usual for him to take. For a considerable time the Anglo-Norman law adhered to the ancient Frankish tradition in not distinguishing between contract and title as a ground for specific recovery, and allowed land to be recovered in an action of covenant, so that it would seem that one way or another feoffors were tolerably safe.38

But cestuis que use in remainder were strangers both to the covenant and the possession. There was an obvious difficulty in finding a ground upon which they could compel a conveyance. The ultimate beneficiaries seem to have been as helpless against the salman in the popular courts on the Continent as they were against the feoffee in the Curia Regis. Under these circumstances the Church, which was apt to be the beneficiary in question, lent its aid. Heusler thinks that the early history of these gifts shows that they were fostered by the spiritual power in its own interest, and that they were established in

37 E. g. Rothenhale v. Wychingham, 2 Cal. Ch. 3.

38 The Common Law, 400. See further, Ll. Gul. I., Ch. 23; Statutum Walliae, 12 Ed. I, “Breve de conventione, per quod petuntur aliquando mobilia, aliquando immobilia"; "Per breve de conventione aliquando petitur liberum tenementum." Fleta, II. Ch. 65, § 12; Y. B. 22 Ed. I., 494, 496, 598, 600; 18 Ed. II. (Maynard), 602, 603; Fitz. Abr. Covenant, passim. This effect of covenant was preserved in the case of fines until a recent date; 2 Bl. Comm. 349, 350, and App. IV., § 1. As to a term of years, see Bract, fol. 220a, § 1; Y. B. 20 Ed. I., 254; 47 Ed. III., 24 (cf. 38 Ed. III., 24); F. N. B. 145 M; Andrews' Case, Cro. Eliz. 214; S. C. 2 Leon. 104; and as to chattels, see Y. B. 27 Hen. VIII., 16. As to the later raising of uses by way of covenant, see Y. B. 27 Hen. VIII, 16; Bro. Abr. Feoffments al Uses, pl. 16; Dyer, 55 (3); ib. 96 (40); ib. 162 (48); Sharington v. Strotton, Plowd. 298, 309.

39

the face of a popular struggle to maintain the ancient rights of heirs in the family property, which was inalienable without their consent.3 In view of the effort which the Church kept up for so long a time to assert jurisdiction in all matters of fidei laesio, it would seem that a ground for its interference might have been found in the fiducia which, as has been said, was of the essence of the relation, and which we find referred to in the earliest bills printed in the Chancery Calendars.

This is conjecture. But it seems clear that on some ground the original forum for devisees was the Ecclesiastical Court. Glanvill states that it belongs to the ecclesiastical courts to pass on the reasonableness of testamentary dispositions, and, while he shows that the executor had the King's writ against the heir, gives no hint of any similar right of legatees or devisees against the executor. The Decretals of Gregory disclose that a little later the Church compelled executors to carry out their testator's will," and Bracton says in terms that legatees and devisees of houses in town or of an usufruct could sue in the ecclesiastical courts.12 As we have seen, in the case of houses in town the executor ceased to intervene, the ecclesiastical remedy against him became superfluous and devisees obtained a remedy directly

39 Heusler, Gewere, 479 et seq. See Glanv. VII., Ch. 9, where the Church is shown to have the settlement of the question whether the will was reasonably made. Cf. ib. Ch. 1., § 3.

40 Glanv. VII, Ch. 6 and 8.

41 Decret. Greg. III. Tit. 26, cap. 19. A.D. 1235.

42 Bract. fol. 407b, 61a, b.

against deforciants in the King's courts. But with regard to legacies, although after a time the Chancery became a competing, and finally, by St. 20 & 21 Vict. Ch. 77, s. 23, the exclusive jurisdiction, as late as James I. "the Lord Chancellor Egerton would say, the Ecclesiastical Courts were more proper for Legacies, and sometimes would send them thither." 43

These courts were unable to deal with uses in the fulness of their later development. But the chief instances of feoffment upon trust, other than to the uses of a last will or for distribution after death, of which there is any record until sometime after the Chancery had become a separate court under Edward III. were for the various fraudulent purposes detailed in the successive petitions and statutes which have come down to us." It should be mentioned too, that there are some traces of an attempt by cestuis que use who were strangers to the feoffment to enforce the trust by way of a condition in their favor, and it seems to have been put that way sometimes in the conveyances.

