Page:Harvard Law Review Volume 8.djvu/143

HARVARD LAW REVIEW. Vol. Vlll. OCTOBER 25, 1894. NO. 3. THE ORIGIN OF USES. T^HE following account of the origin of our English Use forms -*- part of a projected sketch of English law as it stood at the accession of Edward I. It will there follow some remarks upon the late growth of any doctrine of informal agency, by which I mean an agency which is not solemnly created by a formal attornatio. I have long been persuaded that every attempt to discover the gen- esis of our use in Roman law breaks down, and I have been led to look for it in another direction by an essay which some years ago Mr. Justice Holmes wrote on Early English Equity (Law Quarterly Review, vol. i.). Whether I have been successful, it is not for me to say. I will first state my theory and then adduce my evidence. The germ of agency is hardly to be distinguished from the germ of another institution which in our English law has an eventful future before it, the * use, trust or confidence.* In tracing its em- bryonic history we must first notice the now established truth that the English word use when it is employed with a technical mean- ing in legal documents is derived, not from the Latin word tisus, but from the Latin word opus^ which in Old French becomes os or oes. True that the two words are in course of time confused, so that if by a Latin document land is to be conveyed to the use of John, the scribe of the charter will write ad opus Johannis or ad usum Johannis indifferently, or will perhaps adopt the fuller for- mula ad opus et ad usum, nevertheless the earliest history of 'the use ' is the early history of the phrase ad opus. Now this both in 18