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To the latter I say, that for the word, abuse, that
may be an abuse of the law, which is not against law,
as the taking long leases at this day of land in capifc to '
defraud wardships, is an abuse of the law, which is
not against law, but wandering or going astray, or
digressing from the ancient practice of the law ; and
by the word, errors, the statute meant by it, not a
mistaking of the law, into a by-course : as when we
say, erravimus cum patrilms juris, it is not meant of
ignorance only, but of perversity. But to prove that
the statute meant not to suppress the form of convey-
ances, there be three reasons which are not an-
swerable.

The first is, that the statute in the very branch
thereof hath words dc future , that are seised, or here-
after shall be seised : and whereas it may be said that
these words were put in, in regard of uses suspended
by disseisins, and so no present seisin to the use, until
a regress of the feoffees ; that intendment is very par-
ticular, for commonly such cases are brought in by pro-
visoes, or special branches, and not intermixed in the
body of a statute ; and it had been easy for the statute
to have said, " or hereafter shall be seised upon any
" feoffment, etc. heretofore had or made."



188 Pearling on the Statute of Uses.

The second reason is upon the words of the statute
of inrolment, which saith, that no hereditaments shall
pass, etc. or any use thereof, etc. whereby it is mani-
fest, that the statute meant to leave the form of con-
veyance with the addition of a farther ceremony.

The third reason I make is out of the words of the
proviso, where it is said, that no primer seisin, livery,
no fine, nor alienation, shall he taken for any estate
executed by force of the statute of 27, before the first
of May, 1586, but they shall be paid for uses made
and executed in possession for the time after; where
the word, made, directly goeth to conveyances in use
made after the statute, and can have no other under-
standing ; for the words, executed in possession, would
have served for the case of regress : and lastly, which
is more than all, if they have had any such intent, the
case being so general and so plain, they would have
had words express, that every limitation of use made
after the statute should have been void ; and this was
the exposition, as tradition goeth, that a reader of
Gray's-Inn, which read soon after the statute, was in
trouble for, and worthily, who, as I suppose, was Boy,
whose reading I could never see ; but I do now insist
upon it, because now again some, in an immoderate
invective against uses, do relapse to the same opinion.

The second opinion, which I called a contrary ex-
tremity, is, that the statute meant only to remedy the
mischiefs in the preamble, recited as they grew by rea-
son of divided uses; and although the like mischit-f
may grow upon the contingent uses, yet the statute
had no foresight of them at that time, and so it was
merely a new case not comprised. Whereunto I an-
swer, that it is the work of the statute to execute the
divided use ; and therefore to make an use void by
this statute which was good before, though it doth par-
ticipate of the mischief recited in the statute, were to
make a law upon a preamble without a purview, which
were grosly absurd. But upon the question what uses
are executed, and what not ; and whether out of pos-
sessions of a disseisor, or other possessions out of privity
or not, there you shall guide your exposition according



on the Statute of Uses. 139

to the preamble ; as shall be handled in my next da} 7 ' s
discourse, and so much touching the preamble of this
law.

For the body of the law, I would wish all readers
that expound statutes to do as scholars are willed to
do: that is, first to seek out the principal verb ; that is,
to note and single oat the material words whereupon
the statute is framed ; for there are in every staiute
certain words, which are as veins where the lire and
blood of the statute cometh, and where all doubts da
arise, and the rest are litene iiwrtiicc, fulfilling words.

The body of the statute corisisteth upon two parts.

First, a supposition or case put, as Anderson 36
Regime calierh it.

Secondly, a purview or ordinance thereupon.

The cases of the statute are three, and every one
hath his purview. The general case. The case of co-
feoffees to the use of some of them. And the general
case of feoffees to the use or pernors of rents or profits.

The general case is built upuii eight material words.
Four on the part of the feoffees. Three on the part of
ccsluy cjue use. And one common to them both.

