CHAP. I.

Alleged simplicity and safety of the common law.

But the publicity of livery and attornment declined with the feudal system.

the transfer of the tenement by will would have been to sacrifice the principles already developed, together with the valuable fruits of tenure arising from descents.

Since the modifications of property were so few and so simple, and since either livery, entry upon the land, attornment, or matter of record, was essential to every disposition, our ancestors were necessarily strangers to the intricacies of modern titles, and to that perfect secrecy and ease with which rights to real estate may now be created, transferred, varied, or defeated.

But in speaking of the notoriety which formerly attended the transfer of land, we must be understood to point at a very early period, when feuds were yet maintained in all their purity and strictness. Then every manor presented a little society of warriors and husbandmen, combined for mutual defence and support. As a new associate could not be introduced without the privity of the lord and his existing tenants, livery was a public installation, witnessed and sanctioned by the federal body. As a strange lord could not be imposed upon the tenants against their will, attornment was the open adhesion of the vassals to a new chief. In either case the transaction was recorded, or at least promulgated, in the court of the seigniory. Even among the Saxons the transfer of land was authenticated by inrolment in the local court. While substitutions, or, in other words, particular estates, with expectant remainders, were either unknown or extremely rare, and while a conveyance, therefore, was merely a transfer from one individual to another of the present possession, which carried with it all the rights consistent with the then limited notions of ownership, perfect publicity was insured. But when the feudal severity began to

secret feoff

abate, when alienation grew more frequent, and artificial CHAP. I. modifications of property sprang up, livery and attornment lost much of their solemnity. The possession was now Frequency of delivered in the presence of only a few casual witnesses, ments and and if the land was destined to be enjoyed by A., the grants. feoffee, during his life, and after his death by B. and his heirs, the intention was either declared by parol (i. e. by word of mouth,) or by an unrecorded instrument, called a charter of feoffment. (a) Thus, neither the change of possession, nor the nature of the destination, was sufficiently promulgated. Again, if B. afterwards, in the life-time of A., made a grant (i. e. by deed) of his (B.'s) remainder in the land, the attornment or consent of A., the life-tenant, was sufficient to complete the transaction. Thus a right to the future possession, which had been privily created, was yet more privily (though more certainly) aliened. Hence, long before the introduction of uses (of which we shall presently speak) complaints were not wanting of secret assurances of land.

of the common

law.

Large deductions must, therefore, be made from the Inconveniences praise lavished on the ancient common law, when its provisions are said to have promoted security of enjoyment, simplicity of title, and notoriety of transfer. As civilization advanced, it proved less and less sufficient to attain those favourite objects of its founders, while it was manifestly ill-adapted to meet the growing demands of freedom and commerce. The rules of ownership and modes of assurance, which we have endeavoured to explain, composed a rigid and cumbrous code, utterly inadequate to the extended views and complicated interests of an intelligent and wealthy community. The progress of society called for a more pliant and liberal policy.

(a) Vide infrà, Prec. Part I.

CHAPTER II.

OF THE NATURE AND EFFECTS OF USES.

CHAP. II. Introduction of equitable in. terests, under

the name of USES.

Nature of a

use.

The common law judges refused to notice

uses.

HITHERTO the system was purely possessory, founded on the direct dominion over the land. An important change was effected by the introduction of equitable interests, founded on confidence in the person. The estate of the old common law proprietor was actual and apparent; the right of the new beneficiary presented nothing either tangible or visible. The legal owner of the land contracted a moral obligation to hold or dispose of it for the benefit of another, who was said to have the USE. Thus A. conveyed land to B., to his (A.'s) own use, or to the use of C. This declaration of the use charged the conscience of B., the legal feoffee or grantee, but did not attach itself to the land; for (says Lord Coke) "it would be absurd to say that confidence and trust can be reposed in land, which, in regard to sense, is inferior to brute beasts, and it would be less absurd to say that beasts may be trusted, who have sense and want reason, than that land, which wants sense and reason also, may be trusted." (a) If, therefore, B. refused to account to his cestui que use (A. or C.) for the profits, or wrongfully conveyed the estate to another, it 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 enjoy(a) 1 Co. Rep. 127, a.

ment of the land. The ordinary judicature knew no CHAP. II. 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 (a) that the common law judges had no jurisdiction whatever in regard to the use.

Uses upheld and enforced by the

Court of Chancery, as binding

the conscience

owner, but not

But under the auspices of an ecclesiastical chancellor, the use, though alien to the soil, took root in the system, and attained to a degree of influence and importance which at length almost superseded the ancient polity. Means of the legal were soon devised for compelling B., the owner in point the land. 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 be enforced on one side of Westminster Hall by judgment of law in rem, directed against the land itself, while A. or C. had nothing more than a mere right in personam, to be enforced on the opposite side of the Hall, by subpœna, (b) directed against the individual The Chancery, in assuming jurisdiction over (a) 4 Edw. 4. (b) Richard 2.

trustee.

CHAP. II. the use, left untouched and inviolate the ownership at common law. It exercised no direct authority over the land, but only coerced and imprisoned the person of the legal owner who obstinately resisted its authority. It did not usurp any 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.

Opposite

Now a moment's reflection will point out the essentially characters of the different nature of the legal and equitable ownershipslegal and equitable ownership. of the estate in the land, and the use. The latter, being

Uses not amen

of the common

law,

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 at law. The use, too, might be transferred without any of the ceremonies requisite to the conveyance of the land at law.

In short, by the introduction of uses, as well the carable to the rules dinal maxims of feudal policy, as many of the established rules of property were virtually defeated. The clergy, who were prohibited by law from purchasing land, but 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