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• Preface to the Fifth Edition
• Table of Mediaeval Cases
• Table of Modern Cases N.b. the Report References, Which Appeared In This Table In Earlier Editions, Will Be Found Incorporated In the Footnotes In the Text.
• Table of Laws and Statutes
• A Concise History of the Common Law
• Book One: a General Survey of Legal History
• Part 1: The Crown and the State
• Summary
• Chapter 1: The Anglo-saxon Period: Races and Religion
• Chapter 2: The Conquest to Henry II: The Beginnings of Administration
• Chapter 3: The Great Charters: Law Separates From Administration
• Chapter 4: Edward I to Richard II: Statutes and Social Revolution
• Chapter 5: The Fifteenth Century: the Problem of Enforcement
• Chapter 6: The Tudors: Renaissance, Reformation and Reception
• Chapter 7: The Stuarts: Struggle For the Supremacy of Law
• Chapter 8: The Eighteenth Century: Industrial Revolution
• Chapter 9: The Nineteenth Century: Liberalism and Reform
• Part 2: The Courts and the Profession
• Summary
• Chapter 1: The Communal Courts
• Chapter 2: Seignorial Jurisdiction
• Chapter 3: The Crown and Local Courts
• Chapter 4: The Jury
• Chapter 5: The Origins of the Central Courts
• Chapter 6: The Elaboration of the Judicial System: 1307-1509
• Chapter 7: The Tudors and the Common Law Courts
• Chapter 8: The Rise of the Prerogative Courts
• Chapter 9: Prerogative, Equity and Law Under the Stuarts
• Chapter 10: Parliament and the Privy Council
• Chapter 11: The Courts In the Nineteenth Century
• Chapter 12: The Legal Profession
• Chapter 13: The Growth of the Judiciary
• Chapter 14: Professional Literature
• Part 3: Some Factors In Legal History
• Summary
• Chapter 1: The Civil Law of Rome
• Chapter 2: The Canon Law of the Church
• Chapter 3: Custom
• Chapter 4: Legislation
• Chapter 5: The Principle of Precedent
• Book Two: Special Part
• Part 1: Procedure
• Summary
• Chapter 1: The Forms of Action
• Chapter 2: Civil Procedure
• Chapter 3: Pleading
• Part 2: Crime and Tort
• Summary
• Chapter 1: Criminal Procedure
• Chapter 2: The Felonies
• Chapter 3: Misdemeanours, Trespass and Tort
• Chapter 4: Liability, Civil and Criminal
• Chapter 5: Defamation
• Part 3: Real Property
• Summary
• Chapter 1: Feudalism
• Chapter 2: Feudalism In England
• Chapter 3: Inheritance and Alienability
• Chapter 4: Tenures and Incidents
• Chapter 5: The Rise of the Entail
• Chapter 6: The Common Law Estates Down to 1540
• Chapter 7: Uses and the Statute
• Chapter 8: The Later Law of Real Property
• Chapter 9: The Mortgage
• Chapter 10: Conveyances
• Part 4: Contract
• Summary
• Chapter 1: Origins
• Chapter 2: The Fourteenth Century
• Chapter 3: Assumpsit to Slade’s Case
• Chapter 4: Contract After Slade’s Case
• Chapter 5: Law Merchant and Admiralty
• Part 5: Equity
• Summary
• Chapter 1: The Early History of Equity
• Chapter 2: The Formative Period
• Chapter 3: The Work of the Chancellors
• Part 6: Succession
• Summary
• Chapter 1: Inheritance
• Chapter 2: Intestacy
• Chapter 3: Wills

CHAPTER 7

USES AND THE STATUTE

English lawyers are apt to believe that the use, and later the trust, are the peculiar inventions of English law. It is perfectly true that they were developed independently and along original lines, but it is interesting to observe that other legal systems have reached something like the same result by a different road. As early as the Salic Law in the fifth century we find the salman, whose position partly resembles that of a trustee and partly that of an executor, but it is in Mohammedan law of the present day that we find a most striking resemblance to the trust in an alien system.

