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 a use certaine againe 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 Cefty que use it addeth person or body politicke If a Bishop bargaine or sell Lands whereof hee is seised in the right of his Sea this is good during his life otherwise it is where a Bishop is infeoffed to him and his Successors to the use of I. D. and his heires that is not good no not for the Bishops life but the use is meerely voyd Contrary Law of Tenant in Taile for if I give Land in Taile by Deed since the Statute to A. to the use of B. and his heires B. hath a fee-simple determinable upon the death of A without issue And like Law though doubtfull before the Statute was for the chiefe reason which bred the doubt before the Statute was because Tenant in Tayle could not Execute an Estate without wrong but that since the Statute is quite taken away because the Statute saveth no right of intayle as the Statute of 1. R. 3. did and that reason likewise might have bin answered before the Statute in regard of the common recovery A feme Covert and an Infant though under yeares of discretion may be seised to an use for aswell 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 beene seized againe to the Use and not to their owne use but since the Statute no right is saved unto them If a feme Covert or an Infant be enfeoffed to an Use precedent since the Statute the Infant or Baron come too late to discharge or roote up the Feoffment but if an Infant be infeoffed to the Use of himselfe and his Heires and I. D. pay such a summe of money to the Use of I. G. and his Heires the Infant may disagree and overthrow the contingent Use Contrary Law if an Infant be infeoffed to the Use of himselfe for life the remainder to the Use of I. S. and his Heires he may disagree to the feoffment as to his owne Estate but not to devest the remainder but it shall remaine to the benefit of him in remainder And yet if an Attainded person be infeoffed to an Use the Kings Title after Office found shall prevent the Use and Relate above it but untill office the Cesty que vse is seised of the Land Like Law of an Alien for if Land be given to an Alien to an Use the Use is not voyd ab initio Yet neither Alien or Attainded person can maintaine an Action to defend the Land The Kings Villeine if he be infeoffed to an Use the Kings Title shall relate above the Use otherwise in Case of a common person But if the Lord be infeoffed to the Use of his Villeine the Use neither riseth but the Lord is in by the CoÌ„mon Law not by the Statute discharged of the use But if the husband be infeoffed to the use of his wife for yeares if he die the wife shall have the Terme and it shall not inure by way of discharge although the Husband may dispose of the wives Terme So if the Lord of whom the Land is held be infeoffed to the Use of a person Attainded the Lord shall not hold by way of discharge of the Use because of the Kings Title An. diem vastum A person uncertaine is not within the Statute nor any Estate in nutibus or suspence executed as if I give Land to I. S. the remainder to the right Heires of I. D. to the use of I. N. and his Heire I. N. is not seised of the Fee-simple of an Estate per vit. of I. S. till I. D. be dead and then in Fee-simple Liker Law if before the Statute I give Land to I. S. per auter vie to an Use and I. S. dyeth leaving Cesty que vse whereby the free-hold is in Suspence the Statute commeth and no occupant entreth the Use is not executed out of the free-hold in suspence For the occupant the Disseissor the Lord by Escheate The Feoffee upon consideration not having notice and all other persons which shal be seised to Use not in regard of their persons but of their Title I referre them to my division touching disturbance and interruption ofUses It followeth now to see what person may be a Cesty que vse the King may be Cesty que vse but it behoveth both the declaration of the Use and the conveyance it selfe to be matter of Record because the Kings Title is compounded of both I say not appearing of Record but by conveyance of Record And therefore if I covenant with I. S. to leavy a Fine to him to the Kings use which I do accordingly And this deed of Covenant be not inrol'd and the Deed be found by office the use vesteth not Econverso inrol'd If I covenant with I. S. to infeoffe him to the Kings use and the Deed be inrol'd â—nd the feoffment also be found by office the use vesteth But if I leavy a fine or suffer a Recovery to the Kings use and declare the use by Deede of Covenant Enrol'd though the King be not party yet it is good enough A Corporation may take an Use yet it is not material whether the feoffment or the Declaration be by deed but I may infeoffee I. S. to the use of a Corporation and this use may be averred A Use to a person incertaine is not voyd in the first limitation but executeth not till the person be in esse so that this is positive than an Use shall never be in Obeyance as a Remainder may be but ever in a person certaine upon the words of the Statute and the Estate of the Feeoffees shall be in him or them which have the Use The reason is because no confidence can be reposed in a person unknowne and uncertaine and therefore if I make a feoffment to the use of I. S. for life and then to the use of the right Heires of I. D. the remainder is not in Obeyance but the Reversion is in the Feoffer quousque So that upon the matter all persons uncertaine in Use are like conditions or limitations precedent Like Law if I Enfeoffee one to the use of I. S. for yeares the remainder to the right Herres of I. D. This is not executed obeyance and therefore not void Like Law if I make a Feoffment to the use of my wife that shall be or to such persons as I shall
