Property Law Old and New: The Beneficial Interest Under a Trust

1. Introduction

In 1937, Sir Maurice Amos famously remarked that ‘[t]he trust is a cuckoo in the nest of the Civil Law’.^[1] Notwithstanding Amos’s warning, whether through private international law or by their incorporation into domestic law, in recent decades there has been a significant expansion in the recognition of trusts and trust-like devices in 126civil law jurisdictions.^[2] In an increasingly globalised world, this is perhaps unsurprising. Trusts and trust-like devices have proved to be attractive mechanisms across the world for a wide range of circumstances including corporate structuring, asset and wealth management, the mitigation of taxes, and charitable donations. As such, the comparative study of trusts between common law and civil law jurisdictions has become an increasingly popular area of academic inquiry. Approaching trusts and trust-like devices through a comparative lens has greatly improved our understanding of both the common and civil law devices but there remain a number of difficult challenges.^[3] The seemingly inevitable ‘clash of legal cultures’,^[4] often manifesting in doctrinal or linguistic difficulties, and perhaps even in competing national sensibilities, can be problematic for comparativists.^[5] The one particular challenge that this paper seeks to address is the difficulty that English lawyers have faced in finding a satisfactory explanation for the true nature of the beneficiary’s interest under trust.

The orthodox explanation in English law has been that the beneficiary has an equitable right in rem in the trust property.^[6] That English law purports to split the trust property between the trustees’ legal title and the beneficiaries’ equitable title is unrecognisable to civilian concepts of ownership.^[7] As such, in incorporating the trust and trust-like devices, civil lawyers have faced significant difficulties in adequately explaining the relationship between settlor, trustee, beneficiary and the trust property. In Russia and Georgia, the settlor remains the owner;^[8] in the Nether127lands the beneficiary is the owner;^[9] in Quebec, and subsequently the Czech Republic, which drew on the Quebecois model, no one owns the trust property;^[10] whereas in Lithuania both the settlor and trustee have proprietary rights in the trust property.^[11] Given the civil law’s familiarity with fiduciaries, the most common solution, notably in mixed systems like Scotland, has been for the trustee to be acknowledged as the owner of the trust property, whilst being subjected to fiduciary and/or personal obligations to the beneficiary.^[12]

Whether any of these solutions provide an adequate explanation for the operation of trusts and trust-like devices is outside of the scope of this paper. Rather, the primary focus is on the position of the beneficiary in English Law. In Akers, Lord Sumption considered the matter to be settled.^[13] However, this orthodoxy has been subjected to significant criticism in recent years, notably by scholars arguing that it is the trustee rather than the beneficiary who has a proprietary right in the trust property and that the beneficiary in fact has a right against the trustee’s right to the trust property.^[14] The emergence of this new theory has prompted a firm response from scholars defending the orthodox proprietary position,^[15] and it seems unlikely 128that the two positions are likely to be reconciled in the near future. In a recent essay, D. A. Foster has suggested that modern scholars have found significant difficulties in explaining the true nature of trusts in English law because our discourse has become so far removed from its legal historical foundations.^[16] This article seeks to build on Foster’s analysis, which begins with Sir Edward Coke’s definition of a trust as a ‘confidence annexed in privity’ from Chudleigh’s Case (1594),^[17] by connecting the modern debate to its earliest foundations in the fifteenth century. By considering the nature of the interest held by the beneficiary in the late fifteenth century we are able to see the trust as a practical and flexible device which even in this very formative period had a duality of both proprietary and contractual features.

2. The English Trust: Definition and Origins

The English trust, and therefore the nature of the interest held by the beneficiary, has been notoriously difficult to define. As Maitland remarked, ‘[n]o doubt we should like to begin our discussion with a definition of ‘trust’. But I know not where to find an authoritative definition.’^[18] The editors of the leading modern textbook Hanbury & Martin’s Modern Equity also acknowledge this difficulty ‘[m]any attempts have been made to define a trust, but none of them has been wholly successful.’^[19] The most apt solution, and that offered by both Maitland and Hanbury & Martin, has been to offer a broad, somewhat vague, definition and then to distinguish the trust from other similar devices.^[20] For Hanbury & Martin, the trust ‘is a relationship recognised by [e]quity which arises where property is vested in a person or persons called trustees, which those trustees are obliged to hold for the benefit of other persons called beneficiaries.’^[21] A particular feature of the English trust, and one which is central to understanding the nature of the beneficial interest, is its long doctrinal and institutional history.

