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Yale Law Journal

Some Fundamental Legal Conceptions as Applied in Judicial Reasoning

From very early days down to the present time the essential nature of trusts and other equitable interests has formed a favorite subject for analysis and disputation. The classical discussions of Bacon[1] and Coke are familiar to all students of equity, and the famous definition of the great chief justice (however inadequate it may really be) is quoted even in the latest textbooks on trusts.[2] That the subject has had a peculiar fascination for modern legal thinkers is abundantly evidenced by the well known articles of Langdell[3] and Ames,[4] by the oft-repeated

  1. Bacon on Uses (Circa 1602; Rowe's ed. 1806), pp. 5–6: "The nature of an use is best discerned by considering what it is not, and then what it is. * * * First, an 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 rights: Jus 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 an use is neither. * * * So as now we are come by negatives to the affirmative, what an use is. * * * Usus est dominium fiduciarium: Use is an ownership in trust.
    So that usus & status, sive possessio, potius differunt secundum rationem fori, quam secundum naturam rei, for that one of them is in court of law, the other in court of conscience. * * *
  2. Co. Lit. (1628) 272 b: "Nota, an use is a trust or confidence reposed in some other, which is not issuing out of the land, but as a thing collaterall, annexed in privitie to the estate of the land, and to the person touching the land, scilicet, that cesty que use shall take the profit, and that the terre-tenant shall make an estate according to his direction. So as cesty que use had neither jus in re, nor jus ad rem, but only a confidence and trust for which he had no remedie by the common law, but for the breach of trust, his remedie was only by subpoena in chancerie. * * *"
    This definition is quoted and discussed approvingly in Lewin, Trusts (12th ed., 1911), p. 11. It is also noticed in Maitland, Lectures on Equity (1909), pp. 43, 116.
  3. See Langdell, Classification of Rights and Wrongs (1900), 13 Harv. L. Rev., 659, 673: "Can equity then create such rights as it finds to be necessary for the purposes of justice? As equity wields only physical power, it sems to be impossible that it should actually create anything. * * * It seems, therefore, that equitable rights exist only in contemplation of equity, i.e., that they are a fiction invented by equity for the promotion of justice. * * *
    "Shutting our eyes, then, to the fact that equitable rights are a fiction, and assuming them to have an actual existence, what is their nature, what
  4. See Ames, "Purchase for Value Without Notice" (1887), 1 Harv. L. Rev., 1, 9: "The trustee is the owner of the land, and, of course, two persons with adverse interests cannot be owners of the same thing. What the cestui que trust really owns is the obligation of the trustee; for an obligation is as truly the subject matter of property as any physical res. The most striking difference between property in a thing and property in an obligation is in the mode of enjoyment. The owner of a house or a horse enjoys the fruits of ownership without the aid of any other person. The only way in which the owner of an obligation can realize his ownership is by compelling its performance by the obligor. Hence, in the one case, the owner is said to have a right in rem, and in the other, a right in personam. In other respects the common rules of property apply equally to ownership of things and ownership of obligations. For example, what may be called the passive rights of ownership are the same in both cases. The general duty resting on all mankind not to destroy the property of another, is as cogent in favor of an obligee as it is in favor of the owner of a horse. And the violation of this duty is as pure a tort in the one case as in the other."