The Online Library of Liberty

A project of Liberty Fund, Inc.

• Preface
• A Table of British Regnal Years
• Select Essays In Anglo - American Legal History: Volume Ii History of Particular Topics
• Part I.: Sources
• 22.: Heinrich Brunner, the Sources of English Law 1
• 23.: Frederick William Maitland, Materials For the History of English Law 1
• 24.: William Searle Holdsworth, the Year Books 1
• 25.: Van Vechten Veeder, the English Reports, 1537-1865 1
• Appendix A: Edward Jenks, List of Principal Sources of Mediaeval European Law 1
• Supplementary List of References 1
• Appendix B: Paul Samuel Reinsch, a Short Bibliography of American Colonial Law 1
• 26.: The Commissioners, an Historical Survey of Ancient English Statutes 1
• Part II.: The Courts, Their Organization and Jurisdiction
• 27.: Frederick Andrew Inderwick, the Common Law Courts As Established Under Edward I 1
• 28.: George Spence, the History of the Court of Chancery 1
• 29.: William Searle Holdsworth, the Ecclesiastical Courts and Their Jurisdiction 1
• 30.: Thomas Lambert Mears, the History of the Admiralty Jurisdiction 1
• Part III.: Procedure
• 31.: James Bradley Thayer, the Older Modes of Trial 1
• 32.: Sir Frederick Pollock, the King’s Peace In the Middle Ages 1
• 33.: Hubert Hall, the Methods of the Royal Courts of Justice In the Fifteenth Century 1
• 34.: Sir James Fitzjames Stephen, Criminal Procedure From the Thirteenth to the Eighteenth Century 1
• 35.: Edward Jenks, the Story of the Habeas Corpus 1
• 36.: Frederick William Maitland, the History of the Register of Original Writs 1
• 37.: Luke Owen Price, an Action At Law In the Reign of Edward III. 1
• 38.: William Searle Holdsworth, the Development of Written and Oral Pleading 1
• 39.: Charles Mcguffey Hepburn, the Historical Development of Code Pleading In America and England 1
• 40.: John Henry Wigmore, a General Survey of the History of the Rules of Evidence 1
• Part IV.: Equity
• 41.: Oliver Wendell Homes, Early English Equity 1
• 42.: Luke Owen Price, Common Law and Conscience In the Ancient Court of Chancery 1
• 43.: James Barr Ames, the Origin of Uses and Trusts 1
• 44.: Christopher Columbus Langdell, the Development of Equity Pleading From Canon Law Procedure 1
• 45.: Solon Dyke Wilson, Courts of Chancery In the American Colonies 1
• 46.: Sidney George Fisher, the Administration of Equity Through Common Law Forms In Pennsylvania. 1

41.

EARLY ENGLISH EQUITY1

By Oliver Wendell Holmes2

I.

Uses.

AT the end of the reign of Henry V. the Court of Chancery was one of the established courts of the realm. I think we may assume that it had already borrowed the procedure of the Canon law, which had been developed into a perfected system at the beginning of the thirteenth century, at about the same time that the Chancellor became the most important member of the King’s Council. It had the ‘Examination and oath of the parties according to the form of the civil law and the law of Holy Church in subversion of the common law.’3 It had the subpoena, which also it did not invent,4 and it had a form of decree requiring personal obedience.5

Down to the end of the same reign (Henry V.) there is no evidence of the Chancery having known or enforced any substantive doctrines different from those which were recognized in the other courts except two. One of them, a peculiar view of contract, has left no traces in modern law. But the other is the greatest contribution to the substantive law which has ever been set down to the credit of the Chancery. I refer to Uses, the parent of our modern trusts. I propose to discuss these two doctrines in a summary way as the first step toward answering the question of the part which Equity has played in the development of English law.

