the general trust and the special were things not | France, which drew most of the nobility to be prohibited by law, though they were not remedied | absent from their possessions; and partly during by law; so the experience and practice of uses the time of the trouble and civil wars between the were not ancient; and my reasons why I think two houses about the title of the crown. Now to conclude the progression of Second course of so are these four: uses in courts of statutes, I do note three special points. statutes. 1. That a use had never any force at all at the common law, but by statute law. 2. That there was never any statute made di 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 | rectly for the benefit of cestuy que use, as that the writing and by ancient patents and deeds, and descent of a use should toll an entry, or that a rechiefly by the register of writs, which is good La- lease should be good to the pernor of the profits, tin; whereas the phrase ad opus et usum, as to the or the like; but always for the benefit of stranwords ad opus, is a barbarous phrase, and like gers, and third persons against cestuy que use, and enough to be in the penning of some chaplain that his feoffees: for though by the statute of R. III., was not much past his grammar, when he found he might alter his feoffee, yet that was not the opus et usus coupled together, and (preceding) that scope of the statute, but to make good his assurthey govern an ablative case; as they do indeed ance to third persons, and the other came in but ex since this statute, for they take away the land and obliquo. and so 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 E. IV.'s reign. Thirdly, I find the word "use" in no statute until 7 R. II., cap. 12., Of Provisors, and in 13 R., Of Mortuaries. 8 E. 4, 5. Fourthly, I collect out of Choke's speech in 8 E. IV., where he saith, that by the advice of all the judges it was thought that the subpoena did not lie against the heir of the feoffee which was in by law, but that the cestuy que use was driven to bill in Parliament, so that uses at that time were but in their infancy; for no doubt at the first the chancery made difficulty to give any remedy at all, but to leave to the particular conscience of the feoffee: but after the chancery grew absolute, as may appear by the statute | made in H. VI. that complainants in chancery should enter into bond to prove their suggestions, which showeth that the chancery at that time began to embrace 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 in any great continuance when they made that question; as for the case of matrimonii prælocuti, 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 a use. 50 E. 3, c. 6. 3. That the special intent unlawful and covinous was the original of uses, though after it induced to the lawful intent general and special: so 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., that 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, 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., which prohibits generally that religious persons should not purchase arte vel ingenio, yet it maketh no mention of a use, but it saith colore donationis, termini, vel alicujus tituli, reciting there three forms of conveyances, the gift, the long lease, and feigned recovery; which gift cannot be understood of a gift to a stranger to their use, for that same to be holpen by 15 R. II. long after. 15 R. 2, c. 5. 50 E. 3, c. 6. But to proceed, in 50 E. III., a statute was made for the relief of creditors against such as made covinous gifts of their lands and goods, and conveyed their bodies into sanctuaries, there living high upon other men's goods; and, therefore, that statute made their lands and goods 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 And for the book commonly vouched of 8 Ass. of those as had right of action, against such as where Earl calleth the possession of a conuzee had removed the tenancy of the præcipe from them, upon a fine levied by consent and entry in autre sometimes by infeoffing great persons, for maindroit, and 44 of E. III., where there is mention of tenance; and sometimes by feoffments to other the feoffors that sued by petition to the king, they persons, whereof the defendants could have no be but implications of no moment. So as it ap-notice; and, therefore, the statute maketh the peareth the first practice of uses was about R. II. recovery good in all actions against the first feoffhis time; and the great multiplying and over-ors, so as they took the profits, and so as the despreading of them was partly during the wars in fendants bring their actions within a year of their expulsions. In 2 R. II. cap. 3, an imperfection | that time a use appeareth in his likeness; for there in the statute of 50 E. III. was holpen; for whereas is not a word spoken of any taking of the profits, the statute took no place, but where the defendant to describe a use by, but of claiming to a use; and appeared, and so was frustrated, the 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; it 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 it 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 mortmain, where feoffments were made to the use of corporations; and an ordinance made that for feoffments past the feoffees should, before a day, either purchase license to amortise them, or alien them to some other use, and for feoffments to come, or they should be within the statute of mortmain. In 4 H. VIII. cap. 7, the statute of 1 R. II. 5, is enlarged in the limitation of time; whereas that statute did limit the action to be brought within the year of