will, but in all other cases the testator could only rely upon the good faith of the first taker of his property, to bestow the use according to his directions. This trust or confidence was called fidei commissum, but there were no means whereby the performance of the commission could be compelled. It was called infirmum or precarium, because it depended upon the personal inclination, integrity, and good faith of the person trusted. There were many of these imperfect trusts, where in conscience the first taker was bound to give the beneficial use, or to transfer the property itself, to a third person. Such third persons had an equitable, moral claim or right, but no legal remedy. Under these circumstances, application was made to the Emperor Augustus, and he directed the consuls to interpose their authority, and compel the execution of such trusts. Finally a prætor was appointed, called fidei commissarius, who had jurisdiction over all fidei commissa, and full power to give adequate relief in all proper cases.1

§ 3. It is supposed that these fidei commissa were the models of uses which were afterwards introduced into England by the clergy to elude and avoid the operation of the statutes of mortmain. After the passing of those statutes, which were intended to forbid and prevent the accumulation of the lands of the kingdom in the hands of religious houses and corporations, it became the practice to convey lands to one person for the use of another, or for the use of a corporation. Thus the legal title was in one individual, but the beneficial use was in another. At this time the writ of subpoena was contrived which issued out of chancery, and compelled a person who held a legal title to another's use to answer in chancery, and to perform and execute the use. Thus uses were introduced

1 Ulpianus, tit. 25; Inst. Lib. II. tit. 23, § 2; 2 Fonb. Eq. p. 2; 1 Cruise, Dig. p. 398; and see Willis on Trustees, pp. 1-8, and notes; Bacon, Readings upon the Stat. of Uses, Vol. XIV. pp. 301, 302, Boston ed. 1861.

in England to circumvent the public policy of the kingdom and to avoid the statutes of mortmain, and the writ of subpœna was introduced after the model of the jurisdiction of the prætor commissarius to prevent those persons who were trusted to execute a use, from committing a fraud in refusing to perform it. These contrivances, originating in evasions of the law, were laid hold of during the civil wars of York and Lancaster to facilitate family settlements, and to prevent the forfeiture of estates for treason during those unhappy strifes. Thus conveyances to uses became the common form of transferring land.

§ 4. Under this practice a very refined system grew up. The legal estate was in one person, and the use and enjoyment was in another. There were two titles and estates in the same land, that of the feoffee, who was the legal owner, and yet had nothing, and that of the cestui que use, who had the whole beneficial right and interest, and yet had no legal right or title. He had nevertheless a substantial interest and estate which he could convey, devise, and otherwise deal with, as with tangible property. Great inconveniences arose from this double system. Bacon's Abridgment, Uses and Trusts, sums them up as follows: "By this course of putting lands into uses there were many inconveniences, as this use, which grew first from a reasonable cause, namely, to give men the power and liberty to dispose of their own, was turned to deceive many of their just and reasonable rights, as, namely, a man that had cause to sue for his land knew not against whom to bring his action nor who was owner of it. The wife was defrauded of her thirds, the husband of being tenant by curtesy, the lord of his wardship, relief, heriot, and escheat, the creditor of his extent for debt, the poor tenant of his lease; for these rights and duties were given by law from him

1 Attorney-General ". Sands, Hard. 491. "The parents of trusts were fraud and fear, and a court of conscience was the nurse."

that was owner of the land, and none other, which was now the feoffee of the trust."

§ 5. Many statutes were passed during a series of years to cure or to prevent these mischiefs or hardships. At last the statute of uses, 27 Hen. VIII. c. 10, was enacted, which converted the beneficial use into the legal ownership; that is to say, if lands were conveyed to A. to the use of B., the statute executed or converted the use into a legal estate in B., and divested all title out of A. By the operation of this statute the Court of Chancery lost for a time much of its business; for after the statute the legal title as well as the beneficial use was in the cestui que use, and he could deal with his estate as his own in every respect; he was no longer compelled to appeal to the conscience of the feoffee to uses, nor to the equity powers of the court.