The first material word on the part of the feoffees is
the word, person. This excludes all alliances; for
there can be no trust reposed but in a person certain :
it excludes again rill corporations ; for they are equalled
to a use certain : for note on the part of the feoflfor over
the statute insists upon the word, person, and on the
part ofceftNy"que ! tise, t that added body politic.

The second word material, is the word seised : this
excludes chattels. The reason is, that the statute meant
to remit the common law, and not but that the chat-
tels might ever pass by testament or by parole; there-
fore the use did not pervert them. It excludes rights,
for it is against the rules of the common law to grant
or transfer rights; and therefore the statute would exe-
cute them. Thirdly, it excludes contingent us,*s, be-
cause the seisin cannot be but to a fee-simple of a use;
and when that is limited, the srisin of the feoifee is
spent ; for Littleton tells us, that there are but two sei-
sins, one in dominio ut defeodo, the other ut dc Jcodo



190 Heading on the Sin lute of Uses.

et jure ; and the feoffee by the common law could
execute but the fee-simple to uses present, and not
post uses; and therefore the statute meant not to exe-
cute them. l

The third material word is, hereafter: that bringeth
in again conveyances made after the statute; it brings
in again conveyances made before, and disturbed by
disseisin, and recontinued after; for it is not said, in-
feofFed to use hereafter seisVI.

The fourth word is, hereditament, which is to be
understood of those things whereof an inheritance is
in esse: for if I grant a rent charge de noro for ]ife
to a use, this is good enough ; yet there is no inherit-
ance in being of this rent: this word likewise excludes
annuities and uses themselves ; so that a use cannot
be to a use.

The first word on the part of cestuy que use, is the
word, use, confidence, or trust, whereby it is plain that
the statute meant to remedy the matter, and not
words; and in all the clauses it still carrieth the
words.

The second word is the word, person, again, which
cxcludeth all alliances; it excludeth also all contin-
gent uses which are not to bodies lively and natural,
as the building of a church, the making of a bridge;
but here, as noted before, it is ever coupled with body
politic.

The third word is the word, -other ; for the statute
meant not to cross the common law. Now at this
time uses were grown to such a familiarity, as men
could not think of possession, but in course of use ;
and so every man was seised to his own use, as well
as to the use of others ; therefore because statutes
would not stir nor turmoil possessions settled at the
common law, it putteth in precisely this word, other;
meaning the divided use, and not the conjoined use ;
and this causeth the clause of joint feoffees to follow
in a branch by itself; for else that case had been
doubtful upon this word, other.

The words that are common to both, are words ex-
pressing the conveyance whereby the use arise th, of



Reading on the Statute of Uses.

which words, those that breed any question are, agree-
ment, will, otherwise, whereby some have inferred that
uses might be raised by agreement parole, so there
were a consideration of money or other matter valu-
able y for it is expressed in the words before, bargain,
sale, and contract, but of blood, or kindred ; the
Crror of which collection appeareth in the word im-
mediately following, namely, will, whereby they might
as well include, that a man seised of land might raise
an use by will, especially to any of his sons or kindred,
where there is a real consideration, and by that reason,
mean, betwixt this statute and the statute of 32 of
wills, lands were deviseable, especially to any man's
kindred, which was clearly otherwise ; and therefore
those words were put in, not in regard of uses raised
by those conveyances, or without, or likewise by will,
might be transferred ; and there was a person seized
to a use, by force of that agreement or will, namely,
to the use of the assignee ; and for the word, other-
wise, 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 dissesin j for if there were a command-
ment precedent, then the land was vested in ccstmj
que use upon the entry ; and if the disseisin were of
the disseisor's owiv 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 operalio sta-
titiiy the effect that the statute worketh : and there is
modus operand!) a fiction, or explanation how the
statute doth work that effect The effect is, that
ccs I it y que use shall be in possession of like estate as
he hath in the use; the fiction quommlo is, that the
statute will have the possession of ccs tit ij que iV.sV, as a
new body compounded of matter and form ; and that
the feoffees shall give matter and substance, and the
use shall give form and quality. The material words
in the first part of the purview are lour.

