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The The Collected Legal Papers Collected Legal Papers

The The Collected Legal Papers Collected Legal Papers

by Oliver Wendell Holmes Jr.

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Oliver Wendell Holmes (1841–1935) is ingrained in American history as one of the country's foremost jurists. Distinguished for his learning, judgment, humor, and eloquence, he served as justice of the United States Supreme Court for four decades. Throughout his career, Holmes forged new concepts of the origin and nature of law. He viewed the law as a social


Oliver Wendell Holmes (1841–1935) is ingrained in American history as one of the country's foremost jurists. Distinguished for his learning, judgment, humor, and eloquence, he served as justice of the United States Supreme Court for four decades. Throughout his career, Holmes forged new concepts of the origin and nature of law. He viewed the law as a social instrument rather than as a set of abstract principles, and his ideas were seminal in the development of modern free-speech legislation. His retirement in 1932 was a national event, and he remains today one of the most influential members to have ever served on the Supreme Court.
This volume compiles twenty-six of Oliver Wendell Holmes's legal papers and addresses, an important collection of opinions and dissents that touch every field of our national activity and reflect the ongoing development of a democratic society. Included is the famous article "Early English Equity," along with Holmes's essay on "The Path of the Law," which is regarded as the most significant index to his legal work.

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The Collected Legal Papers


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Copyright © 2007 Dover Publications, Inc.
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ISBN: 978-0-486-14892-2




AT the end of the reign of Henry V. the Court of Chancery was one of the established courts of the realm. I think we may assume that it had already borrowed the procedure of the Canon law, which had been developed into a perfected system at the beginning of the thirteenth century, at about the same time that the Chancellor became the most important member of the King's Council. It had the "Examination and oath of the parties according to the form of the civil law and the law of Holy Church in subversion of the common law." It had the subpoena, which also it did not invent, and it had a form of decree requiring personal obedience.

Down to the end of the same reign (Henry V.) there is no evidence of the Chancery having known or enforced any substantive doctrines different from those which were recognized in the other courts except two. One of them, a peculiar view of contract, has left no traces in modern law. But the other is the greatest contribution to the substantive law which has ever been set down to the credit of the Chancery. I refer to Uses, the parent of our modern trusts. I propose to discuss these two doctrines in a summary way as the first step toward answering the question of the part which Equity has played in the development of English law.

As a preliminary, I ought to state that I assume without discussion that the references to aequitas in Glanvill, Bracton, and some of the early statutes passed before the existence of a Chancery, have no bearing on that question. I ought also to say that the matters of grace and favour which came before the Council and afterwards before the Chancellor do not appear to have been matters in which the substantive rules of the common law needed to be or were modified by new principles, but were simply cases which, being for some reason without the jurisdiction of the King's ordinary courts, either were brought within that jurisdiction by special order, or were adjudged directly by the Council or the Chancellor according to the principles of the ordinary courts.

I agree with the late Mr. Adams that the most important contribution of the Chancery has been its (borrowed) procedure. But I wish to controvert the error that its substantive law is merely the product of the procedure. And, on the other hand, I wish to show that the Chancery, in its first establishment at least, did not appear as embodying the superior ethical standards of a comparatively modern state of society correcting the defects of a more archaic system. With these objects in view, I proceed to consider the two peculiar doctrines which I have mentioned.

First, as to Uses. The feoffee to uses of the early English law corresponds point by point to the salman of the early German law, as described by Beseler fifty years ago. The salman, like the feoffee, was a person to whom land was transferred in order that he might make a conveyance according to his grantor's directions. Most frequently the conveyance was to be made after the grantor's death, the grantor reserving the use of the land to himself during his life. To meet the chance of the salman's death before the time for conveyance was over, it was common to employ more than one, and persons of importance were selected for the office. The essence of the relation was the fiducia or trust reposed in the fidelis manus, who sometimes confirmed his obligation by an oath or covenant.

This likeness between the salman and the feoffee to uses would be enough, without more, to satisfy me that the latter was the former transplanted. But there is a further and peculiar mark which, I think, must convince every one, irrespective of any general views as to the origin of the common law.

Beseler has shown that the executor of the early German will was simply a salman whose duty it was to see legacies and so forth paid if the heirs refused. The heres institutus being unknown, the foreign law which introduced wills laid hold of the native institution as a means of carrying them into effect. Under the influence of the foreign law an actual transfer of the property ceased to be required. It was enough that the testator designated the executors and that they accepted the trust; and thus it was that their appointment did not make the will irrevocable, as a gift with actual delivery for distribution after the donor's death would have been.

