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that for a great time, if the heir did not as he was required, cestui que use had no remedy at all, until that about the time of Augustus Cæsar there grew in custom a flattering form of trust: for they penned it thus; Rogo te per salutem Augusti, or, per fortunam Augusti, &c.: whereupon Augustus taking the breach of trust to sound in derogation of himself, made a rescript to the prætor to give remedy in such cases. Whereupon, within the space of a hundred years these trusts did spring and spread so fast, as they were forced to have a particular chancellor only for uses, who was called prætor fidei commissarius; and not long after, the inconvenience of them being found, they resorted to a remedy much like unto this statute; for, by two decrees of senate, called senatus consultum Trebellianum et Pegasianum, they made cestui que use to be heir in substance.

I have sought likewise whether there be any thing which maketh with them in our law; and I find that Periam, Chief Baron, in the argument of Chudleigh's case, compareth them to copyholders. And aptly for many respects: First, because as an use seemeth to be an hereditament in the court of chancery, so the copyhold seemeth to be an hereditament in the lord's court: Secondly, this conceit of imitation hath been troublesome in copyholds, as well as in uses; for it hath been of late days questioned, whether there should be dower, tenancy by the courtesy, intails, discontinuances, and recoveries of copyholds, in the nature of inheritances at the common law; and still the judgments have weighed, that you must have particular customs in copyholds, as well as particular reasons of conscience in use, and the imitation rejected: And thirdly, because they both grew to strength and credit by degrees; for the copyhold at first had no remedy at all against the lord, but was as a mere tenancy at will; afterwards it grew to have remedy in chancery, and afterwards against the lords by trespass at the common law; and now lastly the law is taken by some, that they have remedy by ejectione firma, without a special custom of leasing. So no doubt in uses, at the first the chancery made question to give remedy, until uses grew more general, and the chancery more eminent; and then they grew to have remedy in conscience: but they could never maintain any manner of remedy at the common law, neither against the feoffee, nor against strangers; but the remedy against the

feoffee was left to the subpoena, and the remedy against strangers to the feoffee.

Now for the causes whereupon uses were put in practice. Mr. Coke, in his Reading, doth say well, that they were produced sometimes for fear, and many times for fraud; but I hold that neither of these causes were so much the reasons of uses as another reason in the beginning, which was, that the lands by the common law of England were not testamentary or devisable; and, of late years, since the statute, the ease of the conveyance, for sparing of repurchases and execution of estates; and now, last of all, an excess of will in men's minds, affecting to have assurances of their estates and possessions to be revocable in their own times, and too irrevocable after their own times.

Now for the commencement and proceeding of them, I have considered what it hath been in course of common law, and what it hath been in course of statute.

For the common law, the conceit of Shelley, in 24 H. VIII., Bro. Feoffm. and of Pollard, in 27 H. VIII., seemeth to me to be without ground; which was, that the use did succeed the tenure: for after that the statute of Quia emptores terrarum, which was made 18 E. I., had taken away the tenure between the feoffor and the feoffee, and left it to the lord paramount, they said that the feoffment, being then merely without consideration, should therefore intend an use to the feoffor. Which cannot be; for, by that reason, if the feoffment before the statute had been made tenendum de capitalibus dominis, as it might be, there should have been an use unto the feoffor before that statute. And again, if a grant had been of such things as consist not in tenure, as advowsons, rents, villains, and the like, there should have been an use of them: wherein the law was quite contrary; for after the time that uses grew common, yet it was, nevertheless, a great doubt whether things that did lie in grant did not carry a consideration in themselves because of the deed. And therefore I do judge that the intendment of an use to the feoffor where the feoffment was without consideration grew long after, when uses waxed general; and for this reason: because when a feoffment was made, and that it rested doubtful whether it were in use or in purchase; because purchases were things notorious and trusts were things secret, the chancellor thought it more convenient to put the purchaser

Fitz. Abr.
Subpœn. 8.

to prove
his consideration than the feoffor and his heirs to prove
the trust; and so made the intendment towards the use, and
put the proof upon the purchaser.

And therefore, as uses were at the common law in reason, (for whatsoever is not by statute, nor against law, may be said to be at the common law,) and both the general trust and the special were things not prohibited by law, though they were not remedied by law: so the experience and practice of uses were not ancient. And my reasons why I think so are these four:

First, I cannot find in any evidence before King R. II. his time the clause ad opus et usum.' And the very Latin of it savoureth of that time: for in ancient time, about E. I. and before, when lawyers were part civilians, the Latin phrase was much purer; as you may see partly by Bracton's writing, and by ancient patents and deeds, and chiefly by the register of writs, which is good Latin: whereas this phrase ad opus et usum, as to the words ad opus, is a barbarous phrase, and like enough to be the penning of some chaplain that was not much past his grammar, where he found opus and usus coupled together, that they did govern an ablative case; as they do indeed since this statute, for they take away the land and put them into a conveyance.