129The origin of English trusts, and their medieval precursor, the use, has been subject to significant debate.^[22] The earliest explanations theorised that English trusts were heavily influenced classical Roman law.^[23] In the seventeenth century, Francis Bacon and Lord Nottingham C. sought to explain the origins of trust by analogy to the Roman fideicommissum.^[24] Neither expressly argued that the English use was a fideicommissum, both used the comparison to support a broader point about the nature of the equitable jurisdiction, but they came close.^[25] In his Commentaries, Blackstone had gone one step further to argue that fideicommissum was transplanted into English law towards the end of Edward III’s reign (1327–77).^[26] There are certainly similarities between the devices, both involve entrusting property into the hands of another with instructions that it should be held for a third party, however, they are clearly distinct, most notably in that fideicommissum is a testamentary device, whereas the English trust is a more flexible device with a much wider scope.^[27] In the decades which followed, other authors sought to connect the English trust to different Roman devices. Writing in the 1690 s, Geoffrey Gilbert considered uses and trusts to be analogous to another Roman proprietary device, the usufruct,^[28] which divided the title and enjoyment of property for a term of years, or life,^[29] although in his later 130writing the comparison is removed.^[30] Perhaps more interestingly, in the early eighteenth century, and again as part of a broader theory of equity, Henry Ballow sought to connect English trusts to the non-proprietary Roman depositum.^[31]

By the late nineteenth century, theorists seeking to explore the origins of the English trust no longer looked to comparisons from classical Roman Law but instead to other sources. The American jurist, O. W. Holmes was the first to identify similarities between the Germanic devices and the English use. In 1885, he argued that the Germanic salmann was transplanted into English law by the Normans, and that it corresponded ‘point to point’ with feoffments to uses.^[32] This focus on the apparent Germanic influence was followed by Ames, Maitland and Holdsworth who considered that the use derived from Germanic salmann or treuhand.^[33] However, this has been subjected to significant criticism, with the apparent link between them being described as ‘superficial’.^[34] More recently, the Islamic waqf has been suggested as the jurisprudential genesis of uses,^[35] but this has also proved not to be entirely convincing.

That divergent legal systems developed ‘trust-like’ mechanisms by which property could be given to another to achieve a specified purpose is not only unsurprising but should perhaps have been expected. However, as Biancalana notes, ‘rough resemblance, however interesting, does not make for historical connection’.^[36] The most likely explanation for the origins of the English trust is that following a number of earlier precursors and false starts it emerged in the early 14^th century in the 131form of the medieval use as a device used in family settlements,^[37] which by the early fifteenth century was enforced by the Court of Chancery. The distinctiveness of the English trust has also been reaffirmed in a modern context.^[38] That the trust emerged in specific English circumstances and has evolved over many centuries has led to challenges in understanding its precise nature. In particular, that the trust developed to have both contractual and proprietary features has resulted in significant difficulty for modern legal theorists seeking to explain the true nature of the beneficial interest under a trust.^[39]

3. Modern Debate

The origins of the modern debate concerning the nature of English trusts can be found in the early-to mid- nineteenth century work of John Austin.^[40] Upon the founding of University College London in 1827, and following a relatively unsuccessful career at the Chancery Bar, Austin was appointed Professor of Jurisprudence.^[41] It is, of course, for his critiques of natural law and work on legal positivism that Austin is best known, but the influence of his thinking in relation to English property law has been profound. Furthermore, as Foster has demonstrated, the continued reliance on Austinian language and categorisations of property rights has left modern legal theorists detached from the historical foundations of the debate,^[42] which has led to an apparent deadlock.

