not doubt but God had that Kindness for the People of England that an Act would once pass for that purpose by giving the Crown an Equivalent All which was fulfilled since his Death So I have that foresight of the growing Mischiefs for want of a Registry that I am confident the Necessity of it will force its own way And therefore were I now a dying I would send this out into the World to take its Fate with this Motto only Sine me Liber ibis in Orbem A BILL FOR Establishing a REGISTRY FOR Titles of Lands WHereas by the Common-Law of this Realm Lands Tenements and Hereditaments were not to be transferred from one to another but by Solemn Livery and Seisin or Matter of Record And whereas by the Statute made in the 27th Year of the Reign of King Henry the Eighth Entituled An Act concerning Uses and Wills a Bargain and Sale did become a Compleat Conveyance in the Law whereby Lands and Tenements might be transferred from one to another in a clandestine manner without Livery and Seisin or Matter of Record For prevention whereof by another Statute made in the same 27th Year of the late King Henry the Eighth For Inrollment of Bargains and Sales It was Enacted that from and after the last Day of July which should be and since was in the Year of our Lord 1536. No Mannors Lands Tenements or other Hereditaments should pass alter or change from one to another whereby any Estate of Inheritance of Freehold should be made or take Effect in any Person or Persons or any Use thereof to be made by reason only of any Bargain and Sale thereof except the same Bargain and Sale were made by Writing Indented Sealed and Inrolled in one of the Kings Courts of Record at Westminster or else within the same County or Counties where the same Mannors Lands or Tenements so bargained or sold lye or be before the Custos Rotulorum and two Justices of the Peace and the Clerk of the Peace of the same County or Counties or two of them at the least whereof the Clerk of the Peace to be one and the same Inrollment to be had or made within six Months after the Date of the same Writings indented And whereas since the making the said Statutes of late Years there have been several inventions for Conveying of Estates of Inheritance of Freehold by way of Lease and Release and also for making of Bargains and Sales thereof for long Terms of Years without Inrollment of such Conveyances both which are a manifest Abuse of the said Statute concerning Uses and Wills and an Evasion of the said Statute for Inrollments And whereas the said Conveyances by Lease and Release and Bargains and Sales for long Terms of Years being clandestine Conveyances to be Executed any where and invented contrary to the Intent and Meaning of the said Statutes and all the ancient and avowed Laws and Customs of this Realm are now of late Years become the most Usual aud Common Conveyances for Conveying of Freehold Lands whereby several Frauds and Abuses have been committed and several Suits and Contentions have arisen thereupon to the manifest hazarding the Titles of the Freehold Lands of this Kingdom and the dishonour of the Laws thereof For remedying of the Mischeifs aforesaid by providing one certain Place where all the Conveyances and Incumbrances herein after-mentioned relating to Freehold Lands may be Entered in Order to the more easie and ready searching and finding out the same Be it Enacted by the Kings most Excellent Majesty by and with the Advice and Consent of the Lords Spiritual and Temporal and the Commons in this present Parliament Assembled and by the Authority of the same This Blank is for the Constitution and Qualifications of the Register And be it Enacted that the said Register so to be appointed as aforesaid on or before the _____ day of _____ and all other succeeding Registers for ever then after shall provide and keep within one of the Inns of Court or some other place in or near the Citys of London or Westminster an Office of Registry for the purposes herein after mentioned And shall provide and keep in the said Office several Register-Books for Registring of Deeds and Writings in manner herein after-mentioned and also one or more Stamps for stamping of the same Deeds and Writings in manner also herein after-mentioned the Counterfeiting of which said stamps shall be and is hereby made And be it Enacted that all Conveyances Grants or Assignments of any Mannors Lands Tenements or Hereditaments of Inheritance of Freehold within the Kingdom of England or of any Rents issuing out of the same or of any Leases or Terms for Lives or Years to be made thereof which at any time after the _____ day of _____ shall be duly sealeâ— and executed for good and lawful Consideration and shall after such sealing and executing thereof be registred in one oâ— the said Register-Books shall in respecâ— thereof have and be esteemed and taken tâ— have the Priviledges and Preferences herein after-mentioned that is to say that such Conveyances Grants or Assigments from and after such Registring thereof shall be good and effectual according to the Purport and Contents thereof against all other Conveyances Grants or Assigments whatsoever which