As a preliminary, I ought to state that I assume without discussion that the references to aequitas in Glanvill, Bracton, and some of the early statutes passed before the existence of a Chancery jurisdiction, have no bearing on that question.1 I ought also to say that the matters of grace and favour which came before the Council and afterwards before the Chancellor do not appear to have been matters in which the substantive rules of the common law needed to be or 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.2

3 I agree with the late Mr. Adams1 that the most 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 that 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.2 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 was to be made after the grantor’s death, the grantor reserving the use of the land to himself during his life.1 To meet the chance of the Salman’s death before the time for conveyance over, it was common to employ more than one,2 and persons of importance were selected for the office.3 The essence of the relation was the fiducia or trust reposed in the fidelis manus,4 who sometimes confirmed his obligation by an oath or covenant.5

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 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.1

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,2 but to cause to stand the reasonable division of the testator as against the heirs.3 The meaning of this function will be further explained when I come to deal with the rights of the cestui que use.4

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,1 that first after the death of the testator the will should be proved before the ordinary, and the will having been proved, the mayor and bailiffs of the city ought to deliver seizing of the devised and devisable tenements (de tenementis legatis et que sunt legabilia) to the executors of the will saving the rights of every one.’2 A little later the executor ceased to intervene at all, and the devisees might enter directly, or, if the heir held them out, might have the writ Ex gravi querela.3

If, as I think, it is sufficiently clear that in the reign of Edward I. the distinction between an executor and feoffee to uses was still in embryo, it is unnecessary to search the English books for evidence of the first stage when the testator transferred possession in his own lifetime. A case in 55 Henry III. shows executors seized for the purpose of applying the land to pious uses under a last will, and defending their seizing in their official capacity, but does not disclose how they obtained possession.4 A little earlier still Matthew Paris speaks of one who, being too weak to make a last will, makes a friend expressorem et executorem.5 It is a little hard to distinguish between such a transaction and a feoffment to uses by a few words spoken on a death-bed, such as is recorded in the reign of Henry VI.1 But the most striking evidence of the persistence of ancient custom was furnished by King Edward III. in person, who enfeoffed his executors, manifestly for the purpose of making such distribution after his death as he should direct; but because he declared no trust at the time, and did not give his directions until afterwards, the judges in Parliament declared that the executors were not bound, or, as it was then put, that there was no condition.2

Gifts inter vivos for distribution after death remained in use till later times.3 And it may be accident, or it may be a reminiscence of ancient tradition, when, under Edward IV., the Court, in holding that executors cannot have account against one to whom the testator has given money to dispose of for the good of his soul, says that as to that money the donee is the executor.4

At all events, from an early date, if not in Glanvill’s time, the necessity of a formal delivery of devised land to the executor was got rid of in England as Beseler says that it was on the Continent. The law of England did in general follow its continental original in requiring the two elements of traditio and investitura for a perfect conveyance.5 But the Church complained of the secular courts for requiring a change of possession when there was a deed.6 And it was perhaps because wills belonged to the spiritual jurisdiction that the requirement was relaxed in the case of executors. As has been shown above, in the reign of Edward I. possession was not delivered until after the testator’s death, and in that of Edward III. it had ceased to be delivered to them at all. Possibly, however, a trace of the fact that originally they took by conveyance may be found in the notion that executors take directly from the will even before probate, still repeated as a distinction between executors and administrators.

1 It is now time to consider the position of the cestui que use. The situations of the feoffor or donor and of the ultimate beneficiaries were different, and must be treated separately. First, as to the former. In England, as on the Continent, upon the usual feoffment to convey after the feoffor’s death, the feoffor remained on the land and took the profits during his life. Feoffors to uses are commonly called pernors of profits in the earliest English statutes and are shown in possession by the earliest cases.2 As Lord Bacon says in a passage cited above, pernancy of the profits was one of the three points of a use. It was the main point on the part of the feoffor, as to make an estate, or convey as directed, was the main duty on the side of the feoffee. But all the German authorities agree that the pernancy of the profits also made the gewere, or protected possession, of early German law.3 And in this, as in other particulars, the English law gave proof of its origin. In our real actions the mode of alleging seizin was to allege a taking of the esplees or profits.4

If the remedies of the ancient popular courts had been preserved in England, it may be conjectured that a cestui que use in possession would have been protected by the common law.1 He was not, because at an early date the common law was cut down to that portion of the ancient customs which was enforced in the courts of the King. The recognitions (assizes), which were characteristic of the royal tribunals, were only granted to persons who stood in a feudal relation to the King,2 and to create such a relation by the tenure of land, something more was needed than de facto possession or pernancy of profits. In course of time the fact that the new system of remedies did not extend itself to all the rights which were known to the old law became equivalent to a denial of the existence of the rights thus disregarded. The meaning of the word ‘seizin’ was limited to possession protected by the assizes,3 and a possession which was not protected by them was not protected at all. It will be remembered, however, that a series of statutes more and more likened the pernancy of the profits to a legal estate in respect of liability and power, until at last the statute of Henry VIII. brought back uses to the courts of common law.4