maintaine though I limit no particular Estate at all yet the use is good and shall in the interim returne to the Feoffor Contrary Law if I once limit the whole Fee-simple of the Use out of Land and part thereof to a person incertaine it shall never returne to the Feoffer by way of fraction of the Use but looke how it should have gone unto the Feoffer if I begin with a contingent Use so it shall go to the remainder if I intaile a contingent Use both Estates are alike subject to the contingent Vse when it falleth as when I make a Feoffment in Fee to the use of my wife for life the remainder to my first begotten son I having no Sonne at that time the remainder to my brother and his heires if my wife dye before I have any son the Vse shall not be in me but in my brother And yet if I marry againe and have a Sonne it shall devest from my brother and be in my Sonne which is the skipping they talke so much of So if I limit an Use joyntly to two persons not in Esse and the one commeth to bee in esse hee shall take the intire Use and yet if the other afterward come in esse hee shall take joyntly with the former as if I make a Feoffment to the use of my Wife that shall bee and my first begotten Sonne for their Lives and I marry my Wise taketh the whole Use and if I afterwards have a Sonne hee taketh joyntly with my Wife But yet where words of obeyance worke to an Estate executed in course of Possession it shall doe the like in Use as if I infeoffee A. to the use of B. for life the remainder to C. for life the remainder to the right Heires of B. this is a good remainder executed So if I enfeoffee A. to the use of his right Heires A. is in the Fee-simple not by the Statute but by the Common Law Now are wee to examine a speciall point of the disability of persons as to take by the Statute and that upon the words of the Statute where divers persons are seised to the use of other persons so that by the letter of the Statute no use is conteyned but where the Feoffor is one and Cesty que use is another Therefore it is to bee seene in what Cases the same persons shall be both seised to the use and Cesty a que use and yet in by the Statute and in what Cases they shall be diverse persons and yet in by the Common Law wherein I observe unto you three things First that the letter is full in the point Secondly that it is strongly urged by the Clause of joynt Estates following Thirdly that the whole scope of the Statute was to remit the Common Law and never to intermeddle where the Common Law executed an Estate therefore the Statute ought to bee expounded that where the party seised to the use and the Cesty que use is one person hee never taketh by the Statute except there bee a direct impossibiltie or impertinency for the use to take effect by the Common Law And if I give Land to I. S. to the use of himselfe and his Heires and if I. D. pay a summe of mony then to the use of I. D. and his Heires I. S. is in of an Estate for life or for yeares by way of abridgment of Estate in course of Possession and I. D. in of the Fee-simple by the Statute So if I bargaine and sell my Land after seven yeares the Inheritance of the Use onely passeth and there remaines an Estate for yeares by a kind of substraction of the Inheritance or occupyer of my Estate but meerely at the Common Law But if I enfeoffee I. S. to the use of himselfe intayle and then to the use of I. D. in Fee or Covenant to stand seisd to the use of my selfe in tayle and to the use of my Wife in Fee in both these Cases the Estate tayle is executed by this Statute because an Estate tayle cannot be reoccupied out of a Fee-simple being a new Estate and not like a particular Estate for life or yeares which are but portions of the absolute Fee and therefore if I bargaine and sell my Land to I. S. after my death without Issue it doth not leave an Estate tayle in mee nor vesteth any present Fee in the bargaines but is an use expectant So if I enfeoffee I. S. to the use of I. D. for life and then to the use of himselfe and his Heires he is in of the Fee-simple meerely in course of Possession and as of a Reversion and not of a remainder Contrary Law if I enfeoffee I. S. to the use of I. D. for life then to the use of himselfe for life the remainder to the use of I. N. in Fee now the Law will not admit fraction of Estates but I. S. is in with the â—est by the Statute So if I infeoffee I. S to the use of himselfe and a Stranger they shall be both