the feoffment, this statute in case of a disseisin extends the time to the life of the disseisor; and in all other actions, leaves it to the year from time to time of the action grown. In 11 H. VI. cap. 3, the statute of 4 H. IV. is declared, because that conceit was upon that statute, that in case of disseisin the limitation of the life of the disseisor went only to the assize of novel disseisin, and to no other action; and, therefore, that statute declareth the former law to extend to all other actions, grounded upon novel disseisin. In 11 H. IV. cap. 5, a statute was made for relief of him in remainder against particular tenants, for lives, or years, that assigned over their estates, and took the profits, and then committed waste; and, therefore, this statute giveth an action of waste against them, being pernors of profits. In all this course of statutes no relief is given to purchasers, that come in by the party, but to such as come in by law, as defendants in præcipes, whether they be creditors, disseisors, or lessors, and lands, and that only in case of mortmain: and note also, that they be all in cases of special covinous intents, as to defeat executions, tenancy to the præcipe, and the statute of mortmain, or provisors. From 11 H. VI. to 1 R. III. being a space of some fifty years, a great silence of uses in the statute book, which was this time no question, they were favoured most. In 1 R. III. cap. 1, cometh that great statute for the relief of those that come in by the party, and at this statute ordained, that all feoffments, gifts, grants, &c. shall be good against the feoffors, donors, and grantors, and all other persons claiming only to their use; so as here the purchaser was fully relieved, and cestuy que use; was obiter enabled to change his feoffees; because there were no words in the statute of feoffments, grants, &c. upon good consideration, but generally. In H. VII.'s time new statutes were made for further help and remedy to those that came in by act in law; as 1 H. VII. cap. 1, a formedon is given without limitation of time against cestuy que use; and obiter, because they make him tenant, they give him the advantage of a tenant, with age and a voucher over: query 4 H. VII. cap. 17, the wardship is given to the lord of the heir of cestuy que use, dying, and no will declared, as if he had died seised in demesne, and recipricè the action of waste given to the heir against the guardian, and damages, if the lord were barred in his writ of ward; and relief is likewise given unto the lord, if he, holding by knight service, be of full age. In 19 H. VII. cap. 15, there is relief again in three cases: first, to the creditors upon matter of record, as upon recognisance, statute, or judgment, whereof the two former were not aided at all by any statute: and the last was aided by a statute of 50 E. III. and 2 R. II. only in cases of sanctuary men. Secondly, to the lords in soccage for the reliefs, and herriots upon death, which was omitted in the 4 H. VII., and lastly, to the lords of villains, upon the purchase of their villains in use. In 23 H. VIII. cap. 10, a further remedy was given in a case like unto the case of mortmain; for, in the statute of 15 R. II., remedy was given where the use came ad manum mortuam, which was when it came to some corporation: now, when uses were limited to a thing, apt or worthy, and not to a person or body, as to corporation of a church or chaplain, or obiit, but not incorporate as to priests, or to such guilds or fraternities as are only in reputation, and not incorporate, the case was omitted, which by the statute was remedied, but not by way of giving entry unto the lord, but by way of making the use utterly void; neither doth the statutes express to whose benefit the use shall be void, either the feoffor or the feoffee, but leaveth it to law, and addeth a proviso, that such uses may be limited from the gift, and no longer. This is the whole course of the statute law, before this statute. Thus have I set forth unto you the nature and definition of a use, the dif ferences and trusts of a use, the parts of a use, the qualities of it; and by what rules and learnings uses shall be guided and ordered: a precedent of them in other laws, the causes of the springing 14 H. 8, 4. 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 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 But the title is framed possession to the use. 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. 1. The time of the statute. 2. The title of it. he usurped) to uses, it was ordained that the land 3. The precedent or pattern of it. 1. The time of For the time, it was made in 27 H. the statute. 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. 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, About that time the realm began to be enfran- though they remedy the disease, yet, they trouble chised from the tributes to Rome, and the posses- the body; and, therefore, they use to correct with sions that had been in mortmain began to stir spices: and so it is not possible to find a remedy abroad; for this year was the suppression of the for any mischief in the commonwealth, but it will smaller houses, all tending to plenty, and pur-beget some new mischief; and, therefore, they chasing and this statute came in consort with spice their laws with provisoes to correct and divers excellent statutes, made for the kingdom in qualify them. the same parliament; as the reduction of Wales The preamble of this law was justly The preamble In Chudleigh's case, I Rep. 123. of cases, commended by Popham, chief justice, in 36 Eliz., where he saith, that there is little need to search and collect out before this statute, what the mischief was which the scope of the statute was to redress; because there is a shorter way offered us, by the sufficiency and fulness of the preamble, and because it is indeed the very level which doth direct the very ordinance of the statute, and because all the mischief hath grown by expounding of this statute, as if they had cut off the body of this statute from the preamble; it is good to consider it and ponder it thoroughly. Its parts. The preamble hath three parts. 