: entry; that which passeth by grant, by claim; that | which passeth by way of charge, determineth by way of discharge and so an use which is raised but by a declaration or limitation, may cease by words of declaration or limitation, as the civil law saith," in his magis consentaneum est, quam ut iisdem modis res dissolvantur quibus constituantur." For the inception and progression of uses, I have for a precedent in them searched other laws, because states and commonwealths have common accidents; and I find in the civil law, that that which cometh nearest in name to the use, is nothing like in matter which is usus fructus: for usus fructus et dominium is with them, as with us, particular tenancy and inheritance. But that which resembleth the use most is fidei commissum, and therefore you shall find in Justinian, lib. 2, that they had Inst. 1. 2. Tit. 2. a form in testaments, to give inheritance to one to the use of another," Hæredem constituo Caium; rogo autem te, Caie, ut hæreditatem restituas Seio." And the text of the civilians saith, that for a great time if the heir did not as he was required, cestuy que use had no remedy at all, until about the time of Augustus Cæsar there grew in custom a flattering form of trust, for they penned it thus: " Rogo te per salutem Augusti," or "per fortunam Augusti," etc. Whereupon Augustus took the breach of trust to sound in derogation of himself, and made a rescript to the prætor to give remedy in such cases; whereupon within the space of a hundred years, these trusts did spring and speed so fast, as they were forced to have a particular chancellor only for uses, who was called " prætor fideicommissarius;" and not long after, the inconvenience of them being found, they resorted unto a remedy much like unto this statute; for by two decrees of senate, called "senatus consultum Trebellianum et Pegasianum," they made cestuy que use to be heir in substance. I have sought likewise, whether there be any thing which maketh with them in our law, and I find that Periam, chief baron, in the argument of Chudleigh's case, compareth them to copyholders, and aptly for many respects. First, because as an use seemeth to be an hereditament in the court of chancery, so the copyhold seemeth to be an hereditament in the lord's court. Secondly, this conceit of limitation hath been troublesome in copyhollers as well as in uses; for it hath been of late days questioned, whether there should be dowers, tenancies by the courtesy, entails, discontinuances, and recoveries of copyholds, in the nature of inheritances, at the common law; and still the judgments have weighed, that you must have particular customs in copyholds, as well as particular reasons of conscience in use, and the limitation rejected. And thirdly, because they both grew to strength and credit by degrees; for the copyholder first had no remedy at all against the lord, and were as tenancy at will. Afterwards it grew to have remedy in chancery, and afterwards against their lords by trespass at the common law; and now, lastly, the law is taken by some, that they have remedy by ejectione firma, without a special custom of leasing. So no doubt in uses; at the first the chancery made question to give remedy, until uses grew more general, and the chancery more eminent; and then they grew to have remedy in conscience: but they could never obtain any manner of remedy at the common law, neither against the feoffee, nor against strangers; but the remedy against the feoffee was left to the subpoena: and the remedy against strangers to the feoffee. Now for the cases whereupon uses were put in practice, Coke in his reading doth say well, that they were produced sometimes for fear, and many times for fraud. But I hold that neither of these cases were so much the reasons of uses, as another reason in the beginning, which was, that the lands by the common law of England were not testamentary or deviseable; and of late years, since the statute, the case of the conveyance for sparing of purchases and execution of estates; and now last of all an excess of evil in men's minds, affecting to have the assurance of their estate and possession to be revocable in their own times, and irrevocable after their own times. Now for the commencement and proceeding of them, I have considered what it hath been in course of common law, and what it hath been in course of statute. For the common law the conceit of Shelley in 24 H. VIII. and of Pollard in 27 H. VIII. seemeth to me to be without ground, which was, that the use succeeded the tenure: for after that the statute of" Quia emptores terrarum," which was made 18 E. I. had taken away the tenure between the feoffor and the feoffee, and left it to the lord paramount; they said that the feoffment being then merely without consideration, should therefore intend an use to the feoffor; which cannot be; for by that reason, if the feoffment before the statute had been made" tenendum de capitalibus dominis," as it must be, there should have been an use unto the feoffor before that statute. And again, if a grant had been made of such things as consist not in tenure, as advowsons, rents, villains, and the like, there should have been an use of them, wherein the law was quite contrary; for after the time that uses grew common it was nevertheless a great doubt whether things that did lie in grant, did not carry a consideration in themselves because of the deed. And therefore I do judge that the intendment of an use to the feoffor, where the feoffment was made without consideration, grew long after, when uses waxed general; and for this reason, because when feoffments were made, and that it rested doubtful whether it were in use or in purchase, because purchases were things notorious, and uses were things secret, the chancellor thought it more convenient to put the purchaser to prove his consideration, than the feoffor and his heirs