Page:Harvard Law Review Volume 8.djvu/146

13© HARVARD LAW REVIEW. band can enfeoff his wife. Here there must be at the least an hon- orable understanding that the trust is to be observed, and there may be a formal 'interposition of faith.' Then, again, we see that some of the lands and revenues of a religious house have often been devoted to some special object ; they have been given to the con- vent 'to the use' of the library or 'to the use' of the infirmary, and we can hardly doubt that a bishop will hold himself bound to provide that these dedications, which are sometimes guarded by the anathema, shall be maintained. Lastly, in the early years of the thirteenth century the Franciscan friars came hither. The law of their being forbade them to own anything; but they needed ^t least some poor dormitory, and the faithful were soon offering them houses in abundance. A remarkable plan was adopted. They had come as missionaries to the towns ; the bene- factor who was minded to give them a house, would convey that house to the borough community 'to the use of or 'as an inhabi- tation for ' the friars. Already when Bracton was writing, a con- siderable number of plots of land in London had been thus conveyed to the city for the benefit of the Franciscans. The corporation was becoming a trustee. It is an old doctrine that the inventers of 'the use' were 'the clergy* or 'the monks.' We should be nearer the truth if we said that to all seeming the first persons who in England employed ' the use ' on a large scale were, not the clergy, nor the monks, but the friars of St. Francis. Now in few, if any, of these cases can the ad opus be regarded as expressing the relation which we conceive to exist between a principal and an agent. It is intended that the * feoffee to uses,' (we can employ no other term to describe him,) shall be the owner or legal tenant of the land, that he shall be seised, that he shall bear the burdens incumbent on owners or tenants, but he is to hold his rights for the benefit of another. Such transactions seem to have been too uncommon to generate any definite legal theory. Some of them may have been enforced by the ecclesiastical courts. Assuredly if the citizens of London had misappropriated the lands conveyed to them for the use of the friars, those darlings of popes and kings, they would have known what an interdict meant. Again, in some cases the feoffment might perhaps be regarded a^ a 'gift upon condition,' and in others a written agreement about the occupation of the land might be enforced as a covenant. But at the time when the system of original writs was taking its final form 'the use' had not become common enough to find a comfort-