It is not necessary to consider whether the denial of the assizes to a cestui que use in possession was peremptory and universal from the beginning, because the feoffor had another protection in the covenants which, in England as on the Continent, it was usual for him to take.5 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.6

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 the face of a popular struggle to maintain the ancient rights of heirs in the family property, which was inalienable without their consent.1 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,2 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.3 And Bracton says in terms that legatees and devisees of houses in town or of an usufruct could sue in the ecclesiastical courts.4 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 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. c. 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.’1

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.2 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 favour, and it seems to have been put that way sometimes in the conveyances.3

For a considerable time, then, it would seem that both feoffors and other cestuis que use were well 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.4 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 those 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,1 whereas under Richard II. the executors and feoffees of Edward III. had brought their bill for instructions before the Judges in Parliament.2 In the next reign (Henry VI.) bills by cestuis que use become common. The foundation 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.

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 obedience, 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.3 I have shown elsewhere the effect of this view in hampering the transfer of either the benefit or burden of uses and trusts.4

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 popular notion that the common law borrowed Consideration from the Chancery. The requirement of consideration in all parol contracts is simply a modified generalization of the requirements of quid pro quo to raise a debt by parol. The latter, in certain cases at least, is very ancient, and seems to be continuous with the similar doctrine of the early Norman and other continental sources which have been much discussed in Germany.1

I may remark by way of parenthesis that this requirement did not extend to the case of a surety, who obviously did not receive a quid pro quo in the sense of the older books and yet could bind himself by parol from the time of the Somma to Edward III. and even later where the custom of various cities kept up the ancient law.2 Sohm has collected evidence that suretyship was a formal contract in the time of the folk laws, in aid of his theory that the early law knew only two contracts; the real, springing from sale or barter and requiring a quid pro quo; and the formal, developed from the real at an early date by a process which has been variously figured.1 I do not attempt to weigh the evidence of the continental sources, but in view of the clear descent of suretyship from the giving of hostages, and the fact that it appears as a formless contract in the early Norman and Anglo-Norman Law, I find it hard to believe that it owed its origin to form any more than to quid pro quo. Tacitus says that the Germans would gamble their personal liberty and pay with their persons if they lost.2 The analogy seems to me suggestive. I know no warrant for supposing that the festuca was necessary to a bet.

I go one step further, and venture hesitatingly to suggest that cases which would now be generalized as contract may have arisen independently of each other from different sources, and have persisted side by side for a long time before the need of generalization was felt or they were perceived to tend to establish inconsistent principles. Out of barter and sale grew the real contract, and if the principle of that transaction was to be declared universal, every contract would need a quid pro quo. Out of the giving of hostages, familiar in Cæsar’s time, grew the guaranty of another’s obligation, and if this was to furnish the governing analogy, every promise purporting to be seriously made would bind. But the two familiar contracts kept along together very peaceably until logic, that great destroyer of tradition, pushed suretyship into the domain of covenant, and the more frequent and important real contract succeeded in dividing the realm of debt with instruments under seal.3

To return to Equity. In the Diversity of Courts (Chancery) it is said that ‘a man shall have remedy in Chancery for covenants made without specialty, if the party have sufficient witness to prove the covenants, and yet he is without remedy at the common law.’ This was in 1525, under Henry VIII., and soon afterwards the contrary was decided.1 But the fact that a decision was necessary confirms the testimony of the passage quoted as to what had been the tradition of the Chancery. I do not propose to consider whether thus broadly stated it corresponded to any doctrine of early law, or whether any other cases could be found, beside that of the surety, in which a man could bind himself by simply saying that he was bound. For although the meaning of the tradition had been lost in the time of Henry VIII. when the textbook spoke of covenants generally, the promise with which Equity had dealt was a promise per fidem. Thus, under Edward IV.,2 a subpoena was sued in the Chancery alleging that the defendant had made the plaintiff the procurator of his benefice and promised him per fidem to hold him harmless for the occupation, and then showing a breach. The Chancellor (Stillington) said that ‘in that he is damaged by the non-performance of the promise he shall have his remedy here.’ And to go back to the period to which this article is devoted, we find in the reign of Richard II. a bill brought upon a promise to grant the reversion of certain lands to the plaintiff, setting forth that the plaintiff had come to London and spent money relying upon the affiance of the defendant, and that as he had no specialty, and nothing in writing of the aforesaid covenant, he had no action at the common law.3 This is all the direct evidence, but slight as it is, it is sufficient to prove an ancient genealogy, as I shall try to show.

