Of the Fidei 6. The idea of a use, and the rules by which it was commissum. first regulated, are now generally admitted to have been borrowed by the ecclesiastics from the fideicomBac. Read. missum of the civil law; of which it will, therefore, be necessary to give some account. 19. Vin. ad Inst. 1. Just. Inst. 1. Id. 2. Just. Inst. Lib.2.Tit.23. § 1. 7. By the Roman law, a great number of persons were incapable of being constituted heirs, or even of taking a legacy, under the testament of a Roman citizen; such as exiles, unmarried persons, those who had no children, &c. In order to evade this law, it became usual for testators to constitute some person their heir who was capable of inheriting, and to annex a request to the devise, that the person thus constituted heir should give the inheritance to some other person who was incapable of taking under the will.— Quibus enim non poterunt hæreditatem vel legata relinquere, si relinquebant, fidei committebant eorum qui capere ex testamento poterant. 8. This was called a fidei commissum, of which the form is preserved in Justinian's Institute.-Cum igitur aliquis scripserit Lucius Titius hæres esto, potest adjicere, rogo te, Luci Titi, ut cum primum poteris hæreditatem meam adire, eam Caio Seio reddas restituas. In cases of this kind, the person thus constituted heir was called hæres fiduciarius, and the person to whom the testator directed the inheritance to be given, was called hæres fidei commissarius. 9. The hæres fidei commissarius had only what the Roman lawyers called a jus precarium, that is, a right in curtesy, for which the reinedy was only by intreaty or request; so that the hæres fiduciarius was under no legal obligation of complying with the request of the testator.-Sciendum itaque est, omnia fideicommissa primis temporibus infirma fuisse; quia nemo invitus cogebatur præstare id de quo rogatus erat. Et ideo fideicommissa appellata sunt, quia nullo vinculo juris, sed tantum pudore eorum qui rogabantur, continebantur. 10. Thus stood the Roman law respecting the fideicommissum for some centuries, during which time several frauds were committed by those who, being constituted heirs, with a direction to give the inheritance to some other person, refused to execute the trust reposed in them by the testator, and converted the property to their own use. This induced the Emperor Augustus to direct the consuls to take cognizance of all future cases of this kind.-Postea Idem. divus Augustus primus, semel iterumque gratia personarum motus, vel quia per ipsius salutem rogatus quis, diceretur, aut ob insignem quorundam perfidiam, jussit consulibus auctoritatem suam interponere. Quod quia justum videbatur et populare erat, paulatim conversum est in assiduam jurisdictionem; tantusque eorum favor, factus est, ut paulatim etiam prætor crearetur, qui de fideicommissis jus diceret, quem fideicommissarium ap pellabant. 11. The Emperor Justinian completed this system, and extended the rights of the hæres fideicommissarius by a law, which enacted, that if a testator should Id. § 12. direct the person whom he instituted his heir, to give either the whole or part of the inheritance to another, and this circumstance could not be proved, either by the written will of the testator, or the testimony of five witnesses; in case the person instituted heir should refuse to comply with the intentions of the testator, he was compellable either to take a solemn oath that the testator had not created any fideicommissum, or else to execute the trust reposed in him. :' I of the Chan 12. Upon the first introduction of uses into the Jurisdiction English law, the person to whom a use was limited, cellors over who was called the cestui que use, was exactly in the Uses. Introduction of the Writ same situation with the hæres fidei commissarius; and depended entirely on the good faith of the feoffees to uses, or the persons to whom the lands were conveyed. It is natural to suppose, that while the rights of the cestui que use were so extremely precarious, and depended so entirely on the good faith of the feoffee to uses, many breaches of trust were committed; nor is it improbable but that even the ecclesiastics, who first introduced this species of property, became in some instances the dupes of those to whom lands had been conveyed for their use. This induced the clerical chancellors of those times to consider the limitation of a use as similar to a fideicommissum, and binding in conscience. They therefore assumed the juridiction which the Emperor Augustus had given to the Roman consuls, of compelling the execution of uses in the Court of Chancery. 13. It however soon appeared, that even this assumed jurisdiction was not sufficient to answer their purposes; for whenever a positive declaration of a use could not be proved, which must frequently have happened, when uses were declared in a secret manner, by words only, without writing; the Court of Chancery could not compel the feoffees to uses to execute them, there being no legal proof that they held the lands to the use of any other person. 14. To remedy this inconvenience, John Waltham, of Subpoena. bishop of Salisbury, and chancellor to King Rich. II. took advantage of the privilege given him by the statute of Westminster 2. 13 Edw. I. c. 34. of devising new writs, and invented the writ of subpæna, returnable only into the Court of Chancery. 15. The writ of subpoena was originally a process in the courts of common law, to enforce the attendance of a witness to give evidence; but this new writ of sub pana was used in the Court of Chancery for the same purpose as a citation in the courts of civil and canon law, to compel the appearance of a defendant, and to oblige him to answer upon oath the allegations of the plaintiff, contrary to one of the first principles of the common law, that no man can be compelled to criminate himself. 16. It is well known how averse the English nation always was from any alteration of their ancient customs; and that they were particularly jealous of every maxim or rule taken from the civilians or canonists, which was attempted to be introduced or substituted in the room of the common law; accordingly we find that this innovation did not pass unnoticed; for early in the next reign, namely, in 2 Hen. IV. the commons took notice of the introduc- Rot. Parl. vol. 3. 471. tion of this writ of subpoena, and presented a strong petition to the king against it; praying that it might be abolished: to which King Henry IV., who was not then firmly settled on the throne, gave a palliating answer. vol. 4. 84. 17. Another petition was presented by the com- Rot. Parl. mons to King Henry V. complaining of the hardships to which all persons were become liable, from the introduction of this new writ of subpæna. Observing that it was a novelty against the form of the common law, which John Waltham, late bishop of Salisbury, out of his subtlety found out and began; by which persons were compelled to answer upon oath, pursuant to the form of the civil law, and the law of the holy church; praying that those who sued out such a writ should insert all their allegations; and if any person was aggrieved by a writ of this kind, in any matter which was determinable at com mon law, that he should be paid the sum of forty pounds. To this petition the king returned an answer in the negative; by which means the writ of subpoena was firmly established, and was thenceforth constantly used for the purpose of compelling all persons to declare on oath, whether they held particular lands to their own use, or to the use of another. 18. From this account of the progress of uses, it evidently appears that the ecclesiastical chancellors adopted the principles of the civil law, in the support and construction of them; and that the bishop of Salisbury derived the idea of the writ of subpoena returnable into Chancery, from that law of Justinian which has been mentioned in a preceding part of this chapter. 19. Notwithstanding the invention of the writ of subpoena, it appears that the Court of Chancery did not immediately possess itself of that absolute jurisdiction over persons enfeoffed to uses, which it afterwards exercised; for in the rolls of parliament, Vol. 4. 151. 9 Hen. V. there is a petition from William Lord Clynton, stating, that upon his going on an expedition to Ireland, he had enfeoffed William De La Pool of all his lands, for the performance of his will. Pool having afterwards refused to comply with his intentions, was personally called on and examined in parliament, and it was ordered that he should re-enfeoff Lord Clynton. 20. The abuses arising from the writ of subpœna were in some degree restrained by the statute 15 Hen. VI. c. 4., which, after reciting "that divers persons had been greatly vexed and grieved by writs of subpoena, purchased for matters determinable by |