to prove the trust: and so made the intendment towards the use, and put the proof upon the purchaser. And therefore as uses were at the common law in reason, for whatsoever is not by statute, nor against law, may be said to be at the common law; and both the general trust and the special, were things not prohibited by the law, though they were not remedied by the law; so the experience and practice of uses.were not ancient; and my reasons why I think so are these: 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 Edw. I. his time, and before, ❘ when lawyers were part civilians, the Latin phrase was much purer, as you may see by Bracton's writing, and by ancient patents and deeds, and chiefly by the register of writs, which is good Latin; wherein this phrase," ad opus et usum," and the words, "ad opus," is a barbarous phrase, and like enough to be the penning of some chaplain that was not much past his grammar, where he had found "opus et usus" coupled together, and that they did govern an ablative case; as they do indeed since this statute, for they take away the land and put them into a conveyance. Secondly, I find in no private act of attainder, the clause of forfeiture of lands, the words, "which he hath in possession or in use," until Ed. IV.'s reign. Thirdly, I find the word "use" in no statute until 7 Rich. II. cap. 11. Of provisors, and in 15 Rich. Of mortmain. Fourthly, I collect out of Choke's speech in 8 Ed. 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 cestuy que use was driven to his bill in parliament, that uses even in that time were but in their infancy; for no doubt but at the first the chancery made difficulty to give remedy at all, and did leave it to the particular conscience of the feoffee: but after the chancery grew absolute, as may appear by the statute of 13 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 of 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 an use. And for the book commonly vouched of 8 Ass. where Earl calleth the possession of a conuzee upon a fine levied by consent and entry in autre droit, and 44 of E. III. where there is mention of the feoffors that sued by petition to the king, they be but implications of no moment. So as it appeareth the first practice of uses was about Richard II. his time; and the great multiplying and overspreading of them was partly during the wars in France, which drew most of the nobility to be absent from their possessions; and partly during the time of the trouble and civil war between the two houses about the title of the crown. Now to conclude the progression of uses in course of statutes, I do denote three special points. 2. That there was never any statute made directly for the benefit of cestuy que use, as that the descent of an 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 strangers and other persons against cestuy que use, and his feoffees: for though by the statute of Richard III. he might alter his feoffee, yet that was not the scope of the statute, but to make good his assurance to other persons, and the other came in ex obliquo. 3. That the special intent unlawful and covinous was the original of uses, though after it induced to the lawful intent general and special; for 30 Edw. 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 to the opinion in 27 Hen. VIII. that in case of the statute of Marlebridge, the feoffees took the profits, it is but a conceit: for the law is 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 Ed. I. which prohibits generally that religious persons should not purchase arte vel ingenio, yet it maketh no mention of an 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 came to be holpen by 15 Richard II. long after. But to proceed, in 5 Edward 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 others' goods; and therefore that statute made their lands liable to their creditors' executions in that particular case, if they took the profits. In 1 Richard II. a statute was made for relief of those as had right of action, against those as had removed the tenancy of the præcipe from them, sometimes by infeoffing great persons, for maintenance; and sometimes by secret feoffments to others, whereof the defendants could have no notice; and therefore the statute maketh the recovery good in all actions against the first feoffors as they took the profits, and so as the defendants bring their actions within a year of their expulsions. In 2 Richard II. cap. 3, session 2, an imperfection of the statute of 50 Edward 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. In 7 R. II. a statute was made for the restraint of aliens, to take any benefices, or dignities ecclesiastical, or farms, or administration to them, without the king's special licence, upon pain of the statute of provisors; which being remedied by a former statute, where the alien took it to his own use; it 1. That an use had never any force at all at the is by that statute remedied, where the alien took it common law, but by statute law. to the use of another, as it is said in the book; though I guess, that if the record were searched, it should be, if any other purchased 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 Rich. 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 licence to amortise them, or alien them to some other use or other feoffments to come, or they should be within the statute of mortmain. In 4 Hen. IV. cap 7, the statute of 1 Richard II. is enlarged in the limitation of time; for whereas the 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 the time of the action grown. In 11 Henry VI. cap. 3, that statute of 4 Henry IV. is declared, because the conceit was upon the statute, that in case of disseisin the limitation of the life of the disseisor went only to the assise 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 Henry VI. 