Two centuries after the Conquest there were three well-known ways of making a binding promise: Faith, Oath, and Writing.4 The plighting of one’s faith or troth here mentioned has been shown by Sohm and others to be a descendant of the Salic Fides facta, and I do not repeat their arguments.1 It still survives in that repertory of antiquities the marriage ceremony, and is often mentioned in the old books.2

Whether this plighting of faith (fides data, fides facta) was a formal contract or not in the time of the Plantagenets, and whether or not it was ever proceeded upon in the King’s courts, it sufficiently appears from Glanvill and Bracton that the royal remedies were only conceded de gratia if ever.3 The royal remedies were afforded at first only by way of privilege and exception, and, as I have already shown, never extended to all the ancient customs which prevailed in the popular tribunals. But if the King failed the Church stood ready. For a long time, and with varying success, it claimed a general jurisdiction in case of laesio fidei.4 Whatever the limit of this vague and dangerous claim it clearly extended to breach of fides data. And even after the Church had been finally cut down to marriages and wills, as shown in the last note, it retained jurisdiction over contracts incident to such matters for breach of faith, and, it seems, might proceed by way of spiritual censure and penance even in other cases.1

Thus the old contracts lingered along into the reign of Edward III. until the common law had attained a tolerably definite theory which excluded them on substantive grounds, and the Chancery had become a separate Court. The clerical Chancellors seem for a time to have asserted successfully in a different tribunal the power of which they had been shorn as ecclesiastics, to enforce contracts for which the ordinary King’s Courts afforded no remedy. But, I think, I have now proved that in so doing they were not making reforms or introducing new doctrines, but were simply retaining some relics of ancient custom which had been dropped by the common law, but had been kept alive by the Church.

[1 ]This essay was first published in the Law Quarterly Review, vol. I, pp. 162-174 (1885), and has been revised by the author for this Collection.

[2 ]Associate Justice of the Supreme Court of the United States, since 1902. Harvard University, A. B. 1861, LL. B. 1866, LL. D. 1895; Yale University, LL. D. 1886. Member of the Boston Bar, 1866-1882; editor of the American Law Review, 1870-1873; professor of law in Harvard University, 1882; associate justice of the Supreme Court of Massachusetts, 1882-1899, and chief justice of the same, 1899-1902.

Other Publications: The Common Law, 1881; twelfth edition of Kent’s Commentaries, 1873; and articles in legal periodicals.

[3 ]4 Rot. Parl. 84 (3 Hen. V. pt. 2. 46, no. xxiii).

[4 ]See writ addressed to sheriff, Rot. Claus. 16 Hen. III. m. 2 dorso in 1 Royal Letters, Hen. III. (Rolls ed), 523. Proc. Privy Council (Nicholas) passim. Stat. 20 Ed. III. c. 5. The penalty was usually money, but might be life and limb; 1 Proc. Priv. Counc. (21 R. II. ad 1397). The citation of Rot. Parl. 14 Ed. III. in 1 Roll. Abr. 372, which misleads Spence (1 Eq. 338 n.) and earlier and later writers, should be 14 Ed. IV. (6 Rot. Parl. 143), as pointed out already by Blackstone, 3 Comm. 52 n. We also find the writ Quibusdam certis de causis, a writ in the form of the subpoena except that it omitted the penalty; Palgrave, King’s Council, pp. 131, 132, note X; Scaldewell v. Stormesworth, 1 Cal. Ch. 5.

[5 ]See Audeley v. Audeley, Rot. Claus. 40 Ed. III, ‘sur peine de sys mill livres au paier au roy,’ cited Palg. King’s Council, 67, 68; 2 Cal. Ch. x. See prayer in 3 Rot. Parl. 61 (2 R. II. 26). Imprisonment for contempt again is older than the Chancery, e. g. Mem. in Scacc. 27 (M. 22 Ed. I) in Maynard’s Y. B. part 1.