after the said _____ Day of _____ shall be made of the same Mannors Lands Tenements or Hereditaments and not Registered as aforesaid Notwithstanding that such Conveyances Grants or Assignments so omitted to be Registred shall be prior in Date or Execution to the said Conveyances Grants or Assignments which shall be so registred Provided nevertheless that all such Conveyances Grants or Assignments so omitted to be registred as aforesaid shall notwithstanding such omission be good and effectual against the Grantors or the Persons making the same and all other Persons whatsoever except the Persons claiming under the said Conveyances Grants or Assignments which shall be so Registred as aforesaid as fully and effectually to all Intents and Purposes as if this Act had never been made And for preventing a double charge in Enrolling of Bargains aud Sales of Inheritance of Freehold before the Entry thereof in the said Register-Books Be it Enacted That such an Entry made as aforesaid of any Bargain and Sale of Inheritance of Freehold at any time within six Months after the Date thereof shall be deemed and taken to have and is hereby made to have the force and effect of an Enrollment within the said Statute for Enrollment of Bargains and Sales as fully and effectually to all Intents and Purposes as if the same were inrolled in either of the said Courts of Record at Westminster or with the Custos Rotulorum of the same County And whereas several Conveyances or Assignments may be made by indorsements upon former Deeds Be it Enacted that when any Conveyance Grant or Assigment shall be duly Registred as aforesaid and after such Registring thereof there shall be any Grant Conveyance or
Assigment Declaration of Trust or other Deed made by Endorsement thereon that the Registring such Endorsement in one of the said Register-Books and making a reference therein to the said former Deed on which the same was indorsed shall be as good and effectual to all Intents and Purposes as if the said former Deed were again Registred with the said Endorsement And whereas it may be Conceived to be sometimes prejudicial or inconvenient to publish the Uses and Trusts to be declared of Lands Be it Enacted that where any Grants Conveyances or Assignments shall be made of any such Mannors Lands Tenements or Hereditaments as aforesaid to any Uses Intents or Purposes to be expressed in the same Deed or any other Deed to which the same Deed shall refer that the Registring of so much of such Conveyances Grants or Assignments by which the Legal Estate of the same Mannors Lands Tenements or Hereditaments contained in the said Deed shall stand transferred and certifying such Registring upon the same Deed so in part registred and also upon the other Deed to which the same so in part registred shall be made to refer Shall be esteemed a Registring of the said Uses or Trusts within this Act whereby to entitle the same Uses and Trusts to such preference as aforesaid as fully and effectually to all intents and purposes as if the same Uses or Trusts were registred at large any thing herein contained to the contrary notwithstanding And whereas Freehold Lands in England are by several Acts of Parliament made liable to Executions on Judgments Recognizances and Statutes which being entered in several places the Searches for the same are chargeable and the finding of them difficult to the further hazarding of the Titles of Lands For remedy thereof Be it Enacted that no Judgment Recognizance or Statute to be had or acknowledged at any time after the said _____ day of _____ shall bind or charge any Lands Tenements or Hereditaments within the Kingdom of England against any Purchasers or Mortgagees thereof except such Lands Tenements or Hereditaments as the Defendants in such Judgments or the Cognizors in such Recognizances and Statutes shall have on the day of the Registring thereof with the said Register in manner herein after-mentioned That is to say that for all Judgments the Names of the Plaintiffs and Defendants therein the Summs recovered thereby and the Day of the Signing thereof by the Judge or other Officer signing the same Shall be Registred and for all Recognizances and Statutes the Names of the Cognizors and Cognizees therein the Summs thereby acknowledged to be due and the day of the Acknowledgment thereof Shall be Registred And be it Enacted that no Devise by Will of any Lands or Tenements within the Kingdom of England shall be allowed as good against any Purchasers or Mortgagees of the same Lands or Tenements unless such Will or so much thereof whereby such Devise shall appear shall be registred in one of the said Register-Books within six Months next after the death of the Testator provided that after such Registring of such Will or Devise the same shall take the Effect from the Death of the Testator And be it Enacted That the said Register for the time being or his sufficent Deputy in that behalf shall from time to time certifie the days of all and every the respective Registries therein before directed upon some part of the Deeds or Writings so to be registred as aforesaid by affixing the Stamp of the said Office thereunto and signing the same Which said Certificate shall be taken as Evidence of such Registries in all Courts of Record and elsewhere I cannot be so Arrogant to dictate this Bill to the Legislative Power but if what I have asserted be true I hope the more Learned Gentlemen of the Law who shall oppose this Remedy will either provide a better or agree this Motto for proclaiming the Laws of England upon every House in the Kingdom NO ONE KNOWS THE OWNER In which they will not be more ingenuous to their Profession than the Athenians were to their Religion by that Inscription on the Altar TO THE UNKNOWN GOD. FINIS