'I he first words are, remainder and reverter, the






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Pea ding on the Statute of l~

guities, and expresseth that cetfi/i/ quc use shall be in

possession from he nee forth ; thai

parliament for uses then in being, and from the tin [
oft; : uses limited atter the par.

The third material words are, lav.
and possession. . but a

seisin in bet ; not a title to enter into the land, but
actual

The fourth w ore's are, of and '
had in the use; that is to mple,

-tail, for life, for - .!, in p

re\ . which are the si.Stantial ,

; but both th.

clause^ .ed and he

branch of t' a of the statute wl ..

: .s branch of fiction hath three ma:, ords or

clauses: t: mnteri.. . that t' :e,

,ht, title, and p 'i,

. shall 1 uv (jiu r that [ d

su\ ^\ the v .

of the . and ir.

6 limited to i\:<!uij </?/<'
the c t ut which ;i but an

PC can li
so if \\-hen the

had not entred after the v . hut

hud o'.ilv a i u in lau , I (lite us? in .

i ild not bri
the heir of the
whereupon the use nui>.
But note hei, . hen t!\.

ot tl .it spak. . re-

mainder and revcrtcTj but iu>t in :
when the statin.

tute ;
sentb.

Th

and d to meet with tl-

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JL94. Reading on the Statute of Uses.

and extinguishing such feoffments, so is their estate as
clearly extinct.

The third material clause is, after such quality, man-
ners, form, and condition as they had in the use , so as
now as the feoffee's estate gives matter, so the use gives
form : and as in the first clause .the use was endowed
with the possession in points of estate, so there it
is endowed with the possession in all accidents and
circumstances of estate. Wherein first note, that it
is gross and absurd to expound the form of the use
any whit to destroy the substance of the estate , as to
make a doubt, because the use gave no dower or tenancy
by the courtesy, that therefore the possession when it
is transferred would do so likewise : no, but the sta-
tute meant such quality, manner, form and condition,
as it is not repugnant to the corporal presence and
possession of the estate.

Next for the word, condition, I do not hold it to be
put in for uses upon condition, though it be also com-
prised within the general words; but because I would
have things stood upon learnedly, and according to the,
true sense, I hold it but for an explaining, or word of
the effect ; as it is in the statute of 26 of treasons,
where it is said, that the offenders shall be attainted of
the overt fact by men of their condition, in this place,
that is to say, of their degree or soit : and so the word
condition in this place is no more, but in like quality,
manner, form and degree, or sort -, so as all these words
amount but to modo et forma. Hence therefore all
circumstances of estate are comprehended as sole
seisin, or jointly seisin, by intierties, or by moieties,
a circumstance of estate to have age as coming in by
descent, or not age as purchaser ; or circumstance of
estate descendable to the heir of the part of the fa-
ther, or of the part of the mother ; a circumstance of
estate conditional or absolute, remitted or not remitted,
with a condition of inter-marriage or without : all
these are accidents and circumstances of estate, in
all which the possession shall ensue the nature and
quality of the use : and thus much of the first case,
which is the general case.
The second case of the joint feoffees needs no ex-



Reading on the Statute of Uses. 195;