THE HISTORY OF THE WORD “USE”

As for the origins of the English use, several suggestions have been made, and for a long time the favourite was to seek it in some aspect of Roman law, either the usufructus or the fideicommissum. It is now possible to state with some certainty that neither of these two institutions has any practical bearing upon the development of the English use. As Mr Justice Holmes observes, the existence of the salman in the Salic Law is proof enough that Germanic law was capable of developing from its own resources the idea of a feoffee to use.1

The English word “use” in this connection is in fact derived not from the Latin usus but from opus, the phrase being A. tenet ad opus B.—A. holds for the benefit of B. The use first occurs, as might be expected, in connections which are informal and non-technical.2 The Latin phrase ad opus occurs as early as Merovingian times in France and appears in England in the ninth century, where it is used to express the purpose of a gift or the object to which it is to be devoted. The phrase ad opus is to be found on the continent in much the same context as in England.3 In this connection it must be observed that chattels as well as land could be held by one person to the use of another, and that in some cases the beneficiary had a remedy at common law by detinue or debt, and in the case of money by the action of account.4 These, however, were personal actions and we had no analogous actions for land; consequently, in enforcing uses of land the common law did not have the necessary machinery for acting in personam.5 Besides this the common law seems to have adopted the policy of discouraging attempts to separate the enjoyment of land from the legal title, and for this attitude there was some justification; land was the basis of numerous public burdens as well as the source of those varied and valuable feudal incidents which we have had occasion to mention so often. The interposition of feoffees to uses between the beneficiary and his feudal lord would introduce endless complications into the feudal incidents and might, indeed, completely destroy them—and as we have seen on more than one occasion the common law was determined to maintain these incidents to the best of its ability.

EARLY HISTORY OF USES

Nevertheless, circumstances combined to promote the development of the use. The Crusades drew a large number of landowners from their homes to distant parts leaving their affairs in the greatest uncertainty, and we find frequent examples of crusaders and others, before their departure for the Holy Land or some other hazardous journey, conveying their lands to a friend upon various conditions which are sometimes cast in the form of a use.1 So, too, religious houses, following a practice which was common in every type of financial administration, would appropriate regular sources of revenue to specific purposes. When we come to the time of Bracton we find that he regards several of these questions as open to discussion. He even suggests that by means of a “condition” land could be made devisable.2 The problem of the use reappeared in connection with the controversy whether the Franciscan Friars were entitled to hold property by the rule of their order,3 while sokemen and villeins can only convey by surrendering their land to the lord “to the use of” the purchaser. As early as 1279 the papacy decided that it was lawful for friars to be the beneficiaries of property held by others to their use, and in other ways which upon the continent effected a similar result. In 1275 a statute ordained that when a guardian has proved to be fraudulent, the wardship shall be committed to a friend “to hold to the use of” the infant.4

FEOFFMENT AND RE-ENFEOFFMENT

A further element, which has not received sufficient emphasis, is the fact that a landowner could not change his estate without the intervention of strangers. For example, if he wished to make his wife a joint-tenant with himself, the only method available was to convey the land to a feoffee (or, more prudently, to several feoffees), who would then reconvey to the husband and wife jointly. A tenant in fee simple could create an entail for himself and a particular class of heirs and limit remainders only by first of all conveying to feoffees, who would then reconvey on the limitations agreed upon.5 Nor was the estate of these feoffees a mere fiction; the validity of the settlement depended upon their having a real and effective seisin, and if the settlor remained on the land, the settlement could be subsequently upset. He was, therefore, very much at the mercy of his feoffees during the interval between the two transactions.1 Much depended on their good faith, which will explain why clergy were often entrusted with these dangerous powers. It will be seen that the distinction between such feoffees and the feoffee to uses is very fine, and it seems highly probable that the connection between the two is close. The later feoffee to uses may easily have developed from feoffees of this sort when their duty to reconvey was postponed for a long interval, and in later times it would be easy to describe such feoffees as feoffees to uses.2

