The Unincorportated Body
by Frederic Maitland

{The date of this paper is probably between 1901 and 1903.
Maitland's note on the MS. is "Read to the Eranus Club".}

    Of the Taff Vale Case(1*) we are likely to hear a good deal
for some time to come. The trade unions are not content; there
will be agitation; perhaps there will be legislation.(2*) To one
reader of English history and of English law it seems that
certain broad principles of justice and jurisprudence are
involved in and may be evolved from the debate: certain broad
principles which extend far beyond the special interests of
masters and workmen. Will he be able to persuade others that this
is so? Can he assign to this Taff Vale Case its place in a long
story?
    Of late years under American teaching we have learned to
couple together the two terms "corporations" and "trusts". In the
light of history we may see this as a most instructive
conjunction. And yet an apprentice of English law might well ask
what the law of trusts has to do with the law of corporations.
Could two topics stand farther apart from each other in an
hypothetical code? Could two law-books have less in common than
Grant on Corporations and Lewin on Trusts?
    To such questions English history replies that, none the
less, a branch of the law of trusts became a supplement for the
law of corporations, and some day when English history is
adequately written, one of the most interesting and curious tales
that it will have to tell will be that which brings trust and
corporation into intimate connexion with each other.(3*)
    A few words about the general law of trusts may not be
impertinent even though they say nothing that is new. The idea of
a trust is so familiar to us all that we never wonder at it. And
yet surely we ought to wonder. If we were asked what is the
greatest and most distinctive achievement performed by Englishmen
in the field of jurisprudence I cannot think that we should have
any better answer to give than this, namely, the development from
century to century of the trust idea.
    "I do not understand your trust". These words have been seen
in a letter written by a very learned German historian familiar
with law of all sorts and kinds.
    Where lies the difficulty? In the terms of a so-called
"general jurisprudence" it seems to lie here: A right which in
ultimate analysis appears to be ius in personam (the benefit of
an obligation) has been so treated that for practical purposes it
has become equivalent to ius in rem and is habitually thought of
as a kind of ownership, "equitable ownership". Or put it thus: If
we are to arrange English law as German law is arranged in the
new code we must present to our law of trust a dilemma: it must
place itself under one of two rubrics; it must belong to the Law
of Obligations or to the Law of Things. In sight of this dilemma
it reluctates and recalcitrates. It was made by men who had no
Roman law as explained by medieval commentators in the innermost
fibres of their minds.
    To say much of the old feoffment to uses would be needless.
Only we will note that for a long time the only, and for a longer
time the typical, subject-matter of a trust is a piece of land or
some incorporeal thing, such as an advowson, which is likened to
a piece of land. For trusts of movable goods there was no great
need. The common law about bailments was sufficient. We may
indeed see these two legal concepts deriving from one source: the
source that is indicated in Latin by ad opus, in old French by al
oes, in English by "to the use". In the one case however a
channel is cut by the Courts of Common Law and the somewhat vague
al oes explicates itself in a law of bailments and agency, while
in the other the destined channel must be cut, if at all, by a
new court since the law of rights in land has already attained a
relatively high stage of development and finds its expression in
an elaborate scheme of writs and formal actions. For the purposes
of comparative jurisprudence it is of some importance to observe
that though for a long time past our trust idea -- the idea of a
trust strictly and technically so called -- has been extended to
things of all sorts and kinds, still were it not for trusts of
land we should hardly have come by trusts of other things. The
ideas of bailment, agency, guardianship, might have shown
themselves capable of performing all that was reasonably
necessary. Foreigners manage to live without trusts. They must.
    In the fourteenth century when feoffments to uses were
becoming common, the most common of all instances seems to have
been the feoffment to the feoffor's own use. The landowner
enfeoffed some of his friends as joint tenants hoping for one
thing that by keeping the legal ownership in joint tenants and
placing new feoffees in vacant gaps no demand could ever be made
by the feudal lord for wardship or marriage, relief or escheat,
and hoping for another thing that the feoffees would observe his
last will and that so in effect he might acquire that
testamentary power which the law denied him and which the eternal
interest of his sinful soul made an object of keen desire.
    Now between feoffor and feoffee in such a case there is
agreement. We have only to say that there is contract and then
the highly peculiar character of our trust will soon display
itself. For let us suppose that we treat this relationship as a
contract and ask what will follow.
    Well (1) as between feoffor and feoffee how shall we enforce
that contract? Shall we just give damages if and when the
contract is broken or shall we decree specific performance on
pain of imprisonment? Perhaps this difficulty was hardly felt,
for it can, so I think, be amply shown that the idea of
compelling a man specifically to perform a contract relating to