There can be no doubt of the identity of the continental executor and the officer of the same name described by Glanvill; and thus the connection between the English and the German law is made certain. The executor described by Glanvill was not a universal successor. Indeed, as I have shown in my book on the Common Law, the executor had not come to be so regarded, nor taken the place of the heir in the King's courts even as late as Bracton. To save space I do not copy Glanvill's words, but it will be seen on reading that the function of the executor was not to pay debts — that was the heir's business, but to cause to stand the reasonable division of the testator as against the heirs. The meaning of this function will be further explained when I come to deal with the rights of the cestui que use:

The executor had already got his peculiar name in Glanvill's time, and it would rather seem that already it had ceased to be necessary for the testator to give him possession or seizin. But, however this may be, it is certain that when the testator's tenements were devisable by custom, the executor was put in possession either by the testator in his lifetime or else immediately after the testator's death. As late as Edward I. "it seemed to the court as to tenements in cities and boroughs which are left by will (que legata sunt) and concerning which there should be no proceeding in the King's Court, because it belongs to the ecclesiastical forum, that first after the death of the testator the will should be proved before the ordinary, and the will having been proved, the mayor and bailiffs of the city ought to deliver seizin of the devised and devisable tenements (de tenementis legatis et que sunt legabilia) to the executors of the will saving the rights of every one." A little later the executor ceased to intervene at all, and the devisees might enter directly, or if the heir held them out, might have the writ Ex gravi querela.

If, as I think, it is sufficiently clear that in the reign of Edward I. the distinction between an executor and a feoffee to uses was still in embryo, it is unnecessary to search the English books for evidence of the first stage when the testator transferred possession in his own lifetime. A case in 55 Henry III. shows executors seized for the purpose of applying the land to pious uses under a last will, and defending their seizin in their official capacity, but does not disclose how they obtained possession. A little earlier still Matthew Paris speaks of one who, being too weak to make a last will, makes a friend expressorem et executorem. It is a little hard to distinguish between such a transaction and a feoffment to uses by a few words spoken on a death-bed, such as is recorded in the reign of Henry VI. But the most striking evidence of the persistence of ancient custom was furnished by King Edward III. in person, who enfeoffed his executors, manifestly for the purpose of making such distribution after his death as he should direct; but because he declared no trust at the time, and did not give his directions until afterwards, the judges in Parliament declared that the executors were not bound, or, as it was then put, that there was no condition.

Gifts inter vivos for distribution after death remained in use till later times. And it may be accident, or it may be a reminiscence of ancient tradition, when, under Edward IV., the Court, in holding that executors cannot have account against one to whom the testator has given money to dispose of for the good of his soul, says that as to that money the donee is the executor.

At all events, from an early date, if not in Glanvill's time, the necessity of a formal delivery of devised land to the executor was got rid of in England as Beseler says that it was on the Continent. The law of England did in general follow its continental original in requiring the two elements of traditio and investitura for a perfect conveyance. But the Church complained of the secular courts for requiring a change of possession when there was a deed. And it was perhaps because wills belonged to the spiritual jurisdiction that the requirement was relaxed in the case of executors. As has been shown above, in the reign of Edward I. possession was not delivered until after the testator's death, and in that of Edward III. it had ceased to be delivered to them at all. Possibly, however, a trace of the fact that originally they took by conveyance may be found in the notion that executors take directly from the will even before probate, still repeated as a distinction between executors and administrators.

It is now time to consider the position of the cestui que use. The situations of the feoffor or donor and of the ultimate beneficiaries were different, and must be treated separately. First, as to the former. In England, as on the Continent, upon the usual feoffment to convey after the feoffor's death, the feoffor remained on the land and took the profits during his life. Feoffors to uses are commonly called pernors of profits in the earliest English statutes and are shown in possession by the earliest cases. As Lord Bacon says in a passage cited above, pernancy of the profits was one of the three points of a use. It was the main point on the part of the feoffor, as to make an estate, or convey as directed, was the main duty on the side of the feoffee. But all the German authorities agree that the pernancy of the profits also made the gewere, or protected possession, of early German law. And in this, as in other particulars, the English law gave proof of its origin. In our real actions the mode of alleging seizin was to allege a taking of the esplees or profits.

