And again, the other ancient ground of law of remitter, showeth that where the tenant faileth without folly in the defendant, the law executeth the ancient right. To conclude therefore this point, when this practice of feoffments to use did prejudice and damnify all those persons that the ancient common law favoured; and did absolutely cross the wisdom of the law: to have conveyances considerate and not odious, and to have trial thereupon clear and not inveigled, it is no marvel that the statute concludeth, that their subtle imaginations and abuses tended to the utter subversion of the ancient common laws of this realm. The third part of the preamble giveth a touch of the remedy which the statute intendeth to minister, consisting in two parts. First, the expiration of feoffments. Secondly, the taking away of the hurt, damage, and deceit of the uses; out of which have been gathered two extremities of opinions. The first opinion is, that the intention of the statute was to discontinue and banish all conveyances in use; grounding themselves upon the words, that the statute doth not speak of the extinguishment or extirpation of the use, namely, by an 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 or 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 to 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 long leases at this day of land in capite to defraud wardships, is an abuse of the law, which is not against law, but wandering or going astray, or digressing from the ancient practice of the law; and by the word, errors, the statute meant by it, not a mistaking of the law, into a by-course: as when we say, "erravimus cum patribus juris," it is not meant of ignorance only, but of perversity. But to prove that the statute meant not to suppress the form of conveyances, there be three reasons which are not answerable. The first is, that the statute in the very 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 disseisins, and so no present seisin to the use, until a regress of the feoffees; that intendment is very particular, for commonly such cases are brought in by provisoes, or special branches, and not intermixed in the body of a statute; and it had been easy for the statute to have said, "or hereafter shall be seised upon any feoffment, &c. heretofore had or made." The second reason is upon the words of the statute of enrolments, 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 proviso, where it is said, that no primer seisin, | livery, no fine, nor alienation, shall be taken for any estate executed by force of the statute of 27, before the first of May, 1536, but 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, which read soon after the statute, was in trouble for, and worthily, who, as I suppose, was Boy, whose reading I could never see; but I do now insist upon it, because now again some, in an immoderate invective against uses, do relapse to the same opinion. The second opinion, which I called 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; and 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 it is the work of the statute to execute the divided use; and therefore to make an 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 possessions of a disseisor, or other possessions out of privity or not, there you shall guide your exposition according to the preamble; as shall be handled in my next day's discourse, and so much touching the preamble of this law. For the body of the law, I would wish all readers that expound statutes 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 the statute is framed; for there are in every statute certain words, which are as veins where the life and blood of the statute cometh, and where all doubts do arise, and the rest are literæ mortuæ, fulfilling words. The body of the statute consisteth upon two parts. First, a supposition or case put, as Anderson, 36 Reginæ, calleth it. Secondly, a purview or ordinance thereupon. The cases of the statute are three, and every one hath his purview. The general case. The case of co-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 material words. Four on the part of the 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 alliances; | other matter valuable; for it is expressed in the for there can be no trust reposed but in a person words before, bargain, sale, and contract, but of certain it excludes again all corporations; for they blood, or kindred; the error of which collectiog are equalled to a use certain: for note on the part appeareth in the word immediately following of the feoffor-over the statute insists upon the word, namely, will, whereby they might as well inclu person, and on the part of cestuy que use, that added that a man seised of land might raise an use body politic. will, especially to any of his sons or kindred, wher there is a real consideration; and by that reas mean, betwixt this statute and the statute of 32. wills, lands were deviseable, especially to any man kindred, which was clearly otherwise; and theref » those words were put in, not in regard of uses rast by those conveyances, or without, or likewise will, might be transferred; and there was a pers seised to a use, by force of that agreement or w namely, to the use of the assignee; and for the wo otherwise, it should by the generality of the w include a disseisin, to a use. But the whole scop of the statute crosseth that which was to exec such uses, as were confidences and trust, whi could not be in case of disseisin; for if there wer a commandment precedent, then the land was vest in cestuy que use upon the entry; and if the disse i sin were of the disseisor's own head, then no trus And thus much for the case of supposition of this statute: here follow the ordinance and purvi thereupon. 