The effect of the foregoing proposals on the existing practice 'in lunacy' may be thus summarised:

1. It is proposed to do away with the necessity of an inquiry by a Master in the case of a person placed under the protection of the Court. If I may judge from the evidence passed by the Masters in some recent cases, the inquiry affords no security beyond that which is afforded by requiring two medical certificates.

2. It is proposed to extend the protection of the Court to every lunatic for whom the Commissioners may think fit to assign a guardian or trustee. In Vane v. Vane, 2 Ch. D. 124, Sir G. Jessel said that the Court had original jurisdiction to give directions as to the guardianship and maintenance of a lunatic, but that this power would not be exercised unless where the property was small and it was not intended to take proceedings in lunacy. But in Re Bligh, 12 Ch. D. 364, James and Cotton LJJ. said the Court had no power to appoint a guardian, and could not give directions as to maintenance, unless by way of administering a trust. The proposal is, to confer or confirm the power claimed by Sir G. Jessel, while avoiding expense by making it possible to obtain a guardian or trustee without application to the Court.

T. RALEIGH.

162

EARLY ENGLISH EQUITY.

I. Uses.

AT

T 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 law1.' It had the subpoena, which also it did not invent 2, and it had a form of decree requiring personal obedience 3.

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. I ought also to say

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

2 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. A. D. 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. ÍV. (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, I Cal. Ch. 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.

Glanvill, Prologus, Bracton, fol. 23b; ib. 3 b, ‘Aequitas quasi aequalitas.' Fleta, ii. c. 55, § 9. Petition of Barons, c. 27 (A. D. 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. (A. D. 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, 1 Cal. Ch. xvi.

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 courts1.

I agree with the late Mr. Adams 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 3. 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 1.

1 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.) 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. I. c. I; 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.

2 Adams, Equity, Introd. xxxv.

3 Beseler, Erbverträgen, i. § 16. pp. 277 et seq., 283, 271.

* 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

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 life1. To meet the chance of the Salman's death before the time for conveyance over, it was common to employ more than one2, and persons of importance were selected for the office 3. The essence of the relation was the fiducia or trust reposed in the fidelis manus1, who sometimes confirmed his obligation by an oath or covenant 5.

This likeness between the Salman and the feoffees 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 6.

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 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. 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 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. &c. 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. 3 Beseler, i. p. 271.

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

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.

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

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 debtsthat was the heir's business 1, but to cause to stand the reasonable division of the testator as against the heirs 2. The meaning of this function will be further explained when I come to deal with the rights of the cestui que use3.

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 life-time 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 4, 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 seizin 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 5. 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 6.

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

Glanv. vii. c. 6-8.

3 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, 113b; 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 (A. D. 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.

Cf. Bract. fol. 407 b.

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

6

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