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were modified by new principles, but were simply cases which, being for some reason without the jurisdiction of the King's ordinary courts, either were brought within that jurisdiction by special order, or were adjudged directly by the Council or the Chancellor according to the principles of the ordinary courts.
I agree with the late Mr. Adams that the most
5 Supervisory powers of Council over the Court, I. Gesta Hen. II. (Ben. Abbas, Rolls ed.), 207, 208; Assize of Northampton, $7, ib. 110; and in Stubbs, Select Charters. Jurisdiction of Curia Regis over pleas of land, not coming there as a matter of course, acquired by special order: "Quod debeat vel dominus Rex velit in curia sua deduci”; Glanv. I. C. 5. Jurisdiction of actions of contract de gratia; Bracton, fol. 100 a; Case referred by Chancellor to Curia Regis, 38 Ed. III., Hardy Int. to Close Rolls, xxix (8vo. ed. 113 n). Grants of jurisdiction de gratia in the form of Special Commissions of oyer and terminer complained of Palgr. King's Council, $$ 12, 13, pp. 27-33; Stat. Westm. ii (13 Ed. I), Ch. 29; 1 Rot. Parl. 290 (8 Ed. II. No. 8); Stat. Northampton (2 Ed. III.), C. 7; 2 Rot. Parl. 286, 38 Ed. III. 14, No. VI; 3 Rot. Parl. 161 (7 R. II. No. 43).
As to cases terminated before the Council, see Rot. Claus. 8 Ed. I. m. 6 dorso, in-Ryley, Plac. Parl. 442, and in 2 Stubbs, Const. Hist. 263. n. I; 2 Rot. Parl. 228 (25 Ed. III. No. 16; cf. No. 19). 3 Rot. Parl. 44 (3 R. II. No. 49) seems mistranslated by Parkes, Hist. Ct. of Ch. 39, 40. Matters at common law and of grace to be pursued before the Chancellor; Rot. Claus. 22 Ed. III. p. 2, m. 2 dorso, cited Hardy, Int. to Close Rolls, xxviii. (8vo. Ed. 110), and Parkes, Hist. Court of Ch. 35, 36 n. See Stat. 27 Ed. III. st. 1, C. 1; Stat. 36 Ed. III. st. I, C. 9. All the reported cases in Chancery through Henry V., with the exceptions which have been mentioned, are trespasses, disseisins, and the like. And the want of remedy at law is generally due to maintenance and the power of the defendant, or in one instance to the technical inability of the plaintiff to sue the defendant (2 Cal. Ch. viii), not to the nature of the right invoked. The object of the repeated prayers of the Commons from Richard II. to Henry VI, directed against the Council and the Chancellor, was that common law cases should be tried in the regular courts, not that the ancient doctrine might prevail over a younger and rival system. See Adams, Equity, Introduction, xxxiii-xxxv.
6 Adams, Equity, Introd. XXXV.
important contribution of the Chancery has been its (borrowed) procedure. But I wish to controvert the error that its substantive law is merely the product of the procedure. And, on the other hand, I wish to show that the Chancery, in its first establishment at least, did not appear as embodying the superior ethical standards of a comparatively modern state of society correcting the defects of a more archaic system. With these objects in view, I proceed to consider the two peculiar doctrines which I have mentioned.
First, as to Uses. The feoffee to uses of the early English law corresponds point by point to the salman of the early German law, as described by Beseler fifty years ago. The salman, like the feoffee, was a person to whom land was transferred in order that he might make a conveyance according to his grantor's directions. Most frequently the conveyance
9 Beseler, Erbvertragen, I $ 16, pp. 277 et seq., 283, 271.
8 Beseler, I. $$ 15, 16; Heusler, Gewere, 478. Compare 2 Cal Ch. iii; id. xviii. and passim. “Pernancy of profits, execution of estates, and defence of the land, are the three points of the trust” or use. Bacon, Reading on Stat. of Uses, Works (ed. Spedding), VII. p. 401; 1 Cruise, Dig. Title XI., Ch. 2, § 6; see Tit. XII., Ch. 1, $ 3; Ch. 4, § 1. Some of the first feoffments to the use (ad opus) of another than the feoffee which I have found mentioned by that name seem to have been a means of conveying property to the cestui que use in his absence, very like the earliest employment of the salman. But as the conveyances are supposed to be made to servants of private persons (Bract. fol. 193 b) or officers of the king, it may be doubtful whether any inference can be drawn from them; 1 Royal Letters, Henry III. pp. 122, 420; cf. 421 (A.D. 1720, 1223). Compare Provisions of Oxford (Oath of guardians of king's castles) in Annals of Burton (Rolls ed.), 448, and Stubbs, Select Charters; it seems doubtful whether the pression ad opus was used at first in a technical sense, e.g. "castellum Dofris - ad opus meum te facturum," Eadmer (Rolls ed.), 7. "Ad
was to be made after the grantor's death, the grantor reserving the use of the land to himself during his life. To meet the chance of the salman's death before the time for conveyance was over, it was common to employ more than one,to and persons of importance were selected for the office." The essence of the relation was the fiducia or trust reposed in the fidelis manus,
12 who sometimes confirmed his obligation by an oath or covenant.18
This likeness between the salman and the feoffee to uses would be enough, without more, to satisfy me that the latter was the former transplanted. But there is a further and peculiar mark which, I think, must convince every one, irrespective of any general views as to the origin of the common law.