position ; for it pursueth the penning of the general
case : only this I will note, that although it had been
omitted, yet the law upon the first case would have
been taken as the case provided j so that it is rather
an explanation than an addition ; for turn that case
the other way, that one were infeoffed to the use of
himseJf, I hold the law to be> that in the former case
they shall be seised jointly ; and so in the latter case
ccstuy que use shall be seised solely 3 for the word*
other, it shall be qualified by the construction of cases,
as shall appear when I come to my division. But be-
cause this case of co-feoffees to the use of one of
them was a general case in the realm, therefore they
foresaw it expressed it precisely, and passed over the
case converse, which was but an especial case : and
they were loth to bring in this case, by inserting the
word, only, into the first case, to have penned it to the
use only of other persons: for theytiad experience what
doubt the word, only, bred upon the statute of 1 R. III.
after this third case : and before the third case of rents
comes in the second saving ; and the reason ^of it is
worth the noting, why the savings are interlaced be-
fore the third case ; the reason of it is, because the
third case needeth no saving, and the first two cases
did need savings ; and that is the reason of that again.
It is a general ground, that where an act of parlia-
ment is donor, if it be penned with an ac si, it is not
' a saving ? for it is a special gift, and not a general gift,
which includes all rights ; and therefore in 1 1 Henry
VII. where upon the alienation of women, the statute
intitles the heir of him in remainder to enter, you find
never a stranger, because the statute gives entry not
simpliciter> but within an ac si; as if no alienation had
been made, or if the feme had been naturally dead.
Strangers that had right might have entred ; and there-
fore no saving needs. So in the statute of 32 of leases,
the statute enacts, that the leases shall be good and
effectual in law, as if the lessor had been seised of a
good and perfect estate in fee-simple ; and therefore
you find no saving in the statute; and so likewise of
diverse other statutes, where the statute doth make a

o 2



196 Reading on the Statute of Uses.

gift or title good specially against certain persons, there
needs no saving, except it be to exempt some of those
persons, as in the statute of 1 R. III. Now to apply
this to the case of rents, which is penned with an ac
si, namely, as if a sufficient grant or lawful convey-
ance had been made, or executed by such as were
seised ; why if such a grant of a rent had been made,
one that had an ancient right might have entered and
have avoided the charge ; and therefore no saving
needeth : but the second first cases are not penned
with an ac si, but absolute, that cestuy que use shall
be adjudged in estate and possession, which is a judg-
ment of parliament stronger than any fine, to bind all
rights ; nay, it hath farther words, namely, in lawful
estate and possession, which maketh it stronger than
any in the first clause. For if the words only had
stood upon the second clause, namely, that the estate
of the feoffee should be in cestuy que use, then per-
haps the gift should have been special, and so the
saving superfluous : and this note is material in regard
of the great question, whether the feoffees may make
any regress; which opinion, I mean, that no regress
is left unto them, is principally to be argued out of
the saving; as shall be now declared: for the savings
are two in number : the first saveth all strangers rights,
with an exception of the feoffees ; the second is a
saving out of the exception of the first saving, namely,
of the feoffees in case where they claim to their own-
proper use : it had been easy in the first saving out of
the statute, other than such persons as are seised, or
hereafter should be seised to any use, to have added
to these words, executed by this statute ; or in the
second saving to have added unto the words, claiming
to their proper use, these words, or to the use of any
other, and executed by this statute: but the regress
of the feoffee is shut out between the two savings ; for
it is the right of a person claiming to an use, and not
unto his own proper use ; but it is to be added, that
the first saving is not to be understood as the letter
implieth, that feoffees to use shall be barred of their
regresp, in case that it be of another feoffment than
that whereupon the statute hath wrought, but upon



Reading on the Statute of Uses. 197

the same feoffment ; as if the feoffee before the statute ,
had been disseised, and the disseised had made a feoff-
ment in fee to I. B. his use, and then the statute came :
this executeth the use of the second feoffment; but
the first feoffees may make a regress, and they yet
claim to an use, but not by that feoffment upon which
the statute hath wrought.

Now 7 followeth the third case of the statute, touch-
ing execution of rents 3 wherein the material words
are four :

First, whereas diverse persons are seised, which
hath bred a doubt that it should only go to rents in
use at the time of the statute ; but it is explained in
the clause following, nameJy, as if a grant had been
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, scilicet, that they shall have
the rent as if a sufficient grant or lawful conveyance
had been made and executed unto them.

The fourth words are the words of liberty and re-
medies attending upon such rent, scilicet, that he shall
distrain, etc. and have such suits, entries, and reme-
dies, relying again with an ac si, as if the grant had
been made with such collateral penalties and advan-
tages.