In his lectures on jurisprudence, delivered between 1829–1833, and published posthumously in 1863, Austin sought to apply the Roman distinction between rights in rem and rights in personam to English property law.^[43] It is through this distinction between proprietary rights in rem, which ‘bind the world’, and personal rights in personam, which bind identifiable parties, that most undergraduate students are introduced to property law in modern English law schools. There is some evidence to suggest that Austin believed the beneficiaries’ interest in a trust was a right in rem. In a narrow constructive trust context, he stated that the purchaser under a 132specifically enforceable contract acquired an equitable right in rem, although his failing health prevented further work.^[44]

By the late nineteenth century, a number of theorists had become more confident in a proprietary conception of the trust and began to speak of ‘equitable ownership’ and as the beneficiary being the ‘true owner of the trust property’.^[45] This characterisation of trust property as in rem was attractive as it addressed the problem previous theorists had had in that it was applicable equally to personal and real property. Yet, by the late nineteenth century, explanations for the trust based on the doctrine of privity of estates had become increasingly removed from practice.^[46] As a real property concept, the doctrine of estates was increasingly recognised as an inadequate explanation for trusts of personalty.^[47] The conceptualisation of the trust as ‘equitable ownership’, whilst convenient to reflect the increasingly proprietary nature of the trust, remained undertheorised. In turn, others sought to highlight the more contractual aspects of trusts.^[48]

Although critical of the proprietary conceptualisation of the trust, theorists favouring a more contractual model also utilised Austin’s Roman law-based in rem/in personam distinction.^[49] Beginning in the late-nineteenth century with Holland, Ames, and Langdell, a line of thinking emerged that exposed the limitations of the proprietary model and considered trusts to be rights in personam.^[50] This in personam model derived from the maxim aequitas agit in personam, that is to say, equity acts in personam, and it was argued that, as the beneficial interest under a trust did not bind a bone fide purchaser for value without notice, it could not be a right in rem. Nor was the beneficiary protected against an adverse possessor or from escheat to the trustee’s lord.^[51] Indeed, the argument in fact went further to state that, 133as equity acted in personam, it could not create rights in rem at all. In the first decade of the twentieth century, F. W. Maitland, building on the work of Ames and Langdell, presented the now classic account of the beneficiary’s interest as in personam as a ‘more subtle and arguably more successful thesis’.^[52]

For Maitland, the trust began as an equitable obligation enforceable against the parties to the original agreement. Yet, by the early twentieth century, it had developed into something which ‘look[ed] very like’ a right in rem.^[53] However, it was not a true right in rem, it was only ‘analogous’.^[54] As Foster has noted, Maitland’s audience was his students.^[55] In his other work he was highly critical of the applicability of Austin’s in rem/in personam to English law.^[56] Furthermore, Maitland came very close to an alternative explanation, which saw the trust as a right that binds everyone but a bone fide purchaser, the trustee’s lord by escheat and an adverse possessor. However, he eventually settled on an in personam explanation.^[57] Although beneficiaries could now enforce their rights against the trustee, their heirs, their creditors, and those acquiring the trust property with actual or constructive notice,^[58] their interest remained in personam; it did not ‘bind the world’, and equity could not create in rem-rights.

The major weakness in Maitland’s in personam theory was soon identified in its reliance on the maxim aequitas agit in personam.^[59] The suggestion that equity could not create rights in rem was demonstrably untrue. Firstly, as a matter of legal history, by the early seventeenth century, the Chancery had an ‘in rem’ jurisdiction which could vindicate property rights.^[60] And second, proceedings using the ‘in personam’ writ of subpoena could be used to protect property rights;^[61] the means of protection did not affect the nature of the right.^[62] The conclusion that Maitland’s 134critics reached was to affirm the proprietary nature of the beneficiaries’ interest with a subtle change in how a right in rem was understood. For instance, for Hutson, it was not that a right in rem must ‘bind the world’ but ‘[i]t is sufficient if it is good generally against an indefinite number, as distinguished from those available only against sufficient persons’.^[63]

Although this expanded definition of rights in rem was subjected to some justified criticism,^[64] as we have noted, the proprietary conceptualisation of the trust remains orthodox to this day.^[65] For Lord Brown-Wilkinson in Westdeutsche:

‘Once a trust is established [...] the beneficiary has, in equity, a proprietary interest in the trust property, which proprietary interest will be enforceable in equity against any subsequent holder of the property [...] other than a purchaser for value of the legal interest without notice.

