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
possession and not of the part of the use because a use is no right nor interest so againe you see that Littletons conceipt that an use should amount to a Tenancy at will whereupon a release might well inure because of pravity is controled by 4. Et 5. H. 7. and diverse other bookes which said that Cesty que use is punishable in an Action of Trespasse towards the Feoffees onely 5. H. 5. seemeth to be at some discord with other Bookes where it is admitted for Law that if there be Cesty que use of an Advowson and hee bee out-lawed in a personall Action the King should have the presentment which Case Master Evans in the argument of Chudleyes Case did seeme to reconcile this where Cesty que use being utlaird had presented in his owne name there the King should remove his incumbent and no such thing can be collected upon that Booke and therefore I conceive the errour grew upon this that because it was generally thought that a use was but a penancy of profits and then againe because the Law is that upon Utlayers upon personall Actions the King shall have the penancy of profits they tooke that to bee one and the selfe same thing which Cesty que use had and which the King was intituled unto which was not so for the King had remedy in Law for his penancy of profits but Cesty que use had none the Bookes goe further and say that a use is nothing as in 2. H. 7. Dett fuit Port and counted Sur leas for yeares rent c. the Defendant pleaded in Barre that the Plaintiffe Nihil habuit tempore divisionis the Plaintiffe made a speciall replication and shewed that he had no use and issue joyned upon that wherefore it appeareth that if hee had taken issue upon the defendants Plea it should have bin found against him So againe in 4. Reginae in the Case of the Lord Sands the truth of the case was a Fine leavied by Cesty que use before the Statute and this comming in question since the Statute upon an averment by the Plaintiffes Quod partes finis nihil habuerint it is said that the Defendant may shew the speciall matter of ◠use and it shall be no departure from the first pleading of the same and it is said further that the averment given in 4. H. 7. Quod partes finis nihil habuerint nec in possessione nec in usu went out upon this Statute of 27. Hen. 8. and was no more now to be accepted but yet it appeares that if issue had bin taken upon the generall averment without the speciall matter shewed it should have bin found for him that tooke the averment because a use is nothing but these bookes are not to be taken generally or grosly for wee see in the same bookes when an use is specially alleadged the Law taketh knowledge of it but the sence of it is that use is nothing for which remedy is given by the course of the Common Law so as the Law knoweth it but protects it not and therefore when the question commeth whether it hath any being in Nature and Conscience the Law accepteth of it and therefore Littletons Case is good Law that hee which hath but forty shillings Free-hold in use shall be sworne in an inquest for it is ruled Secundum dominium laterale and not Secundum deminium legitimum nam natura dominus est quia fructum ex re percipit And some doubt upon Subsidies and Taxes Cesty que use should be valued as an owner So likewise if Cesty que use had resolved his use unto the Feoffee for sixe pound or contracted with a stranger for the like some there is no doubt but it is a good construction whereon to ground an Action upon the Case for mony for release of a Suite in the Chancery is a good quid pro quo therefore to conclude though a use be nothing in Law to yeeld remedy by course of Law yet it is somewhat in reputation of Law and Conscience for that may be somewhat in conscience which is nothing in Law like as that may be something in Law which is nothing in Conscience as if the Feoffees had made a feoffment over in Fee Bona fide upon good consideration and upon a Subpoena brought against them hee pleaded this matter in Chancery this had beene nothing in Conscience not as to discharge them of damages A second negative fit to be understood is that a use is no Covin nor it is no collusion as the word is now used for it is to be noted that where a man doth remove the state and possession of Land or goods out of himselfe unto another upon trust it is either a speciall trust or a generall trust The speciall trust is either Lawfull Or Vnlawfull The speciall trust Unlawfull is according to the Case provided for by ancient Statutes of the profits as where it is to defraud Creditors or to get men to maintaine suites or to defeate the tenancy to the precipe or the Statute of Mortmaine or the Lords of their wardships or the like and those are termed Frauds Covins or Collusions The speciall trust Lawfull is as when I infeoffee some of my friends because I am to goe beyond the Seas or because I would free the Land from some severall Statute or Bond which I am to enter into or upon intent to be infeoff'd or intent to vouched and so to suffer a common Recovery or upon intent that the Feoffees shall infeoffee over a Stranger and infinite the like intents and purposes which fall out in mens dealings and occasions and this wee call Confidence and the Bookes doe call them