in by the Statute because they could not take joyntly taking by severall Titles Like Law if I infeoffee a Bishop and his Heires to the use of himselfe and his successors he is in by the Statute in the right of his Sea And as I cannot raise a present use to one out of his owne seisin so if I limit a contingent or future use to one being at the time of limitation not seis'd but after become seised at the time of the execution of contingent use there is the same reason and the same Law and upon the same difference which I have put before As if I covenant with my Sonne that after his Marriage I will stand seised of Land to the use of himselfe and his Heires and before Marriage I enfeoffee him to the use of himselfe and his Heires and then hee marryeth hee is in by the Common Law and not by the Statute like Law of a bargaine and sale But if I had let to him for life onely then hee should have beene in for life onely by the Common Law and of the Fee-simple by Statute Now let mee advise you of this that it is not a matter of subtilty or conceipt to take the Law right when a man commeth in by the Law in course of Possession and where hee commeth in by the Statute in course of Possession but it is materiall for the deciding of many Causes and Questions as for Warranties Actions Conditions Wayners Suspitions and divers other Provisoes For example a mans Farmer committed wast after he in the Reversion covenanteth to stand seis'd to the use of his Wife for life and after to the use of himselfe and his Heires his Wife dyes if hee bee in his Fee untouch'd he shall punish the wast if he be in by the Statute he shall not punish it So if I bee infeoffed with Warranty and I covenant with my Sonne to stand seised to the use of my selfe for
life and after to him and his Heires if I bee in by the Statute it is cleare my Warranty is gone but if I be in by the Common Law it is doubtfull So if I have an eigne Right and be infeoffed to the use of I. S. for life then to the use of my selfe for life then to the use of I. D. in Fee I. S. dyeth if I be in by the Common Law I cannot wayve my Estate having agreed to the Feoffment but if I am in by the Statute yet I am not remitted because I come in by my owne Act but I may wayve my Use and bring an Action presently for my Right is saved unto me by one of the savings in the Statute Now on the other side it is to bee seene where there is a seisin to the use of another person and yet it is out of the Statute which is in speciall Cases upon the ground wheresoever Cesty que use had remedy for the Possession by course of Common Law there the Statute never worketh and therefore if a disseisin were committed to an Use it is in him by the Common Law upon agreement so if one enter as occupant to the Use of another it is in him till disagreement So if a feme infeoffe a man Causa matrimonij pralocuti she hath remedy for the Land againe by course of the Law and therefore in those speciall Cases the Statute worketh not and yet the words of the Statute are generall where any person stands seised by force of any Fine Recovery Peostment bargaine and sale agreement or otherwise but yet the feme is to bee restrained for the reason aforesaid It remaineth to shew what persons may limit and declare an Use wherein we must distinguish for there are two kinds of Declarations of Uses the one of a present Use upon the first conveyance the other upon a power of revocation or new declaration the latter of which I referre to the division of revocation now for the former The King upon his Letters Pattents may declare an Use though the Pattent it selfe implyeth an Use if none be declared If the King gives Lands by his Letters to I. S. and his Heires to the use of I. S. for life the King hath the Inheritance of the use by impliation of the Pattent and no Office needeth for impliation out of matter of Record amounteth ever to matter of Record If the Queene give Land to I. S. and his Heires to the use of all the Church-wardens of the Church of Dale the Pattentee is seised to his owne use upon that confidence or intent but if a common person had given Land in that manner the use had bin voyd by the Stat. of 23. H. 8. and the use had returned to the feoffor his heires A Corporation may take an Use without deed as hath bin said before but can limit no Use without Deed An Infant may limit an Use upon a Feoffment Fine or Recovery and he cannot Countermand or avoyd the Use except hee avoyd the conveyance contrary if an Infant covenant in consideration of bloud or Marriage to stand seised to an Use the Use is meerely voyd If an infant bargaine and sell his Land for mony for Commons or Teaching it is good with averment if for mony otherwise if it be proved it is avoydable if for mony recited and not paid it is voyd and yet in the case of a man of full age the recitall sufficeth If Barron and feme be seised in the right of the feme or by joynt Purchase during the Coverture and they joyne in a Fine the Barron cannot declare the Use for longer time then the Coverture and the feme cannot declare alone but the Use goeth according to the limitation of Law unto the feme and her Heires but they may both joyne in Declaration of the Use in Fee and if they sever then it is good for so much of the Inheritance as they concurr'd in for the Law avoucheth all one as if they joyn'd as if the Baron declare an Vse to I. S. and his Heires and the Feme another to I. D. for life and then to J. S. and his Heires the Vse is good to I. S. in Fee And if upon examination the Feme will declare the Vse to the Judge and her Husband agree not to it it is voyd and the Barons Vse is onely good the rest of the Vse goeth according to the limitation of Law FINIS 1. 2. 3. 1. 2. 3. 4. 5. 6. 1. 2. 3. 1. 2. 1. 2. 3. 4. 1 2 3 1. 2. 3. 1. 2. 3. 1. 2. 3. 4. 1. 2. 3. 1. 2. 3. 1. 2.