These propositions are fundamental to the law of trusts and I would have thought uncontroversial.’^[66]

The most common conceptualisation of the trust in this form is that the beneficiary’s interest is not a right in rem in the classic sense that it ‘binds the world’ but as a lesser, or at least different, form of proprietary right.^[67] He has a bone fide proprietary right, which is enforceable against third parties. However, as an equitable proprietary right, it is more limited than a legal right. For Neave and Weinberg, this equitable proprietary right is an ‘interest ranking at the bottom of a hierarchy of proprietary interests,’^[68] and this is justified by the fact that the beneficiary’s interest is often ‘hidden’.^[69]

In recent years, however, this orthodoxy has been subjected to significant criticism, notably by scholars arguing that the beneficiary has neither a proprietary nor a personal right to the trust property but a third type of right: a right against the trustee’s right to the trust property. This theory has been referred to as the ‘right against rights’ theory or a ‘persistent right’. The idea appears to originate with Robert Chambers in 2001,^[70] and it has been further developed by Lionel Smith, Ben McFarlane and Robert Stevens.^[71] For Smith, beneficial ownership is merely ‘meta135phorical’ or a ‘counterfeit ownership’.^[72] James Penner described McFarlane and Steven’s view as considering beneficial ownership to be a ‘conceptual horror’.^[73] In essence, the ‘rights against rights’ theorist argue that the beneficiary’s right binds successors in title to the trustee, not successors in possession. By conceptualising the beneficiary’s right as a right against the trustee’s right to the trust property, the ‘rights against rights’ theorists are able to readily explain why the trustee’s successors in title are bound, and why the beneficiary must rely on his trustee to act in other circumstances, such as adverse possession or tortious interference with the trust property.^[74]

A particular significance of the ‘rights against rights’ theory is that it seeks to move the conversation about the nature of the beneficiary’s interest beyond the Austinian in rem/ in personam dichotomy.^[75] For the advocates of the theory, that the beneficial interest is able to bind certain third parties means that it cannot be a mere personal right.^[76] Yet, that the beneficial interest is markedly different from true ownership means that it is equally distinct from proprietary rights.^[77] As we have noted, Maitland, likely motivated by his student audience, eventually settled on an in personam model to explain the beneficiary’s interest.^[78] Yet, in other work he was deeply critical of the Austinian model: ‘it seems to me, the trust could hardly have been evolved among a people who had clearly formulated the distinction between a right in personam and a right in rem, and had made that distinction one of the main outlines of their legal system’.^[79] Even critics of the ‘rights against rights’ theory recognise that this ‘is not a technical quibble, but rather a deep conceptual [...] intervention in this core debate in trust law’.^[80] Furthermore, for our present purpose, the ‘rights against rights’ theory is particularly important because, if common law theorists can find an acceptable explanation for the beneficiary’s interest in a trust which removes the ‘conceptual horror’ of equitable ownership, a core civilian objection is removed.

136The emergence of this new theory has prompted a firm response from those who defend the orthodox position that the beneficiaries’ interest is proprietary. Most notably, Lord Sumption in Akers who said:

‘[The beneficiary has] a true proprietary right. The proprietary character of an equitable interest in property has sometimes been doubted, but in English law ... the position must be regarded as settled. An equitable interest possesses the essential hallmark of any right in rem, namely that it is good against third parties into whose hands the property or its traceable proceeds may have come, subject to the rules of equity for protection of bone fide purchasers for value without notice.’^[81]

However, as McFarlane has recently noted, Lord Sumption’s defence of the proprietary orthodoxy includes the concession that the beneficiary’s right is distinct from a ‘true’ right in rem. In particular, he is concerned with the liability of a particular class of people whose conscience is affected by the trust, rendering the use of the Austinian in rem language ‘particularly inapt’.^[82]

