Selected quad for the lemma: land_n
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A25990
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An essay on a registry, for titles of lands by John Asgill ...
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Asgill, John, 1659-1738.
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1698
(1698)
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Wing A3928; ESTC R40287
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16,041
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48
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Religion are said to be more haunted with Ghosts than 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
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