I

the heritages of the realm, so howsoever it hath | 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.

drawn, I do find by the first Richard III. whereupon 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.

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

1. The time of the statute. 2. The title of it. of the law that giveth the remedy, and the savings 3. The precedent or pattern of it.

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.

:

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.

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 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 princi-

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.
Secondly, want of time.

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.

3. For purchasers, bona fide, it may appear that they were ever favoured in our law, as first by the great favour of warranties which were ever for the help of purchasers: as where by the law in Edw. III.'s time, the disseisee could not enter upon the feoffee in regard of the warranty; so again the collateral garranty, which otherwise as a hard law, grew in doubt only upon favour of purchasers; so was the binding of fines at the common law, the invention and practice of recoveries, to defeat the

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 tenancy by the law of England, and therefore specially favoured, as a proper conceit and invention of our law; so as again the law doth favour such as have ancient rights, and therefore it telleth us 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 demandant's action.

is the word, person. This excludes all alliances; | other matter valuable; for it is expressed in the for there can be no trust reposed but in a person certain: it excludes again all corporations; for they are equalled 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, that added body politic.

The second word material, is the word, seised: this excludes chattels. The reason is, that the statute meant to remit the common law, and not but that the chattels might ever pass by testament or by parole; therefore the use did not pervert them. It excludes rights, for it is against the rules of the common law to grant or transfer rights; and therefore the statute would execute them. Thirdly, it excludes contingent uses, because the seisin cannot | be but to a fee-simple of a use; and when that is limited, the seisin of the feoffee is spent ; for Little- | ton tells us, that there are but two seisins, one "in dominio ut de feodo," the other "ut de feodo et jure;" and the feoffee by the common law could execute but the simple to uses present, and not post uses; and therefore the statute meant not to execute them. The third material word is, hereafter: that bringeth in again 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 hereafter seised.

The fourth word is, hereditament, which is to be understood 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; yet there is no inheritance in being of this rent: this word likewise excludes annuities and uses themselves; so that an use cannot be to an use.

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

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

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

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, or otherwise, whereby some have inferred that uses might be raised by agreement parole, so there were a consideration of money or

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 an 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 the statute of 32 of wills, lands were deviseable, especially to any man's kindred, which was clearly otherwise; and therefore those words were put in, not in regard of uses raised by those conveyances, 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 supposition of this statute: here follow the ordinance and purview thereupon.

There purview hath two parts, the first operatio statuti, the effect that the 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 possession 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.

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; this maketh the 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 it is most plain, that the statute meant to execute no inferior uses to remainder or reverter: that is to say, no possibility or contingences, but estates, only such as the feoffees might have executed by conveyance made. Note also, that the very letter of the statute doth take notice of a difference between an use in remainder and an use in reverter; which though it cannot be properly so called, because it doth not depend upon particular estates, as remainders do, neither did then before the statute draw any tenures