poſe of the profits at the will of another. And it was the buſineſs of a particular magiſtrate, the praetor fidei-commiſſarius, inſtituted by Auguſtus, to enforce the obſervance of this confidence[1]. So that the right thereby given was looked upon as a veſted right, and entitled to a remedy from a court of juſtice: which occaſioned that known diviſion of rights by the Roman law, into jus legitimum, a legal right, which was remedied by the ordinary courſe of law; jus fiduciarium, a right in truſt, for which there was a remedy in conſcience; and jus precarium, a right in courteſy, for which the remedy was only by in treaty or requeſt[2]. In our law, a uſe might be ranked under the rights of the ſecond kind; being a confidence repoſed in another who was tenant of the land, or terre-tenant, that he ſhould diſpoſe of the land according to the intentions of ceſtuy que uſe, or him to whoſe uſe it was granted, and ſuffer him to take the profits[3]. As, if a feoffment was made to A and his heirs, to the uſe of (or in truſr for) B and his heirs; here at the common law A the terre-tenant had the legal property and poſſeſſion of the land, but B the ceſtuy que uſe was in conſcience and equity to have the profits and diſpoſal of it.
This notion was tranſplanted into England from the civil law, about the cloſe of the reign of Edward III[4], by means of the foreign eccleſiaſtics; who introduced it to evade the ſtatutes of mortmain, by obtaining grants of lands, not to their religious houſes directly, but to the uſe of the religious houſes[5]: which the clerical chancellors of thoſe times held to be fidei-commiſſſa, and binding in conſcience; and therefore aſſumed the juriſdiction, which Auguſtus had veſted in his praetor, of compelling the execution of ſuch truſts in the court of chancery. And, as it was moſt eaſy to obtain ſuch grants from dying perſons, a maxim was eſtabliſhed, that though by law the lands themſelves were not deviſable, yet if a teſtator had enfeoffed another to his own uſe, and ſo was poſſeſſed of the uſe only, ſuch uſe was deviſable by