If the remedies of the ancient popular courts had been preserved in England, it may be conjectured that a cestui que use in possession would have been protected by the common law. He was not, because at an early date the common law was cut down to that portion of the ancient customs which was enforced in the courts of the King. The recognitions (assizes), which were characteristic of the royal tribunals, were only granted to persons who stood in a feudal relation to the King, and to create such a relation by the tenure of land, something more was needed than de facto possession or pernancy of profits. In course of time the fact that the new system of remedies did not extend itself to all the rights which were known to the old law became equivalent to a denial of the existence of the rights thus disregarded. The meaning of the word "seizin" was limited to possession protected by the assizes, and a possession which was not protected by them was not protected at all. It will be remembered, however, that a series of statutes more and more likened the pernancy of the profits to a legal estate in respect of liability and power, until at last the statute of Henry VIII. brought back uses to the courts of common law.

It is not necessary to consider whether the denial of the assizes to a cestui que use in possession was peremptory and universal from the beginning, because the feoffor had another protection in the covenants which, in England as on the Continent, it was usual for him to take. For a considerable time the Anglo-Norman law adhered to the ancient Frankish tradition in not distinguishing between contract and title as a ground for specific recovery, and allowed land to be recovered in an action of covenant, so that it would seem that one way or another feoffors were tolerably safe.

But cestuis que use in remainder were strangers both to the covenant and the possession. There was an obvious difficulty in finding a ground upon which they could compel a conveyance. The ultimate beneficiaries seem to have been as helpless against the salman in the popular courts on the Continent as they were against the feoffee in the Curia Regis. Under these circumstances the Church, which was apt to be the beneficiary in question, lent its aid. Heusler thinks that the early history of these gifts shows that they were fostered by the spiritual power in its own interest, and that they were established in the face of a popular struggle to maintain the ancient rights of heirs in the family property, which was inalienable without their consent. In view of the effort which the Church kept up for so long a time to assert jurisdiction in all matters of fidei laesio, it would seem that a ground for its interference might have been found in the fiducia which, as has been said, was of the essence of the relation, and which we find referred to in the earliest bills printed in the Chancery Calendars.

This is conjecture. But it seems clear that on some ground the original forum for devisees was the Ecclesiastical Court. Glanvill states that it belongs to the ecclesiastical courts to pass on the reasonableness of testamentary dispositions, and, while he shows that the executor had the King's writ against the heir, gives no hint of any similar right of legatees or devisees against the executor. The Decretals of Gregory disclose that a little later the Church compelled executors to carry out their testator's will, and Bracton says in terms that legatees and devisees of houses in town or of an usufruct could sue in the ecclesiastical courts. As we have seen, in the case of houses in town the executor ceased to intervene, the ecclesiastical remedy against him became superfluous and devisees obtained a remedy directly against deforciants in the King's courts. But with regard to legacies, although after a time the Chancery became a competing, and finally, by St. 20 & 21 Vict. Ch. 77, s. 23, the exclusive jurisdiction, as late as James I. "the Lord Chancellor Egerton would say, the Ecclesiastical Courts were more proper for Legacies, and sometimes would send them thither."

These courts were unable to deal with uses in the fulness of their later development. But the chief instances of feoffment upon trust, other than to the uses of a last will or for distribution after death, of which there is any record until sometime after the Chancery had become a separate court under Edward III. were for the various fraudulent purposes detailed in the successive petitions and statutes which have come down to us. It should be mentioned too, that there are some traces of an attempt by cestuis que use who were strangers to the feoffment to enforce the trust by way of a condition in their favor, and it seems to have been put that way sometimes in the conveyances.

For a considerable time, then, it would seem that both feoffors and other cestuis que use were well enough protected. The first complaint we hear is under Henry IV. It is of the want of a remedy when property is conveyed by way of affiance to perform the will of the grantors and feoffors and the feoffees make wrongful conveyances. As soon as the need was felt, the means of supplying it was at hand. Nothing was easier than for the ecclesiastics who presided in Chancery to carry out there, as secular judges, the principles which their predecessors had striven to enforce in their own tribunals under the rival authority of the Church. As Chancellors they were free from these restrictions which confined them as churchmen to suits concerning matrimony and wills. Under Henry V. we find that cestuis que use had begun to resort to equity, whereas under Richard II. the executors and feoffees of Edward III. had brought their bill for instructions before the Judges in Parliament. In the next reign (Henry VI.) bills by cestuis que use become common. The foundations of the claim is the fides, the trust reposed and the obligation of good faith, and that circumstance remains as a mark at once of the Teutonic source of the right and the ecclesiastical origin of the jurisdiction.


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