and proceeding of them, the continuance of uses, and the proceeding that they have had both in common and statute law; whereby it may appear, that a use is no more but a general trust when a man will trust the conscience of another better than his own estate and possession, which is an accident or event of him and society, which hath been, and will be in all laws, and therefore was at the common law; for, as Fitzherbert saith, in the 14 H. VIII., common reason is 14 H. 8, 4. common law, and not conscience; but common reason doth define that uses should be remedied in conscience, and not in courts of law, and ordered by rules in conscience, and not by straight cases of law; for the common law hath a kind of rule on the chancery, to determine what belongs unto the chancery. And therefore we may truly conclude, that the force and strength of the use had or hath in conscience, is by common law; and, therefore, that it had or hath in law, is only by statute.

Of uses since the statute.

Now followeth in course both of time and matter, the consideration of this statute, our principal labour; and whereunto this former consideration which we have handled, serve but for introduction.

This statute, as it is the statute which of all others hath the greatest power and operation over the inheritance of the realm, so, howsoever it hath been by the humour of the time perverted in exposition, yet itself is the most perfect and exactly conceived and penned of any law in the book. It is induced with the most declaring and understanding preamble, consisting and standing upon the wisest and fittest ordinances, and qualified with the most foreseeing and circumspect savings and provisoes; and, lastly, the best pondered of all the words and clauses of it, of any statute that I find. But before I come to the statute itself, I will note unto you three matters of circumstance.

Of the circumstances attending the statute.

to a more civil government, the re-edifying of divers cities and towns, the suppressing of depopulation and enclosures, all badges of a time that did extraordinarily flourish.

2. The title.

For the title, it hath one title in the roll, and another in course of pleading. The title in the roll is no solemn title, but an apt title, viz., An act expressing an order for uses and wills; it was time, for they were out of order. The title in course of pleading is, Statutum de usibus in possessionem transferendis: wherein Walmsly, justice, noted well, 40 Reginæ, that if a man look to the working of the statute, he would think that it should be turned the other way, de possessionibus ad usus transferendis: for that is the course that the statute holdeth, to bring possession to the use. But the title is framed not according to the working of the statute, but according to the scope and intention of the statute, nam quod primum est intentione ultimum est opere. And the intention of the statute was by carrying the possession to the use, to turn the use into a possession; for the words are not de possessionibus ad usus sed in usus transferendis; and, as the grammarian saith, præpositio, ad, denotat motum actionis, sed præpositio, in, cum accusativo, denotat motum alterationis: and therefore, Kingsmill, justice, in the same case said, that the meaning of the statute was to make a transubstantiation of the use into a possession.

But it is to be noted, that titles of acts of Parliament severally came in H. VIII., for before that time there was but one title to all the acts made in one Parliament; and that was no title neither, but a general preface of the good intent of the king, but now it is parcel of the record.

The precedent

is drawn.

1. The time of the statute.

For the time, it was made in 27 H. VIII., when the kingdom was in full peace, and in a wealthy and in a flourishing time, in which nature of time men are most careful of the assurance of their possessions; as well because purchasers are most stirring, as again, because the purchaser, when he is full, is no less careful of his assurance to his children, and of disposing that which he hath gotten, than he was of his bargain and compassing thereof.

About that time the realm began to be enfranchised from the tributes to Rome, and the possessions that had been in mortmain began to stir abroad; for this year was the suppression of the smaller houses, all tending to plenty, and purchasing and this statute came in consort with divers excellent statutes, made for the kingdom in the same parliament; as the reduction of Wales

whereof he was jointly infeoffed with others should be in his other cofeoffees as if he had not been named, and where he was solely infeoffed, it should be in cestuy que use, in estate, as he had the use.

Now to come to the statute itself, the statute consisteth, as other laws do, upon a preamble, the body of the law, and certain savings, and provisoes. The preamble setteth forth the inconvenience, the body of the law giveth the remedy. For new laws are like the apothecaries' drugs, though they remedy the disease, yet, they trouble the body; and, therefore, they use to correct with spices: and so it is not possible to find a remedy for any mischief in the commonwealth, but it will beget some new mischief; and, therefore, they spice their laws with provisoes to correct and qualify them.