45

For a considerable time, then, it would seem that both feoffors and other cestuis que use were well

43 Nurse v. Bormes, Choyce Cases in Ch. 48. See further Glen v. Webster, 2 Lee, 31. As to common law, see Deeks v Strutt, 5 T.R. 690; Atkins v. Hill, Cowper, 284, and cases cited.

44 Petition of Barons, C. 25 (Hẹn. III. A.D. 1258), Annals of Burton (Rolls ed.), 422; id. Stubbs, Select Charters; Irish Stat. of Kilkenny, Ed. II., Ch. 4; Stat. 50 Ed. III., Ch. 6; 1 R. II., Ch. 9; 2 R. II., Stat. 2, Ch. 3; 7 R. II, Ch. 12; 15 R. II., Ch. 5; 4 Hen. IV., Ch. 7. See also Statute of Marlebridge, 52 Hen. III., Ch. 6.

45 2 Rot. Parl. 79 (3 R. II., Nos. 24, 25); ib. 60, 61 (2 R. II. Nos. 25, 26).

46

enough protected. The first complaint we hear is under Henry IV. It is of the want of a remedy when property is conveyed by way of affiance to perform the will of the grantors and feoffors and the feoffees make wrongful conveyances. As soon as the need was felt, the means of supplying it was at hand. Nothing was easier than for the ecclesiastics who presided in Chancery to carry out there, as secular judges, the principles which their predecessors had striven to enforce in their own tribunals under the rival authority of the Church. As Chancellors they were free from these restrictions which confined them as churchmen to suits concerning matrimony and wills. Under Henry V. we find that cestuis que use had begun to resort to equity,** whereas under Richard II. the executors and feoffees of Edward III. had brought their bill for instructions before the Judges in Parliament." In the next reign (Henry VI.) bills by cestuis que use become common. The foundations of the claim is the fides, the trust reposed and the obligation of good faith, and that circumstance remains as a mark at once of the Teutonic source of the right and the ecclesiastical origin of the jurisdiction.

48

If the foregoing argument is sound, it will be seen that the doctrine of uses is as little the creation of the subpoena, or of decrees requiring personal obedi

46 3 Rot. Parl. 511 (4 Hen. IV., No. 112, A.D. 1402).

47 Dodd v. Browning, 1 Cal., Ch. xiii; Rothenhale v. Wychingham, 2 Cal. Ch. iii.

48 2 Rot. Parl. 60, 61 (2 R. II., Nos. 25, 26).

ence, as it is an improvement invented in a relatively high state of civilization which the common law was too archaic to deal with. It is true, however, that the form of the remedy reacted powerfully upon the conception of the right. When the executor ceased to intervene between testator and devisee the connection between devises and uses was lost sight of And the common law courts having refused to protect even actual pernors of profits, as has been explained, the only place where uses were recognized by that name was the Chancery. Then, by an identification of substantive and remedial rights familiar to students, a use came to be regarded as merely a right to a subpoena. It lost all character of a jus in rem, and passed into the category of choses in action. I have shown elsewhere the effect of this view in hampering the transfer of either the benefit or burden of uses and trusts.50

II. CONTRACT

I must now say a few words of the only other substantive doctrine of which I have discovered any trace in the first period of English Equity. This is a view of Contract, singularly contradicting the

49 Co. Lit. 272b; Bacon, Reading on Stat. of Uses, Works (ed. Spedding), VII., p. 398.

50 The Common Law, ch. 11; see especially pp. 399, 407-409, and, in addition to the books cited on p. 408, notes 1 and 2; Fitz. Abr. Subpena, pl. 22; Dalamere v. Barnard, Plowden, 346, 352; Pawlett v. Attorney-General, Hardres, 465, 469; Co. Lit. 272b; W. Jones, 127.