case, for want of a competent proof of the trust which had been reposed in the feoffees.-That this proof was wanting in many cases is evident from the chancellor's afterwards issuing the writ of subpana to compel the feoffee to answer before him respecting such trust; see Reeves's Hist. Eng. Law. 193. for if there had been sufficient evidence of the trust by writing or otherwise, there could not have been any necessity for extorting from the feoffee a confession of the fact by means of the subpana. But, when, in consequence of that writ the chancellor possessed the power of giving remedy, it does not seem probable that he then made question to do so; because uses at that time were mostly for the benefit of the clergy, and the chancellor who was himself an ecclesiastic, no doubt shewed the utmost favour to such uses; indeed the subpand, according to Blackstone, (3 Black. Comm. 52.) was, by Waltham Bishop of Salisbury and chancellor to Richard the second, devised for the very purpose of making the feoffee to uses accountable to his cestui que use, as it hath been already observed in note 5.

It seems more reasonable to suppose, that the chancery first made a difficulty about giving any remedy after the use had been made subject to the statutes of mortmain; for when the clergy could no longer be benefited by the use, it is probable that the chancellor, (whose chief inducement in compelling the feoffee to a performance of his trust had been to benefit the clergy) did then refuse the subpæna to other persons.

Another reason, why the chancellor about the time that the use was made subject to mortmain might probably have hesitated to give remedy, is, that he was at that time very narrowly watched by the legislature, and

his

his newly constituted authority attempted to be controled. See 3 Reeves's Hist. of Eng. Law. 193.

NOTE 33. p. 20. (n).

That is to say-"fear in times of trouble and civil wars to save their inheritances from being forfeited; and fraud, to defeat due debts, lawful actions, wards, escheats, mortmains, &c." See 1 Rep. 121, 123.

As the gentleman, (I. P. Smith, Esq. of Gray's-Inn,) to whose circumspect research the profession is indebted for the discovery of the original manuscript of Lord Coke's Commentary on the tenures of Littleton, (See the Law Journal, v. 3. p. 117.) expresses himself to be not without hopes of obtaining Lord Coke's reading upon the statute of uses also, to which our author refers, the profession must indulge with pleasure the expectation, of shortly having an opportunity to make so valuable an addition to their libraries. Comprising (as no doubt it would be found to do) a comprehensive and methodical discussion of the subject, it is indeed a desideratum. If however it should not be found, there will be the less reason for regret in consequence of the very full view with respect to the learning of uses, which hath been taken by Lord Coke in his argument on Chudleigh's case, and the other cases in his reports in which he bore a part.

NOTE 34. p. 21. (o).

Our author here attributes the first practice of uses to the reason that the lands were not devisable, in other words, to the desire of having an indirect testamentary power over the lands by devising the use or profits; and it seems likely, as the ecclesiastics generally obtained their benefactions from dying persons, that the

doctrine

doctrine of an use being devisable although by law the lands themselves were not, was established for the very purpose that some of the frauds to which Lord Coke alluded might more easily be committed, as for example, the evasion of the statutes of mortmain. See 2 Black. Comm. 328. ·

NOTE 35. p. 21. (p).

Our author hath just before informed us, that he had considered what the commencement and proceeding of uses had been in course of common law; and what it had been in course of statute; and he is now about to make his reader acquainted with the result of such his examination and reflection upon the subject: and in considering what it hath been in course of common law-he in the first place attempts to expose the weakness of one opinion upon the subject to which he could not accede, viz. that the use succeeded the tenure.

Pollard and Shelly were contending, that,-an use was not at common law, for that it could not be maintained to be at the common law unless it had had continuance beyond the time of memory, which is beyond the time of King Richard the First; then, in order to show that it was not so ancient, they advance the argument that the use succeeded the tenure, that is to say, that before the statute, Quia emptores terrarum, 18 Edw. I. (passed a long time subsequent to the time of memory,) when a feoffment was made the law created a tenure between the feoffor and the feoffee, which tenure being a consideration, caused the feoffee to be seised to his own use; and that it was not until after the tenure had been taken away by that statute that there was an intendment of an use to the feoffor where a feoffment was made without consideration;

and

1

and therefore, inasmuch as uses must have had their commencement after the statute Quia emptores terrarum an use could not be at common law and as the use had not been created by any statute there consequently could not be any good uses. See the Year book 27 Hen. VIII. 8, 9. Lord Dacre's case. The other case 24 Hen. VIII. is to be found in Bro. Abr. feoff. al. uses, pl. 40.-Now, supposing this doctrine to be correct, it would follow that uses commenced so early as the reign of Edward the First when the tenure between the feoffor and feoffees was taken away by the statute Quia emptores terrarum; and therefore our author, who contended that the first practice of uses was not until the reign of Richard the Second, being a space of upwards of 80 years after that statute, opposes the doctrine by showing that the argument in support of it goes for nothing, because by their own reason if the feoffment had been tenendum de capitalibus dominis there would have been an use to the feoffor before the statute. And again-if the use was to the feoffor where there was no tenure, then if a grant had been made of things not consisting in tenure there should have been a use of them to the grantor; but instead of the use being to the grantor in such cases, the law was quite contrary; for after the time that uses grew common, it was doubtful, whether things lying in grant did not carry a consideration in-themselves because of the deed.-The argument was advanced by Pollard and Shelly in the cases above referred to, with the view of proving that uses were not at the common law; but our author's object in disproving it, is, lest otherwise any conclusion may be drawn from it that uses were so ancient as the time of Edw.I.-his reasons for thinking that uses may be properly said to be at the common law are stated in the next page.

NOTE

NOTE 36. p. 21. (9).

These words appear to imply that whenever a feoffment was made before the statute Quia emptores terrarum, it must have been tenendum de capitalibus dominis; that however was not the case, for it was. this very statute that required it.

Before the statute Quia emptores terrarum, tenants could not de jure alien or transfer the tenure itself without the licence of the lord; in other words, they could not enfeoff tenendum de capitalibus dominis without the consent of those lords; but they might have given a part of their lands to hold of themselves, and a feoffment always created a tenure between the feoffor and feoffee. The statute, took from the tenants the power of disposing a part of their lands to hold of themselves; and instead of it gave them a general liberty to sell all or any part to hold of the next immediate lord. See Wright's Tenures from page 152 to 160, and authorities.

The words of the statute are de capitali domino, but they are to be understood of the next immediate lord. See Lord Coke's exposition of this statute, 2 Inst. 501.

Lord Bacon must not therefore be understood to speak of feoffments in general before the statute; but, where there was an alienation with the consent of the lord; and confined to such cases his argument holds good.

NOTE 37. p. 22. (r).

This opinion will derive strength from the reflection, that when the clergy could be benefited by the use and more especially before the introduction of the subpana, it would not have answered the purpose to have constru→ ed an use in the feoffor; because, when it was intended