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
before a day either purchase Lycence to amortise them or alien them to some other use or other Feoffments to come they should bee within the Statute of Mortmayne 4. Hen. 4. Cap. 7. the Statute of 17. Richard 2. is inlarged in the limitation of time for whereas the statute did limit the Action to be brought within the yeare of the Feoffment This Statute in Case of a Disseisin extends the time to the life of the Disseisor and in all other Actions leaves it to the yeares from the time of the Action growne 11. Henry 6. Cap. 3. that Statute of 4. Henry 4 is declared because the conceipt was upon the Statute that in Case of Disseisin the limitation of the life of the Disseisor went onely to the assise of Non et disseisin and to no other Action and therefore that Statute declareth the former Law to extend to all other Actions grounded upon Novel disseisin 11. Henry 6. Cap. 5. A Statute was made for reliefe of him in remainder against particular Tenants for Lives or yeares that Assigned over their Estates and tooke the profits and then committed wast against them therefore this Statute giveth an Action of wast being provisors of the profits in all this course of Statutes no reliefe is given to Purchasors that come in by the party but to such as come in by Law as Defendants in Praecipes whether they be Creditors Disseisors or Lessors and that onely of Mortmayne and note also that they be all in Cafes of speciall Convenous intents as to defeate Executions tenancy to the Praecipe and the Statute of Mortmayne as Provisors from 11. Henry 6. to 1. R. 3. being the space of fifty yeares there is a silence of Vses in the Statute Booke which was at that time when no question they were favoured most in 1. Richard 3. Cap. 1. commeth the great Statute for reliefe of those that come in by the party and at that time an use appeareth in his likenesse for there is not a word spoken of taking the profits to describe a use by but of clayming to a use and this Statute ordayned that all Gifts Feoffments Grants c. shall be good against the Feoffors Dowers and Grantors and all other persons clayming onely to their use so as here the Purchasor was fully relieved and Cesty que use was obiter enabled to charge his Feoffees because there were no words in the Statute of Feoffments Grants c. upon good consideration but generally in Henry 7. time new Statutes were made for further helpe and remedy to those that came in by Act in Law as first 11. Henry 7. Cap. 1. a Formedon is given without limitation of time against Cesty que use and obiter because they make him a Tenent they give him advantage of a Tenant as of age and voucher quaere 4. Henry 7. 17. the Ward-ship of the Heire of Cesty que use is dying and no Will declared is given to the Lord as if he had dyed seised in Demeasne and Action of wast given to the Heire against the Gardian and dammages if the Lord were barr'd in his writ of Ward and reliefe is likewise given unto the Lord if the heire holding the Knights service be of full age 19. Henry 7. Cap. 5. there is reliefe given in three Cases first to the Creditors upon matters of Record as upon Recognizance Statute or Judgement whereof the two former were not ayded at all by any Statute and the last was ayded by a Statute of 50. E. 3. and 2. Richard 2. onely in Case of Sanctuary men Secondly to the Lords in foccage for their reliefe and Herriots upon death which was omitted in the 4. Henry 7. and lastly to the Lords of Villeyns upon a purchase of their Villeyns in use 13. Henry 8. Cap. 10. a further Remedy was given in a Case like unto the case of Mortmayne for in the Statute of 15. Richard 2. remedy was given where the use came Ad manum mortuam which was when it came to some Corporation now when uses were limited to a thing Act or worke and to a body as to the reparation of a Church or an Abbot or to a guild or Fraternities as are onely in reputation but not incorporate as to Parishes or such guilds or Fraternities as are onely in reputation but not incorporate that Case was omitted which by this Statute is remedied not by way of giving entry unto the Lord but by way of making the use utterly voyd neither doth the Statute expresse to whose benefit the use shall be made voyd either the Feoffor or Feoffee but leaveth it to Law and addeth a Provisoe that uses may bee limited twenty yeares from the gift and no longer This is the whole course of Statute Law before this Statute touching Uses thus have I set forth unto you the nature and definition of an Vse the differences and trust of an Vse and the parts and qualities of it and by what Rules and termings Uses shall bee guided and ordered by a President of them in our Lawes the causes of the springing and spreading of Uses the continuance of them and the proceedings that they have had both in Common Law and Statute Law whereby it may appeare that a Vse is no more but a generall trust when any one will trust the Conscience of another better then his owne Estate and Possession which is accident or event of humane Society which hath bin and will be in all Lawes and therefore was at the Common Law which is common reason Fitz Herbert saith in the 14. Henry 8. common reason is Common Law and not Conscience but common reasons doth define that Uses should be remedied in Conscience and not in Courts of Law and ordered by Rules in Conscience and not by streight Rules of Law for the Common Law hath a kind of a Rule and survey over the Chancery and therefore we may truely conclude that the force and strength that a Vse had or hath in Conscience is by Common Law and the force that it had or hath by Common Law is onely by Statutes Now followeth in time and matter the consideration of this Statute of principall labour for those former considerations which wee have handled serve but for introduction This Statute as it is the Statute which of all other hath the greatest power and operation over the Heritages of the Realme so howsoever it hath beene by the humour of the time perverted in exposition yet in it selfe is most perfectly and exactly conceived and penned of any Law in the Booke induced with the most declaring and perswading Preamble consisting and standing upon the wisest and fittest Ordinances and qualified with the most fore-seeing and circumspect savings and promises and lastly the pondred in all the words and clauses of it of any Statute that I find but before I come to the Statute it selfe I will note unto you three matters of Circumstance The time of the Statute The Title of it
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