The academic responses from those seeking to defend the proprietary orthodoxy from the ‘rights against rights’ theory have been interesting. Notwithstanding Lord Sumption’s use of Austinian Roman law-inspired language in Akers, there have deeply theoretical attempts and careful doctrinal attempts to redefine the proprietary rights — and the proprietary nature of the beneficiary’s rights — within English law. In particular, property theorists have sought to soften the Blackstonian view of property rights as the ‘sole and despotic dominion’ to which obligations theorists have most objected to.^[83] For Penner, who reasserts what he sees as ‘the ‘orthodox’ conceptual understanding of the trust under which the trust beneficiaries are regarded as the ‘beneficial owners’ of the trust property’,^[84] the central point of a proprietary right is not the ability to exclude the world but ‘alienable exclusivity’.^[85] Others have focused on the commercial reality in which trusts have operated, and the inherent flexibility of English law to adapt and evolve.^[86]

A more radical and more expansive notion of property rights has recently been suggested by Dagan and Samet:

137‘Property need not be confined to a tragic choice between the Hohfeldian Scylla of limitless permutations and the Blackstonian Charybdis of sole and despotic dominion. There is a principled midway position between these disappointing poles: the liberal conception of property, which departs from both of these unacceptable views.’^[87]

The theory advanced by Dagan and Samet seeks to break through the doctrinal-analytical nature of the debate surrounding the beneficial interest under a trust by reconceptualising property rights along normative grounds. Rather than as a means of excluding others, the ‘liberal theory of property’ considers property a primary tool in facilitating ‘people’s foundational right to self-determination’ and defines liberal property rights as ‘non-negligible unmediated claims to private authority over a legal thing in the service of self-determination.’^[88] For Dagan and Samet, the trust is a particularly important, highly flexible means to achieve this goal and the beneficiary’s interest fits neatly within their theory.^[89] This is a bold and ambitious theory which requires serious consideration, more so than can be given here. As with any normative theory, there is a risk that the authors, rather than describing what the trust is, are describing what they think it should be. Nonetheless, their work is innovative and impressive, particularly in recognising the flaws in the narrow way in which property rights have been conceptualised, as well as the deep jurisprudential nature of the debate around the nature of a beneficiary’s entitlement.

Whilst there remain important disagreements between legal theorists as to the true nature of the beneficiary’s interest under a trust, the debate underwent a number of important developments in recent years. In particular, the ‘rights against rights’ and ‘liberal property’ theorists have reinvigorated the ‘centuries old’ debate and opened up new, innovative lines of enquiry. In particular, the ‘rights against rights’ theorists have developed a far more sophisticated and defensible model than the in personam theory of the late nineteenth and early twentieth century. Indeed, as Penner notes, although he finds their theory to be unconvincing, the ‘rights against rights’ theorists should be commended for ‘bringing to our attention a challenging way to conceive of a derivative interest in a property right’.^[90] Furthermore, property theorists, such as Penner, have become less hardline;^[91] and in the form of the liberal property theorists, have proposed radical re-interpretations of the some 138of the most core principles in property law,^[92] which have significant implications for the debate surrounding the true nature of the beneficiary’s interest.

In addition to acknowledging the deep jurisprudential nature of the debate, it is important to recognise its legal historical dimension. Indeed, a core criticism of the ‘rights against rights’ theory advanced by Zaccaria is that it is ‘not consistent with the historical development of English Property law’.^[93] This raises a serious point about the fundamental role legal history must play in the debate. In his recent essay, Foster has made an important contribution in recognising the rather unfortunate divide between legal theorists and legal historians when considering the true nature of trusts. Whilst the debate around the nature of a beneficiary’s interest been reinvigorated in recent years, it has remained too far detached from its legal historical roots.