intents but where the trust is not speciall nor transitory but generall and permanent there it is a use and therefore these three are to be distinguished and not confounded by Covin Confidence use So as now we are come by Negatives to the Affirmative what a use is agreeable to the definition in Plowden 352. De Lamers Case where it is said Vse is a trust reposed by any person in the Terre-tenant that he may suffer him to take the profits and hee that will performe his intent But it is a shorter Speech to say that Vsus est dommium fiduciarium Vse is an owners life in trust So that Vsus est status sive possessio totius differ secundum rationem fori quà m secundum naturam rei for that one of them is in Court of Law the other in court of Conscience and for a trust which is the way to an use it is exceeding well defined by a Civilian of great understanding Fides est obligatio Conscientiae unjus ad intentionem alterius And they have a good division likewise of Rights Ius precarium Ius fiduciarium Ius legitimum A right in courtesie for the which there is no remedy at all A right in trust for which there is a remedy onely but in
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 LEARNED READING Of Sir Francis Bacon One of her Majesties learned Counsell at Law upon the Statute of USES Being his double Reading to the Honourable Society of GRAYES Inne Published for the Common good LONDON Printed for Mathew Walbancke and Laurence Chapman 1642. The Learned Reading of Sir FRANCIS BACON upon the Statute of Vses I Have chosen to Read upon the Law of Vses made 27. Hen. 8 a Law whereupon the Inheritances of this Realme are tossed at this day like a Ship upon the Sea in such sort that it is hard to say which Barke will sinke and which will get to the Haven that is to say what assurances will stand good and what will not whether is this any lack or default in the Pilots their grave and learned Judges but the Tydes and Currents of received errours and unwarranted and abusive experience have bin so strong as they were not able to keepe a right course according to the Law so as this Statute is in great part as a Law made in the Parliament held 35. Reginae for in 37. Reginae by the notable judgement upon solemne Arguments of all the Judges assembled in the Exchequet Chamber in the famous case betweene Dillon and Fraeyne concerning an assurance by Chudley this Law began to be reduced to a true and sound Exposition and the fall and perverted Exposition which had continued for so many yeares but never countenanced by any rule or authority of weight but onely intertained in a popular conceipt in practice at adventure grew to be controled since which time as it commeth to passe alwaies upon the first reforming of inveterate errours many doubts and perplexed Questions have risen which are not yet resolved nor the Law thereupon setled The consideration whereof moved me to take the occasion of performing this particular duty to the House to see if I could by my travell bring to a more generall good of the Common wealth Herein though I could not be ignorant of the difficulty of matter which he that taketh in hand shall soone find or much leffe of my owne unablenesse which I had continuall sence and feeling of yet because I had more meanes of absolution then the younger sort and more leasure then the greater sort I did thinke it not impossible to worke some profitable effect the rather because where an inferior wit is bent and conversant upon one Subject he shall many times with patience and meditation dissolve and undoe many of the knots which a greater wit distracted with many matters would rather cut in two then unknit at the least if my intention or judgement be too barren or too weake yet by the benefit of other Arts I did hope to dispose or digest the authorities or Opinions which are in Cases of use in such order and method as they should take light one from another though they tooke no light from me and like to the matter of my Reading shall my manner be for my meaning is to revive and recontinue the antient sonne of Reading which you may see in Mr. Frowickes upon the Prerogative and all other Readings of ancient time being of lesse ostentation and more fruite then the manner lately accustomed for the use then was substantially to expound the Statutes by grounds and diversities as you shall find the Readings still to run upon case of the like Law and contrary Law whereof the one includes the learning of a difference and not to stir concise and subtile doubâ—s or to contrive tedious and intricate Cases whereof all saving one are buried and the greater part of that one case which is taken is commonly nothing to the matter in hand but my labour shall be in the antient course to open the Law upon doubts and not doubts upon the Law Expositio Statuti THe Exposition of this Statute consists upon the matter without the Statutes upon the matter within the Statute Three things concerning these Statutes and all other Statutes which are helpes and inducements to the right understanding of my Statute and yet are no part of the Statute it selfe The consideration of the Statute at the Common Law The consideration of the mischiefe which the Statute intendeth to redresse as any other mischiefe which an Expositor of the Statute