§ 6. But there were certain gifts, grants, or estates to uses which the statute did not touch, and which remained as before the statute. Thus, if A. enfeoffed B. to the use of C., in trust for D., the statute immediately transferred the legal estate to C., and extinguished all interest in B., but it did not touch or effect the use or trust for D. It had been settled before the statute, as a rule of property, that a use could not be raised upon a use. At law such use raised upon a use was simply void. And at law it was held that the statute extended only to execute the first use by transferring the legal estate from B. to C., and that all its powers were exhausted in that act, and thus C. held a legal title in trust or for the use of D., which the statute did not execute.1 And although C. was bound in equity and good conscience to give to D. the use and enjoyment of the estate, there was no remedy for D. at law, and he could only proceed as before the

1 Reid v. Gordon, 35 Md. 183; Croxall v. Shererd, 5 Wall. 268; Matthews v. Ward, 10 G. & J. 443.

statute by subpoena in chancery to compel C. to perform the trust. Again, if A. conveyed land to B. for a term of years for the use of C., the statute did not execute the legal title in C., for it was held, under the words of the statute, that it only executed the legal titles of estates of which the first taker was seized, and that, according to the use of words in the law, no one could be said to be seized of a term of years. Thus in this last case C. could have relief only by subpoena in chancery. And, again, the statute did not execute the legal title to the cestui que use, if the first taker was to perform any active duties in regard to the estate; as if he was to hold the same for a certain time, or if he was to improve or lease the same and pay over the rents and profits to the use of C., the statute left the estate where it was before, and C. had no redress for any abuse of the trust or use except by subpoena in chancery. And, further, the statute did not apply at all to personal chattels given to one for the use and benefit of another. In these four cases the parties beneficially interested in the property, and equitably owning the whole of it, had no remedy at law for any withholding of their rights. The Court of Chancery laid hold of these four instances of a want of redress at law, and by its writ of subpœna compelled the performance of these four uses under the name of trusts. The legislation of our States now recognizes trusts, and provisions and rules are made for their creation, regulation, and duration, and in some States for their administration; but they are still left to the exclusive cognizance and jurisdiction of courts of equity, or to the equity powers of the common-law courts.

§ 7. Thus interests in land became of three kinds: first, the estate in the land itself, the old common-law fee; secondly, the use, which was originally a creature of equity, but after the statute of uses it drew the estate in the land to itself, so that the fee and use were joined and made but one legal estate,

not differing from the old common-law fee except in the manner of its creation; and, thirdly, the trust of which the common law takes no notice, but which in a court of equity carried the beneficial interest and profits, and is still a creature of that court, as the use was before the statute.1 The statute of uses has never been repealed, and is still in force in many of the United States, so that if a trust should now be created in such form that the statute would have executed it if it had been a use, the statute will now execute the trust by giving the cestui que trust the legal title as well as the equitable without any action on the part of the trustee.2

§ 8. It is thus seen that our present trusts are almost identical with the old uses. Of course the growth of this system of jurisprudence has been slow and gradual, and it has sometimes fallen into inconsistencies and absurdities; but the abilities of upright and wise chancellors, aided by a learned and watchful profession, have finally given a regular and simple form to the administration of trusts. Lord Chief Justice Mansfield observed that in his opinion "trusts were not on a true foundation until Lord Nottingham held the great seal. By steadily pursuing from plain principles trusts in all their consequences, and by some assistance from the legislature, a noble, rational, and uniform system of law has since been raised. Trusts are made to answer the exigencies of families, and all other purposes, without producing one of the inconveniences, frauds, or private mischiefs which the statute of Henry VIII. c. 10, was intended to avoid. The forum where they are adjudged is the only difference between trusts and legal estates."4 During the development of this 1 Per Lord Hardwicke, in Willet v. Sandford, 1 Ves. 186; Coryton v. Helyar, 2 Cox, 342.

2 Shep. Touch. 508; post, § 296.

* Penny v. Allen, 7 De G., M. & G. 422.

Burgess v. Wheate, 1 Ed. 223; Philips v. Brydges, 3 Ves. 127; Kemp v. Kemp, 5 Ves. 858.