EARLY LEGISLATIVE INTERVENTION

By the close of the fourteenth century the use of lands must have been somewhat common. In 1377 the lands of fraudulent debtors, held by others for their benefit, are made liable to execution3 —and so begins the long association of the use with fraud. In 1391 a statute declared that uses in favour of corporations fell within the statute of mortmain,4 and in 1398 uses were declared forfeitable for treason.5 So far, the cestui que use had no legal protection—indeed, all these statutes were directed against him; but at length he also appealed to the legislator, and so we find in 1402 the Commons in Parliament praying for a remedy—

Already, however, the Council had begun to intervene in such cases; in 1350 we find the first case concerning a use before the “chancellor, treasurer, and others of the king’s council, being then in the chancery”. From this case it appears that a tax collector, who by virtue of his office was deeply indebted to the Crown, on his death-bed granted his lands, goods and chattels to one Thomas for the purpose of selling them in order to pay his debts to the Crown. Unfortunately the records of the case are extremely incomplete and all we have is a deposition containing these facts. From other sources it would appear that the matter may have got into the Council as the result of an attempt by his widow to compel the feoffee to hand over the balance of the proceeds after the payment of the debts.1

We may therefore conclude that although the cestui que use was often suspected of fraud and collusion, yet it was recognised that there was a legitimate place for the use. The case of 1350 possibly illustrates this; the petition of 1402 clearly argues this point of view, and during the fifteenth century cases become steadily more numerous.

It must be remembered that the earliest evidence, such as the statutes noted above, shows us a situation rather than an institution. As we have already suggested, the situation might be created in different ways and for different objects;2 it is only in the fifteenth century that these situations are for the first time grouped together under the one legal concept of the use.

THE GROWTH OF A STATUTORY POLICY

Time only added to the possibilities of fraud when unscrupulous persons employed the use, and we can trace the gradual development by the legislature of a policy. For example, it was long ago discovered that a wrongful tenant of lands could prevent the rightful owner from bringing his action, or greatly delay him, by conveying the land to feoffees to his own use, and so a statute of 1485 gave a remedy by allowing the writ of formedon to be brought against anyone who was receiving the profits of the land3 —it will be noticed that this statute adopts the momentous principle, already implied in the statutes of Edward III and Richard II, of treating the cestui que use as though he were the legal owner. All uses were not fraudulent, however, and Parliament recognised the fact by trying to remove one grave disadvantage which weighed upon cestuis que use, namely, that they could not convey a legal estate; and so another statute, in 1484, conferred this power upon them.4 This statute, too, treated the cestui que use as a legal owner, and so foreshadowed the policy of Henry VIII in the great Statute of Uses. This time the policy was not so fortunate. The feoffee still had the power to make a legal estate, and the grant of this power to the cestui que use concurrently could only add to the confusion since there were now two persons entitled to convey.

Under the Tudors the stream of legislation gathered speed and boldness. All trusts and uses of chattels to the use of the settlor were declared void1 in 1487; still more significant was an act of 1489 enacting that wardship and relief shall be due from heirs who are cestuis que usent of military lands;2 and in 1504 it was enacted that execution should lie against lands held in use, and that the cestui que use should enjoy all rights and defences in such proceedings as if he had the legal estate.3 Clearly, there was a policy steadily pursued for over a century and a half before the great statute of uses, the main object of which was to treat the cestui que use as having the legal estate. The most significant of all the acts, however, was one which dealt with a personal problem created by Richard III’s accession. As Duke of Gloucester he had several times been enfeoffed to uses by his friends; now that he was King it was evidently anomalous for this situation to continue. A statute therefore enacted “that such lands whereof he was sole seised for the use of others shall vest in the cestui que use”. For the first time Parliament ventured to transfer seisin from one person to another by its mere fiat.4

THE ESTABLISHMENT OF THE USE

By the end of the fifteenth century a fair body of law had been settled which gave a definite form to the use.