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 Littleton 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 There purview hath two parts, the first opereh statuti, the effect that the statute worketh: and there is modus operandi, a fiction, or explanation how the statute doth, work that effect. The effed 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 cester que use, as a new body compounded of matter and form; and that the feoffees shall give matter and sulstance, and the use shall give form and quality. The material words in the first part of the purview are fout. The first words are, remainder and reverter, the statute having spoken before of uses in fee-simpl in tail, for life, or years, addeth, or otherwise in re mainder or reverter: whereby it is manifest, that th first words are to be understood of uses in possession For there are two substantial and essential differ ences of estates, the one limiting the times, for al estates are but times of their continuances; this maketh the difference of fee-simple, fee-tail, for lif or years; and the other maketh difference of po session as remainder all other differences of estat are but accidents, as shall be said hereafter; thes two the statute meant to take hold of, and at de words, remainder and reverter, it stops: it adds words, right, title, or possibility, nor it hath not general words, or otherwise it is most plain, th the statute meant to execute no inferior uses to TMmainder or reverter: that is to say, no possibili or contingences, but estates, only such as the feoffees might have executed by conveyance made Note also, that the very letter of the statute dock take notice of a difference between an use in remainder and an use in reverter; which though! cannot be properly so called, because it doth p depend upon particular estates, as remainders neither did then before the statute draw any tenure as reversions do; yet the statute intends that 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 an 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 an use in reverter. The next material word is, 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 conceit was in 14 Hen. VIII. That is, the feoffor had granted a rent charge, and cestuy que use had made a feoffment in fee, by the statute of 1 Richard III. the feoffor should have held it discharged, because the act of cestuy que use shall put the feoffor in, as if estuy que use had been seised in from the time of the first use limited; and therefore the statute doth take away all such ambiguities, and expresseth that *estuy que use shall be in possession from henceforth; that is, from the time of the parliament for uses then in being, and from the time of the execution for uses limited after the parliament. The third material words are, lawful seisin, state, and possession, not a possession in law only, but a seisin in fact; not a title to enter into the land, but an actual estate. The fourth words are, of and in such estates as they had in the use; that is to say, like estates, fee-simple, fee-tail, for life, for years at will, in possession, and reversion, which are the substantial differences of estates, as was said before; but both these latter clauses are more fully perfected and expounded by the branch of the fiction of the statute which follows. This branch of fiction hath three material words or clauses: the first material clause is, that the estate, right, title, and possession that was in such person, &c. shall be in cestuy que use; for that the matter and substance of the estate of cestuy que use is the estate of the feoffee, and more he cannot have; so as if the use were limited to cestuy que use and his heirs, and the estate out of which it was Immited was but an estate for life, cestuy que use can have no inheritance: so if when the statute came, the heir of the feoffee had not entered after the death of his ancestor, but had only a possession in law, cestuy que use in that case should not bring an assize before entry, because the heir of the feoffee could not; so that the matter whereupon the use must work is the feoffee's estate. But note here: whereas before when the statute speaks of the uses, it spake only of uses in possession, remainder and reverter, but not in title or right: now when the statute speaks what shall be taken from the feoffee, it speaks of title and right: so that the statute takes more from the feoffee than it executes presently, in case where there are uses in contingence which are but titles. The second word is, clearly, which seems properly and directly to meet with the conceit of scintilla juris, as well