[1 ]Glanvill, Prologus, Bracton, fol. 23b; ib. 3 b, ‘Aequitas quasi aequalitas.’ Fleta, ii. c. 55, § 9. Petition of Barons, c. 27 (ad 1258), in Annals of Burton (Rolls ed.), 443, and Stubbs, Select Charters, for remedy ex aequitate juris by writ of entry or otherwise. Dictum de Kenilworth, pr. (ad 1266) Stat. of Realm, 51 Hen. III, and Stubbs, Select Charters; Close Rolls of Hen. III, cited in Hardy, Int. to Close Rolls, xxviii. n. 5 (8vo. ed. p. 111). So ‘right and equite,’ letter missive of Hen. V. to Chancellor, I Cal. Ch. xvi.

[2 ]Supervisory powers of Council over the Court, 1 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.) c. 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. 1; 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. 1. 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.

[3 ]Beseler, i. §§ 15, 16; Heusler, Gewere, 478. Compare 2 Cal. Ch. iii.; 1 id. xlviii. 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 (ad 1220, 1223). Compare Provisions of Oxford (Oath of guardians of king’s castles) in Annals of Burton (Rolls ed.), 448, and Stubbs, Select Charters. And it seems doubtful whether the expression ad opus was used at first in a technical sense, e. g. ‘castellum Dofris . . . ad opus meum te facturum,’ Eadmer (Rolls ed.), 7. ‘Ad 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. c. 12.

[1 ]Adams, Equity, Introd. xxxv.

[2 ]Beseler, Erbverträgen, i. § 16. pp. 277 et seq., 283, 271.

[1 ]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. 1 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.

[2 ]Beseler, i. p. 283; 2 Cal. Ch. iii.

[3 ]Beseler, i. p. 271.

[4 ]Beseler, i. p. 267; ‘Fidei suae committens,’ ib. 286. Compare the references to good faith in all the bills in Cal. Ch.

[5 ]Beseler, i. pp. 265-267; 2 Cal. Ch. iii. xxviii.; 1 id. lv.

[1 ]Beseler, Erbverträgen, i. pp. 284-288; Brunner in 1 Holtzendorff, Encyclop. (3rd ed.), 216; cf. Littleton, § 168.

[2 ]Glanv. vii. c. 8; see xiii. c. 15; Dial. de Scaccario, II. 18; Regiam Majestatem, II. c. 39.

[3 ]Glanv. vii. c. 6-8.

[4 ]As to the functions of the executor in the time of Bracton, see The Common Law, 348, 349, and further, Bracton, fol. 407 b, ‘Et sicut dantur haeredibus contra debitores et non executoribus ita dantur actiones creditoribus contra haeredes et non contra executores.’ Ibid. fol. 98 a, 101 a, 113 b; Stat. 3 Ed. I. c. 19. The change of the executor to universal successor 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. cc. 19, 23 (ad 1285); Fleta, ii. c. 62. §§ 8-13; c. 70. § 5; and c. 57. §§ 13, 14, copying, but modifying, Bract. fol. 61 a, b, 407 b 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. c. 24), because not knowing the facts they could not wage their law: Y. B. 22 Ed. I. 456; Laband, Vermögensrechtlichen Klagen, pp. 15, 16.

[1 ]Cf. Bract. fol. 407 b.

[2 ]Abbr. Plac. 284, 285 (H. 19 Ed. I. Devon. rot. 51). Note the likening of such tenements to chattels, Bract. 407 b; 40 Ass. pl. 41; Co. Lit. 111 a.

[3 ]39 Ass. pl. 6, fol. 232, 233, where there is no question of the executor, but special custom determines whether the devisee shall enter, be put in by the bailiff, or have the writ. In Littleton’s time the devisee’s right of entry was general; § 167; Co. Lit. 111. As to the writ, see 40 Ass. pl. 41. fol. 250; F. N. B. 198 L. et seq.; Co. Lit. 111. The only writ mentioned by Glanvill seems to be given to the executor, or if there is no executor to the propinqui; lib. vii. cc. 6, 7. Of course I am not speaking of cases where the executors were also the devisees, although even in such cases there was a tendency to deny them any estate, if there was a trust; 39 Ass. pl. 17; Litt. § 169.