land was old, and that what was new was the effectual pressure of
threatened imprisonment. But (2) think of the relationship as
contractual and how are we to conceive the right of the feoffor?
It is the benefit of a contract. It is a chose in action at a
time when a chose in action is inalienable. Also if we held tight
by this conception there would be much to be said for holding
that the use or trust is in all cases personal property. Then (3)
there is great difficulty in holding that a contract can give
rights to a third person. We in England feel that difficulty
now-a-days. Foreign lawyers and legislatures are surmounting it.
We should have had to surmount it, had it not been for our trust.
But from an early time, we find that the action, or rather the
suit, is given to the destinatory, the beneficiary, the cestui
que use as we call him, and indeed if the trustor can enforce the
trust this will only be so because in the particular case he is
the destinatory. And then (4) arises the all important question
as to the validity of the beneficiary's right against purchasers
from the trustee and against the trustee's creditors. Think
steady of that right as the benefit of a contract and you will
find it hard to say why it should be enforced against one who was
no party to the contract.
    We know what happened. No sooner has the Chancellor got to
work than he seems bent on making these "equitable" rights as
unlike mere iura in personam and as like iura in rem as he can
possibly make them. The ideas that he employs for this purpose
are not many; they are English; certainly they are not derived
from any knowledge of Roman law with which we may think fit to
equip him. On the one hand as regards what we might call the
internal character of these rights, the analogies of the common
law are to be strictly pursued. A few concessions may be made in
favour of greater "flexibility" but on the whole there is to be a
law of equitable estates in land which is a mere replica of the
law of legal estates. There are to be estates in fee simple,
estates in fee tail, terms of years, remainders, reversions and
the rest of it: the equitable estate tail (this is a good
example) is to be barred by an equitable recovery. Then as
regards the external side of the matter, "good conscience"
becomes the active principle; a conscience that can be opposed to
strict law. The trust is to be enforced against all whose
conscience is to be "affected" by it. Class after class of
persons is brought within the range of this idea. The purchaser
who for value obtains ownership from the trustee must himself
become a trustee if at the time of the purchase he knew of the
trust, for it is unconscionable to buy what you know to be
another's "in equity". Then the purchaser who did not know of the
trust must be bound by it if he ought to have known of it: that
is to say, if he would have known of it had he made such
investigation of his vendor's title as a prudent purchaser makes
in his own interest. It remains to screw up this standard of
diligence higher and higher, until the purchaser who has obtained
a legal estate bona fide for value and without notice, express or
implied, of the equitable right, is an extremely rare and
extremely lucky person. And apparently he is now the only person
who can hold the land and yet ignore the trust. It was not so
always. The lord who came to the land by escheat came to it with
a clear conscience. Also we read in our old books that a use
cannot be enforced against a corporation because a corporation
has no conscience. But in the one case a statute has come to the
rescue and in the other we have rejected the logical consequence
of a certain speculative theory of corporations to which we still
do lip-service. The broad result is that we habitually think of
the beneficiary's right as practically equivalent to full
ownership, and the instances of rare occurrence in which a
purchaser can ignore it seem almost anomalous. And in passing it
may be noticed that such danger as there is falls to absolute
zero in a class of cases of which we are to speak hereafter. No
one will ever be heard to say that he has purchased without
notice of a trust a budding that was vested in trustees but was
fitted up as a club-house, a Jewish synagogue, a Roman catholic
cathedral.
    Even that is not quite all. Even when the Court of Equity
could not give the cestui que trust the very thing that was the
original subject-matter of the trust it has struggled hard to
prevent its darling from falling into the ruck of unsecured
creditors of a defaulting trustee. It has allowed him to pursue a
"reified" trust-fund from investment to investment: in other
words, to try to find some thing for which the original thing has
been exchanged by means of a longer or shorter series of
exchanges. That idea of the trust-fund which is dressed up
(invested) now as land and now as current coin, now as shares and
now as debentures seems to me one of the most remarkable ideas
developed by modern English jurisprudence. How we have worked
that metaphor! May not one have a vested interest in a fund that
is vested in trustees who have invested it in railway shares?
Even a Philosophy of Clothes stands aghast. However, the main
point is that cestui que trust is magnificently protected.
    Now I cannot but think that there is one large part of this
long story of the trust that ordinarily goes untold. The student
is expected to learn something about feoffments to uses and the
objects that were gained thereby, something about the
Chancellor's interposition, something about the ambitious statute
that added three words to a conveyance; but no sooner is King
Henry outwitted, no sooner is the Chancellor enforcing the
secondary use, than the law of uses and trusts becomes a highly