as the words in the preamble of extirpating and extinguishing such feoffments, so is their estate as clearly extinct. The third material clause is, after such quality, manners, form, and condition as they had in the use, so as now as the feoffee's estate gives matter, so the use gives form: and as in the first clause the use was endowed with the possession in points of estate, so there it is endowed with the possession in all accidents and circumstances of estate. Wherein first note, that it is gross and absurd to expound the form of the use any whit to destroy the substance of the estate; as to make a doubt, because the use gave no dower or tenancy by the courtesy, that therefore the possession when it is transferred would do so likewise: no, but the statute meant such quality, manner, form, and condition, as it is not repugnant to the corporal presence and possession of the estate. Next for the word, condition, I do not hold it to be put in for uses upon condition, though it be also comprised within the general words; but because I would have things stood upon learnedly, and according to the true sense, I hold it but for an explaining, or word of the effect; as it is in the statute of 26 of treasons, where it is said, that the offenders shall be attainted of the overt fact by men of their condition, in this place, that is to say, of their degree or sort: and so the word condition in this place is no more, but in like quality, manner, form, and degree, or sort; so as all these words amount but to modo et forma. Hence therefore all circumstances of estate are comprehended as sole seisin, or joint seisin, by entierties, or by moieties, a circumstance of estate to have age as coming in by descent, or not age as purchaser ; or circumstance of estate descendable to the heir of the part of the father, or of the part of the mother; a circumstance of estate conditional or absolute, remitted or not remitted, with a condition of intermarriage or without : all these are accidents and circumstances of estate, in all which the possession shall ensue the nature and quality of the use: and thus much of the first case, which is the general case. The second case of the joint feoffees needs no exposition; for it pursueth the penning of the general case: only this I will note, that although it had been omitted, yet the law upon the first case would have been taken as the case provided; so that it is rather an explanation than an addition; for turn that case the other way, that one were infeoffed to the use of himself, I hold the law to be, that in the former case they shall be seised jointly; and so in the latter case cestuy que use shall be seised solely; for the word, other, it shall be qualified by the construction of cases, as shall appear when I come to my division. But because this case of co-feoffees to the use of one of them was a general case in the realm, therefore they foresaw it, expressed it precisely, and passed over the case e converso, which was but an especial case: and they were loth to bring in this case, by inserting the word, only into the first case, to have penned it to the use only of other persons: for they had experience what doubt the word, only, bred upon the statute of 1 R. III. after this third case: and before the third case of rents comes in the second saving; and the reason of it is worth the noting, why the savings are interlaced before the third case; the reason of it is, because the third case needeth no saving, and the first two cases did need savings; and that is the reason of that again. It is a general ground, that where an act of parliament is donor, if it be penned with an ac si, it is not a saving, for it is a special gift, and not a general gift, which includes all rights; and therefore in 11 Henry VII. where upon the alienation of women, the statute entitles the heir of him in remainder to enter, you find never a stranger, because the statute gives entry not simpliciter, but within an ac si; as if no alienation had been made, or if the feme had been naturally dead. Strangers that had right might have entered; and therefore no saving needs. So in the statute of 32 of leases, the statute enacts, that the leases shall be good and effectual in law, as if the lessor had been seised of a good and perfect estate in fee-simple; and therefore you find no saving in the statute; and so likewise of diverse other statutes, where the statute doth make a gift or title good specially against certain persons, there needs no saving, except it be to exempt some of those persons, as in the statute of 1 R. III. Now to apply this to the case of rents, which is penned with an ac si, namely, as if a sufficient grant or lawful conveyance had been made, or executed by such as were seised; why if such a grant of a rent had been made, one that had an ancient right might have entered and have avoided the charge; and therefore no saving needeth: but the second first cases are not penned with ac si, but absolute, that cestuy que use shall be adjudged in estate and possession, which is a judgment of parliament stronger than any fine, to bind all rights; nay, it hath farther words, namely, in lawful estate and possession, which