this way or that way may breed Certaine Maximes of the common Ley touching Exposition of Statutes having therefore framed sixe divisions according to the number of Readings upon the Statute it selfe I have likewise divided the matter without the Statute into sixe Introductions or Discourses so that for every dayes Reading I have made triple proposition 1. Vn Preface or Introduction 2. Vn Division upon the Law it selfe 3 A few brief Casas for Exercise and Argument The last of which I would have forborne and according to the antient manner You should have taken some of my points upon my Divisions one two or more as you should have thought good save that I had this regard that the younger sort of the Barre were not so conversant upon matters upon the Statutes and for that Case I have interlaced some matters at the Common Law that are more familiar within the books The first matter I will Discourse unto you is the nature and definition of an use and his Incession and Progression before the Statute The Second Discourse shall be of the second spring of this Tree of Uses since the Statute The Third Discourse shall be of the Estate of the assurance of this Realme at this day upon Uses and what kind of them is convenient and reasonable and not fit to be touched as far as sence of Law and naturall construction of the Statute will give leave and what kind of them is convenient and meete to bee suppressed The Fourth Discourse shall be of certaine Rules and Expositions of Lawes applyed to this present purpose The Fifth Discourse shall bee of the best course to remedy the same inconveniences now a foot by construction of the Statute withoutoftering violence to the letter or sence The Sixt and last Discourse shall be of the best course to remedy the same inconveniences and to declare the Law by Act of Parliament which last I thinke good to reserve and not to publish The nature of a use is best discerned by considering what it is not and then what it is for it is the nature of all humane Science and knowledge to proceed most safely by Negative and exclusive First use is no right title or interest in Law and therefore Master Attorney who read upon this Statute said well that there are but two rights Ius in Re Ius ad Rem The one is an Estate which is Ius in Re the other a demand which is Ius ad Rem but a use is neither so that in 24. H. 8. it is said that the saving of the Statute of I. R. â— which saveth any right or interest of Intayle must be understood of Intayles of the
the principall case for a Rent out of Land and the Land it selfe in case of possession cannot stand together but the rent shall bee extinct but there the case is that the use of the Land and the use of the Rent shall stand well enough together for a Rent charge was granted by the Feoffee to one that notice of the use had and ruled that the Rent was to the antient use and both uses were in Esse simulet semel and though Brudnell chiefe Justice urged the ground of possession to bee otherwise yet he was over-ruled by the other three Justices and Brooke said unto him he thought he argued much for his pleasure and to conclude wee see the thing may be avoyded and determined by the Ceremonies and Acts like unto those by which are created and raised that which passeth by Livery ought to be avoyded by entry that which passeth by Grant by claime that which passeth by way of charge determineth by way of discharge and so a use which is raised but by a declaration or limitation may cease by words of Declaration or Limitation as the Civill Law saith in his magis consentaneum est quà m ut ijsdem modis res dissolvantur a quibus constituantur for the conception and progression of uses I have for a president in them other Lawes because States and Common-wealths have common accidents and I find in the Civill Law that that which commeth nearest in name to the use is nothing like in matter which is Vsus fructus for Vsus fructus et dominium is with them as with their particular tenancy and inheritance but that which resembleth the use most is fidei Commissio and therefore you shall finde in Ius Lib. 2. That they had a forme in Testaments to give Inheritance to one to the use of another Heredem constituo Cajum rogo antem te Caie ut hereditatem restituas and the Text of the Civilians saith that for a great time if the Heire did not as he was required Cesty que use had no remedy at all untill about the time of Augustus Caesar there grew in custome a flattering forme of trust for they penned it thus Rogo te per salutem Augusti or Per fortunam Augusti c. whereupon August us tooke the breach of trust to sound in derogation of himselfe and made a Commission to the Praetor to give remedy in such Cases whereupon within the space of a hundred yeares these trusts did spring and speed so fast as they were forced to have a particular Chancellor onely for uses who was called Praetor fidie Commissarius and long after the inconvenience of them being found they resorted unto a Remedy much like unto this stature for by two Decrees of Senate called Senatus consult Frebesianum et Pegasianum they made Cesty que use to be Heire in substance I have sought likewise whether there bee any thing which maketh with them in our Law and I finde the Persian chiefe Barron in the Argument