technical matter having for its focus the family settlement with
its trustees to preserve contingent remainders, its name and arms
clauses, its attendant terms and so forth. Very curious and
excellent learning it all is, and in some sort still necessary to
be known at least in outline. still we are free to say that some
of the exploits that the trust performed in this quarter are not
admirable in modern eyes, and at any rate it seems to me a
misfortune that certain other and much less questionable exploits
pass noticed by those books whence beginners obtain their first
and their most permanent notions of legal history.
    First and last the trust has been a most powerful instrument
of social experimentation. To name some well-known instances: It
(in effect) enabled the landowner to devise his land by will
until at length the legislature had to give way, though not until
a rebellion had been caused and crushed. It (in effect) enabled a
married woman to have property that was all her own until at
length the legislature had to give way. It (in effect) enabled
men to form joint-stock companies with limited liability , until
at length the legislature had to give way. The case of the
married woman is specify instructive. We see a prolonged
experiment. It is deemed a great success. And at last it becomes
impossible to maintain (in effect) one law for the poor and
another for the rich, since, at least in general estimation, the
tried and well-known "separate use" has been working well. Then
on the other hand let us observe how impossible it would have
been for the most courageous Court of Common Law to make or to
suffer any experimentation in this quarter.
    Just to illustrate the potency of the trust in unexpected
quarters we might mention an employment of it which at one time
threatened radically to change the character of the national
church. Why should not an advowson be vested in trustees upon
trust to present such clerk as the parishioners shall choose? As
a matter of fact this was done in a not inconsiderable number of
cases and we may even see Queen Elizabeth herself taking part in
such a transaction.(4*) Had a desire for ministers elected by
their congregations become general among conformists, the law was
perfectly ready to carry out their wishes. The fact that
parishioners are no corporation raised no difficulty.
    But there are two achievements of the trust which in social
importance and juristic interest seem to eclipse all the rest.
The trust has given us a liberal substitute for a law about
personified institutions. The trust has given us a liberal
supplement for a necessarily meagre law of corporations. The
social importance of these movements will appear by and by. The
juristic interest might perhaps escape us if we could not look
abroad.
    We in England say that persons are natural or artificial, and
that artificial persons are corporations aggregate or
corporations sole. A foreign lawyer would probably tell us that
such a classification of persons will hardly cover the whole
ground that in these days has to be covered: at all events he
would tell us this if he knew how little good we get out of our
corporation sole -- a queer creature that is always turning out
to be a mere mortal man just when we have need of an immortal
person. We should be asked by a German friend where we kept our
Anstalt or Stiftung, our Institution or Foundation. And then we
should be told that, though in particular cases it may be
difficult to draw the he between the corporation and the
institute, we certainly in modern times require some second class
of juristic persons. This necessity we should see if, abolishing
in thought our law of trusts, we asked what was to become of our
countless "charities". Unless some feat of personification can be
performed they must perish. Let the "charitable" purpose of Mr
Styles be, for example, the distribution of annual doles among
the deserving poor of Pedlington, an incorporation of the
deserving poor is obviously out of the question, and therefore we
must either tell Mr Styles that he cannot do what he wants to do
or else we must definitely admit "Styles's Charity" into the
circle of "persons known to the law". In the latter case what
will follow? What is likely to follow among men who have been
taught the orthodox and cosmopolitan lore of the fictitious
person? Surely this, that without the cooperation of the State no
charitable institution can be created. And this doctrine is
likely to endure even in days when the State is relaxing its hold
over the making of corporations and learned men are doubting the
fictitiousness of the corporations personality. Hear the new
German Code: "Zur Entstehung einer rechtsfähigen Stiftung ist
ausser dem Stiftungsgeschäfte die Genehmigung des Bundesstaats
erforderlich, in dessen Gebiete die Stiftung ihren Sitz haben
soll" (B.G.B. sec. 80).(5*) Translate that into English and
suppose it to have been always law in England. How the face of
England is changed!
    Our way of escape was the trust. Vest the lands, vest the
goods in some man or men. The demand for personality is
satisfied. The lands, the goods, have an owner: an owner to
defend them and recover them: an owner behind whom a Court of
Common Law will never look. All else is mere equity.
    Apparently we slid quite easily into our doctrine of
charitable trusts. We may represent the process as gradual; we
might call it the evanescence of cestui que trust. Observe the
following series of directions given to trustees of land: (1) to
sell and divide the proceeds among the twelve poorest women of
the parish: (2) to sell and divide the proceeds among the twelve
women of the parish who in the opinion of my trustees shall be
the most deserving: (3) annually to divide the rents and profits
