sume a more familiar and formal style. This one * recites in English that, where (as) oftentimes deeds of gift of goods and chattels have been made to the intent to defraud creditors of their duties, and the person that maketh the said deeds goeth to sanc tuary or other places privileged, and occupieth and liveth with the said goods and chattels, their credi tors being unpaid, it is ordained that all deeds of gift of goods and chattels, made or to be made of trust, to the use of that person that made the same deed, be void and of none effect. "This second statute, it will be noticed, appears to supplement the first; that one, notwithstanding the prayer, relating only to conveyances of land. This second statute, too, brings into prominence what is but matter of inference before, to wit, that trusts were obnoxious as being fraudulent devices for avoiding ' duties,' as debts were called; and from this time on, until modern times, trusts are looked upon by the courts of law as a convenient cover for fraud. The fact is brought out again in the Statute of Uses, a. d. 1535. The statute re cites that while lands, tenements, and heredita ments ought not to be transferred but by solemn livery, yet divers imaginations, subtle inventions, and practices have been used, whereby heredita ments have been conveyed by fraudulent feoff ments, &c, to secret uses, intents, and trusts, by occasion of which heirs have been unjustly dis herited, and lords have lost their wards, marriages, &c, it was enacted that he who had the use in lands conveyed should henceforth stand and be seised thereof; an enactment which, it need hardly be said, was at once evaded by the technical trusts of modern times. "From this time on, the trusts that fall under the condemnation of the law — for the courts con tinued to reprobate trusts as much as ever — were the untechnical trusts, generally speaking, arising from the retention of possession, or the secret reser vation of benefits, by a vendor of property con veyed, to outward appearance, absolutely. ' Here was a trust between the parties,' it was said in the leading and most famous case on the subject; 1 ' for the donor possessed all and used the goods as his own, and fraud is always apparelled and clad with a trust, and a trust is a cover of fraud.' "All this, and more, by way of statute and statu tory intimation before the Elizabethan legislation. Hut the existence of the earlier laws began to fade 1 Twyne'a Case, 3 Coke, 80.
from memory in an age when letters were not greatly cultivated; the fact itself in course of time turned to a tradition; and the tradition soon for got its ground. So it seems; and this, in con nection perhaps with the old unwritten law of deceit, which, however, was a very different thing, is probably the foundation of the modern belief that the statutes of Elizabeth were only declara tory of the common law. Indeed, in this country, familiar English statutes, passed before the separa tion, are in some cases spoken of as part of our common law. "It is easy, then, to see how the earlier of the two statutes of Elizabeth (13 Eliz. c. 5), relating to creditors, might be considered as little if anything more than a stringent, though not exhaustive, declaration of the old law, as being common law, and also to see how belief should come to be acted upon as founded upon fact. In regard to the later of the two Elizabethan statutes (27 Eliz. c. 4), relating to purchasers, the case is different. There is indeed the suggestion of the Statute of Uses, — ' scantly any person can be certainly as sured of any lands by them purchased,' -— but the only remedy given is annexing the seisin to the use. But doubt is removed by a case decided only about ten years after the passage of the statute, — a case which fell without the statute.1 The Com mon Pleas adjudged in that case that if a man makes a lease for years by fraud, and afterwards makes another lease bona fide, but without fine or rent reserved, the second lease should not avoid the first lease; for it was agreed that by the com mon law an estate made by fraud should be avoided only by him who had a former right, title, debt, or demand. And to make the matter still plainer, the court add that even he who hath right, title, in terest, debt, or demand more puisne (later) shall not avoid a gift or estate precedent by fraud by the common law.2 "From this it appears that there was neither stat ute, to which the rule of liberal construction could be applied, nor common law, to reach the case of a purchaser having no precedent right; and what has been said shows also how far and in what sense it is true that the legislation of Elizabeth was declaratory of the common law. Were it not for the intimation of Lord Mansfield, or from the fact behind that intimation, the expansiveness of 1 Upton v. Basset, stated in 3 Coke, 83. 1 22 Ass. 72.