The preamble of this law was justly The preamble

merely in favour of purchasers; so was the binding of fines at the common law, the invention and practice of recoveries, to defeat the statute of entails, and many more grounds and learnings of law are to be found, respect the quiet possession of purchasers. And, therefore, though the statute of 1 R. III. had provided for the purchaser in some sort, by enabling the acts and conveyances of cestuy que use, yet, nevertheless, the statute did not at all disable the acts or charges of the feoffees: and so, as Walmsly, justice, said, 42 Eliz. they played at double hand, for cestuy que use might sell, and the feoffee might sell, which was a very great uncertainty to the purchaser.

4. They are exempt from all titles in law.

4. For the fourth point of inconvenience towards those that come in by law; conveyances in uses were like privileged places or liberties: for as there the law doth not run, so upon such conveyances the law could take no hold, but they were exempted from all titles in law. No man is so absolute owner in his own possessions, but that the wisdom of the law doth reserve certain titles unto others; and such persons come not in by the pleasure and disposition of the party, but by the justice and consideration of law, and, therefore, of all others they are most favoured: and they are principally three.

1. The king and lords, who lost the benefit of attainders, fines for alienations, escheats, aids, herriots, reliefs, &c.

2. The demandants in præcipes either real or personal, for debt and damages, who lost the benefit of their recoveries and executions.

3. Tenants in dower, and by the courtesy, who lost their estates and titles.

1. First for the king: no law doth endow the king or sovereign with more prerogatives than one for it preserveth and exempteth his person from suits and actions, his possessions from interruption or disturbance, his right from limitation of time, his patents from all deceits and false suggestions. Next the king is the lord, whose duties and rights the law doth much favour, because the law supposeth the land did originally come from him; for until the statute of quia cmptores terrarum, the lord was not forced to distract or dismember his signiory or service. So, until 15 H. VII. the law was taken, that the lord, upon his title of wardship, should oust a reconuzee of a statute, or a termor: So again we see, that the statute of mortmain was made to preserve the lord's escheats and wardships. The tenant in dower is so much favoured, as that it is the common saying and by-word in the law, that the law favoureth three things.

1. Life. 2. Liberty. 3. Dower. So, in case of voucher, the feme shall not be deayed, but shall recover against the heir mainteant: So likewise for the tenant by courtesy, as it is called, and by the law of England, and there

fore specially favoured, as a proper conceit and invention of our law. So, again, they principally favour such as have ancient rights, and therefore Lett telleth us that it is commonly said that a right cannot die: and that ground of law, that a freehold cannot be in suspense, showeth it well, insomuch that the law will rather give the land to the first comer, which we call an occupant, than want a tenant to a stranger's action.

And, again, the other ancient ground of law of remitter, showeth that where the tenant faileth without folly in the demandant, the law executeth the ancient right. To conclude, therefore, this part, when this practice of feoffments in use did prejudice and damnify all those persons that the ancient common law favoured, and did absolutely cross the wisdom of the law, which was to have conveyances considerate and notorious, and to have trial thereupon clear and not inveigled, it is no marvel that the statute concludeth, that the subtile imaginations and abuses tended to the utter subversion of the ancient common laws of this realm.

The third part giveth a touch of the 3. A touch of remedy which the statute intendeth to the remedy. minister, consisting in two parts.

First, the extirpation of feoffments.

Secondly, the taking away of the hurt, damage, and deceit of uses; out of which have been gathered two extremities of opinions.

The first opinion is, that the intention of the statute was to discontinue and banish all conveyances in use; grounding themselves both upon the words, that the statute doth not speak of the extinguishment or extirpation of the use, namely, by a unity of possession, but of an extinguishment or extirpation of the feoffment, &c., which is the conveyance itself.

Secondly, out of the words abuse and errors, heretofore used and accustomed, as if uses had not been at the common law, but had been only an erroneous device and practice. To both which I answer:

To the former, that the extirpation which the statute meant was plain, to be of the feoffee's estate, and not of the form of conveyances.

To the latter I say, that for the word abuse, that may be an abuse of the law, which is not against law, as the taking of long leases of lands at this day in capite to defraud wardships is an abuse of law, but yet it is according to law, and for the word (errors) the statute meant by it, not a mistaking of the law, but a wandering or going astray, or digressing from the ancient practice of the law, into a bye-course: as when we say, erravimus cum patribus nostris, it is not meant of ignorance, but of perversity. But to prove that the statute meant not to suppress the form of convey ances, there be three reasons which are not an swerable.