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 against them; therefore this statute giveth an action of waste being pernors of the 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 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 Henry VI. to 1 R. III. being the space of fifty years, there is a silence of uses in the statute book, which was at that time, when, no question, they were favoured most. In 1 R. III. cap. 1, cometh the great statute for relief of those that come in by the party, and at that time an use appeareth in his likeness; for there is not a word spoken of taking the profits, to describe an use by, but of claiming to an use; and this statute ordained, that all gifts, feoffments, 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 Hen. VII.'s time, new statutes were made for farther help and remedy to those that came in by act in law; as 1 Hen. VII. cap. 1, a formedon is given without limitation of time against cestuy que use; and obiter, because they make him a tenant, they give him advantage of a tenant, as of age, and voucher: query 4 Hen. VII. cap. 17, the wardship is given to the lord of the heir of cestuy que use, dying and no will declared, is given to the lord, as if he had died seised in demesne, and 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 the heir holding the knight's service be of full age. In 19 Hen. VII. cap. 15, there is relief given in three cases, first to the creditors upon matters 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 socage for their relief, and heriots upon death, which was omitted in the 4 Hen. VII. and lastly to the lords of villains, upon a purchase of their villains in use. In 23 Hen. VIII. cap. 10, a further remedy was given in a case like unto the case of mortmain; for in the statute of 15 Rich. 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, act, or work, and to a body, as to the reparation of a church, or an abbot, or to a guild, or fraternities as are only in reputation, but not incorporate, as to parishes; or such guilds or fraternities as are only in reputation, but not incorporate, that case was omitted, which by this statute is remedied, not by way of giving entry unto the lord, but by way of making the use utterly void; neither doth the statute express to whose benefit the use shall be made void, either the feoffor, or feoffee, but leaveth it to law, and addeth a proviso, that uses may be limited twenty years from the gift, and no longer. This is the whole course of statute law, before this statute, touching uses. Thus have I set forth unto you the nature and definition of an use, the differences and trust of an use, and the parts and qualities of it; and by what rules and learnings uses shall be guided and ordered: by a precedent of them in our laws, the causes of the springing and spreading of uses, the continuance of them, and the proceedings that they have had both in common law and statute law; whereby it may appear, that an use is no more but a general trust when any one will trust the conscience of another better than his own estate and possession, which is an accident or event of human society, which hath been, and will be in all laws, and therefore was at the common law, which is common reason. 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 rules of law; for the common law hath a kind of rule and survey over the chancery, to determine what belongs to the chancery. And therefore we may truly conclude, that the force and strength that an use had or hath in conscience, is by common law; and the force that it had or hath by common law, is only by statutes. Now followeth in time and matter the consideration of this statute, which is of principal labour; for those former considerations 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 you may see the very mould whereon this statute was made, that the said king having been infeoffed, before he usurped, to uses, it was ordained that the land whereof he was jointly infeoffed should be 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. the heritages of the realm, so howsoever it hath | drawn, I do find by the first Richard III. whereupon been by the humour of the time perverted in exposition, yet in itself is most perfectly and exactly conceived and penned of any law in the book. 'Tis induced with the most declaring and persuading preamble, 'tis consisting and standing upon the wisest and fittest ordinances, and qualified with the most foreseeing and circumspect savings and provisoes and lastly, 'tis the best pondered in 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. 1. The time of the statute. 3. The precedent or pattern of it. 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 inconveniences, the body 2. The title of it. of the law that giveth the remedy, and the savings and provisoes take away the inconveniencies of 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: 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. For the time of it was in 27 Hen. VIII. when the king was in full peace, and a wealthy and flourishing estate, in which nature of time men are most careful 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 for the compassing thereof. About that time the realm likewise began to be enfranchised from the tributes of Rome, and the possessions that had been in mortmain began to stir abroad; for this year was the suppression of the smaller houses of religion, 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 to a more civil government, the re-edifying of divers cities and towns, the suppressing of depopulation and enclosures. The preamble of the law was justly commended by Popham, chief justice, in 36 Regina, 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 therefore it is good to consider it and ponder it throughly. The preamble hath three parts. First, a recital of the principal inconveniences, which is the root of all the rest. Secondly, an enumeration of divers