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
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
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
their regresse in Case that it bee of another Feoffment then that whereupon the Statute hath wrought but upon the same Feoffment as if the Feoffee before the Statute had beene diseised and the disseis'd had made a Feoffment in Fee to I. D. his use and then the Statute came this executeth the Use of the second Feoffment but the first Feoffees may make a regresse and they yet claime 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 materiall words are foure First whereas divers persons are seised which hath bred a doubt that it should onely goe to Rents in Use at the time of the Statute but it is Explained in the Clause following S as if a grant had beene 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 S that they shall have the S as if a sufficient grant or lawfull conveyance had bin made and made unto them The fourth words are the words of Liberty and Remedies attending upon such Rent S that hee shall distraine c. and have such Suits Entries and Remedies relying againe with an ac si as if the grant had beene made with such collaterall penalties and advantages Now for the Provisoes the Makers of this Law did so abound with policy and discerning as they did not onely fore-see such mischiefes as were incident to this new Law immediately but likewise such as were consequent in a remote degree and therefore besides the expresse Provisoes they did adde three new Provisoes which are in themselves substractive Lawes for foreseeing that by the Execution of Uses Wills formerly made should be over-throwne They made an ordinance for Wills fore-seeing likewise that by execution of Uses women should be doubly advanced They made an ordinance for Dowers and Jointures foreseeing againe that the execution of Uses would make franktenement passe by Contracts paroll They made an ordinance for inrollments of Bargaines 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 appeare being but a Proviso to this Statute besides all these provisionall Lawes and besides five Provisors whereof three attend upon the Law of Jointure and two borne in Wales which are not materiall to the purpose in hand There are sixe provisoes which are naturall and true members and limbs of the Statute whereof foure concerne the part of Cesty que use and two concerne the part of the Feoffees The soure which concerne the part of Cesty que use tend all to save him from prejudice by the execution of the estate The first saveth him from the extinguishment of any Statute or Recognizance as if a man had an Extent of a hundred Acres and an Use of the inheritance of one Now the Statute executing the possession to that one would have extinguisht his Extent being intire in all the rest or as if the Commissioner of a Statute having ten Acres lyable to the Statute had made a Feoffment in Fce to a Stranger of two and after had made a Feoffment in Fce to the use of the Conuzec and his Heires And upon this Proviso there arise three Questions First whether this Proviso were not superfluous in regard that Cesty que use was comprehended in the generall saving though the Feoffees be excluded Secondly whether this Proviso doth save Statutes or Executions with an apportionment and Entire Thirdly because it is penned indefinitively in point of time whether it shall goe to Uses limitted after the Statute as well as to those that were in being all the time of the Statute which doubt is rather inforced by this Reason because there was for Uses at the time of the Statute for that the Execution of the Statute might be wayved but both possession and Use since the Statute may be wayved The second proviso saveth Cesty que vse from the charge of primer Seisin liveries Ouster le maines and such other duties to the King with an expresse limitation of Time that he shal be discharged for the time past and charged for the time to come in a King S May 1536. to be communis terminus The third proviso doth the like for Fines Reliefes and Herriots discharging them for the time past and speaking nothing of the Time to come The fourth proviso giveth to Cesty que use all collaterall benefits of Vouchers Aides priers Actions of wast Trespasse conditions broken and which the Feoffees might have had and this is expresly limitted for Estates executed before 1. May 1536. and this proviso giveth occasion to intend that none of these benefits would have beene carried to Cesty que vse by the generall words in the body of the Law S that the Feoffees estate right Title and possession c. For the two provisoes on the part of the Tertenant they both concerne 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 Le maines whereof Title was vested in regard of the Heire of the Feoffee and this in case of the King only What Persons may be seised to an Vse and what not What persons may be Cesty 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 viz. 1. The raysing of Uses 2. The interruption of Vses 3. The Executing of Vses Againe The raising of Uses doth easily divide it selfe into three parts The persons that are Actors to the Conveyance to Use The Use it selfe The forme of the Conveyance Then it is first to be seene what persons may be seised to an Use and what not and what persons may be Cesty que use and what not The King cannot be seised to an Use no not where he taketh in his naturall body and to some purpose as a common person and therefore if Land be given to the King and I. D. per terme de lour vies this Use is void for a moity Like Law is if the King be seised of Land in the right of his Dutchy of Lancaster and covenanteth by his letters Pattents under the Dutchy Seale to stand seised to the use of his Sonne nothing passeth Like Law if King R. 3. who was Feoster to divers uses before he took upon him the Crowne had after hee was King by his Letters pattents granted the Land over the uses had not bin renewed The Queene speaking not of an Imperiall Queene by marriage cannot be seised to an use though she be a body inabled to grant and purchase without the King Yet in regard of the government
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.