Beseler has shown that the executor of the early German will was simply a salman whose duty it opus ejusdem mulieris," 2 Gesta Hen. II. (Ben. Abbas, Rolls ed.), 160, 161; Y. B. 3 Ed. III. 5 pl. 13; 2 Rot. Parl. 286 (38 Ed. III. 14 No. vi).
But as early as 22 Ass. pl. 72, fol. 101, in the case of a gift alleged to be fraudulent, we find the court inquiring who took the profits, and on the inquest answering that the donor did, Thorp declares that the gift only made the donee guardian of the chattels to the use of the donor. See further St. 7 R. II., Ch. 12.
9 Beseler, I., § 16, pp. 277 et seq.; Heusler, supra. Nearly every feoffment mentioned in the Calendars of Proceedings in Chancery down to the end of Henry VI. is for the purpose of distribution, after death. I Cal. Ch. xxi, XXXV, xliii, liv, lv, lvi; 2 id., iii, xix, XX, xxi, xxii, xxxiii, xxxvi, etc. Abbrev. Plac. 179, col. 2, Norht rot. 15 do.; ib. 272, H. 9 Ed. I., Suff. rot. 17. Fitz. Abr. Subpena, pl. 22, 23; Littleton, $ 462.
10 Beseler, I., p. 283; 2 Cal. Ch. iii. 11 Beseler, I., p. 271.
12 Beseler, I., p. 267: "Fidei suae committens," ib. 286. Compare the references to good faith in all the bills in Cal. Ch.
13 Beseler, I, pp. 265-267; 2 Cal. Ch. iii, xxviii; i id. lv.
was to see legacies and so forth paid if the heirs refused. The heres institutus being unknown, the foreign law which introduced wills laid hold of the native institution as a means of carrying them into effect. Under the influence of the foreign law an actual transfer of the property ceased to be required. It was enough that the testator designated the executors and that they accepted the trust; and thus it was that their appointment did not make the will irrevocable, as a gift with actual delivery for distribution after the donor's death would have been.
There can be no doubt of the identity of the continental executor and the officer of the same name described by Glanvill; and thus the connection between the English and the German law is made certain. The executor described by Glanvill was not a universal successor. Indeed, as I have shown in my book on the Common Law, the executor had not come to be so regarded, nor taken the place of the heir in the King's courts even as late as Bracton. To save space I do not copy Glanvill's words, but it will be seen on reading that the function of the executor was not to pay debts — that was the heir's business, but to cause to stand the reasonable division of the testator as against the heirs. The inean
14 Beseler, Erbverträgen, I., pp. 284-288; Brunner in I Holtzendorff, Encyclop. (3rd ed.), 216; cf. Littleton, $ 168, Hob. 348, Dyer, 314 pl., 97, Finch, Law 33.
15 Glany. VII., C. 8; see XIII. C. 15; Dial. de Scaccario, II., 18; Regiam Majestatem, II., C. 39.
18 Glanv. VII., C. 6–8.
ing of this function will be further explained when I come to deal with the rights of the cestui que use.
The executor had already got his peculiar name in Glanvill's time, and it would rather seem that already it had ceased to be necessary for the testator to give him possession or seizin. But, however this may be, it is certain that when the testator's tenements were devisable by custom, the executor was put in possession either by the testator in his lifetime or else immediately after the testator's death. As late as Edward I. "it seemed to the court as to tenements in cities and boroughs which are left by will (que legata sunt) and concerning which there should be no proceeding in the King's Court, because it belongs to the ecclesiastical forum,18 that first
17 As to the functions of the executor in the time of Bracton, see The Common Law, 348, 349, and further, Bracton, fol. 407b, “Et sicut dantur haeredibus contra debitores et non executoribus ita dantur actiones creditoribus contra haeredes et non contra executores." Ibid. fol. 98a, 1012, 113b; Stat. 3 Ed. I., Ch. 19. The change of the executor to universal sucessor upon the obvious analogy of the haeres was inevitable, and took place shortly after Bracton wrote. It was held that debt lay against and for executors; Y. B. 20 & 21 Ed. I, 374; 30 Ed. I., 238. See further, Stat. Westm. II. 13 Ed. I., C. 19, 23, (A.D. 1285); Fleta, I. C. 62, $$ 8–13; C. 70, § 5; and C. 57, $$ 13, 14, copying, but modifying, Bract. fol. 61a, b, 407b supra. As to covenant, see Y. B. 48 Ed. III., 1, 2, pl. 4. The heir ceased to be bound unless named; Fleta, II. C. 62, § 10; The Common Law, 348; cf. Fitz. Abr. Dett, pl. 139 (P. 13 Ed. III.). Finally, Doctor and Student, i. C. 19, ad finem, speaks of "the heir which in the law of England is called the executor.” In early English, as in early German law, neither heir (Y. B. 32 & 33 Ed. I., 507, 508) nor executor was liable for the parol debts of ancestor or testator (Y. B. 22, Ed. I., 456; 41 Ed. III., 13, pl. 3; 11 Hen. VII. 26; 12 Hen. VIII. 11, pl. 3; Dr. and Stud. II, Ch. 24), because not knowing the facts they could not wage their law: Y. B. 22 Ed. I., 456; Laband, Vermogensrechtlichen Klagen, pp. 15, 16.
18 Cf. Bract. fol. 407b.