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by no means clear whether the principal money advanced was to be returned or not, which, as will appear hereafter, is the main distinction between a loan of money and the sale of an annuity. The civilian Du Moulin (a), having examined this case at length, determined that it corresponds with the French contract of a rente constituée, and Pothier (6) also seems to assent to this opinion; there is, therefore, some ground for the inference that this contract was not altogether unknown at the very latest period of the Roman law.
As to legacies of annuities it will be found that among the valuable remains of Roman law relating to legacies, these have not been omitted. There is a title in the Digest (c) which treats De Annuis Legatis, and contains a variety of decisions which may on occasion be of service to the English lawyer when called upon to explain bequests of this kind of property.
In the law of England a distinction has ever prevailed between the real and personal estate, between land and other property, and there is often a corresponding division among contracts, the same in substance and effect, but differing in their security. Of this the subjects of this treatise exhibit a remarkable instance, for the annuity was
(a) Molinæus de Usuris, q. 75.
in early times a contract binding upon the person of the grantor, while a rent was a charge upon the land. The mode in which the law has regarded charges upon these different funds has operated in a similar manner in respect of those contracts. It is impossible to say when either the one or the other was first introduced into England. As early as the reign of Edward I. the writ for the recovery of an Annuus Reditus, however charged, is recognised as an existing common law remedy—a satisfactory proof that the contract was then well understood.(a) In the succeeding reigns various cases are reported as having been brought before the courts for judicial determination, so as to establish clearly that it was in considerable practice. From those cases it is perceptible that this practice was divided into two classes—the granting of rents, and the granting of annuities.
The lord of the fee, by his tenure, had not the power, as probably he had not the inclination, to alienate his land from his heir, yet he would often have other children or relatives for whom he might wish to provide after his death. To them he granted a rent charged upon the land, which descended upon the heir, and gave a power to the grantee to enforce it. If that power were a power of distress, the grant was properly a rent charge; if he merely directed that the rent should issue
out of the land without giving that power, the rent was termed a rent seck, and the grantee could only have a remedy by action for the recovery of it, if it were not paid.(a) It is obvious that the creation of such charges would necessarily diminish the produce of the land in the hands of the landowner, and render him less able to perform his services to his superior lord. Hence in the early authorities rent charges are stated to be against common right, and the interpretation of the courts was always guided by that bias. In modern days, however, when the feudal services have ceased to exist, or be recognized, no such bias prevails, but rent charges are looked upon as favourably as any other species of contract.
Annuities, in their early introduction, were most frequently adopted as a mode by which the services of professional men were retained. When the population was low, and enclosed in small towns at great distance from each other, and while the communication was difficult and dangerous, there could be but little inducement for the studious man to apply himself to the acquirement of knowledge in those professional departments which now produce ample recompense to the skilful and the prudent; or, if there were any such persons, it was to be expected that they would be confined to the towns and cities, where they could alone hope for security and practice. In order, therefore,
(a) Cruise Dig. tit. 28. c. 3. s. 13.
that the great lords and barons, who lived in their separate castles, might not be left destitute in their necessities of all whose services and assistance would be of value on emergencies of danger, they were compelled to adopt, as a mode of retainer, the granting of annuities to competent persons for the advice which they should render whenever any occasion might arise to require it. Thus the chaplain, the lawyer, and the physician, had their annuities pro consilio impendendo, as was the phrase in the old law. Sometimes, as may be supposed, the annuity was granted in compensation of advice or service already given or rendered, without any view to future retainer, it was then said to be pro consilio impenso. This has been preserved to the present day most remarkably by the government in the pensions, which have been, and still continue to be, given as a recompense for public services already performed. Some few of the ancient annuities pro consilio impendendo still survive, as in the instance of the king's physicians, who have a regular stipend, and are bound to give their advice to the king whenever required. These annuities differ from salaries paid to servants and officers in this respect, that in the former the grantees are only occasionally called upon, or it may be never, whereas the latter are always on duty, and when that duty ceases, the salary determines. This is shown in the instance of Sir Thomas Wroth, whose case is reported in Plowden's Commentaries. He was appointed by King Henry VIII. gentleman usher to his son, afterwards Edward VI., with an annuity for life. It was held, that though his duties ended with the death of Henry, because the new king could not have such an officer, yet the annuity granted to Sir Thomas Wroth continued during his life.
Besides these, among other abuses of the Roman Church, in the desire to appropriate to the dignitaries all the temporal emoluments of the ecclesiastical possessions, the pontiffs introduced a practice of reserving to themselves certain pensions, as they were called, out of the temporalities of the churches that they were sometimes enabled to dispose of. These charges became frequently so extensive, that, as Giannone(a) expresses it, they were as valuable as the benefices themselves. The custom, once introduced, easily extended itself to other grades, and bishops and the rich monasteries and priories reckoned among their endowments many valuable grants of pensions, which the secular clergy were compelled to pay out of the revenues of the parish church. It is evident that this was most injurious to the true interest of the church, but there was no complaint ;—the patron of the living, where it was in lay hands, which was unusual, generally assented to the charge, because his chaplain, or relative, was a member of the religious corporation, for whose
(a) Istor. di Nap. lib. 22, c. 5.