The commonest way of creating a use was by conveying the land to a number of joint-tenants; the advantage of this was greater security, since it was less likely that several feoffees would all turn out to be dishonest, while at the same time the rule of survivorship was a great convenience since neither dower nor feudal incidents attached upon the death of a joint-tenant—indeed, in the present day, the only reason for retaining the rule is its usefulness as between trustees. At the same time a joint feoffment eliminated complications due to dower. The uses might be declared at the time of the feoffment by writing or verbally, or it might be agreed that the uses should be those to be declared in the feoffor’s will. The fact that the uses might not be declared fully, or even at all, at the time of the feoffment, gave rise to the rule that a gratuitous feoffment of land of which the feoffor continued in possession presumed a use in favour of the feoffor, and from the reign of Edward IV we find a formal doctrine of “resulting” uses.5 Then, too, a bargain and sale from the reign of Henry VII onwards was taken as implying that the vendor who has received the purchase money, but who still remains in possession, will hold to the use of the purchaser;1 and this rule played a large part in the later development of conveyancing.

It was decided fairly soon that a corporation could not be a feoffee to the use of any other person,2 largely because the sanction which applied to relationships arising out of uses was the personal process of the Court of Chancery, and this was hardly effective against a corporation which had no body which could be coerced and no soul to be damned in consequence of a breach of confidence. It is clear, however, that a corporation could be a cestui que use.3 The interest of the cestui que use at this time strictly followed the corresponding legal estates—a married woman, for example, until the seventeenth century, had no separate use, her interest under a use being exactly the same as it would have been in land at common law, save that neither dower nor curtesy attached to uses.4 It was also a rule at this time that the feoffee must have a fee simple. The reasons for this were in a sense feudal, for it was stated in the form that tenure was so solemn a fact that the law would not allow even an expressed declaration of use to override it.5 Thus if A. enfeoffs B. in fee-tail, B. will hold of A. (for the Statute Quia Emptores does not apply to fees tail); the existence of this tenure between A. and B. is so solemn a matter that the law will prevent A. from imposing upon B. any further use. As the older books put it, A. has enfeoffed B. to hold to the use of B. and any subsequent declaration of use is “repugnant” and void. A little later we shall see the importance of this rule.

The effects of a feoffment to use were to place the legal title in the feoffees, and, consequently, they may, and indeed must, defend that legal title. Moreover, the heirs6 of the feoffees are bound by the use, but not purchasers for value without notice of the use, disseisors, abators, lords taking by escheat, or those who take by a title paramount. The law of forfeiture for treason had to be specially modified in particular cases (e.g. the rebel Earl of Northumberland in 1404) to ensure that the traitor lost lands settled to his use, and to prevent the forfeiture of legal estates held by him to the use of other persons.7

The interest of the cestui que use is best described as being at first just one more of a large variety of titles, weak or defective in varying ways and to various extents. The complication of the common law of real property by the early days of the sixteenth century must have familiarised people with the fact that a good many held by titles which fell short of perfection, and were not so very much the worse for it.

ADVANTAGES OF USES

There were, indeed, numerous countervailing advantages enjoyed by the cestui que use. In the first place he had the valuable privilege of being able to dispose of his land after his death by will, which was impossible in common law except in the case of certain lands (often burgages) which had been subject to the custom of devisability from of old. Then, too, settlements could be drawn with much greater freedom by handling uses than by handling common law estates, which by this time had hardened into an inflexible system. So, too, feoffees could be directed to sell portions of the land to pay the debts of a testator, which was impossible at common law. Then, also, there was the advantage of not having to use technical forms, for so long as the intention of the settlor was clear it was unnecessary to be as precise as in defining common law estates. It was soon discovered, also, that the use could be employed in order to secure the benefits of ownership to unincorporated bodies such as guilds, parishes and so on.1 And so by the beginning of the sixteenth century—

There were, however, on the other hand, some good reasons for interference by the legislature, for in no other way was there much likelihood of removing several abuses attendant upon the development of the use; we have seen already that even in the fourteenth century the use was employed to defraud creditors, on whose behalf Parliament several times intervened.3 At the same time since unincorporated bodies could take as cestuis que use it was possible to place land into mortmain in spite of the statute. Then, also, during the disorders of the fifteenth century lands were frequently given to great lords to the use of the donor, who thereby secured the support of a great magnate in defending the title—thus raising the old problem of maintenance.

