Page:Select Essays in Anglo-American Legal History, Volume 1.djvu/232

 218 11. FROM THE llOO'S TO THE 1800'S commissarius to whom the duty was assigned of giving legal effect to fideicommissa. The Enghsh system in its origin only appHed to trusts created during life; for lands were not devisable, and per- sonal estate was not of sufficient importance to call for anv special legislation. Conveyances of lands to A, that he might pay their fruits to B, were introduced, probably to allow the clergy to avoid the Statute of Mortmain, and this device was adopted by the laity, especially during the wars of the Roses to avoid forfeiture for treason, and for other purposes. These " Uses " the Chancery would enforce as binding on the con- science, and the bequests of uses of land which it supported, and which enabled testators to evade the feudal rule of the indevisability of land, were akin to the Roman fideicommissa. I Both systems were thus introduced to evade the strict law. The jurisdiction of Chancery over Uses dates from the reign of Henry V. ; and when in the reign of Henry VIII., the Statute of Uses gave the legal ownership to the man who al- ready had the Use, the Chancellors regained their jurisdiction and created Trusts by the device of enforcing " a use of an use," which was not affected by the Statute. In this however there was no trace of Roman influence and, as Mr. Spence acknowledges, the details of the system of Uses and Trusts (were entirely constructed by the Clerical Chancellors without help from the Roman system.^ We can only say that prob- j ably the general conception of Uses and Trusts and the as- I sumption of Jurisdiction over them were assisted by the ac- quaintance of the Clerical Chancellors with the Roman fidei- commissa. The system of Mortgages ^ was much affected by the doc- trines of the Civil law, acting through the Court of Chancery, and a mortgage now is " a security founded on the common law, and perfected by a judicious and wise application of the principles of redemption of the Civil law."^ The strictness of the Common law viewed the Mortgage in the light of a con- ditional grant of land by the mortgagor to the mortgagee, ' Spence, i. 460 note; Butler's note to Co. Lit. i. 290 b. » Butler's notes to Co. Lit. i. 205 a., 290 b. Spence, i. 601. Coote on Mortgages, 4th edit. pp. 1, 14. Warren, Law Studies, p. 521. ' Coote, p. 1.