What Is the “Trust” They Keep Talking About?

In a great deal of modern writing on status and sovereignty, the word "trust" does heavy lifting. The birth certificate is said to create a trust; the government is said to act as trustee; the individual is said to be a beneficiary who has failed to claim the estate. To evaluate any of it, one has to know what a trust actually is.

What a trust is

A trust is a relationship in which one person holds legal title to property for the benefit of another. It needs a settlor's intention to create it, a trustee, an identifiable beneficiary and identifiable property (Restatement (Third) of Trusts §§ 2, 13). The trust grew out of the medieval "use," enforced by the Chancellor in equity. The Statute of Uses (1535) tried to collapse uses into legal ownership; lawyers found ways around it, and the modern trust emerged.

The Cestui Que Vie Act

A central text in modern theory is the Cestui Que Vie Act 1666. Its real subject was narrow: estates held for the life of another (the cestui que vie). When that person went abroad and was not heard of for seven years, the Act allowed courts to presume them dead so the estate could pass. Modern readings treat it as the origin of a scheme in which every person is declared legally dead and their estate placed in trust. The Act does not say that, and it concerned leases and life estates in England.

Trusts that really involve government

There are genuine public trusts. In Illinois Central Railroad v. Illinois (1892), the Supreme Court held that a state holds title to submerged lands under navigable waters in trust for the people and cannot simply give it away. That public trust doctrine is real law. And Congress created the Federal Old-Age and Survivors Insurance Trust Fund (42 U.S.C. § 401). But in Flemming v. Nestor (1960), the Court held that a worker has no accrued property right in Social Security benefits of the kind a trust beneficiary would have.

The mutation point

The modern theory takes the true insight that government often acts in a fiduciary-like capacity — "public office is a public trust" is an old phrase — and converts it into a literal private trust with a hidden account and a named beneficiary. The elements a court would require, particularly a settlor's intention and identifiable property, are not shown in birth registration.

What remains worth asking

The fiduciary idea of government is not a fringe one. It runs through Locke, the Declaration and the public trust cases. The serious question is what duties a government owes, as a trustee owes, to those for whose benefit it holds power — and what remedies exist when those duties are breached.