Secondly, I find in no private act of attainder, in the clause of forfeiture of lands, the words, "which he hath in possession or in use," until about Ed. IV.'s reign.

Thirdly, I find the word "use" in no statute until 7 R. II. cap. 11. of provisors, and in 15 R. II. of mortmain.

Fourthly, I collect out of Choke's speech in 8 E. IV. 5. (where he saith that, by the advice of all the judges, it was thought that the subpœna did not lie against the heir of the feoffee which was in by law, but cestui que use was driven to bill in parliament,) that uses even in that time were but in their infancy. For no doubt at the first the chancery made difficulty to give any remedy at all, and did leave it to the particular conscience of the feoffee: but after the chancery grew absolute, (as may appear by the statute of 15 H. VI. c. 4. that complainants in chancery should enter into bond to prove their suggestions, which showeth that the chancery at that time began to em

Mr. Rowe cites Dyer, 160 a. and 295 a. as authority for a case in 24 Ed. III. where the phrase "a son œps demesne " occurs.

use, 20. and 9.

brace too far, and was used for vexation,) yet, nevertheless, it made scruple to give remedy against the heir, being in by act in law, though he were privy. So that it cannot be that uses had been of any great continuance when they made that question. As for the causâ matrimonii prælocuti1, it hath no affinity with uses; for wheresoever there was remedy at the common law by action, it cannot be intended to be of the nature of an use. And for the book commonly vouched of Bro. Feoff. al 8 Ass. where Herle calleth the possession of a conuzee upon a fine levied by consent "an entry in auter droit," and 44 E. III. where there is mention of feoffors that sued by petition to the King, they be but implications of no moment. So as it appeareth that the first practice of uses was about R. II.'s time, and the great multiplying and overspreading of them was partly during the wars in France, which drew most of the nobility to be absent from their possessions, and partly during the time of the trouble and civil wars between the two houses about the title of the crown.

Now to consider the progression of uses in course of statutes, I do note three special points:

First, that an use had never any force at all at the common law, but by statute law.

Secondly, that there was never any statute made directly for the benefit of cestui que use, as that the descent of an use should toll an entry, or that a release should be good to the pernor of the profits, or the like; but always for the benefit of strangers and other persons against cestui que use and his feoffees: for though by the statute of R. III. he might alter his feoffee, yet that was not the scope of the statute, but to make good his assurances to other persons; and the other came in ex obliquo.

2 Thirdly, that the special intent unlawful and covinous was the original of uses, though after it induced to the lawful intents general and special.

use, 4.

For 50 E. III. is the first statute I find wherein mention is made of the taking of profits by one, where the estate in law is in another. For as for the opinion in 27 H. VIII. 8. that Bro. Feoff. al in case of the statute of Marlebridge the feoffor took the profits, it is but a conceit: for the law is at this day, that if a man infeoff his eldest son, within age and without consideration,

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although the profits be taken to the use of the son, yet it is a feoffment within the statute. And for the statute De Religiosis 7 E. I. though it prohibits generally that religious persons shall not purchase arte vel ingenio, yet it maketh no mention of an use; but it saith "colore donationis, termini, vel alicujus tituli," reciting these three forms of conveyances, the gift, the long lease, and the feigned recovery; which gift cannot be understood of a gift to a stranger to their use, for that came to be holpen by 15 R. II. long after.

But to proceed: in 50 E. III. c. 6. a statute was made for the relief of creditors against such as made covinous gifts of their lands and goods and coveyed their bodies into sanctuaries, there living high upon other men's goods; and therefore that statute made their lands liable to their creditors' executions in that particular case, if they took the profits. In 1 R. II. c. 9. a statute was made for relief of those as had right of action against such as had removed the tenancy of the præcipe from them, sometimes by infeoffing great persons for maintenance, and sometimes by secret feoffments to others whereof the demandants could have no notice; and therefore the statute maketh the recovery good in all actions against the first feoffors, so as they took the profits, and so as the demandants bring their action within a year of their expulsion. In 2 R. II. sess. 2. cap. 3. an imperfection in the statute of 50 E. III. was holpen; for whereas the statute took no place but where the defendant appeared, and so was frustrated, this statute giveth, upon proclamation made at the gate of the place privileged, that the land should be liable without appearance. In 7 R. II. cap. 12. a statute was made for the restraint of aliens to take any benefices or dignities ecclesiastical, or farms or administration of them, without the king's special license, upon pain of the statute of provisors: which, being remedied by a former statute where the alien took it to his own use, is by that statute remedied where the alien took it to the use of another, as it is printed in the book; though I guess that, if the record were searched, it should be, "if any other purchased to the use of an alien," and that the words, "or to the use of another," should be, "or any other to his use." In 15 R. II. cap. 5. a statute was made for the relief of lords against mort

This guess is not confirmed by the Record Commission.

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