AN ESSAY ON A Registry FOR Titles of Lands By JOHN ASGILL of Lincolns-Inn Esq LONDON Printed by John Astwood at his Printing-House behind St. Christophers-Church in Threadneedle-street the back-side of the Royal Exchange 1698. The Preface MY Name stands already Printed to a late Essay Entituled Several Assertions proved in order to Create another Species of Money than Gold and Silver of which I am not ashamed and I have added my Name to this that whatever usage it meets with I may stand bound to recognize it I hope I have such a Warrant to search for Truth that will justifie me in breaking through all Crafts and Sciences to find it as Hunger justified David and his Men for entering the Priest's House and eating the Shew-bread And because I find that I shall scarce be able to begin much less to get through my Argument without unfolding some Mysteries of Iniquity between Priests and Lawyers relating to the Titles and Settlements of Lands I hope that the Modern Professors of either of these Sciences will not be offended with me for speaking the whole Truth but if they should They will thereby be Witnesses against themselves that they justifie the Deeds of their Fathers And if I should be charg'd with Prophaneness for mingling sacred things with secular I will shelter my self under the Lord of the Sabboth who was accused for doing Business on that day and Haud timeo si jam nequeam defendere Crimen Cum tanto Commune SEVERAL ASSERTIONS PROVED In Order to Introduce a BILL FOR Establishing a REGISTRY FOR Titles of Lands First Assertion That as the Law now stands the Free-hold Lands in England may be incumbered in diverse Manners and at diverse Places PROVED FRee-hold Lands may be incumbered these several ways 1. By Feofment which must be executed in the Place where the Lands lye 2. By Grant with Attornment of which the Tenants must have Notice 3. By Fine and Recovery with a Deed leading the Use which are Matters of Record 4. By Bargain and Sale inrolled in either of the Four Courts at Westminster or with the Custos Rotulorum of the County where the Lands lye 5. By Judgments in Three Courts at Westminster 6. By Recognizances entered in the Courts where they are acknowledged 7. By Statutes Merchant and Staple transmitted into Chancery 8. By Lease and Release which may be Executed any where 9. By Leases granted out of the Lands which may be Executed any where 10. By Rent-charges granted out of the same which may be Executed any where 11. By Will in Writing 12. By Bonds to the King which are in the Nature of Statutes-staple All these are Incumbrances made by the Act of the Party Besides which there are others that happen by Default as Acts of Bankrupcy Eschaets and Attainders Now I am not a going to Calumniate the Law for allowing of so many sorts of Incumbrances on Lands but for permitting them to be done in diverse places Which doth render the Titles to Lands incertain and therefore is a Deficiency in the Law And tho' the Law hath directed several of them to be recorded yet this doth not remedy the Incertainty First Because these Records do lye in several Places which makes the Search thereof chargeable and the Finding difficult Secondly Because those that are upon Record have no Preference above those that be not so that should a Purchaser discover all that are Recorded he may be defeated by those that are not which can never be discovered but by the Confession of them that made them because they may be executed any where Therefore the drift of this Essay is to give a Sanction to one Place above all the rest by annexing a Priviledge to it and leaving it to every Man's pleasure whether he will purchase that Priviledge or not To shew the Necessities and Conveniencies whereof I offer the following Arguments Second Assertion That the Advantage taken by the Conveyancers in the Law of the Statute of Ues 27 H. 8. in making Clandestine Conveyances contrary to the true intent and meaning of that Parliament and all the avowed Laws and Customs of England doth occasion a Necessity of a Registry to prevent them PROVED In tracing out the Occasions of making this Statute I was drawn through all the Statutes against Mortmain as far back as Magna Charta which doth prohibit the giving Lands to Religious Houses by which it did seem to me that Lands had been so given before that time or else it had not been prohibited For humane Prohibitions generally come after the Fact committed whereas the Laws divine prohibit by way of Prevention Adam was forbidden the