[4 ]Abbrev. Plac. 179. col. 2; Norht. rot. 15 in dorso.

[5 ]4 Matt. Paris, Chron. Maj. (Rolls ed.) 605, ad 1247.

[1 ]Cal. Ch. xliii.; S. C. Digby, Hist. Law of Real Prop. (2nd ed.), 301, 302. Cf. Heusler, Gewere, 478, citing Meichelbeck (1 Hist. Fris Pars instrumentaria), no. 300; ‘Valida egritudine depressus traditionem in manus proximorum suorum posuit, eo modo, si ipse ea egritudine obisset, ut vice illius traditionem perfecissent.’

[2 ]3 Rot. Parl. 60, 61 (2 R. II. nos. 25, 26).

[3 ]Babington v. Gull, 1 Cal. Ch. lvi.; Mayhewe v. Gardener, 1 Cal. Ch. xcix, c.

[4 ]Y. B. 8 Ed. IV. 5. pl. 12. In Mayhewe v. Gardener, 1 Cal. Ch. xcix, c, the defendant, who had received all the property of a deceased person by gift in trust to pay debts, etc., was decreed to pay dilapidations for which the deceased was liable.

[5 ]Glanv. vii. c. 1. § 3; Annals of Burton (Rolls ed.), 421 (ad 1258); Bracton fols. 38 a, b, 39 b, 169 b, 194 b, 213 b, § 3, 214 b; Abbr. Plac. 272 (H. 9 Ed. I.), Suff. rot. 17; 1 Cal. Ch. liv. lv.; Beseler, Erbvertragen, i. § 15, p. 261; § 16. pp. 277 et seq.; Heusler, Gewere, pp. 1, 2; Sohm, Eheschliessung, p. 82; Schulte, Lehrb. d. Deutsch. R. u. Rechtsgesch. § 148 (5th ed.), pp. 480 et seq.

[6 ]Annals of Burton (Rolls ed.), 421 (ad 1258).

[1 ]Graysbrook v. Fox, Plowd. 275, 280, 281.

[2 ]Stat. 50 Ed. III. c. 6; 1 R. II. c. 9 ad fin.; 2 R. II. Stat. 2, c, 3; 15 R. II. c. 5; 4 Hen. IV. c. 7; 11 Hen. VI. cc. 3, 5; 1 Hen. VII. c. 1; 19 Hen. VII. c. 15; Rothenhale v. Wychingham, 2 Cal. Ch. iii. (Hen. V.); Y. B. 27 Hen. VIII. 8; Plowden, 352; Litt. §§ 462, 464; Co. Lit. 272 b. So 1 Cruise, Dig. Tit. 12. ch. 4. § 9: ‘if the trustee be in the actual possession of the estate (which scarce ever happens).’

[3 ]Heusler, Gewere, 51, 52, 59; Brunner, Schwurgerichte, 169, 170; Laband, Vermögensrechtlichen Klagen, 160; 1 Franken, Französ. Pfandrecht, 6.

[4 ]Jackson, Real Actions, 348 and passim. See Statutes last cited, and Stat. 32 Hen. VIII. c. 9. sect. 4.

[1 ]1 Franken, Französ. Pfandr. 6.

[2 ]Heusler, Gewere, 126, 423, 424.

[3 ]Heusler, Gewere, 424.

[4 ]See Statutes before cited, p. 167, n. 3, 1 L. Q. Rev. and 1 R. III. c. 1; 27 Hen. VIII. c. 10.

[5 ]E. g. Rothenhale v. Wychingham, 2 Cal. Ch. iii.

[6 ]The Common Law, 400. See further, Ll. Gul. I. c. 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. c. 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. 220 a, § 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. Feoffements al Uses, pl. 16; Dyer, 55 (3); ib. 96 (40); ib. 162 (48); Sharington v. Strotton, Plowd. 298, 309.

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

[2 ]Glanv. vii. c. 6 & 8.

[3 ]Decret. Greg. III. Tit. 26. cap. 19. ad 1235.

[4 ]Bract. fol. 407 b, 61 a, b.