of Chudleyes Case compareth them to Coppy-holders and aptly for many respects First because an use seemeth to bee an hereditament in the L. Court Secondly this conceipt of Limitation hath beene troublesome in Coppy-holders as well as in Vses for it hath beene of late dayes questioned whether there should be Tenancy by the Courtesie dis-continuances and recoveries of Coppy-holders in the nature of Inheritances at the Common Law and still the judgements have weighed that you must have particular Customes in Coppy-holds as well as particular Reasons of Conscience in use and the limitation recited And Thirdly because they both grew to no remedy at all against the Lord and were as tenancy at will afterwards it grew to have remedy in Chancery afterwards against their Lords by Trespasse at the Common-Law and now lastly the Law is taken by some that they have remedy by Ejectione firma without a speciall custome of leasing doe no doubt in uses at the first the Chancery made question to give remedy until uses grew more generall and the Chancery more eminent and then they grew to have remedy in Conscience but they could never obtaine any manner of Remedy at the Common Law neither against the Feoffee nor against Strangers but the Remedy against the Feoffee was best by Subpoena and the remedy against Sttangers to the Feoffee Now for the Cases whereupon uses were but in practice Cooke in his Reading doth say well that they were produced sometimes for feare and many times for fraud but I hold that neither of these Cases were so much the reasons of uses as another reason in the beginning which was that Lands by the Common Law of England were not Testamentary or deviseable and of late yeares since the Statute the Case of the conveyance for sparing of Purchases and Execution of Estates and now last of all expresse liberty of Will in mens minds affecting to have the assurance of their Estate and Possession to be revokeable in their owne times and irrevocable after their owne times Now for the Commencement and proceeding of them I have considered what it hath beene in course of Common Law and what it hath beene in course of Statute for the Common Law the conceipt of Shelly in 24. H. 8. and of Polard in 27. H 8. seemeth to me to bee without ground which was that the use succeeded the Tenure for that the Statute of Quia emptores terrarum which was made 18. E. 1. had taken away the Tenure betweene the Feoffer and the Feoffce and left it to the Lord Paramount they said that the Feoffment being then meerely without consideration should therefore intend an use to the Feoffer which cannot be for by that reason if the Feoffment before the Statute had beene made Tenendum de Capitalibus Dominis as it must be there should have beene an Use unto the Feoffer before that Statute And againe if a Grant had beene made of such things as consists not in Tenure as Advowsons Rents Villeins and the like there should have beene a Use of them wherein the Law was quite contrary for after the time that Uses grew common it was neverthelesse a great doubt whether things that did lye in Grant did not carry a consideration in themselves because of the Deed And therefore I do judge that the intendment of a Use to the Feoffer where the Feoffment was made without consideration grew long after when Uses waxed general and for this reason because when Feoffments were made and that it rested doubtfull whether it were in use or in Purchase because Purchases were things notorious and Uses were things secret The Chancellor thought it more convenient to put the Purchasor to proove his consideration then the Feoffer and his Heires to prove the trust and so made the indentment towards the Use and put the proofe upon the Purchasor And therefore as Uses were at the Common Law in reason for whatsoever is not by Statute nor against Law may be
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
Law it putteth in precisely this word Other meaning the divided Use and not the communed Use and this causeth the Clause of joynt Feoffees to follow in a branch by it selfe for else that Case had beene doubtfull upon this word Other The words that are common to both are words expressing the conveyance whereby the Use ariseth of which words those that bred any question are Agreement Will otherwise whereby some have inferred that Uses might be raised by agreement paroll so there were a consideration of mony or other matter valuable for it is expressed in the words before Bargaines Sale and Contract but of bloud or linned the errour of which Collection appeareth in the word immediately following s. Will whereby they might aswell include that a man seised of Land might raise an Use by Will especially to any of his Sonnes or Kindred where there is a reall consideration and by that reason meane betwixt this Statute and the Statute of 32. of Wills Lands were deviseable especially to any mans Kindred which was clearely otherwise and therefore those words were put in nor in regard of Uses raised by those conveniences or without or likewise by Will might be transferred and there was a person seised to a Use by force of that agreement or Will s. to the Use of the Assigne and for the word Otherwise it should by the generality of the word include a Disseisin to a Use