1. And all these three the statute did find to be in the disposition of a use by will, whereof followed the unjust disinherison of many. Now the favour of the law unto heirs appeareth in many parts of the law; of descent which privilegeth the possession of the heir against the entry of him that has right by the law; that a man shall not warrant against his heir, except he warrant against himself, and divers other cases too long to stand upon; and we see the ancient law in Glanvill's time was, that the ancestor could not disinherit his heir by grant, or other act executed not in time of sickness; neither could he alien land which had descended unto him, except it First, a recital of our principal in- were for consideration of money or Glanb. b. 7. ch. convenience, which is the root of all the rest. service; but not to advance any younger Secondly, an enumeration of divers particular brother without the consent of the heir. inconveniences, as branches of the former. 2. For trials, no law ever took a Thirdly, a taste or brief note of the remedy that stricter course that evidence should not the statute meaneth to apply. be perplexed, nor juries inveigled, than trial. The principal inconvenience, which the common law of England; as on the other side, pal inconveni is radix omnium malorum, is the never law took a stricter or more precise course digressing from the grounds and prin- with juries, that they should give a direct verdict. ciples of the common law, by inventing a mean For whereas in a manner all laws do give the to transfer lands and hereditaments without any triers, or jurors (which in other laws are called solemnity or act notorious; so as the whole sta- judges de facto) leave to give a non liquet, that is, tute is to be expounded strongly towards the | no verdict at all, and so the cause to stand abated; extinguishment of all conveyances, whereby the our law enforceth them to a direct verdict, general freehold or inheritance may pass without any new or special; and whereas other laws accept of confections of deeds, executions of estate or en- | plurality of voices to make a verdict, our law entries, except it be where the estate is of privity and dependence one towards the other; in which cases, mutatis mutandis, they might pass by the rules of the common law. 1. The prici. ence. They are both obscure and doubtful for forceth them all to agree in one; and whereas other laws leave them to their own time and ease, and to part, and to meet again; our law doth duress and imprison them in the hardest manner, without food, light, or other comfort, until they be agreed. In consideration of which strictness and coercion, it is consonant, that the law do 1. First, that these conveyances in use are weak require in all matters brought to issue, that there for consideration. be full proof and evidence; and, therefore, if the 2. Secondly, that they are obscure and doubt-matter of itself be in the nature of simple contracts, ful for trial. which are made by parole without writing. 3. Thirdly, that they are dangerous for lack of notice and publication. 4. Fourthly, that they are exempted from all such titles as the law subjecteth possessions unto. The first inconvenience lighteth upon heirs. In issue upon the mere right, which is a thing hard to discern, it alloweth the wager of battail to spare jurors. If time have wore the marks and badges of truth: from time to time there have been statutes of limitation, where you shall find this mischief of perjuries often recited; and lastly, which is the matter in hand, all inheritances could not pass but by acts overt and notorious, as by The fourth upon such as come in by gift in deed, livery, and record. law. want of notice 3. For purchasers, bonâ fide, it may 3. The use All which are persons that the law doth prin- appear that they were ever favoured in dangerous for cipally respect and favour. our law, as first by the great favour of warranties which were ever for the indemnity of purchasers: as where we see that by the law in E. III.'s time, the disseisee could not enter upon the feoffee in regard of the warranty. So again the collateral guarranty, which otherwise is a hard law, grew no doubt only upon favour of For the first of these are there three weak in consi- impediments to the judgment of man, in disposing wisely and advisedly of 1. They are deration. his estate. Thirdly, of wise and faithful counsel about purchasers; so likewise that the law doth take 2in. VOL. III.-39 strictly rent charge, conditions, extent, was 262 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. merely in favour of purchasers; so was the bind-| fore specially favoured, as a proper conceit and ing 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 tities 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 emptores 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 maintenant: So likewise for the tenant by courtesy, as t is called, and by the law of England, and there 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 answerable. The first is, that the statute in every branch |