[1 ]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.

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

[3 ]2 Rot. Parl. 79 (3 R. II. nos. 24, 25); ib. 60, 61 (2 R. II. nos. 25, 26).

[4 ]3 Rot. Parl. 511 (4 Hen. IV. no. 112, ad 1402).

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

[2 ]2 Rot. Parl. 60, 61 (2 R. II. nos. 25, 26).

[3 ]Co. Lit. 272 b; Bacon, Reading on Stat. of Uses, Works (ed. Spedding), vii. p. 398.

[4 ]The Common Law, ch. xi; 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. 272 b; W. Jones, 127.

[1 ]Somma, ii. c. 26, §§ 2, 3, in 7 Ludewig, Reliq. Manuscript. pp. 313, 314; Grand Coustumier, c. 88 & 90; Statutum Walliae, 12 Ed. I: ‘Si vero Debitor venerit, necesse habet Actor exprimere petitionem, et rationem sue petitionis, videlicet, quod tenetur ei in centum marcis, quas sibi accommodavit, cujus solutionis dies preteriit, vel pro terra, vel pro equo, vel pro aliis rebus seu catallis quibuscunque sibi venditis, vel pro arreragiis redditus non provenientis de tenementis, vel de aliis contractibus,’ etc. Y. B. 39 Ed. III. 17, 18, ‘issint il est quid pro quo;’ 3 Hen. VI. 36. pl. 33; 7 Hen. VI. 1. pl. 3; 9 Hen. VI. 52 pl. 35; 11 Hen. VI. 35. pl. 30 at fol. 38; 37 Hen. VI. 8. pl. 18. See also ‘Justa debendi causa’ in Glanv. x. c. 3; Dial. de Scacc. ii. c. 1 & 9; Fitz. Abr. Dett. pl. 139; Y. B. 43 Ed. III. 11. pl. 1. Form of Count given by 1 Britton (ed. Nichols), 161, 162. pl. 12, Y. B. 20 & 21 Ed. I. App. 488, ‘Marchandise’ ground of debt. Sohm, Eheschliessung, p. 24; 1 Franken, Franzos. Pfandr. § 4. p. 43; Schulte, Reichs- u. Rechtsgesch. § 156 (4th ed.), p. 497. Consideration is first mentioned in equity in 31 Hen. VI., Fitz. Abr. Subpena, pl. 23; Y. B. 37 Hen. VI. 13. pl. 3, and by the name quid pro quo. So in substance as to assumpsit: Y. B. 3 Hen. VI. 36. pl. 33.

The interpretation of Fleta, ii. c. 60. § 25 by the present writer in The Common Law, 266, is rightly criticised in Pollock, Contr. (3rd ed.), 266, as appears by comparing the more guarded language of Bracton, 15 b.

[2 ]Somma, i. c. 62, ii. c. 24; 7 Ludewig, 264, 309; Grand Coustum, c. 89 (cf. Bract. fol. 149 b. § 6; The Common Law, 260, 264. See, beside authorities there cited, F. N. B. 122 K; ib. I in marg., 137 C; Y. B. 43 Ed. III. 11. pl. 1; 9 Hen. V. 14. pl. 23. Car. M. Cap. Langob. ad 813, c. 12, ‘Si quis pro alterius debito se pecuniam suam promiserit redditurum in ipsa promissione est retinendus,’ cited Loning, Vertragsbruch, 62, n. 1.

In 2 Gesta Hen. II. (Ben. Abbas, Rolls ed.), 136, sureties make oath to surrender themselves if the agreement is broken. Sohm, Eheschliessung, 48, goes so far as to argue that the oath was simply one substitute for the Salic formal contract. But I find no evidence that the oath was necessary in England, unless for ecclesiastical jurisdiction. 2 Gesta Hen. II. p. 137.

[1 ]See, e. g., 1 Franken, Französ. Pfandr. § 16. pp. 209-216; § 18. pp. 241 et seq.; ib. 261-266.

[2 ]Germ. 24.

