Common-Law Trust Course
—The Trust at Common Law—
The Trust at common law is its highest achievement, with our common law using equity to arrange relationships between parties and property, offering flexibility a flexibility that no other set of legal relationships can match. In fact, the common law of property, contract, and equity, all came together at a time now lost in the fog of antiquity, to give rise to the ancient truhand of Germanic-Scandinavian, and Celtic man's Volk (folk) richt (right), called nowadays our common law, resulting in the common-law of uses, nowadays called our common-law of trusts.
Over this vast time, the trusteeship of the common-law trust has developed into the highest fiduciary duty known to our common-law tradition—of an honor the most sensitive, above that of the work-a-day business world of the mere non-fiduciary contract. And for these reasons, any that enters into the common-law trust arrangement steps into relationships of far-greater consequences for breach, than that of mere contract. Bottom line: breach of a promise of contract brings no criminal liability; breach of an undertaking of trusteeship brings criminal liability.
Thus, those considering use of a trust should be wary to know the fundamentals of the common-trust relationships. Knowing about these fundamentals is not enough; one must know them. Accordingly, the goal of this trust course is that the student know the fundamentals (foundation basics) of the common-law trust. By so doing, one will also know the fundamentals of common-law legal relationships: property law, contract law (fiduciary and non-fiduciary relationships), principles of equity; differences between equity and law, between custodianship and trusteeship, between the law of the land (our common law) and the law of the city (the civil law).
Above all, the trust is not a corporate entity, but an arrangement of relationships between property and persons and between persons unique to our common-law tradition, recognized only in common-law countries and States. Hence, only common-law (law of the land) countries recognize the Trust. The rest of the world's countries, being under the law of the city, do not recognize our law of trusts.
In our common-law tradition, only a person can own (hold legal title to) property. Further, our courts recognize only two kinds of persons: the first is fictional and dead, called a corporation (a corpse); the second is living, called a man or woman—as the case may be. Accordingly, the trust, not being a corporate entity, but an arrangement of relationships between persons and property, this set of relationships does not—indeed cannot—own property, that is hold legal title to property. Why? Because only persons, not relationships, can own property. A relationship (such as for example a contract) cannot, as a matter of law, hold title to property.
Indeed, in the trust arrangement the trustee holds legal title (ownership) to the entrusted property; the beneficiary holds beneficial (equitable) title.
Moreover, a trustee holds not only possession and control of entrusted property (as does a custodian or bailee).
The trustee's holding of legal title (ownership) of the entrusted property is the secret of enabling the fundamental versatility and power of the trust arrangement to protect trust property.
A trust is an arrangement in which a trust settlor (property owner) entrusts property ownership—title, custody, and control—to a person called the trustee, for the benefit of a beneficiary, according to the settlor's terms.
Above all, the Trust is no corporate entity, but is rather an arrangement of rights respecting entrusted property. To many lawyers and non-lawyers alike, says Professor Rounds, the trust is as mysterious as the doctrine of the Trinity. Legal historian Maitland, goes further, saying that the trust arrangement is the highest and greatest achievement of our common law's use of equity.
Because the trust is not a person, but rather an arrangement of relationships, it is incorrect to say that a trust (an arrangement of relationships) owns property.
Because the trust has arisen and thrived only in common-law countries, trust law is not always the result of logic (as is the law of the city), but of law (the way a thing is and works, and changes not) and fact (that which evidence has proven true). Consequently, some of the greatest American trust lawyers—Scott, Fratcher, Rounds—have struggled without success to define the trust at common law, using any elegant, balanced, and complete formula. Instead, such learned men chose out and describe some unique feature of the general trust arrangement of persons and property. But such a description falls short of any full unpacking—which even a full-blown treatise of trust law would fail to cover.
For instance, Fratcher says aright that a trust is a complete set of legal relationships between persons with respect to entrusted property. Scott says the trust relationship is a kind of the common-law of contract, while others say it is rather a subset of property at common-law; Rounds sums the matter up simply and to the point: the trust relationship comprises a trustee holding title to property for someone's benefit. All these descriptions are good, but as all of the law of the land (our common law), all one can hope to learn by rote of trust law are its first principles. The application of those first principles to specific instances becomes the developed art of not merely knowing about trust law, but knowing the first principles of trust law. Thus enabling one to apply these to new and never-seen-before facts and circumstances, as these facts and circumstances bob forth from the flux of human relationships.
Tony Honore, a learned South-African lawyer, says that a trust exists where the creator of the trust hands over control of the property to a trustee for the benefit of a beneficiary. But this definition of a law of the city lawyer and jurisdiction, omits the most powerful feature of the trust at the law of the land: the trust creator does not hand over control only of the entrusted property, he also hands over possession and legal title (called at common law, ownership) of the entrusted property.
In all events, there is nothing like the trust in all the rest of the world's law of the city. Even its fideicommissum does not come close to the power of our common law of trusts to limit settlor, trustee, and beneficiary liability, and to protect property from predatory lawyers and bureaucrats.
Bottom line, the trust enables asset protection, private transfer, administration, and inheritance of property without government knowledge or interference. But further, using a skilled draftsman, the trust settlor can keep control of property, while suffering no burdens or liabilities of property ownership.
Finally, there is only one kind of fundamental trust, but variations and uses of this fundamental arrangement are as multi-splended as the specific needs and creative application of trust law that the trust settlor might need to arrange.
This trust-law course works as follows. Using the Lawgiver's two volumes called the common law of the land—the laws of nature unwritten (observations of our common law) and the laws of nature's God written (the Bible)—, this course shall hark back to the beginning of trust law, and using our common law unwritten and our Bible written, shall trace the true Lawgivers' laying-bare of this most fruitful arrangement of our common law.
This self-directed course will comprise 15, one-hour presentations.
The Arts of Freemanship
Weekly, Brent intends that the short, simple assignments introduce the student to the four Arts of Freemanship: reading, writing, listening, and speaking. These four arts comprise the arts of language; are impossible to use without using reason; and are the complete set of the foundational arts of freemanship—these and no others, these and no more.
To this end, each week the student is to complete the following:
Third, listening: the recorded hour-long lecture.
Those students having completed the course will get a Certificate of Completion from Winters Inn of Court.
Good Book: A Common Lawyer Translates and Annotates the Bible from the Original Tongues (access to digital version provided to the student.)
For reading aloud and mp3 recording, use one of the following Bible translations: Common Lawyer Bible, King James Version, New American Standard Version, or Geneva Bible.