consequently, that in those cases, where the trust was declared upon the seisin or estate of a person, not capable, according to the then contracted rules of equity, to stand seised to a use, the subpana did not lie against the trustee to compel him to perform the trust. It is probable, that the distinction, which has been taken between uses and trusts, may to some appear controvertible, But the opposers of it must contend, that the special trust before described, and the trust declared a Vide post 40. & seq, SECT. II. tween uses and trusis. upon the seisin of a tenant in tail, or for life, Distinction be- and upon the possession of a tenant for years, was within the statute 1 Richard 3. c. 1.; and consequently, that the cestuique trust might have conveyed the legal estate without the concurrence of the trustees, in whom it was vested a construction, which, so far as it concerns the special trust, and the trust declared upon the possession of a tenant for years, would lead to practical consequences of considerable importance, but which I shall attempt to show in a subsequent part of this essay, is not tenable. (9.) SECT. III. The introduction of trusts. (10.) III. It is impossible to fix the precise period, when the use or trust was introduced into England: but conjecture has not been idle in attempting to supply the want of positive information. I do not mear to inquire, as to the origin of those personal trusts, which are better known in our law by the name of deposits, or bailments; for imagination can scarcely trace a period so remote, in which man, in society, was not sometimes induced to. entrust another with the object of his care, or the fruits of his industry. A special trust seems to have been the root from which the permanent use arose; or, as Lord Bacon observes b, "a trust was • Vide post 40. & seq. Bacon, Uses, 9. tion of trusts. "the way to a use:" and in another place, SECT. III. "the special intent unlawful and covin- The introduc"ous, was the original of uses, though "after it induced to the lawful intent, general "and special." The progress indeed from the trust created for a special or transitory purpose, to the general or permanent use, seems to be so natural, that the proof of it does not require the aid of authority. 66 Mr. Selden has stated, that "Ethelred, "Ealdorman of Mercland, had all that, which was the kingdom of Mercland, to his own use, as an ealdoriman, and fief, given him "in marriage with Ethelfled by her father 'King Alfred. Londoniam caput regni Mer"ciorum (saith William of Malmesbury) cui"dam primario Ethelredo, in fidelitatem suam "cum filia Ethelfleda concessit." He adds, 66 saleable or grantable at Yet the point seems to have been discussed in Lord Dacre's case, 27 Hen. 8. 7. b. (Year Book). The question was whether a use was devisable? It was contended, that the use being a novelty in the law, it could not be devised, because a devise, at that time, must have been supported by a custom. It was answered by York, that a use was merely a trust, which was at common law; for confidence was necessary between man and man; and that this trust was always, (11.) |