[3 ]Y. B. 18 Ed. III. 13. pl. 7; 44 Ed. III. 21. pl. 23; 43 Ed. III. 11. pl. 1. So warranty, which had been merely an incident of a sale (Lex Salica, c. 47; Glanv. x. c. 15 & 17). came to be looked at as a covenant, Y. B. 44 Ed. III. 27. pl. 1; and at a later date bailment was translated into contract. By way of further illustration, I may add that in modern times Consideration has still been dealt with by way of enumeration (see e. g. 2 Bl. Comm. 444; 1 Tidd’s Practice, ch. 1, as to assumpsit), and only very recently has been resolved into a detriment to the promisee, in all cases.

[1 ]Cary, Rep. in Ch. 5; Choyce Cases in Ch. 42.

[2 ]Y. B. 8 Ed. IV. 4. pl. 11; Fitz. Abr. Subpena, pl. 7.

[3 ]Whalen v. Huchynden, 2 Cal. Ch. ii.

[4 ]Compare Letter of Gregory IX. to Henry III., Jan. 10, 1233, in 1 Royal Letters, Henry III. (Rolls ed.), p. 551, ‘Possessiones . . . fide ac juramentis a te praestitis de non revocandis eisdem, sub litterarum tuarum testimoniis concessisti,’ with Sententia Rudolfi Regis, ad 1277, Pertz, Monumenta, Leges ii. p. 412; ‘Quaesivimus . . . utrum is qui se datione fidei vel juramento corporaliter prestito, vel patentibus suis litteris, ad obstagium vel solutionem alicujus debiti ad certum terminum obligavit, nec in ipso termino adimplevit ad quod taliter se adstrinxit de jure posset . . . per iudicium occupari? Et promulgatum extitit communiter ab omnibus, quod is, qui modo predicto . . . promisso non paruit, valeat, ubicumque inveniatur, auctoritate iudiciaria conveniri.’

[1 ]Lex Salica (Merkel), c. 50; Lex Ripuaria, c. 58 (60). § 21; Sohm, Eheschliessung, 48, 49, notes; 1 Franken, Französ. Pfandr. 264 n. 2.

[2 ]Eadmer (Rolls ed.), 7, 8, 25; Dial. de Scacc. ii. c. 19; 2 Gesta Hen. II. (Ben. Abbas), 134-137; 3 Roger Hoved. (Rolls ed.), 145; Glanv. vii. c. 18; x. c. 12; 1 Royal Letters, Henry III. (Rolls ed.), 308; Bract. 179 b. Cf. id. 175 a, 406 b, &c.; Reg. Majest. ii. c. 48. § 10; c. 57. § 10; Abbrev. Plac. 31. col. 1 (2 Joh. Norf. rot. 21); 22 Ass. pl. 70. fol. 101.

[3 ]Glanv. x. c. 8; Bract. 100 a.

[4 ]The fluctuations of the struggle may be traced in the following passages: ‘Item generaliter omnes de fidei laesione vel juramenti transgressione quaestiones in foro ecclesiastico tractabantur.’ ad 1190. 2 Diceto (Rolls ed.), 87; 2 Matt. Paris, Chron. Maj. (Rolls ed.), 368. ‘Placita de debitis quae fide interposita debentur vel absque interpositione fidei sint in justitia Regis.’ Const. Clarend. c. 15; Glanv. x. c. 12; Letter of Thomas a Becket to the Pope, ad 1167, 1 Rog. Hoved. (Rolls ed.), 254. Agreement between Richard and the Norman clergy in 1190, Diceto and Matt. Par. ubi supra. As to suits for breach of faith, outside of debts, in the Courts Christian, circa 1200, Abbrev. Plac. 31. col. 1 (2 Joh.), Norf. rot. 21. ‘Prohibetur ecclesiasticus judex tractare omnes causas contra laicos, nisi sint de matrimonio vel testamento.’ ad 1247, 4 Matt. Paris (Rolls ed.), 614. Resistance to this, Annals of Burton (Rolls ed.), 417, 423; cf. ib. 256. But this prohibition fixed the boundaries of ecclesiastical jurisdiction.

[1 ]22 Lib. Ass. pl. 70. fol. 101. Cf. Glanv. vii. c. 18, ‘propter mutuam affidationem quae fieri solet.’ Bract. fol. 175 a, 406 b, 407, 412 b; Y. B. 38 Hen. VI. 29. pl. 11. But covenant was the only remedy if the contract had been put in writing; Y. B. 45 Ed. III. 24. pl. 30.