but the whole scope of the Statute crosseth that which was to execute such Uses as were confidences and trust which could not be in Case of Disseisin for if there were a commandment precedent then the Land was vested in Cesty que use upon the entry and if the Disseisin were of the Disseisors owne head then no trust and thus much for the case of Supposition of this Statute here follow the ordinance and purview thereupon The Purview hath two parts the first Operatio Statuti the effect that the Statute worketh and there is Modus operandi a fiction or explanation how the Statute doth worke that effect The effect is that Cesty que use shall be in possession of like Estate as he hath in the Use the fiction quomodo is that the Statute will have the Possession of Cesty que use as a new body compounded of matter and forme and that the Feoffees shall give matter and substance and the Use shall give forme and quality the materiall words in the first part of the purview are foure The first words are Remainder and Reverture the Statute having spoken before of Uses in Fee-simple in Tayle for life or yeares addeth or otherwise in Remainder reverture whereby it is manifest that the first words are to be understood of Uses in Possession for there are two substantiall and essentiall differences of Estates the one limiting the times for all Estates are but times of their continuantes the former maketh little difference of Fee-simple Fee Tayle for life or yeares and the other maketh difference of Possession as remainder all other differences of Estate are but accidents as shall be said hereafter these two the Statute meant to take hold of and at the words Remainder and Reverture it stopps it addes not wordes Right Title or possibility nor it hath not generall words or otherwise it is most plaine that the Statute meant to execute no inferiour Uses to Remainder or Reverture that is to say no possibility or contingences but Estates onely such as the Feoffees might have executed by Conscience made note also the very Letter of the Statute doth take notice of a difference betweene an Use in Remainder and an Use in Reverture which though it cannot properly because it doth not depend upon particular Estates as Remainders doe neither did then before the Statute draw any Tenures as Reversions doe yet the Statute intends that there is a difference when the particular Use and the Use limited upon the particular Use are both new Uses in which Case it is a Use in Remainder and where the particular Use is a new Use and the remnant of the use is the old use in which Case it is a use in Reverter The next materiall word is from henceforth which doth exclude all conceipt of relation that Cesty que use shall not come in as from the time of the first Feoffments to use as Bradnells conceipt was in 14. Henry 8. that is the Feoffee had granted a Rent charge and Cesty que use had made a Feoffment in Fee by the Statute of 1. Richard 3. the Feoffee should have held it discharged because the Act of Cesty que use shall put the Feoffee in as if Cesty que use had beene seised in from the time of the first Use limited and therefore the Statute doth take away all such ambiguities and expresseth that Cesty que use shall bee in Possession from henceforth that is from the time of the Parliament for Uses then in being and from the time of the execution for Uses limited after the Parliament The third materiall words are Lawfull seisin state and Possession not a Possession in Law onely but a seisin in Tayle not a Title to enter into the Land but an actuall estate The fourth words are of and in such Estates as they had in the Use that is to say little Estates Fee-simple Fee Tayle life for yeares at Will and Possession and Reversion which are the substantiall differences of Estates as was said before but both their latter Clauses are more fully perfected and expounded by the branch of the fiction of the Statute which followes This branch of Fiction hath three materiall words or Clauses the first materiall Clause is that the Estate Right Title and Possession that was in such person c. shall bee in Cesty que use for that the matter and substance of the Estate of Cesty que use is the Estate of the Feoffee and more hee cannot have so as if the Use were limited to Cesty que use and his Heires and the Estate out of which it was limited was but an Estate for life Cesty que use can have no Inheritance so if when the Statute came the Heire of the Feoffee had not entred after the death of his Ancestor but had onely a Possession in Law Cesty que use in that Case should not bring an Assize before entry because the Heire of the Feoffee could not so that the matter whereupon the Use must work is the Feoffees Estate but note here whereas before when the Statute speakes of the Uses it spake onely of Uses in Possession Remainder and Treverter but not in Title or Right now when the Statute speakes what shall bee taken from the Feoffee it speakes of Title and Right so that the Statute takes more from the Feoffee then it executes presently in Case where there are uses in contingence which are but Titles The second word is Cleerely which seemes properly and directly to meet with the conceipt of Scintilla Iuris as
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