The first is, that the statute in every branch

thereof hath words de futuro, that are seised, or hereafter shall be seised; and whereas it may be said that these words were put in, in regard of uses suspended by discontinuance, and so no present seisin to the use, until a regress of the feoffees; that intendment is very particular, for commonly such cases special are brought in by provisos, or special branches, and not intermixed in the body of a statute; and it had been easy for the statute to have," or hereafter shall be seised upon every feoffment, &c., heretofore had or made."

My second reason is upon the words of the statute of enrolment, which saith, that (no hereditaments shall pass, &c., or any use thereof, &c.,) whereby it is manifest, that the statute meant to leave the form of conveyance with the addition of a farther ceremony.

The third reason I make is out of the words of the first proviso, where it is said, that no primer seisin, livery, fine, nor alienation, &c., shall be taken for any estate executed by force 27 H. 8. of the statute, before the first of May, 1536, but that they shall be paid for uses made and executed in possession for the time after; where the word made directly goeth to conveyances in use made after the statute, and can have no other understanding; for the words, executed in possession, would have served for the case of regress and, lastly, which is more than all, if they have had any such intent, the case being so general and so plain, they would have had words express, that every limitation of use made after the statute should have been void; and this was the exposition, as tradition goeth, that a reader of Gray's Inn, that read soon after the statute, was in trouble for, and worthily, which, I suppose, was Boiser, whose reading I could never see; but I do now insist upon it, because now again some, in an immoderate invective against uses, do relapse to the same opinion.

Opinion,

The second opinion, which I call a contrary extremity, is that the statute meant only to remedy the mischiefs in the preamble, recited as they grew by reason of divided uses; although the like mischief may grow upon the contingent uses, yet the statute had no foresight of them at that time, and so it was merely a new case, not comprised. Whereunto I answer, that I grant the work of the statute is to execute the divided use; and, therefore, to make any use void by this statute which was good before; though it doth participate of the mischief recited in the statute, were to make a law upon a preamble without a purview, which were grossly absurd. But upon the question what uses are executed, and what not; and whether out of the possessions of a disseisin, or other possessions out of privity or not, there you shall guide your exposition according to the preamble; as shall

Cap. 2. The

law.

be handled in my next day's discourse, and so much touching the preamble of this law. For the body of the law, I would wish all readers that expound statutes bly of the to do as scholars are willed to do: that is, first, to seek out the principal verb; that is, to note and single out the material words whereupon this statute is framed; for there are, in every statute, certain words, which are veins where the life and blood of the statute cometh, and where all doubts do arise and issue forth, and all the rest of the words are but literæ mortuæ, fulfilling words.

The body of the statute consisteth upon two parts.

First, a supposition, or case put, as Anderson, 36 Eliz., called it.

The cases of the

Secondly, a purview, or ordinance thereupon. The cases of the statute are three, and every one hath his purview: the statute. general case; the case of feoffees to the use of some of them; and the general case of feoffees to the use or pernors of rents or profits.

2. The general

The general case is built upon eight material words: four on the part of the case. feoffees; three on the part of cestuy que use; and one common to them both.

The first material word on the part of the feoffees is the word person. This excludes all abeyance; for there can be no confidence reposed but in a person certain. It excludes again all corporations: for they are enabled to a use certain; for note on the part of the feoffor over the statute insists upon the word person; and on the part of cestuy que use, it ever addeth, body politic.

Dy. 49. Cram

Ventr. 310.

The second word material is the word seised. This excludes chattels. ington's case, 2 The reason they meant to remit the common law, and not to alter that chattels might ever pass by testament or by parole; therefore the use did not pervert them. It excludes again rights, for it was against the rules of the common law to grant or transfer rights; therefore the statute would execute them. Thirdly, it excludes contingent uses, because the seisin can be but to a fee-simple of a use; and when that is limited, the seisin of the feoffee is spent; for Littleton tells us, that there are but two seisins; one, in dominio ut de feodo; the other, ut de feodo; and the feoffee by the common law could execute but the fee-simple to uses present, and no post uses; and therefore the statute meant not to execute them.

The third material word is the word hereafter: that bringeth in conveyances made after the statute. It brings in again conveyances made before and disturbed by disseisin and recontinued after; for it is not said, infeoffed to use, but hereafter seised.