Conscience A right in Law So much of the nature and definition of an use It followeth to consider the parts and properties of an use wherein by the consent of all Bookes and it was distinctly delivered by Justice Walmeley in 36. Elizabeth That a trust consisteth upon three parts The First that the Feoffee will suffer the Feoffer to take the profits The Second that the Feoffee upon request of the Feoffer or notice of his Will will execute the Estates to the Feoffer or his Heires or any other by his direction The Third that if the Feoffee be disseised and so the Feoffer disturbed the Feoffee will re-enter or bring an action to re-continue the possession so that those three pernancy of Profits execution of Estates and defence of the Land are the three poynts of trust The properties of an use they are exceeding well set forth by former Justice in the same Case and they be three Uses saith he are created by Confidence Pressed by privity which is nothing else but a continuance Of the Confidence without interruption and ordered and guided by Conscience either by the private Conscience of the Feoffee Or the generall Conscience of the Estate which is Chancery The two former of which because they bee matters more throughly beaten and wee shall have occasion to handle them we will not now debate upon But the third we will speake somewhat of both because it is a key to open many of true reasons and termings of uses and because it tendeth to decide out great and principall doubts at this day Cooke Soliciter entring into his Argument of Chudleyes Case said sharply and fitly I will put never a Case but shall be of an use for a use in Law hath no fellow meaning that the learning of uses is not to bee matched with other Learnings Anderson chiefe Justice in the Argument of the same Case did truely and profoundly controule the Vulgar opinion collected upon the fifth E. 4. that there might be Possessio fratris of a use for he said that it was no more but that the Chancelee would consult with the Rules of Law where the intention of the parties did not specially appeare and therefore the private conceipt which Glanvile Justice cited in the 42. Reginae in the case of Corbet in the Common Plea of one of Lincolnes Inne whom he named not but seemed to allow is not sound which was that a use was but a limitation and did ensue the nature of a possession This very conceipt was set on foot in 27. H. 8. in the Lord Darcies Case in which time they began to heave at uses for there after the Realme had many ages together put in ure the passage of uses by Will they began to argue that an use was not deviseable but that it did ensue the nature of the Land and the same yeare after this Statute was made so that this opinion seemeth ever to bee and for ever to an Act of Parliament touching uses and if it bee so meant now meant I like it well but in the meane time the Opinion it selfe is to be recited and because in the same Case of Corbet 3. reverent Judges of the Court of Common Pleas did deliver and publish their Opinion though not directly upon the point adjudged yet obiter as one of the Reasons of their judgement that an use of Inheritance could not be limited to cease and againe that the limitation of a new use could not be to a Stranger ruling uses meerely according to the ground of possession it is worth the labour to examine that learning by 3. Hen. 7. You may collect that if the Feoffees had bin disseised by the Common Law and an Ancestor collaterall of Cesty que use had released unto the disseisor and his warranty had attached upon Cesty que use yet the Chancellour upon this matter shewed would have not respect unto it to compell the Feoffees to execute the Estate unto the disseisor for there the case being that Cesty que use Intayle having made an assurance by fine and recovery and by warranty which descended upon his issue two of the Judges held that the use is not extinct and Bryan and Hussey that held the contrary said that the Common Law is altered by the new Statute whereby they admit that by the Common Law that warranty will not bind and extinct a right of a use as it will doe a right of possession and the reason is because the Law of Collaterall garranty is a hard Law and not to be considered in a Court of Conscience in 5. Edw. 4. It is said that if Cesty que use be attainted quaere who shall have the Land for the Lord shall