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23 Yale L.J. 16 (1913-1914)
Some Fundamental Legal Conceptions as Applied in Judicial Reasoning

handle is hein.journals/ylr23 and id is 24 raw text is: 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 dis- cussions of Bacon' 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 text- books on trusts.2 That the subject has had a peculiar fascina- tion for modern legal thinkers is abundantly evidenced by the well known articles of Langdells and Ames,4 by the oft-repeated I 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: hus in re: Jus ad rein. The one is an estate, which is jus in re; the other a demand, which is jus ad reins but an use is neither. * * * So as now we are come by negatives to the affirmative, what an use is. * * * Usus est dominium fidu- ciarium: Use is an ownership in trust. So that usus & status, sive possessio, potius differunt secundun rationern 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: Nora, an use is a trust or confidence reposed in some other, which is not issuing out of the land, but as a thing collat- erall, annexed in privitie to the estate of the land, and to the person touch- ing 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 jits in re, nor jus ad rein, 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 actual'y 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

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