USES AND FEUDAL REVENUE

Finally, from the standpoint of national finance and politics, the most important aspect of uses was the impossibility of fitting them into the feudal system. Their effect was usually to defraud the lord of the incidents of wardship, marriage and relief. This was not so serious a matter for the great nobility, for to some extent they could obtain the same advantage by the same means against the Crown. But it will be observed that whoever gains by the arrangement the Crown is sure to lose, and this aspect of the situation was already apparent to Henry VII. In the next reign the matter became still more urgent. The great Reformation Parliament had accomplished a tremendous amount of epoch-making legislation, especially in carrying out the religious settlement. This settlement was viewed without enthusiasm by a large part of the populace, and Parliament itself was none too well disposed towards the Crown. Henry VIII felt that it would be unwise and perhaps unavailing to seek from Parliament a further grant of taxes, and was therefore left to depend upon the hereditary revenues of the Crown. Of these only the feudal incidents seemed capable of any great expansion,1 and here the situation was complicated by the existence of uses. Having just carried out the Reformation settlement and assumed the headship of the Church, it is not surprising that Henry VIII was ready to apply heroic remedies. He contemplated nothing short of a drastic revision of the common law along lines which would suit the interests of the Crown. In 1529 a proposal was drawn up in the form of a draft bill based on a treaty between the Crown and the peerage with this end in view.2 The King and the lords proposed this arrangement: there was to be only one estate in land and that a fee simple, except that peers of the realm were to have the privilege of entailing their lands; uses were only to be valid if registered in the Court of Common Pleas, and elaborate provisions were drafted to ensure the utmost publicity; the lands of peers were to be subject to feudal dues in respect to equitable as well as legal estates; they could also be entailed, devised and settled, but elaborate provisions ensured that none of these devices should defeat the feudal rights of the Crown; and finally, in return for the heavy burden of feudal duties it was proposed that the land of peers of the realm should be inalienable save by royal licence. This bargain, if it could have been carried out, was eminently satisfactory to the King and to the peers, for the latter in return for their liability to inescapable feudal duties acquired the privilege of having their fortunes assured to them by inalienable rights.1

THE KING’S DEFEAT

It has always been a feature of English society that there was no deep line drawn between the peerage and other classes. There were plenty of great landowners as wealthy and as influential as the peers, who were in fact untitled, and it was this large and powerful class which, combined with the common lawyers, defeated the 1529 compromise. The large landowners who did not happen to be peers found themselves deprived by these proposals of the right to entail or to make secret settlements or alienations; all the details of their family arrangements were to be proclaimed in the parish church, confirmed by the parish priest, and sealed by the mayor of the county town. Feudal incidents were to be rigorously exacted from them as from the peers, only the commoners got nothing in return. As for the common lawyers they saw in this arrangement the ruin of their profession; it left them no more interesting topic of study than a fee simple, save in the very few cases of peers, and at this moment there were but fifty peers of the realm. The use still remained and was to be the means of effecting settlements, and the common lawyers secured a provision for registering them in the common pleas instead of in Chancery, but the capture was of little value after the publicity clauses had robbed the use of its chief attraction. A combination of great landowners and common lawyers, therefore, defeated these proposals in the House of Commons and convinced the King that an alliance with the peerage had no chance of success. He therefore had to seek support elsewhere and that support would have to be in the House of Commons.

THE KING’S NEW TACTICS

It seemed clear that the common lawyers might very well turn out to be the key to the situation; in any case whatever settlement was eventually made would depend for its working upon the machinery of the law. And so, first of all, the lawyers had to be reduced to a tractable frame of mind, and to this end Henry VIII received with marked sympathy a petition complaining of the delays of the common law, its expense and its failure to do justice. This gesture gave the common lawyers to understand that the Crown might demand from them some very radical reforms, and once again the profession felt that its existence was at stake. At the same time numerous commissioners were conducting searching examinations into the affairs of the landed gentry, suspecting that the King’s rights were being defeated by the common lawyers’ allies. Various proposals were made in the course of the next few years, and gradually the attack now centred against the use.

THE STATUTE OF USES

Of these various schemes, one finally became the famous Statute of Uses (1536).2 Under this arrangement the King secured his feudal dues, but the price he paid was to the common lawyers instead of to the nobility and Chancery. Indeed, it was the common lawyers who gained most by the Statute of Uses. After a great deal of difficulty and some concessions from the Crown the statute finally passed.