not have the Land so as there the use doth not imitate the possession and the reason is because the Lord hath a Tent is by Title for that is nothing to the Subpoena because the Feoffees intent was never to advance the Lord but onely his owne bloud and therefore the quaere of the Booke ariseth what the trust and confidence of the Feoffee did tye him to doe as whether he should not sell the Land to the use of the Feoffees Will or in pious uses so favourably they tooke the intent in those dayes as you find in 27. H. 6. that if a man had appointed his use to one for life the remainder in Fee to another and Cesty que use for life had refused because the intent appeared not to advance the Heire at all nor him in reversion presently the Feoffee should have the Estate for life of him that refused some waies to the behoofe of the Feoffer But to proceed in some better order towards the disproofe of this Opinion of limitation there be foure points wherein we will examine the nature of uses The raysing of them The preserving of them The transferring of them The extinguishing of them In all these Foure you shall see apparantly that uses stand upon their owne reasons utterly differing from Cases of possession I would have one Case shewed by men learned by the Law where there is a deed and yet there need a consideration as for paroll the Law adjudgeth it too light to give a use without consideration but a deed ever in Law imports a consideration because of the deliberation and Ceremony in the confession of it and therefore in 8. Reginae it is solemnly agreed that in the Queenes Case a false consideration if it bee of Record will hurt the Patent but want of consideration doth never hurt it and yet they say that a Case is but a nimble and light thing and now contrariwise it seemeth to bee weightier then any thing else for you cannot weigh it up to raise it neither by deed nor deed inrolled without the weight of consideration but you shall never find a reason of this to the Worlds end but in the Law but it is a reason of Chancery and it is this That no Court
of Conscience will enforce Omnium gratuitum though the intent appeare never so clearely where it is not executed or sufficiently passed by Law but if mony had beene paid and so a person dampnified or that it was for the establishment of his House then it is a good matter in the Chancery so againe I would see in the Lawes a Case where a man shall take by a Conveyance bee it by Deed Livery or Word that is not party to the grant I doe not say that the delivery must be to him that takes by the Deed for a Deed may be delivered to one man to the use of another neither doe I say that he must be party to the delivery of the Deed for he in the remainder may take though hee be not party but he must be party to the words of the grant here againe the Case of the use goeth single and the reason is because a conveyance in use is nothing but a publication of the trust and therefore so as the party trusted bee declared it is materiall to whom the publication bee so much for the raysing of uses There is no Case in the Common Law wherein notice simply and nakedly is materiall to make a Covin or particeps Criminis and therefore if the Heire which is in by discent infeoffee one which had notice of the disseisin if he were not a Disseisor de facto it is nothing so in 33. H. 6 if a Feoffment be made upon collusion and feoffee makes a feoffment over upon good consideration the collusion is discharged and it is not materiall if they had notice or no so as it is put in 14. H 8. if a sale be made in a Market over upon consideration although it be to one that hath notice that they are stollen goods yet the property of a Stranger is bound though in the Booke before remembred 35. Hen. 6 some opinion to the contrary which is clearely no Law so in E. 3. if assets discend to the Heire and hee alien it upon good consideration although it be to one that had notice of the Debt or of the Warranty it is good enough So if a man enter of purpose into my Lands to the end that a Stranger which hath right should bring his Praecipe and evict the Land I may enter notwithstanding any such recovery but if hee enter having notice that the Stranger hath right and the Stranger likewise having notice of his entry yet if it were not upon Confederacy or collusion betweene them it is nothing and the reason of these Cases is because the Common Lawlooketh no furtherthen to see whether the Act were meerely Actus fictus in fraudem legis and wheresoeverit findeth consideration given it dischargeth the covin. But come now to the Case of use and there it is otherwise as it is in 14. H. 8. and 28. H. 8. and diverse other Bookes which prove that if the Feoffee sell the Land for good consideration to one that hath notice the Purchaser shall stand seized to the antient use and the reason is because the Chancery looketh further then the Common Law to the corrupt Conscience of him that will deale in the Land knowing it in equity to bee anothers and therefore if there were Radix Amaritudinis the consideration purgeth it not but it is at the