Tree before ever he had tasted of it The first Statute against Mortmain was made by God himself before the Fact committed for by the Mosaical Law which instituted the first Society of Priesthood the Levites are forbidden to have any Inheritance but the Tithes that they might not dote upon their Possessions but Avarice increasing upon them by an Acquisition of Wealth which they did not know how to dispose of they agreed to set up a Publick Treasury by way of a Joint-Stock for the use of the Church which was not within the Words of the Prohibition and out of this Joint-Stock they paid Judas the thirty pieces of Silver which being returned by him they were loth to part with it and yet puzzled what to do with it because being the Price of Blood it was against their own Canons to put it again into their Treasury Therefore they took Counsel and bought the Potters Field to bury Strangers in As my Lord Coke commends the Wisdom of our Ancient Clergy for always choosing the most Learned in the Law to be of their Counsel so it seems these Priests of old were endued with the like Wisdom For the Children of this World are wiser in their Generation than the Children of the Light Now these Lawyers advised their Clients that notwithstanding this Canon they might purchase Lands with this Money and annex them to their Church But this being against the Law divine prohibiting their purchasing of Lands the Lawyers found this Stratagem to purchase these Lands for a Burying-place only in the Nature of a Church yard which being a thing of Necessity and made Sacred would exempt or at least excuse it from this Statute against Mortmain and the Priests computing that this might turn to as much Profit as any thing else having double Duties for Lodging of Men and Meat for Horses they consented to lay out their Money in it any thing to get a Penny in an honest way And this Field of Blood was the first spot of Glebe in the World to which the Priests will be intituled in right of the Church if ever they gain the possession of the Holy Land But having laid this Nest Egg they went on to join Field to Field and had they been let alone had converted whole Kingdoms into Holy Ground before now And why Houses of
which the Defendant may plead almost what he pleases for Delay and if he pleads to Issue which is the fairest can be expected there must be Issue joined a Record sealed and sent down to the Assizes a Ven. and Distringas to return the Jury Notice of Tryal to the Defendant a Tryal had the Verdict returned upon the Postea Judgment entered Execution sued out and delivered to the Sheriff and a Warrant from him to his Under-officer to levy it Now I don't calumniate this Process for recovery of Debts nor did I ever hear the Lawyers complain of this as a Burthen to the People But why of all troubles the trouble of a Registry should be only grievous I can't tell unless because it puts an End to Strife Is it such a mighty trouble for an Attorneys Clerk when he is to enter up a Judgment to step into the Registry and leave an Entry made of it and is it such a great trouble for a Man when he has sealed a Deed to go to the Register to acknowledge it There 's more trouble than all this in transferring Copy-hold Estates and yet we don't hear much Complaint about them Men are seldom in such hast about laying out their Money or at least their Lawyers are not so violent in dispatch of their Business but they may dispense with the Ceremony of a Registry to prevent the loss of their Estates Festina Lente is the Conveyancers Motto and therefore they advise their Clients not to hurry them nor put them out of their own pace they must think nothing troublesome but the Entering the Deed in a Registry To come to a Lawyers Chamber twice a Week to know when they shall come again then to have a Bill of Directions to send for some Deed which the Lawyer wants and which perhaps is a hundred Miles distant in they know not whose hands to employ an Attorney to search for Judgments Statutes Recognizances Deeds Inrolled in four Courts to send for a Copy of a Will proved in a remote Diocess and bring an Account of all this to the Lawyer and give him a New Fee and then begin again and may be two or three such Recipes before the Title be finished and the Clyents must not think much of all this but take it as the Nature of Business And yet I cann't say but all this may be Necessary as the Case now stands which must still grow worse if let alone For the Troubles and hazards of Titles must continually increase until they are reduced to a greater Certainty by a Registry But then as a Registry would reduce the Incertainty of Titles it must thereby take away the Delayes in Conveyancing and consequently abridge the Charges For as the Pharisees made long Prayers as a Pretence or Equivalent for devouring Widdows Houses so Practicers in the Law must make out long Bills on pretence for demanding large Fees Like some Tooth-drawers who dragg their Patients by the Jaws about the room to shew them how hardly they earn their Money To cure Deficiency in Titles would be as fatal to Conveyancers as the Cure of a lame Legg to a Beggar It is