The statute carried to its logical conclusion the policy begun by Richard III, whose statutes had allowed the cestui que use to be treated for certain purposes as though he were the legal owner. Under the Statute of Uses the cestui que use becomes the legal owner for all purposes, and is invested by the statute with the benefits of the mysterious seisin which is the essence of a common law estate. This transformation operated by the statute converting a use into a legal estate is described in the Act itself (s. 10) as “executing the use”. It is clear that professional opinion was ready for this transformation, for even before the statute we find common layers loosely describing the cestui que use as being “seised” of the uses.1 As for the King, he was to receive all his feudal dues unimpaired, for the uses will be executed and feudal incidents will attach to the legal estates created by the statute.

As for the common lawyers, they won a great victory over Chancery; under the statute they not only retained the entail but obtained jurisdiction over all matters arising out of uses, since under the statute they were executed and became common law estates. The landowners had less cause for satisfaction. They retained the entail and the use, but after the statute, uses could no longer be employed as a machinery for the devise of land,2 while at the same time the Statute of Enrolments3 (which was a part of the scheme) enacted that a bargain and sale of freeholds and fees must be by deed enrolled. The bargain and sale was a very popular form of conveyance depending upon the use for its operation, and so the statute in substance compelled publicity of conveyance—until a way was found to evade it by means of the lease and the release. Finally, if we are to consider the nation at large, it was they who paid the heaviest price, for the complicated diplomacy which ensured the passage of the statute depended upon the understanding that there should be no more talk of reforming the common law.

After a long and argumentative preamble—“the sixteenth-century equivalent of a leading article in a government newspaper upon a government measure”4 —the statute proceeds to enact that cestuis que usent shall be seised of legal estates corresponding to the estates they had in use. Then we come to the provision that a jointure shall be a bar to dower.5 It must be remembered that the statute did not propose to abolish uses, for in more than one place it contemplated the creation of uses in the future. Its object was to avoid the inconveniences which were caused by having two forms of ownership, one legal and the other equitable, by declaring that the beneficiary shall have a complete legal estate and that the feoffee to use shall have none at all. This altered the character of the use, but did not destroy it. The statute did not apply to active uses, nor to uses out of chattels real or personal. The great merit of the arrangement was that the greater freedom in conveyancing by means of the use was preserved and made available to common lawyers.

COMPLETION OF THE STATUTORY SETTLEMENT

To the landed gentry the Statute of Uses seemed a calamity, and in the rebellion of 1536, which described itself as the “Pilgrimage of Grace”, we find among numerous other grievances—the dissolution of the monasteries, the religious changes, the divorce question—a demand for the repeal of the Statute of Uses, particularly because it abolished the powers of devise hitherto enjoyed by landowners. Henry VIII was well aware of the seriousness of opposition when it came from so important a class as the country gentry. By this time the enforcement of any government policy (and Henry VIII’s revolutionary policies needed a good deal of enforcement) depended very largely upon the co-operation of the local gentry, who as justices of the peace were responsible for local government. He felt that the time had come for a concession to the landed gentry, and this took the form of the Statute of Wills1 (1540), which conferred complete powers of devise over socage lands, and over two-thirds of land held by knight-service, accompanied by the usual provisions (based on the principle that a devisee was to be deemed as in by inheritance) to safeguard feudal dues. Three years later the statute was amended in numerous points of detail.2 In 1540, following the usual Tudor policy of erecting administrative courts for special business, Henry VIII established the Court of Wards, whose duties were to be the supervision of the King’s feudal revenue especially as it was affected by the Statutes of Uses and Wills.3

[1]Wigmore, Panorama of Legal History, ii. 565.

[1]Holmes, Collected Legal Papers, 4 (reprinted from Law Quarterly Review, i. 162). Cf. Ames, Lectures on Legal History, 235.

[2]Numerous examples will be found in Pollock and Maitland, ii. 233-239. The beneficiary was cestui a que use le feoffment fuit fait; when shortened to cestui que use it seemed that use was a verb, hence the plural cestuis que usent and, later, the forms cestui[s] que trust[ent]. Maitland Collected Papers, iii. 343. The phrase might later take such bizarre shapes as Setikki.