perill of him that giveth it so that consideration or no consideration is an issue at the Common Law but notice on notice is an issue in the Chancery and so much for the preserving of uses For the transferring of uses there is no case in Law whereby an Action is transferred but the Subpoena in case of use was alwayes assigneable nay further you find twice 27. H. 8. Fol. 10. Pla. 9. Fo. 30. and Pla. 21. that a right of use may be transferred for in the former case Montague maketh the objection and saith that a right of use cannot be given by Fine but to him that hath the Possession Fitz Herbert answereth Yes well enough quaere the reason saith the booke And in the latter Case where Cesty que use was infeoffed by the Disseisor of the Feoffee and made a Feoffment over Englefield doubted whether the second Feoffee should have the use Fitz Herbert said I marvell you will make a doubt of it for there is no doubt but the use passeth by the Feoffment to the Stranger and therefore this Question needeth not to have beene made so the great difficulty in 10. Reginae Delamers Case where the case was in effect Tenant in tayle of an use the remainder in Fee Tenant in tayle made a Feoffment in Fee Tenant by the Statute of I. R. 3. and the Feoffee infeoffed him in the remainder of the use who made it over and there question being made whether the second Feoffee should have the use in remainder it is said that the second Feoffee must needs have the best right in Conscience because the first Feostee claimed nothing but in trust and the rest que use cannot claime it against his sale but the reason is apparant as was touched before that a use in Esse was but a thing in action or in suite to be brought in Court of Conscience and where the Subpoena was to be brought against the Feoffee out of possession to recontinue the Estate alwayes the Subpoena might bee transferred for still the Action at the Common Law was not stir'd but remained in the Feoffee and so no mischiefe of maintenance or transferring rights And if a use being but a right may bee assigned and pass'd over to a Stranger a multo fortiori it may bee limited to a Stranger upon the privity of the first conveyance as shall bee handled in another place and as Glanvile Justice said hee could never find by any booke or evidence of antiquity a continge use limited over to a Stranger I answer First it is no marvell that you find no Case before E. 4. time of contingent uses where there bee not sixe of uses in all and the reason I doubt was men did choose well whom they trusted and trust was well observed and at this day in Ireland where uses be in practise Cases of uses come seldome in question except it bee sometimes upon the alienations of Tenants in tayle by Fine that the Feoffees will not bee brought to execute Estates to the dis-inheritance of antient bloud but for experience and the conveyance there was nothing more usuall in Obysts then to will the use of the Land to certaine persons and their heires so long as they shall pay the Chancery Priests their Wages and in default of payment to limit the use over to other persons and their Heires and so in case of forfeiture through many degrees and such conveyances are as antient as R. 2. time Now for determining and extinguishing of uses I put the case of collaterall garranty before and to that the notable case of 14. H. 8. Hautsemmes Case where this very point was in
The President or patterne of it For the time of it was in 27. Henry 8. when the King was in full peace and a wealthy and flourishing Estate in which nature of time men are most carefull of their Possessions aswell because Purchases are most stirring as againe because the Purchasor when hee is full is no lesse carefull of his assurance to his Children and of disposing that which he hath gotten then hee was of his bargaine for the compassing thereof About that time the Realme likewise began to be infranchised from the Tributes of Rome and the Possessions that had beene in Mortmayne began to stirre abroad for this yeare was the suppression of the smaâ—ler Houses of Religion all tending to plenty and purchafing and this Statute came in consort with divers excellent Statutes made for the Kingdome in the same Parliament as the reduction of Wales to a more civill Government the re-edifying of diverse Cities and Townes the suppressing of depopulation and inclosures For the Title it hath one Title in the Role and another in course of Pleading the Title in the Role is no solemne Title but an Act title 5 an Act expressing an Order for Uses and Will the Title in course of Pleading is Statutum de usibus in Possessionem transferendis wherein Walmsly Iustice noted well 4. Reginae that if a man looke to the working of the Statute hee would thinke 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 Vse but the Title is framed not according to the worke 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 turne the use to a Possession for the words are not De possessionibus ad usus transferendis and as the Grammarian saith Praepositio ad denotat notam actionis sed prepositio 