pleasant enough to any one but those who are to pay for it to read a Conveyancers Bill of Fees made out for Clients who don 't pay well by the gret To Counsel for perusing several long Deeds of the Title which from the beginning to the end was near six Months and drawing several long Conveyances in all thirty Skins of Parchment 100 Guineas To his Clerk for Engrossing the same and Expedition 30 Pounds So here the Counsel is paid for delay and the Clerk for Expedition which puts me in Mind of three Items set down in a Country-Scriveners-Bill Pro speciali labore 6 s. 8 d. pro expeditione 6 s. 8 d. pro dispatch 6 s. 8 d. the first was for keeping the Business a great while and the other two for doing it presently Sixth Assertion That in case this Registry be admitted it seems more practicable and less troublesome to settle it in the Metropolis than to dispose it into the several Counties Tho' the Soil of Lands lyes in in several Counties yet Concourse of Business to the Metropolis doth generally occasion the transferring of Titles there especially of all that are considerable scarce a Purchase or Mortgage of 500 l. but is transacted in London and by Posts and other Correspondencies it is less trouble to transmit any thing thither than few Miles in the Country 'T is observable that the Statute for Inrollment giving Liberty to enter Deeds in either of the four Courts at Westminster or in the County where the Lands lye the latter is seldom used And many Deeds containing Lands in several Counties it would be inconvenient to enter them in all But should it afterwards be found necessary to extend this elsewhere it will be better done from this as a Precedent than to settle it altogether The Judges of the Kingdom were at first resident in the King's Courts only and from thence were made Itinerant as the Occasions of the Country called for them There can be no Streams without a Fountain but when that is finished the Water may be directed to any place Nothing can be perfected without a begining and therefore to resolve to do nothing till we can do every thing is an absolute Resolution to do nothing and puts us in the case of the impotent Man at the Pool of Bethesda who by Conclusion was under an Impossibility of being healed for he could not be healed till he stept in and he could not step in because he was lame And having thus argued for Publication of Titles as a Notice against Frauds I hope Envy cannot say but I have fairly published my Thoughts about it And were all Propositions for New Laws made as publick as this before they passed perhaps it might save the labour of subsequent Acts to repeal or explain them As to what I have said in the Law I appeal to them that know it whether I have misrecited or misinterpreted it And notwithstanding all that I have said of some of the Lawyers I am so well satisfied in my Relation to that Science that I would not exchange it to be a higher Graduate in any other And it is more owing to the Candor of the Cheifs of the Law who sit in the Seats of Judgment in discouraging all fraudulent Practices and to the Care and Fidelity of the Practicers of the Law than to the Law it self that there are no more Frauds committed in the Titles of Lands under the present Incertainty of them For we see if but One or Two in an Age of that Profession and none of the most Learned neither do apply themselves to drawing Deeds and forgeing Evidence what Work they make in Westminster Hall And as my Lord Coke speaking of the then Court of Wards said That tho' the Parliament had rejected several Proposals for taking away those Tenures yet he did
Religion are said to be more haunted with Ghosts than lay-Lay-Tenements I can't tell unless some of their subsequent Augmentations were the Price of Blood as well as their Original Purchase But now to begin at our Laws It is strange to observe how the Parliaments of England did hunt the Priests and Lawyers with Statutes against Mortmain from the making of Magna Charta 9. H. 3. to this Statute in 27. Hen. 8. and yet could never catch them The Statute of Magna Charta as has been observed prohibited the giving of Lands to any Religious House To evade this the Lawyers advised the Clergy two things First That whereas several great Estates were held of them under small Rents that they might purchase in these Estates to their Church because they were before held of them Secondly The Prohibition of the Statute being to Religious Persons only that the Secular Clergy were exempted To hunt them out of these Holds the Statute of 7 E. 1. called Statutum de Religiosis doth prohibit any Religious Persons or others which includes the Secular Clergy by any manner of Craft or Engine to take Lands in Mortmain and so they could not purchase in the Estates held of them To evade this Statute the Lawyers advised the Clergy That if they had any silly Confessants who had a mind to be cheated of their Estates they might suffer a feigned Action to be brought against them and therein lose their Lands by default which Recoveries were adjudged by the Justices not to be within any of the words of this Statute and therefore they were allowed