4. Uses and Trusts: Historicising the Modern Debate

The traditional explanation given by legal theorists for the historical development of the English trust can be summarised as follows. Upon its initial emergence the trust was a personal obligation which could be enforced by the beneficiary against his trustees. By the late sixteenth century, the classic historic definition of a trust as a ‘confidence annexed in privity’ was given by Sir Edward Coke in Chudleigh’s Case (1594).^[94] Over the course of several centuries, particularly as a result of the chancellorship of Lord Nottingham C., the trust took on a more proprietary nature. It is this duality of the beneficial interest as appearing to be both contractual and proprietary that has resulted in the difficulty legal theorists have in agreeing on the fundamental nature of the trust. However, the legal history of the trust is rather more nuanced, and, perhaps unsurprisingly, manifestly more complicated than modern theorists have allowed. In particular, the purported proprietary nature of the trust 139has a much longer and more doctrinally challenging history than has been acknowledged within the debate.

As we have seen, the English trust emerged in the form of the medieval use in family land settlements in the fourteenth century. A use of freehold land was created where a landowner conveyed legal title to his feoffees to uses (trustees) for the benefit of cestui que use (the beneficiary).^[95] This ‘intergenerational use’ was distinct from earlier more informal devices as it involved a conveyance to the feoffees who stand seised, that is to say they were admitted as the sitting tenant who was entitled to the fruits of the land,^[96] but would hold it for the benefit of cestui que use.^[97] The noun ‘use’, in this context derives from the Latin ad opus and Norman-French al oeps simply meaning ‘for the benefit of’.^[98] As N. G. Jones has noted, there is an important distinction between ‘use’ in a broad sense, which relates to the common law action for money had and received,^[99] examples of which can be found as far back as the thirteenth century,^[100] and use in the narrow sense, which refers to uses of freehold land, and from which the equitable doctrines of the modern trust derive.^[101] By the first decades of the fifteenth century, uses of freehold land were regularly employed to circumvent the common law rule prohibiting the devise of land by last will, with the interest of cestui que use being protected by Chancery subpoena.^[102] In such circumstances, it was common for landholders to enfeoff feoffees to their own use with instructions to perform the last will of the settlor/cestui que use.

By the mid-fifteenth century, the Chancery had solidified its jurisdiction over uses, and there had been a sharp increase in the employment of uses to circumvent the common law prohibiting the devise of land by last will. The origins of Coke’s 140description of a trust as a ‘confidence’ placed in the trustees by the settlor can also be found in this period. In the earliest reported cases we find uses described as being a ‘trust’, a ‘confidence’ or a ‘trust and confidence’ placed in the trustees by the settlor.^[103] As far as the common law was concerned, the trustee owned the land but was bound in conscience to the settlor’s wishes. A settlor/cestui que use, even where he continued to live on the land, was thought at best to be a tenant by the sufferance of his feoffees.^[104] Indeed, as Serjeant Frowyk remarked in 1502, cestui que use was considered to have ‘no more to do with the land than the greatest stranger in the world’.^[105] However, largely as a result of legislation enacted towards the end of the fifteenth century, the situation was rather more nuanced than Frowyk allowed.

Following the development of the Chancery’s jurisdiction over uses in the early fifteenth century, there emerged, perhaps somewhat inevitably, a degree of tension between the use, which was protected by the Chancellor in conscience, and the Common Law.^[106] During the course of the late fifteenth century and early sixteenth centuries, largely as a result of legislation enacted to address this growing tension, the beneficiary’s interest began to look more proprietary in nature. A particular concern was the uncertainty facing purchasers of land by the frequent employment of uses. The fundamental problem was that landholders were conveying land to feoffees, with instructions to perform their last wills, yet they remained in physical possession of the land with no legal title to it. Therefore, purchasers of land were often faced with unseised settlor/cestui que use who, although visibly living on the land and perhaps even in possession of the title deeds,^[107] had no legal right to sell the land.

141The response of Parliament to this problem was to pass the Statute of Richard III (1 Ric. III, c. 1).^[108] The solution enacted appeared to be remarkably simple: by the statute a conveyance made by cestui que use transferred a legal title to the land that would be ‘good and effectual’ against cestui que use, his heirs, and those holding ‘only to his use’. The phrase ‘only to his use’ is important. The scope of the statute was narrow as it did not apply to uses generally, but only to uses where the feoffees had no active duties, i.e. to pay the feoffor’s debts, or to take the profits and make charitable donations. Nevertheless, such situations were far from uncommon. Indeed, in 1502, Serjeant Frowyk remarked that ‘the greater part of the land of England was in feoffments upon confidence’.^[109] The statute was not enacted to empower cestui que use, or to strengthen his interest in land, but its effect was to give him a power to covey a binding estate in the land.