[3]See, for example, Philippe Godding, Actes relatifs an droit régissant la propriété foncière à Bruxelles au Moyen Aze (Bulletin de la Commission Royale des Anciennes Lois et Ordonnances de Belgique), xvii. 88-164, nos. 2 (1303), 4 (1358), 6 (1397), 13 (1289), etc.

[4]Some examples are collected in Ames, 238.

[5]For what seems to be the enforcement of a use of land through common law forms, see Y.B. 11 Richard II (ed. Thornley, Ames Foundation), 119 (1387). The question has been asked why uses were not enforceable by assumpsit: Pollock, The Land Laws, app. E; Maitland, Equity, 115. The principal reason must have been that assumpsit can only afford damages and not specific performance. So, too, the cetique could have account (a personal action only) against a feoffee: Fitzherbert, New Natura Brevium, 117. For another guess see O. W. Holmes, Collected Papers, 11-12.

[1]Sometimes this was expressed in terms of guardianship, as in Eyre Rolls (Selden Society, vol. lix), no. 257 (1221). Cf. below, n. 4.

[2]The case in the previous footnote was decided upon a condition. Soo, too, was the case of 1409 discussed by Professor Hargreaves, Equity and the Latin Side of Chancery, Law Quarterly Review, lxviii. 487-488. The rule was that only the reversioner could enter for breach of condition, and so it was rarely of any help to beneficiaries.

[3]Pollock and Maitland, ii. 237-239. There have been misunderstandings here. Friars could, and did, own their convents; but they could not hold revenue-producing investments: A. G. Little, Franciscan Papers, 56-57; no “uses” appear in the documents printed by Little in Essays in Honour of James Tait, 179. For a use held by Franciscans which they construed as a tenancy at will, see Y.BB. Edward II (Selden Series), ii. 76 (1308) where the plea seems closely modelled on that of a villein “who has nothing save at the will of his lord”.

[4]Westm. I, c. 48. From this the conclusion was drawn that since the friend entered to the use of the infant, therefore the freehold was in the infant and he could bring novel disseisin: 8 Ass. 28 (1334). For the close similarity of the ideas of wardship and use, see Eyre Rolls (Selden Society, vol. lix), nos. 200, 257, 1013 (1221); Bracton’s Note Book, 754 (1233); Y.BB. Edward II (Selden Society), iii. 185 (1310).

[5]See the entertaining arguments in Y.B. 41 Edward III, Michs. no. 2 ff. 17-19. Licences to alienate were needed if the land was held in chief: cf. Nicolas, Proceedings of the Privy Council, iv. 336 (1436).

[1]In some cases re-entry was a sufficient remedy: Y.B. 21 Edw. III. Pasch. no. 2 (1347).

[2]From Chichele’s Register ii. (ed. E. F. Jacob) it is clear that testators usually ordered their feoffees to convey legal estates rather than declaring new uses.

[3]51 Edw. III, c. 6, several times re-enacted.

[4]15 Rich. II, c. 5.

[5]21 Rich. II, c. 3.

[6]Rot. Parl., iii. 511; no legislation resulted.

[1]Select Cases in Council (Selden Society), 33-34.

[2]This attitude is neatly expressed by Montague in an argument in 1536: “to prove that uses were at common law, there is a writ in the Register called causa matrimonii prelocuti which lies when a woman enfeoffs a man with a view to a marriage between them, and the man then refuses to marry her, and she demands the land back; that writ is founded solely on the confidence which the woman placed in the man, and so it is clearly proved that confidence (and therefore the use) existed at common law”. How nearly common lawyers came to accepting the use can be seen from another remark of Montague (who next year became C.J., K.B.) in the same case: “the common law is nothing else than common reason, and common reason demands that one can put one’s trust in others, and a use is a trust between feoffor and feoffee” (Y.B. 27 Henry VIII, Pasch. 22, fo. 10).