For that Recoveries being prosecuted in course of Law were by Law presumed to be â— just and lawful tho' they were done in Fraudem Legis To drive them out of this Hold the Statute of Westminster 2. makes all Lands so recovered to be forfeited to the Lords of the Fee and for want of their Entry to the King To evade this Statute the Lawyers advised the Clergy two things First That for all Lands lying found the Church they might enter into them by assent of the Tenants and make them Church-yards by Bulls of the Pope whether they had this by precedent from the Original Purchase or according to the Proverb That good Wits jump is not material Secondly They advised them that they might purchase Lands in the Names of other Persons to their Use To hunt them out of these Holds the Statute of 15 R. 2. prohibits both these To evade this the Lawyers advised the Clergy that they might purchase in the Names of other Persons in Trust for themselves which Trust was not within the precise words of Vse And thus the Priests continued to Cheat the People of their Estates and the Lawyers the King of his Eschaets for above three hundred years together in spight of all Laws made to the contrary In which time they had taught the Layety this Craft to convey away their legal Estates to Persons in Trust whereby to prevent the Descent to the Heir and consequently the Wardship to the King and other Lords and yet to keep the use and pernancy of the Profits to themselves and Families Of which King H. 8. complaining to his Judges they advised an Act for Transferring all Uses and Trusts into Possessions for which purpose a Bill was drawn by the King's Counsel and presented to the House of Commons in the 24th year of his Reign when it was rejected but passed in the 27th which is this Statute of Uses And four years after a Statute passed worth all the former for Dissolution of Monasteries by which the Priests lost their Lands and the Lawyers their Clients tho' not their Cunning as will appear by the Sequel Now this Statute of Uses 27 H. 8. hath introduced a new Conveyance in the Law which was not before by way of Bargain and Sale for tho' a Bargain and Sale did raise a Use at the Common Law yet it was not a compleat Conveyance to transfer the Possession without an actual delivery of it in the Country but now this Statute doing that Office by transferring the Use into a Possession a Bargain and Sale became a compleat Conveyance without any other Ceremony And the same Parliament forseeing that this Bargain and Sale so perfected might become a Clandestine Conveyance to be executed any where did intend to provide against it by making a Short Statute the same Sessions for that purpose called The Statute for Enrollments by which all Conveyances of Inheritance of Freehold which pass by Bargain and Sale only are to be Enroll'd within six Months after the Date that Purchasers may have Notice thereof from the Record But of late years the Lawyers have topt their Inventions upon these two Statutes For First They make a Bargain and Sale for a Term only now generally called a Lease for a Year and which is not within the Statute of Enrollments and by this the Lessee gains a Use at Common-Law and a Possession by the Statute of Vses which makes him capable of taking a Release of the Reversion at Common Law and then they make a Release to him and his Heirs accordingly Which two Deeds make him one perfect Conveyance and so by putting the Common-Law at both Ends and the Statute of Uses in the Middle the Statute for Enrollments is bilkt and these Conveyances by Lease and Release which are Clandestine Conveyances and invented by the Abuse of one Statute and the Elusion of the other are become the Common Conveyances of the Kingdom I challenge the Inns of Court to shew that either the Common Law or any Parliaments of England ever directed any Incumbrances to affect Lands but by Solemn Livery and Seisin or matter of Record and therefore these Clandestine Conveyances are crept in contrary to the Intent and Meanings of Parliaments and all the avowed Laws and Customs of the Kingdom There are two Common Titles to Lands in England The one by Descent which is proved by Marriages Baptisms and Burials and the other by Purchase which is proved by Deeds and where there is one Dispute of Title by Descent there are ten by Purchase because the Titles which shew the Descent are registred and those by Purchase are not for were these Marriages Baptisms and Burials left at large without notifying of them as Purchases are it would soon breed Confusion in all the Descents of the Kingdom And is it not a Reproach to the Law that that part of the Titles of Lands which is the Province of poor Parish Clerks should have more certainty in it then that which belongs to the Professors of the Law Third Assertion That all Objections made against a Registry upon account of Mischiefs which may arise by Discovery of Titles are not only contrary to all the avowed Laws and Customs of England but to the very Essence of Title and the History of Conveyances PROVED Some Notice is essentially necessary to the Title of every thing that is vendible To make