The importance of the statute was recognised almost immediately. At the Inner Temple in c. 1490/91, Gregory Adgore chose 1 Ric. III, c. 1 for his reading.^[110] Inns of Court readings were learning exercises which took place during the Lent and Autumn vacations, in which a senior barrister, the reader, would expound on the law surrounding a statute, prompting discussion from others in attendance.^[111] There is some evidence to suggest that the readers followed a cycle, beginning with Magna Carta and working through the statute book. Adgore’s reading is significant in that not only did he break from this cycle, but he was also the first to choose a contemporary statute. In the decades before Adgore’s reading, the use had become a significant and popular device with an emerging Chancery jurisprudence and an uncertain relationship to the general law of real property. It is likely that the significant doctrinal change, made even more profound by 1 Ric. III, c. 1, led to him electing to read on uses. Adgore’s reading is particularly noteworthy for our present purpose in that he repeated referred to cestui que use as the ‘owner’ of land held for his use.^[112]

142Given that uses were frequently granted to(?) employed by landholders to circumvent the common law prohibiting the devise of land by last will, Adgore’s description of such a landholder who had enfeoffed feoffees to his own use as the ‘owner’ of the land is not especially surprising, particularly now that such a landholder was empowered by 1 Ric III, c. 1 to convey the land. By the late fifteenth century, cestui que use was recognised as having a number of the key hallmarks of ownership. By the statute, he could convey the land, he could also grant a lease and fell trees on the land,^[113] and land held for the benefit of cestui que use could meet the land requirements for him to serve on a jury.^[114] Another notable importance of the statute was that it required common lawyers to consider common law titles that were traced through uses, and to question the devolution of the use.^[115] That the right in use — jus usus or jus in usu — would automatically devolve to the heir of an intestate cestui que use was recognised by the late fifteenth century.^[116] Indeed, in his reading Adgore appears to have considered the use to be a hereditament, categorising it with ‘auter hereditaments’.^[117] That is not to say that cestui que use was the absolute ‘owner’, although he could grant the presentation of an advowson, he could not make the presentation himself,^[118] nor could cestui que use distrain, or support an action of trespass or forcible entry without his feoffees.^[119]

143Nevertheless, by the early sixteenth century, the interest held by cestui que use had developed a ‘thing-like’ quality.^[120] As St German noted in Doctor and Student:

every man that have lands has thereby two things in him, that is to say, the possession of the land ... called freehold, and the other is the authority to take thereby the profits of the land.^[121]

Following the creation of a use, the possession would be in the feoffees who stood seised of the land but the right to take the profits, this ‘thing-like’ use would be held by cestui que use. As such, by the sixteenth century it is difficult to defend a purely contractual notion of the use. It had developed proprietary features, even if asking whether this right was truly proprietary in a modern sense is perhaps anachronistic.

Another significant difficulty that the increased employment caused was their undermining the rights of the landholder’s feudal lord. Upon the death of his tenant, a feudal lord could expect to benefit from incidents of tenure, notably wardship and relief, which could form an important source of revenue. The king, who was always lord and never tenant, was most affected by the increasing number of uses.^[122] The Crown’s attempts to stem this loss of feudal revenue has a long and detailed history.^[123] For our present purpose, we only need note that the difficulty in reconciling the use with the operation of the common law eventually culminated in the passage of the Statute of Uses (1536).^[124]