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 transsubstantiation of the use unto a Possession but it is to be noted that Titles of Acts of Parliament severally came in but in the 5. Henry 8. for before that time that was but one Title of all the Act made in one Parliament and that was no Title neither but a generall Preface of the good intent of the King but now it is parcell of the Record For the President of this Statute upon which it is drawne I doe finde by the first Richard 3. whereupon you may see the very mould whereon this Statute was made that the said King having beene infeoffed before he usurped to Uses as it was ordained that the Land whereof he was joyntly infeoffed as if hee had not beene named and where he was solely inseoffed it should bee in Cesty que use in Estate as he had the use Now to come to the Statute it selfe the Statute consisteth as other Lawes doe upon a Preamble the Body of the Law and certaine saving and Premisses The Preamble setteth forth the inconveniences the Body of the Law giveth the Remedy and the savings and Provisoes take away the inconveniences of the remedy for new Lands are like the Apothecaries Druggs 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 mischiefe in the Common Wealth but it will beget some new mischiefe and therefore they spice their Lawes with Provisoes to correct and qualifie them The Preamble of the Law was justly commended by Popham chiefe Justice in 36. Regine where hee saith that there is little need to search and collect out of Cases before the statute what the mischiefe was which the scope of the Statute was to redresse because there is a shorter way offered us by the sufficiency and fulnesse of the Preamble and therefore it is good to consider it and ponder it throughly The Preamble hath three parts First a recitall of the principall inconveniences which is the root of all the rest Secondly an ennumeration of diverse particular inconveniences as branches of the former Thirdly a taste or briefe note of the remedy that the Statute meaneth to apply the principall inconvenience which is Radix omnium malorum is the directing from the grounds and principalls of the Common Law by inventing a meane 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 Free hold or Inheritance may passe without any new confections of Deeds Executions of Estate or entryes except it bee where the Estate is of privity and dependance one towards the other in which Cases Mutatis mutandis they might passe by the Rules of the Common Law The particular inconveniences by the Law rehearsed may bereduced into foure heads First that these conveyances in use are weake for consideration Secondly that they are obscure and doubtfull for tryall Thirdly that they are dangerous for want of notice and publication Fourthly that they are exempted from all such Titles as the Law subjecteth Possessions unto The first inconvenience lighteth upon Heires The second upon Jurors and Witnesses The third upon Purchasors The fourth upon such as come in by gift in Law All which are persons that the Law doth principally respect and favour For the first of these are three impediments to the judgement of man in disposing justly and advisedly of his Estate 5 First trouble of mind Secondly want of time Thirdly of wise and faithfull Counsell about him And all theso three the Statute did finde to bee in the disposition of an Use by Will whereof followed the unjust dis-inheresin of Heires now the favour of Law unto Heires appeareth in many parts of the Law as the Law of discent priviledgeth the Possession of the Heire against the entry of him that hath right by the Law no man shall warrant against his Heire except he warrant against himselfe and diverse other Cases too long to stand upon and wee see the antient Law in Glanvills time was that the Ancestor could not dis-inherit his Heire by Grant or other Act executed in time of sicknesse neither could he alien Land which had discended unto him except it were for consideration of mony or service but not to advance any younger Brother without the consent of the Heire For tryalls no Law ever tooke a streighter course that Evidence should not be perplexed nor Juries inveigled then the Common Law of England as on the other side never Law tooke a more precise and straight course with Juries that they should give a direct verdict for whereas in manner all Lawes doe give the Tryers or