[3]1 Hen. VII, c. 1 (repeating the policy of 1 Rich. II, c. 9, and 4 Hen. IV, c. 7). For a petition on this subject temp. Edward III, see Sayles, King’s Bench, iii. p. cxxi (o)—in line 5 reading covyn for comyn and in line 15 averer per paiis for aver par pairs.

[4]1 Rich. III, c. 1.

[1]3 Hen. VII, c. 4.

[2]4 Hen. VII, c. 17. For a curious argument that this statute takes away prerogative wardship, see Y.B. Michs. 13 Henry VII, f. 4 or Cases in Exchequer Chamber (Selden Society) ii. 161 (1497); the case explains the failure of the statute, and gives a long and informative debate on uses, conscience, prerogative and the like.

[3]19 Hen. VII, c. 15.

[4]1 Rich. III, c. 5.

[5]Littleton, ss. 463, 464.

[1]Y.B. 21 Henry VII, Hill. 30 (1506), where sale is distinguished from covenant.

[2]Bro. Feoffment al uses, 40 (1532).

[3]Subject, of course, to having a licence in mortmain; 15 Rich. II, c. 5.

[4]The absence of these complications was much valued; early in the eighteenth century, however, curtesy was allowed out of a trust; Holdsworth, iii. 188.

[5]Bro. Feoffment al uses, 40 (1532); Co. Lit. 19 b; Lord Cromwell’s Case, 2 Rep. 78 note 51. For the same reason, a term of years would not support a use according to the common lawyers, although the Chancery later allowed them; Holdsworth, iv. 471, 472. (For a clear early example of a use upon a term, see Y.B. 11 Richard II (1388), 240-242.)

[6]See the interesting recollections of Hussey, C.J., in Y.B. Pasch. 22 Edward IV, f. 4 no. 18 (1482) and cf. Cases in Exchequer Chamber (Selden Society), ii. 13.

[7]Titles depending on the earl were still obscure as late as 1439; see the documents in Rot. Parl., v. 11-12.

[1]By 23 Henry VIII, c. 12 (1532) such uses hereafter to be made, whether active or passive, are declared void unless they are limited to endure twenty years or less.

[2]Holdsworth, iv. 433-434.

[3]Above, pp. 578-580.

[1]It will be remembered that Henry VII’s ministers, Empson and Dudley, earned their ill-fame by their enforcement of these dues through the common law side of Chancery. Brodie, Edmund Dudley, (1932) Trans. R. Hist. Soc., 149, 157.

[2]Stubbs first drew attention to these documents, and Maitland, English Law and the Renaissance, 45 note 11, printed an extract from Starkey’s England in which similar views are ascribed to Cardinal Pole. The documents were first printed and fully discussed in Holdsworth, iv. 572 ff., 449 ff.

[1]The idea of peerage becomes prominent in this reign; cf. 31 Hen. VIII, c. 10 (1539), which is the first act to settle precedency among the nobility and official classes. Attempts were made to include similar provisions in the Act of Settlement, and in Stanhope’s Peerage Bill of 1719.

[1]Holdsworth, iv. 455, 456; the text of the memorandum on uses is printed in Holdsworth, iv. 577-580.

[2]27 Hen. VIII, c. 10. The text is in Digby, History of the Law of Real Property, 347-354. (His history must be taken subject to correction by Holdsworth.)

[3]Maitland, Equity, 35.

[4]Holdsworth, iv. 461.

[1]Y.B. 21 Henry VII, Hill. 30 (1506).

[2]The exercise of a power of appointment in certain circumstances has been suggested as a possibility which survived the statute: R. E. Megarry, The Statute of Uses and the power to devise, Cambridge Law Journal, vii. 354.

[3]27 Hen. VIII, c. 16. Text in Digby, op. cit. 368.

[4]Holdsworth, iv. 460, who adds, “it is far from being a sober statement of historical fact”. The language is certainly colourful, but the substance of the preamble is undoubtedly true.

[5]Above, p. 568 n. 2. Originally the jointure was (as its name implies) an estate for life jointly with the husband, but it soon came to mean also a sole life interest.

[1]32 Hen. VIII, c. 1.

[2]34 & 35 Hen. VIII, c. 5 (1543).

[3]Above, p. 174.