The effect of the statute was to annex legal title in the freehold to the use upon its creation. Where previously, following a feoffment to feoffees to the use of cestui que use the feoffees would stand seised, with cestui que use merely having the use of the land, by operation of the Statute of Uses, following such a feoffment legal title would cease to be vested in the feoffees and would automatically vest in cestui que use. For example, where A enfeoffed B of the manor of Greenacre to the express use of C, by operation of the Statute of Uses, legal title in the land would follow the use and C not B would be seised of the Greenacre. Soon after it was enacted, the Statute 144of Uses was described as an ‘abolition’ of uses,^[125] and as ‘extinguishing’ uses.^[126] Within twenty years we see a more technical description emerged that was centred on uniting the use with the possession,^[127] which was closer to the later phrasing of ‘executing the use’.^[128] A particularly important point to note is that uses created where the feoffees held the land ‘only to the use’ of cestui que use, that is to say those which by operation of 1 Ric. III, c., 1 cestui que use had acquired a right to convey the land, were executed by the Statute of Uses.

The doctrines of the modern trust emerged from exceptions to the Statute of Uses.^[129] Namely, uses with active duties, uses of non-freehold land, and uses in the form of a use upon a use. For legal historians it has become commonplace to speak of uses before the statute and of trusts after, although this somewhat obfuscates to relationship between the two and the doctrines of the medieval use’s continuing influence. As D. E. C. Yale noted, ‘[t]hough the trust turned out to be a different product and was put to very different ends from the use, it was of the same raw material from the same source.’^[130] The trust that emerged by the late sixteenth century was a ‘confidence annexed in privity’.^[131] That is to say, the ‘trust’ and ‘confidence’ placed in the trustee by the settlor could only be enforced by those who were party to the trust or derived their rights from the parties to the trust. By the late eighteenth century, and particularly following the chancellorship of Lord Nottingham, this highly personalised notion of the trust had given way to an increasingly proprietary understanding, with the recognition of equitable rights in the trust property itself.^[132] However, as Foster has noted, that the language of ‘confidence’ and ‘privity’ was lost in favour of the Austinian in rem/in personam has made the job of modern theorists much more difficult.

5. 145Conclusion

The most difficult aspect of the English trust for civilians is the notion of beneficial or equitable ownership of the trust property. The artificial divide between legal title and equitable title to property is not one that has been easily accommodated by the civil law jurisdictions. Whilst this remains the orthodoxy in English law, as demonstrated by Lord Sumption in Akers, it has been subjected to significant and powerful criticism in recent years. The debate has seen significant progress as common law theorists have sought to move away from the long-standing influence of Austin’s categorisation of English property within Roman rights in rem/in personam. This is encouraging because, by being so attached to these Roman concepts, the debate had become stifled and shown little sign of progress. However, as Foster has demonstrated, the nature of the debate has been deeply jurisprudential and as such it has somewhat lost touched with the legal historical reality of the doctrinal development of trust law.

As we have seen, the English trust has a long and doctrinally technical legal history but one which must be engaged with when considering the nature of the English trust. The traditional legal historical narrative which modern theorist have relied on is too simplistic. The proprietary nature of the English trust has a much deeper and longer history than modern theorists have allowed. From its origins in the ‘trust’ or ‘confidence’ placed in the feoffees whose conscience was bound by the Chancery, the pre-1536 use, particularly following the statute 1 Ric. III, c. 1, had developed a number of core proprietary characteristics. By the early sixteenth century, cestui que use could convey the trust property, and the use itself could be inherited. However, this ‘thing-like’ use was in turn ‘executed’ by the Statute of Uses. When the trust emerged from the exceptions to the statute, it initially had a definitively personal conceptualisation as a ‘confidence annexed in privity’. Yet, as the equitable rules surrounding the trust solidified under Lord Nottingham, the more proprietary echoes of the earlier use could be heard.

Ultimately this deeper dive into the legal historical nature of the English trust does not provide a silver bullet to the conclude this long-standing debate. The truth is that the English trust does — and since the very beginning had — a complicated dual nature; and I do not necessarily mean its legal and equitable nature, but that the beneficiary’s interest is both contractual and proprietary. The importance of historicising the modern theoretical debate is that it shows the trust as a deeply pragmatic device with a firmer legal historical justification for both its propriety and contractual nature.^[133] It is hoped that this will allow for the debate to progress 146on much firmer foundations and even if agreement is not possible, a clearer idea of the nature of the trust can emerge.