Page:Harvard Law Review Volume 8.djvu/145

129 THE ORIGIN OF USES. 129 not John's, is growing and destined to grow. In course of time the relationship expressed by the vague ad opus will in this region develop into a law of agency. In this region the phrase will appear in our own day as expressing rights and duties which the common law can protect and enforce without the help of any 'equity.' The common law will know the wrong that is committed when a man and in course of time it will know the obligation which arises when money is ' had and received to the use ' of some person other than the recipient. It is otherwise in the case of land, for there our old law had to deal with a clearer and intenser ownership. But first we must re- mark that at a very remote period one family at all events of our legal ancestors have known what we may call a trust, a temporary trust, of lands. The Frank of the Lex Salica is already employing it ; by the intermediation of a third person, whom he puts in seisin of his land and goods, he succeeds in appointing or adopting an heir. Along one line of development we may see this third per- son, this 'saleman,' becoming the testamentary executor of whom this is not the place to speak ; and our English law by forbidding testamentary dispositions of land has prevented us from obtaining many materials in this quarter. However, in the England of the twelfth century we sometimes see the lord intervening between the vendor and the purchaser of land. The vendor surrenders the land to the lord *to the use ' of the purchaser by a rod, and the lord by the same rod delivers the land to the purchaser. Freeholders, it is true, have soon acquired so large a liberty of alienation that we seldom read of their taking part in such surrenders ; but their humbler neighbors, for instance, the king's sokeman, are constantly surrendering land * to the use ' of one who has bought it. What if the lord when the symbolic stick was in his hand refused to part with it .'' Perhaps the law had never been compelled to consider so rare an event ; and in these cases the land ought to be in the lord's seisin for but a moment. However, we soon begin to see what we can not but call permanent ' uses '. A slight but unbroken thread of cases, beginning while the Conquest is yet recent, shows us that a man will from time to time convey his land to another * to the use ' of a third. For example, he is going on a crusade, and wishes that his land shall be held to the use of his children, or he wishes that his wife or his sister shall enjoy the land, but doubts, it may be, whether a woman can hold a military fee or whether a hus-
 * converts to his use ' {ad opus suiwt propriiini) the goods of another ;