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. so are these four: Now to conclude the progression of uses in courts of statutes, I do note three special points. First, I cannot find in any evidence before King R. II. his time, the clause ad opus et usum, and the very Latin of it savoureth of that time; for in ancient time, about E. I. and before, when lawyers were part civilians, the Latin phrase was much purer, as you may see partly by Bracton's writing and by ancient patents and deeds, and chiefly by the register of writs, which is good Latin; whereas the phrase ad opus et usum, as to the words ad opus, is a barbarous phrase, and like enough to be in the penning of some chaplain that was not much past his grammar, when he found opus et usus coupled together, and (preceding) that they govern an ablative case; as they do indeed since this statute, for they take away the land and 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. 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 directly for the benefit of cestuy que use, as that the descent of a use should toll an entry, or that a release should be good to the pernor of the profits, or the like; but always for the benefit of stran gers, and third persons against cestuy que use, and his feoffees: for though by the statute of R. III., he might alter his feoffee, yet that was not the scope of the statute, but to make good his assurance to third persons, and the other came in but e obliquo. 50 E. &c. & 3. That the special intent unlawful and covin ous 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 froffment within the statute. And for the statute De religiosis 7 E. I., which prohibits generally that religious persons should not purchase arte tel in genio, 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. 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 infeofling 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 feuffhis 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 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 feoffinent, this statute in ease 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 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 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 can 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 usc, 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 of the general trust and the special were things not | France, which drew absent from their p 1. That 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 law-common yers were part civilians, the Latin phrase was 2. T much purer, as you may see partly by Bracton's rectly writing and by ancient patents and deeds, and dese chiefly by the register of writs, which is good La- leas tin; whereas the phrase ad opus et usum, as to the or words ad opus, is a barbarous phrase, and like enough to be in the penning of some chaplain that was not much past his grammar, when he foun opus et usus coupled together, and (preceding) th they govern an ablative case; as they do inde since this statute, for they take away the land and so put them into a conveyance. Secondly, I find in no private act of att in the clause of forfeiture of lands, the "which he hath in possession or in u about E. IV.'s reign. Thirdly, I find the word "use" in until 7 R. II., cap. 12., Of Provis R., Of Mortuaries. A But the title is framed working of the statute, but ope and intention of the sta primum est intentione ultimum est the intention of the statute was by ⚫ possession to the use, to turn the use session; for the words are not de pos s ad usus sed in usus transferendis; and, grammarian saith, præpositio, ad, denotat a actionis, sed præpositio, in, cum accusativo, motum allerationis: and therefore, Kings ... justice, in the same case said, that the meanthe statute was to make a transubstantiation ne use into a possession. is drawn But it is to be noted, that titles of acts of Parlia ment severally came in H. VIII., for before that une there was but one title to all the acts made nne Parliament; and that was no title neither, at a general preface of the good intent of the ng, 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 word it ist R. III. c. 5, whereupon you may see the very mould whereon this statute was made, where the said king having been infeoffed (before be usurped) to uses, it was ordained that the land whereof he was jointly infeoffed with others 4. should be in his other cofeoffees as if he had not been named, and where he was solely infeoffed, me, it should be in cestuy que use, in estate, as he had te the use. Now to come to the statute itself, the statute es consisteth, as other laws do, upon a preamble, the zare body of the law, and certain savings, and proassing visoes. The preamble setteth forth the incon28 venience, the body of the law giveth the remedy. For new laws are like the apothecaries' drugs, though they remedy the disease, yet, they trouble ess the body; and, therefore, they use to correct with test: spices: and so it is not possible to find a remedy cathe for any mischief in the commonwealth, but it will • un pas beget some new mischief; and, therefore, they Sus with spice their laws with provisoes to correct and qualify them. Wes. The preamble of this law was justly The preamble hief justice, 1. And all these three the statute did find to be hat there in the disposition of a use by will, whereof folout lowed the unjust disinherison of many. Now rmer. t. the favour of the law unto heirs appeareth in any parts of the law; of descent which privithe possession of the heir against the entry has right by the law; that a man shall ainst his heir, except he warrant , and divers other cases too long pon; and we see the ancient law in 1. fol. 44. They are both obscure and dout:ful for 's time was, that the ancestor could not nherit his heir by grant, or other act executed it in time of sickness; neither could he alien land which had descended unto him, except it in were for consideration of money or Glanb. b. 7. cb. service; but not to advance any younger articular brother without the consent of the heir. 2. For trials, no law ever took a the remedy that stricter course that evidence should not be perplexed, nor juries inveigled, than 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 convenience, which um malorum, is the from the grounds and prinlaw, by inventing a mean and hereditaments without any Interious; so as the whole staexpounded strongly towards the Ent of all conveyances, whereby the or inheritance may pass without any new Cons of deeds, executions of estate or enexcept it be where the estate is of privity ependence one towards the other; in which *s, mutatis mutandis, they might pass by the ties of the common law. The particular inconveniences by the law rehearsed may be reduced into four heads. 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 fourth upon such as come in by gift in For the first of these are there three his estate. Secondly, want of time. Thirdly, of wise and faithful counsel about purchasers; so likewise that the law doth take him. VOL. III.-39 strictly rent charge, conditions, extent, was 202 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 Of the circumslanges atten 1ing the statute. to the statute itself, I will note unto you three matters of circumstance. to a more civil government, the divers cities and towns, the suppr pulation and enclosures, all bad did extraordinarily flourish. For the title, it hath one tit roll, and another in course of The title in the roll is no sol title, viz., An act expressing wills; it was time, for the The title in course of pl usibus in possessionem Walmsly, justice, noted if a man look to the v would think that it sh way, de possessionibus that is the course that possession to the u not according to the according to the se tute, nam quod pri opere. And the carrying the posinto a possessio sessionibus ad 1. as the gramm motum action denotat moly mill, justice. ing of the ** of the use But it i ment ser time the in one I but a king, Fo whic first see W 1. The time of the statute. 2. The title of it. he 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 and in a wealthy and in a flourishing time, peace, in which nature of time men are most careful of the assurance of their possessions; as well becau purchasers are most stirring, as again, becau the purchaser, when he is full, is no less care of his assurance to his children, and of dispos that which he hath gotten, than he was of bargain and compassing thereof. About that time the realm began to be e chised from the tributes to Rome, and the i sions that had been in mortmain began abroad; for this year was the suppressi smaller houses, all tending to plenty, chasing and this statute came in con divers excellent statutes, made for the the same parliament; as the reduction |