particular inconveniences, as branches of the former. diverting from the grounds and principles of the common law, by inventing a mean to transfer lands and inheritances 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. For the title, it hath one title in the roll, and an- Thirdly, a taste or brief note of the remedy that other in course of pleading. The title in the roll the statute meaneth to apply. The principal inconis no solemn title, but an act entitled, An act express-venience, which is radix omnium malorum, is the ing an order for uses and wills; 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 of the statute, to bring possession to the use. But the title is framed not according to the work of the statute, but according to the scope and intention of the statute," nam quod primum est in intentione ultimum est in operatione." The intention of the statute by carrying the possession to the use, is to turn the use to a possession; for the words are not "de possessionibus ad usus transferendis ;" and as the grammarian saith, " præpositio, ad, denotat notam actionis, sed præpositio, in, cum accusativo denotat notam alterationis:" and therefore Kingsmill, justice, in the same case saith, 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 but in the 5 Hen. VIII. for before that time there was but one title of all the acts made in one parliament; and that was no title neither, but a general preface of the good intent of the king, though now it is parcel of the record. The particular inconveniences by the 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 doubtful for trial. 3. Thirdly, that they are dangerous for want 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 law. For the precedent of this statute upon which it is | pally respect and favour. statute of entails, and many more grounds and learn For the first of these are three impediments, to the judgment of man, in disposing justly and ad-ings are to be found, which respect to the quiet of visedly of his estate. First, trouble of mind. Thirdly, of wise and faithful counsel about him. 1. And all these three the statute did find to be in the disposition of an use by will, whereof followed the unjust disinherison of heirs. Now the favour of law unto heirs appeareth in many parts of the law; as the law of descent privilegeth the possession of the heir against the entry of him that hath right by the law; no man shall 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 in time of sickness; neither could he alien land which had descended unto him, except it were for consideration of money or service; but not to advance any younger brother without the consent of the heir. the 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 Regine, 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. For the fourth 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 of his 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 also 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 defendants 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 tithes. 2. For trials, no law ever took a straiter course that evidence should not be perplexed, nor juries inveigled, than the common law of England; as on the other side, never law took a more precise and strait 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, a liberty to give non liquet, that is, to give no verdict at all, and so the case 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 light or comfort, until they be agreed, in consider-rights the law doth much favour, because the law ation of straitness 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 matter in itself be of that surety as in simple contracts, which are made by parole without writing, it alloweth wager of law. In issue upon the mere right, which is a thing hardly to discern, it alloweth wager of battail to spare jurors, if time have wore out 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 deeds, livery, and records. 1. First for the king: no law doth endow the king or sovereign with more prerogatives or privileges; for his person is privileged from suits and actions, his possessions from interruption and disturbance, his right from limitation of time, his patents and gifts from all deceits and false suggestions. Next the king is the lord, whose duties and supposeth the land did originally come from him; for until the statute of "Quia emptores terrarum," the lord was not forced to destruct or dismember his signiory or service. So until 15 H. VII. the law was taken, that the lord, upon his title of wardship, should put out a conuzee of a statute, or a termor; so again we see, that the statute of mortmain was made to preserve the lord's escheats and wards: the tenant in dower is so much favoured, as that it is the common 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 delayed, but shall recover against the heir incontinent; so likewise of tenant by courtesy, it is called 3. For purchasers, bona fide, it may appear that tenancy by the law of England, and therefore spethey were ever favoured in our law, as first by the cially favoured, as a proper conceit and invention of great favour of warranties which were ever for the our law; so as again the law doth favour such as help of purchasers: as where by the law in Edw. have ancient rights, and therefore it telleth us it is III.'s time, the disseisee could not enter upon the commonly said that a right cannot die and that feoffee in regard of the warranty; so again the col-ground of law, that a freehold cannot be in suslateral garranty, which otherwise as a hard law, pense, showeth it well, insomuch that the law will grew in doubt only upon favour of purchasers; so rather give the land to the first comer, which we was the binding of fines at the common law, the call an occupant, than want a tenant to a demandinvention and practice of recoveries, to defeat the ant's action. : |