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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 stances attend- statute that I find. But before I come ing the statute. to the statute itself, I will note unto you three matters of circumstance.

Of the circum

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.

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

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.

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, 1 Rep. 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.

Its parts.

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

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. cầu 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 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

1. The prici.

ence.

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. lar inconveni

ence.

The particular inconveniences by the law rehearsed may be reduced into four heads.

obscure and trial.

doubtful for

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.
The second upon jurors and witnesses.
The third upon purchasers.

The fourth upon such as come in by gift in law.

All which are persons that the law doth principally respect and favour.

1. They are

For the first of these are there three weak in consi impediments to the judgment of man, in disposing wisely and advisedly of

deration.

his estate.
First, nonability of mind.
Secondly, want of time.

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 dangerous for 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

un.
VOL. III.-39

strictly rent charge, conditions, extent, was

202

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

tities in law.

4. For the fourth point of inconveniexempt from all ence 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.

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 remedy which the statute intendeth to minister, consisting in two parts.

3. A touch of the remedy.

First, the extirpation of feoffments. Secondly, the taking away of the hurt, damage, and deceit of uses; out of which have been ga thered 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

3. Tenants in dower, and by the courtesy, who extinguishment or extirpation of the use, namely, 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 it is called, and by the law of England, and there

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

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

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 Cap. 2. The wish all readers that expound statutes body 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.

Secondly, a purview, or ordinance thereupon. The cases of the statute are three, The cases of the 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.

The general case is built upon eight 2. The general 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. lington'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.

The fourth word is hereditament, which is to be understood of those things whereof an inheritance may be, and not of those things whereof an inheritance is in esse; for if I grant a rent charge de novo for life to a use, this is good enough; and yet there is no inheritance in being of this rent. This word likewise excludes annuities and uses themselves, so that a use cannot be to a use.

The first words on the part of cestuy que use are the words, use, trust, or confidence; whereby it is plain that the statute meant not to make vocabulatum artis, but it meant to remedy matter, and not word; and in all the clauses it still carrieth the words.

Broughton v. Langley. Salk. 079. 1 Lutw. 823. Contr. Burchett v. Durdant.

2 Ventr. 312.

The second word is the word person, again, which excludeth all abeyance; it excludeth also dead uses, which are not to bodies lively and natural, as the building of a church, the making of a bridge; but here, as was noted before, is ever coupled with body politic.

The third word is the word other: The statute meant not to cross the common law. Now, at this time uses were grown into such familiarity, as men could not think of a possession, but in course of use; and so every man was said to be seised to his own use, as well as to the use of others; therefore, because the statute would not stir nor turmoil possessions settled at common law, it putteth in precisely this word, other; meaning the divided use, and not the conjoined use; and this word causeth the clause in joint feoffees to follow in a branch by itself; for else that case had been doubtful upon this word, other.

Collard v. Call. 2 R. Abr. 758. How v. Dixe. 1 Sid. 26.

The words that are common to both are words expressing the conveyance whereby the use ariseth, of which words those that breed any question are, agreement, will, otherwise, whereby some have inferred that uses might be raised by agreement parole, so there were a consideration of money or other matter valuable; for it is expressed in the words before, bargain, sale, and contract, but of blood, or kindred; the error of which collection appeareth in the word immediately following, namely, will, whereby they might as well include, that a man seised of land might raise a use by will, especially to any of his sons or kindred, where there is a real consideration; and by that reason, mean, betwixt this statute and by the statute of 32 of wills, lands were devisable, especially to any man's kindred, which was clearly otherwise; and, therefore, those words were put in, but in regard of uses formerly transferred by those conveyances; for it is clear that a use in esse by simple agreement, with consideration, or without, or likewise by will, might be transferred; and there was a person seised to a use, by force of that agreement or will, namely, to the use of the assignee; and, for the word otherwise, it should by the generality of the word include a disseisin to a use. But the whole scope

of the statute crosseth that which was to execute such uses, as were confidences and trust, which could not be in case of disseisin; for if there were a commandment precedent, then the land was vested in cestuy que use upon the entry; and if the disseisin were of the disseisor's own head, then no trust. And thus much for the case of exposition of this statute: here follow the ordinance and purview thereupon.

thereupon.

Coltema: v.

Pollexf.

The purview hath two parts: the Purview or first, operatio statuti, the effect that the ordinance statute worketh; and there is modus operandi, a fiction or explanation how the statute doth work that effect. The effect is, that cestuy que use shall be in posses- Senhouse. sion of like estate as he hath in the use; the fiction quomodo is, that the statute will have the possession of cestuy que use, as a new body compounded of matter and form; and that the feoffees shall give matter and substance, and the use shall give form and quality. The material words in the first part of the purview are four.

Lisle v. Gray.

138.

525. 596. Rep. 10. 28. Chudleigh's Cooper v. 1 Ro Abr. 780.

case.

Franklyn.

Cro. Jac. 401.

The first words are, remainder and reverter, the statute having spoken before of uses in fee-simple, in tail, for life, or years, addeth, or otherwise in remainder or reverter; whereby it is manifest, that the first words are to be understood of uses in possession. For there are two substantial and essential differences of estates; the one limiting the times, for all estates are but times of their continuances; the former maketh like difference of fee-simple, fee-tail, for life or years; and the other maketh difference of possession as remainder; all other differences of estate are but accidents, as shall be said hereafter. These two the statute meant to take hold of, and at the words, remainder and reverter, it stops: it adds not words, right, title, or possibility, nor it hath not general words, or otherwise; whereby it is most plain, that the statute meant to execute no inferior uses to remainder or reverter: that is to say, no possibility or contingencies, but estates, only such as the feoffees might have executed by conscience made. Note, also, that the very letter of the sta tute doth take notice of a difference between a use in remainder and a use in reverter; which though it cannot be properly, because it doth not depend upon particular estates, as remainders do, neither did then before the statute draw any tenures as reversions do; yet, the statute intends there is a difference when the particular use, and the use limited upon the particular use, are both new uses, in which case it is a use in remainder; and where the particular use is a new use, and the remnant of the use is the old use, in which case it is a use in reverter.

The next material words are, from henceforth, which doth exclude all conceit of relation that cestuy que use shall not come in: as from the time of the first feoffments to use, as Brudnell's

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