Now for the provisoes ; the makers of this law did
so abound with policy and discerning, as they did not
only foresee such mischiefs as were incident to this
new law immediately, but likewise such as were con-
sequent in a remote degree ; and therefore besides the
express provisoes, they did add three new provisoes
which are in themselves substractive laws : for fore-
seeing that by the execution of uses, wills formerly
made should be overthrown : they made an ordinance
for wills. Foreseeing likewise, that by execution of
uses women should be doubly advanced; they made
an ordinance for dowers and jointures. Foreseeing
again, that the execution of uses would m^^ frank-



19S Reading on the Statute of Uses.'

tenement pass by contracts parole, they made an ordi-
nance for -inrolments of bargains and sales. The two
former they inserted into this law, and the third they
distinguished into a law apart, but without any pre-
amble as may appear, being but a proviso to this
statute. Besides all these provisional laws ; and be-
sides four provisoes, whereof three attend upon the
law of jointure, and one of persons born in Wales,
which are not material to the purpose in hand ; there
are six provisoes which are natural and true members
and limbs of the statute, whereof four concern the
part of cestuy qne use, and two concern the part of
the feoffees. The four which concern the part of
cestuy 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 recognisance, 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 extinguished his extent being intire in all
the rest : or as if the conuzee of a statute having ten
acres liable to the statute, had made a feoffrnent in fee
to a stranger of two, and after had made a feoffment
in fee to the use of the conuzee and his heirs. And
upon this proviso there arise three questions :

First, whether this proviso were not superfluous, in
regard that cestuy que use was comprehended in the
general saving, though the feoffees be excluded ?

Secondly, whether this proviso doth save statutes
or executions, with an apportionment, or intire ?

Thirdly, because it is penned indefinitely in point of
time, whether it shall go to uses limited after the sta-
tute, 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
waved: but both possession and use, since the statute,
may be waved.

The second proviso saveth cestuy que use from the

* The text here is. manifestly corrupted, nor does any probable
conjecture occur for its amendment.



Evading on the Statute of Uses.

charge of primer seisin, liveries, ouster les maines, and
such other duties to the King, with an express limi-
tation of time, that he shall be discharged for the
time past, and charged for the time to come to the
King, namely, May 1536, to be communis terminus.

The third proviso doth the like for fines, reliefs, and
herriots, discharging them for the time past, and
speaking nothing for the time to come.

The fourth proviso giveth to cestuy que use all colla-
teral benefits or vouchers, aid-priers, actions of waste,
trespass, conditions broken, and which the feoffees
might have had ; and this is expressly limited for estates
executed before 1 May 1536. And this proviso giveth
occasion to intend that none of these benefits would
have been carried to cestuy que use, by the general
words in the body of the law, scilicet, that the feoffees
estate, right, title, and possession, etc.

For the two provisoes on the part of the tertenant,
they both concern the saving of strangers from pre-
judice, etc.

The first saves actions depending against the feof-
fees, that they shall not abate.

The second saves wardships, liveries, and ouster les
maines, whereof title was vested in regard of the heir
of the feoffee, and this in case of the King onlyr

i

What persons may be seised to an use, and what not.
What persons may be cestuy 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,
namely,

1. The raising of uses.

2. The interruption of uses.

3. The executing of uses.

Again, the raising of uses doth easily divide itself
into three parts : The persons that are actors to the'
conveyance to use. The use itself. The form of the
conveyance.

Then it is first to be seen what persons may be seised



200 Reading on the Statute of Uses.

to an use, and what not ; and what persons may be
cestuy qne use, and what not.

The King cannot be seised to an use ; no, not where
he taketh in his natural body, and to some purpose
as a common person ; and therefore if land be given



Online LibraryFrancis BaconThe works of Francis Bacon, baron of Verulam, viscount St. Alban, and lord high chancellor of England (Volume 4) → online text (page 17 of 46)