among the twelve poorest for the time being: (4) annually to
divide the rents and profits among the twelve who are most
deserving in the opinion of the trustees. The bodily "owners in
equity" who are apparent enough in the first of these cases seem
to fade out of sight as small changes are made in the wording of
the trust. When they disappear from view, what, let us ask, do
they leave behind them?
    Well, they leave "a charity" and perhaps no more need be
said. If we must have a theory I do not think that any good will
come of introducing the Crown or the Attorney-General, the State
or the Public, for, although it be established in course of time
that the Attorney-General is a necessary party to suits
concerning the administration of the trust, still we do not think
of Crown or Attorney-General, State or Public as "beneficial
owner" of the lands that are vested in the trustees of Nokes's
charity, and trustees are not to be multiplied praeter
necessitatem. Nor do I think that we personify the "charity": it
cannot sue or be sued. Apparently our thought would be best
expressed by saying that in these cases there is no "equitable
owner" and that the accomplishment of a purpose has taken the
place of cestui que trust. Our rule that the place of cestui que
trust cannot be taken by a "non-charitable" purpose -- a rule
that has not been always rigorously observed(6*) -- has not acted
as a very serious restraint upon the desires of reasonable
persons, so exceedingly wide from first to last Has been our idea
of "charity".
    Now no doubt our free foundation of charitable institutions
has had its dark side, and no doubt we discovered that some
supervision by the State of the administration of charitable
trust-funds had become necessary, but let us observe that
Englishmen in one generation after another have had open to them
a field of social experimentation such as could not possibly have
been theirs, had not the trustee met the law's imperious demand
for a definite owner. Even if we held the extreme opinion that
endowed charities have done more harm than good, it might well be
said of us that we have learned this lesson in the only way it
could be learnt.
    And so we came by our English Anstalt or Stiftung without
troubling the State to concede or deny the mysterious boon of
personality. That was not an inconsiderable feat of
jurisprudence. But a greater than that was performed. In truth
and in deed we made corporations without troubling king or
parliament though perhaps we said that we were doing nothing of
the kind.
    Probably as far back as we can trace in England any distinct
theory of the corporation's personality or any assertion that
this personality must needs have its origin in some act of
sovereign power we might trace also the existence of an
unincorporated group to whose use land is held by feoffees. At
any rate a memorable and misunderstood statute tells us that this
was a common case in 1532. "Where by reason of feoffments... and
assurances made of trusts of manors... and hereditaments to the
use of parish churches, chapels, church-wardens, guilds,
fraternities, comminalties, companies or brotherhoods erected or
made of devotion or by common assent of the people without any
corporation... there groweth and issueth to the King our
Sovereign Lord, and to other lords and subjects of this realm the
same like losses and inconveniences, and is [sic] as much
prejudicial to them as doth and is in case where lands be aliened
into mortmain." Upon this recital follows a declaration that "all
and every such uses, intents and purposes" that shall be declared
or ordained after the 1st of March in 28 Henry VIII shall be
utterly void in law if they extend beyond a term of twenty years.
We know how Elizabethan lawyers construed this statute. They said
that it struck at uses that were superstitious and not at such as
were good and godly. We are better able than they are to trace
the evolution of King Henry's abhorrence of superstition. In 1532
he was beginning to threaten the pope with a retention of mates,
but he was no heretic and not even a schismatic; and indeed this
very statute clearly contemplates the continued creation of obits
provided that the trust does not exceed the limit of twenty
years. The voice that speaks to us is not that of the Supreme
Head upon earth of a purified church but that of a supreme
landlord who is being done out of escheats and other commodities.
I will not say but that there were some words in the Act which in
the eyes of good and godly lawyers might confine its effect
within narrow limits, but I also think that good and godly
lawyers belonging as they did to certain already ancient and
honourable societies for which lands were held in trust must have
felt that this statute had whistled very near their ears. 

NOTES:

1. Taff Vale, R. Co. v. Amalgamated Society of Railway Servants
(1901), A.C. 426.

2. [There was. Trade Disputes Act, 1906 (6 Edw. VII, c. 47);
Trade Disputes and Trade Unions Act, 1927 (17 & 18 Geo. V. c.
22). See Slesser and Baker, Trade Union Law, ed. 3, (1931).]

3. [See Sir W.S. Holdsworth, History of English Law, vol. iv, pp.
477-480; vol. ix, pp. 47-48.]

4. In re St. Stephen, Coleman Street, (1888), 39 Ch. Div. 492.

5. [Translation: An endowed institution, having legal status, is
created by the act of endowment together with its confirmation by
that state of the confederation, within which the endowed
institution is to be located. The Civil Code of the German
Empire. Trs. Walter Loewy (1909).]

6. See In re Dean (1889), 41 Ch. Div. 552, 559: a trust for the
comfortable maintenance of specific dogs and horses adjudged
valid, though not charitable and not enforceable by any one. See
however an article by J.C. Gray, 15 Harvard Law Review, p. 509 on
"Gifts for a non-charitable purpose".