In fact, Wallace v. Harmstad is unintelligible. To speak of rent service, or of the statute Quia emptores, in a State where tenure is non-existent, is an absurdity; rent service and the statute Quia emptores necessarily imply tenure. They are meaningless terms without it. Considering the high authority which has always attached to Ingersoll v. Sergeant, there may be reason, in spite of Wallace v. Harmstad, to believe that tenure still exists in Pennsylvania, and that the statute Quia emptores does not.

§ 27. South Carolina.-On December 12, 1712, was passed an act to put in force in the province the English statutes therein particularly mentioned, the tenth section of which declared that all the English statutes not enumerated and made of force in the province by the act were impracticable in the province. The statute Quia emptores is not mentioned in this act, and is therefore not law in South Carolina.

§ 28. The important result of this inquiry, for our present purposes, is that in all of the United States, with the exception of South Carolina and perhaps Pennsylvania, land, if held at all, can be held of none but the State; for in all the States, with the two exceptions, either there is no tenure, or, if there is tenure, the statute Quia emptores is in force.

B. EQUITABLE OWNERSHIP.

CHAPTER I.

USES.

(a) Before the Statute.

I Co. REP., 121. An use is a trust or confidence which is not issuing out of land, but as a thing collateral annexed in privity to the estate, and to the person, touching the land, scil. that cestui que use shall take the profits, and that the tertenant shall make estates according to his direction. So that he who hath an use hath not jus neque in re, neque ad rem, but only a confidence and trust, for which he hath no remedy by the common law, but his remedy was only by subpoena in Chancery. If the feoffees would not perform the order of the Chancery, then their persons for the breach of the confidence were to be imprisoned till they did perform it; and therefore the case of an use is not like unto commons, rents, conditions, etc., which are hereditaments in judgment of law, and which cannot be taken away or discontinued by the alienation of the tertenant, or by disseisins, or by escheats, etc., as uses may, as shall after be said. There. were two inventors of uses, fear and fraud; fear in times of troubles and civil wars to save their inheritances from being. forfeited; and fraud to defeat due debts, lawful actions,. wards, escheats, mortmains, etc.—Chudleigh's Case.

Co. Lit., 271, b. Note, uses are raised either by trans-· mutation of the estate, as by fine, feoffment, common recov-· erie, &c., or out of the state of the owner of the land, by, bargaine and sale by deed indented and inrolled, or by cov-· enant upon law full consideration, whereof you may read · plentifully in my Reports.

272, a. The greater part of the lands in England in those troublesome and dangerous times (when that unhappie controversie betweene the houses of York and Lancaster was begun) were in use.

BACON, USES, TRACTS, 303. First, use is no right, title, or interest in law, and therefore master attorney who read upon this statute said well, that there are but two rightsJus in re, Jus ad rem. The one is an estate, which is Jus in re, the other a demand, which is Jus ad rem, but a use is neither. . . . The books go farther and say that a use is nothing, as in 2 H. VII. . . . But these books are not to be taken generally or grossly, for we see in the same books, when an use is specially alleged, the law taketh knowledge of it; but the sense of it is, that use is nothing for which remedy is given by the course of the common law, so as the law knoweth it, but protects it not; and therefore when the question cometh whether it hath any being in nature and conscience the law accepteth of it; and therefore Littleton's case is good law, that he which hath but forty shillings freehold in use, shall be sworn in an inquest, for it is ruled secundum dominium naturale and not secundum dominium legitimum, nam natura dominus est, quia fructum ex re percipit.

ID., 314. For the inception and progression of uses, I have for a precedent in them searched other laws, because states and commonwealths have common accidents; and I find in the civil law, that that which cometh nearest in name to the use, is nothing like in matter, which is usus fructus; for usus fructus and dominium is with them, as with their particular tenancy and inheritance. But that which resembleth the use most is fidei commissio, and therefore you shall find in Justinian, lib. 2, that they had a form in testaments, to give inheritance to one to the use of another, Haeredem constituo Caium, rogo autem te, Caie, ut haereditatem restituas Seio; and the text of the civilians saith, that for a great time if the heir did not, as he was required,

cesty que use had no remedy at all, until about the time of Augustus Caesar there grew in custom a flattering form of trust, for they penned it thus: Rogo te per salutem Augusti, or per fortunam Augusti, &c. Whereupon Augustus took the breach of trust to sound in derogation of himself, and made a rescript to the praetor to give remedy in such cases; whereupon within the space of a hundred years, these trusts did spring and speed so fast, as they were forced to have a particular chancellor only for uses, who was called praetor fidei commissarius; and not long after the inconvenience of them being found, they resorted unto a remedy much like unto this statute; for by two decrees of senate, called senatus consultum Trebellianum and Pegasianum, they made cesty que use to be heir in substance. I have sought likewise, whether there be anything which maketh with them in our law, and I find that Periam, chief baron, in the argument of Chudley's case, compareth them to copyholders, and aptly for many respects.

Now, for the cases whereupon uses were put in practice,. Coke in his reading doth say well, that they were produced. sometimes for fear, and many times for fraud. But I hold. that neither of these cases were so much the reasons of uses,. as another reason in the beginning, which was, that lands by the common law of England were not testamentary, or devisable; and of late years since the statute, the case of the conveyance for sparing of purchases, and execution of estates; and now last of all an excess of evil in men's minds, affecting to have the assurance of their estate, and possession to be revocable in their own times, and irrevocable after their own times.

I cannot find in any evidence before King R. II. his time, the clause ad opus and usum, and the very Latin of it savoureth of that time; for in ancient time, about Edw. I. his time, and before, when lawyers were part civilians, the Latin phrase was much purer, as you may see by Bracton's writing, and by ancient patents and deeds, and chiefly by the register of writs, which is good Latin; wherein this phrase

(ad opus and usum) and the words (ad opus) is a barbarous phrase, and like enough to be the penning of some chaplain that was not much past his grammar, where he had found opus and usus coupled together, and that they did govern an ablative case; as they do indeed since this statute, for they take away land and put them into a conveyance.

2 POLL. & MAIT., HIST. ENG. LAW, 226. 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 embryonic history we must first notice the now established truth that the English word use when it is employed with a technical meaning in legal documents is derived not from the Latin word usus, 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 formula ad opus et ad usum; nevertheless the earliest history of "the use" is the early history of the phrase ad opus.

ID., 229. 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 the citizens of London would have known what an interdict meant, had they misappropriated the lands conveyed to them for the use of the friars, those darlings of popes and kings. Again, in some cases the feoffment might perhaps be regarded as a gift upon con

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