maketh it stronger than any in the first clause. For if the words only had stood upon the second clause, namely, that the estate of the feoffee should be in cestuy que use, then perhaps the gift should have been special, and so the saving superfluous and this note is material in regard of the great question, whether the feoffees may make any regress; which opinion, I mean, that no regress is left unto them, is principally to be argued out of the saving; as shall be now declared: for the savings are two in number: the first saveth all strangers' rights, with an exception of the feoffees; the second is a saving out of the exception of the first saving, namely, of the feoffees in case where they claim to their own proper use: it had been easy in the first saving out of the statute, other than such persons as are seised, or hereafter should be seised to any use, to have added to these words, executed by this statute; or in the second saving to have added unto the words, claiming to their proper use, these words, or to the use of any other, and executed by this statute but the regress of the feoffee is shut out between the two savings; for it is the right of a person claiming to an use, and not unto his own proper use; but it is to be added, that the first saving is not to be understood as the latter implieth, that feoffees to use shall be barred of their regress, : in case that it be of another feoffment than that whereupon the statute hath wrought, but upon the same feoffment; as if the feoffee before the statute had been disseised, and the disseised had made a feoffment in fee to I. D. his use, and then the statute came; this executeth the use of the second feufment; but the first feoffees may make a regress, and they yet claim to an use, but not by that feoffment upon which the statute hath wrought. Now followeth the third case of the statute, touching execution of rents; wherein the material words are four: First, whereas diverse persons are seised, which hath bred a doubt that it should only go to rents in use at the time of the statute; but it is explained in the clause following, namely, as if a grant had been made to them by such as are or shall be seised. The second word is, profit; for in the putting of the case, the statute speaketh of a rent; but after in the purview is added these words, or profit. The third word is ac si, scilicet, that they shall have the rent as if a sufficient grant or lawful con veyance had been made and executed unto them. The fourth words are the words of liberty and remedies attending upon such rent, scilicet, that he shall distrain, &c. and have such suits, entries, and remedies, relying again with an ac si, as if the gran had been made with such collateral penalties an advantages. Now for the provisoes; the makers of this law did so abound with policy and discerning, as they did not only foresee such mischiefs as were incident to this new law immediately, but likewise such as wer consequent in a remote degree; and therefore be sides the express provisoes, they did add three new provisoes which are in themselves subtractive laws. for foreseeing that by the execution of uses, will formerly made should be overthrown, they made an ordinance for wills. Foreseeing likewise, that by execution of uses women should be doubly ad vanced, they made an ordinance for dowers and jointures. Foreseeing again, that the execution of uses would make frank-tenement pass by contracts parole, they made an ordinance for enrolments of bargains and sales. The two former they inserted into this law, and the third they distinguished into a law apart, but without any preamble as may ap pear, being but a proviso to this statute. Besides all these provisional laws; and besides four provisoes, whereof three attend upon the law of jointure, and one of persons born in Wales, which are not material to the purpose in hand; there are six provisoes which are natural and true members and limbs of the statute, whereof four concern the part of cestu que use, and two concern the part of the feoffers. The four which concern the part of cestuy que ust, tend all to save him from prejudice by the execution of the estate. The first saveth him from the extinguishment of any statute or recognisance, as if a man had an extent of a hundred acres, and an use of the inheritance of one. Now the statute executing the posses sion to that one, would have extinguished his extent being entire in all the rest or as if the conuzee of | a statute having ten acres liable to the statute had made a feoffment in fee to a stranger of two, and after had made a feoffment in fee to the use of the conuzee and his heirs. And upon this proviso there arise three questions: First, whether this proviso were not superfluous, in regard that cestuy que use was comprehended in the general saving, though the feoffees be excluded? Secondly, whether this proviso doth save statutes or executions, with an apportionment, or entire ? Thirdly, because it is penned indefinitely in point of time, whether it shall go to uses limited after the statute, as well as to those that were in being all the time of the statute; which doubt is rather enforced by this reason, because there