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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, the statute giveth upon proclamation made at the gate of the place privileged, that the land should be liable without appearance.
expulsions. In 2 R. II. cap. 3, an imperfection that time a use appeareth in his likeness; for there is not a word spoken of any taking of the profits, to describe a use by, but of claiming to a use; and 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 judg ment, 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 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
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 differences and trusts of a use, the parts of a use, the qualities of it; and by what rules and learn ings uses shall be guided and ordered: a precedent of them in other laws, the causes of the springing
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.
For the precedent of this statute upon which it is drawn, I do find it by the upon which it first R. III. c. 5, whereupon you may see the very mould whereon this statute was made, where the said king having been infeoffed (before 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 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
In Chudleigh's case, I kep 123.
commended by Popham, chief justice, in 36 Eliz., where he saith, that there is little need to search and collect out of cases, 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.
The preamble hath three parts. First, a recital of our principal inconvenience, which is the root of all the rest.
1. fol. 44.
They are both obscure and doubtful for
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 were for consideration of money or Glanb. b. 7. ch 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, trial. the common law of England; as on the other side, never law took a stricter or more precise course with juries, that they should give a direct verdict. For whereas in a manner all laws do give the triers, or jurors (which in other laws are called judges de facto) leave to give a non liquet, that is, no verdict at all, and so the cause to stand abated; our law enforceth them to a direct verdict, general or special; and whereas other laws accept of plurality of voices to make a verdict, our law enforceth 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 require in all matters brought to issue, that there be full proof and evidence; and, therefore, if the
1. The prici.
The principal inconvenience, which pal inconveni- is radix omnium malorum, is the digressing from the grounds and principles of the common law, by inventing a mean to transfer lands and hereditaments without any solemnity or act notorious; so as the whole statute is to be expounded strongly towards the extinguishment of all conveyances, whereby the freehold or inheritance may pass without any new confections of deeds, executions of estate or 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.
2. The particu
The particular inconveniences by the lar inconveni- law rehearsed may be reduced into four heads.
1. First, that these conveyances in use are weak for consideration.
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.
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 deed, livery, and record.
want of notice
3. For purchasers, bonâ fide, it may 3. The use appear that they were ever favoured in defice 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
Thirdly, of wise and faithful counsel about purchasers; so likewise that the law doth take him.
strictly rent charge, conditions, extent, was
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.
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
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
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.