Jurors which in other Lawes are called Judges De facto to give no liquet that is to give no verdict at all and so the Case to stand abated our Law enforceth them to a direct verdict generall or speciall and whereas other Lawes except of Plurality of voyces to make a verdict our Law enforceth them all to agree in one and whereas other Lawes leave them to their owne time and ease and to part and to meete againe our Law duresse and imprison them in the hardest manner without light or comfort untill they bee agreed in consideration of straightnesse and cohersion it is consonant that the Law doe require in all matters brought to issue that there be full proofe and evidence and therefore if the matter in it selfe bee of that surety as in simple Contracts which are made by paroll without writing it alloweth wager of Law In issue upon the meere right which is a thing hardly to discerne it alloweth wager of Battaile to spare Jurors if time have wore out the markes and badges of truth from time to time there have beene Statutes of limitation where you shall find this mischiefe of Perjuries often recited and lastly which is the matter in hand all Inheritances could not passe but by Acts overt and notorious as by Deeds Livery and Records For Purchasors Bona fide it may appeare that they were ever favoured in our Law as first by the great favour of Warranties which were ever for the helpe of Purchasors as whereby the Law in 5. Edw. 3. time the Disseisor could not enter upon the Feoffee in regard of the Warranty so againe the Collaterall garranty which otherwise as a hard Law grew in doubt onely upon favour of Purchasors so was the binding of Fines at the Common Law the invention and practice of Recoveries to defeate the Statute of intayles and many more grounds and learnings are to bee found respect the quiet of the Possession of Purchasors and therefore though the Statute of 1 Richard 3. had provided for the Purchasor in some sort by enabling the Acts and conveyances of Cesty que use yet neverthelesse the State did not at all disable the Acts or charges of the Feoffees and so as Walmesly Justice said 42. Regine they played at double hand for Cesty que use might sell and the Feoffee might sell which was a very great uncertainty to the Purchasor For the fourth Inconvenience towards those that come in by Law conveyances in Uses were like priviledge 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 wisedome of the Law doth reserve certaine 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 favour'd and also they are principally three The Kings and Lords who lost the benefit of Attaindors Fines for alienations Escheates Aydes Herreots Reliefes c. The Defendants in Praecipes either reall or personall for Debt and Damages who lost the benefit of their Recoveries and Executions Tenants in Dower and by the Curtesie who lost their Estates and Tythes First for the King no Law doth endow the King or Soveraigne with more from Suites and Actions his Possessions from interuption and disturbance his Right from limitation of time his Pattents and Gifts from all deceites and false suggestions Next the King is the Lord whose duties and rights the Law doth much favour because the Law supposeth the Land did Originally come from him for untill the Statute of Quia emptores terrararum the Lords was not forced to distruct or dismember his Signiory or service so untill 15. Henry 7. the Law was taken that the Lord upon his Title of Wardship should be put to a conizee of a Statute or a Termor so againe we see that the Statute of Mortmaine was made to preserve the Lords 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 Heire incontinent so likewise of Tenant by courtesie it is called Tenancy by the Law of England and therefore specially favoured as a proper conceipt and invention of our Law so as againe the Law doth favour such as have antient Rights and therefore it telleth us it is commonly said that a Right cannot dye and that ground of Law that a Free hold cannot bee in suspence sheweth it well insomuch that the Law will rather give the Land to the first commer which we call an Occupant then want a Tenant to a Strangers Action And againe the other ancient ground of Law of Remitter sheweth that where the Tenant faileth without folly in the Defendant the Law executeth the antient Right To conclude therefore this point when this practice of Feoffments in use did prejudice and dampnifie all those persons that the antient Common Law favour'd and did absolutely crosse the wisedome of the Law to have conveyances considerate and not odious and to have Tryall thereupon cleare and not inveighed it is no marvaile that the Statute concludeth that their subtile imaginations and abuses tended to the utter subversion of the ancient Common Lawes of this Realme 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 deceipt of the Uses out of which have bin 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 both upon the words that the Statute doth not speake of the extinguishment or extirpation of the Use viz. by an unity of Possession but of an extinguishment or extirpation of the Feoffment c. which is the conveyance it selfe Secondly out of the words abuse and errours heretofore used and accustomed as if Uses had not beene at the Common Law but had onely an erroneous device or practice To both which I answer To the former that the extirpation which the Statute meant was plaine to bee of the Feoffees Estate and not to the forme of conveyances To the latter I say that for words Abuse that may bee 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 and by the words Errour the Statute meant by it not a mistaking of the Law but wandring or going astray or digressing from the antient practice of the Law unto a buy course as when we