was for uses at the time of the statute; for that the execution of the statute might be waved: but both possession and use, since the statute, may be waved. The second proviso saveth cestuy que use from the charge of primer seisin, liveries, ouster les maines, and such other duties to the king, with an express limitation of time, that he shall be discharged for the time past, and charged for the time to come to the king, namely, May 1536, to be communis ter minus. The third proviso doth the like for fines, reliefs, and herriots, discharging them for the time past, and speaking nothing of the time to come. The fourth proviso giveth to cestuy que use all collateral benefits or vouchers, aid-priers, actions of waste, trespass, conditions broken, and which the feoffees might have had and this is expressly limited for estates executed before 1 May 1536. And this proviso giveth occasion to intend that none of these benefits would have been carried to cestuy que use, by the general words in the body of the law, scilicit, that the feoffee's estate, right, title, and possession, &c. For the two provisoes on the part of the tertenant, they both concern the saving of strangers from prejudice, &c. The first saves actions depending against the feoffees, that they shall not abate. The second saves wardships, liveries, and ouster les maines, whereof title was vested in regard of the heir of the feoffee, and this in case of the king only. What persons may be seised to a use, and what not. What persons may be cestuy que use, and what not. What persons may declare an use, and what not. Though I have opened the statute in order of words, yet I will make my division in order of matter, namely, 1. The raising of uses. 2. The interruption of uses. 3. The executing of uses. Again, the raising of uses doth easily divide itself into three parts: The persons that are actors to the conveyance to use. The use itself. The form of the conveyance. Then it is first to be seen what persons may be • The text here is manifestly corrupted, nor does any probable conjecture occur for its amendment. seised to an use, and what not; and what persons may be cestuy que use, and what not. The king cannot be seised to an use; no, not where he taketh in his natural body, and to some purpose as a common person: and therefore if land be given to the king and I. D. pour terme de leur vies, this use is void for a moiety. Like law is, if the king be seised of land in the right of his duchy of Lancaster, and covenanteth by his letters patents under the duchy seal to stand seised to the use of his son, nothing passeth. Like law, if king R. III. who was feoffee to diverse uses before he took upon him the crown, had, after he was king, by his letters patents granted the land over, the uses had not been renewed. The queen, speaking not of an imperial queen but by marriage, cannot be seised to an use, though she be a body enabled to grant and purchase without the king; yet in regard of the government and interest the king hath in her possession, she cannot be seised to an use. A corporation cannot be seised to an use, because their capacity is to an use certain: again, because they cannot execute an estate without doing wrong to their corporation or founder; but chiefly because of the letter of this statute, which, in any clause when it speaketh of the feoffee, resteth only upon the word person, but when it speaketh of cestuy que use, it addeth person or body politic. If a bishop bargain or sell lands whereof he is seised in the right of his see, this is good during his life; otherwise it is where a bishop is infeoffed to him and successors, to the use of I. D. and his heirs, that is not good, no not for the bishop's life, but the use is merely void. Contrary law of tenant in tail; for if I give land in tail by deed since the statute to A, to the use of B and his heirs; B hath a fee-simple determinable upon the death of A without issue. And like law, though doubtful before the statute, was; for the chief reason which bred the doubt before the statute was because tenant in tail could not execute an estate without wrong; but that since the statute is quite taken away, because the statute saveth no right of entail, as the statute of 1 R. III. did; and that reason likewise might have been answered before the statute, in regard of the common recovery. A feme covert and an infant, though under years of discretion, may be seised to an use; for as well as land might descend unto them from a feoffee to use, so may they originally be infeoffed to an use; yet if it be before the statute, and they had, upon a subpoena brought, executed their estate during the coverture or infancy, they might have defeated the same; and when they should have been seised again to the use, and not to their own use; but since the statute no right is saved unto them. If a feme covert or an infant be infeoffed to an use precedent since the statute, the infant or baron come too late to discharge or root up the feoffment; but if an infant be infeoffed to the use of himself and his heirs, and I. D. pay such a sum of money to the use of I. G. and his heirs, the infant may disagree and overthrow the contingent use. |