disinherison of many. Now the favour of the law unto heirs appeareth in many parts of the law; of descent which privilegeth the possession of the heir against the entry of him that hath right by the law; that a man shall not warrant against his heir, except he warrant against himself, and divers other cases too long to stand upon; and we see the ancient law in Glanvill's time was, that the ancestor could not disinherit his heir by grant, or other act executed not in time of sickness; neither could he alien land which had descended unto him, except it were for consideration of Glanb. b.7.ch. money or service; but not to advance any younger brother 1. fo. 44. without the consent of the heir.

doubtful for

2. For trials, no law ever took a stricter course that evi- They are both dence should not be perplexed, nor juries inveigled, than obscure and the common law of England; as on the other side, never trial. law took a stricter or more precise course with juries, that they should give a direct verdict. For whereas in a manner all laws do give the triers, or jurors (which in other laws are called judges de facto) leave to give a non liquet, that is, no verdict at all, and so the cause to stand abated; our law enforceth them to a direct verdict, general or special; and whereas other laws accept of plurality of voices to make a verdict, our law enforceth them all to agree in one; and whereas other laws leave them to their own time and ease, and to part, and to meet again; our law doth duress and imprison them in the hardest manner, without food, light, or other comfort, until they be agreed. In consideration of which strictness and coercion, it is consonant, that the law do require in all matters brought to issue, that there be full proof and evidence; and therefore if the matter of itself be in the nature of simple contracts, which are made by parole without writing.

In issue upon the mere right, which is a thing hard to discern, it alloweth the wager of battail to spare jurors. If time have wore the marks and badges of truth: from time to time there have been statutes of limitation, where you shall find this mischief of perjuries often recited; and lastly, which is the matter in hand, all inheritances could not pass but by acts overt and notorious, as by deed, livery, and record.

want of notice.

3. For purchasers, bonâ fide, it may appear that they 3. The use were ever favoured in our law, as first by the great favour dangerous for of warranties which were ever for the indemnity of purchasers as where we see that by the law in E. III.'s time, the disseisee could not enter upon the feoffee in regard of

4. They are

titles in law.

the warranty. So again the collateral garranty, which otherwise is a hard law, grew no doubt only upon favour of purchasers; so likewise that the law doth take strictly rent charge, conditions, extent, was merely in favour of purchasers; so was the binding of fines at the common law, the invention and practice of recoveries, to defeat the statute of entails, and many more grounds and learnings of law are to be found, respect the quiet possession of purchasers. And therefore, though the statute of 1 R. III. had provided for the purchaser in some sort, by enabling the acts and conveyances of cestuy que use, yet, nevertheless, the statute did not at all disable the acts or charges of the feoffees: and so as Walmsly justice said, 42 Eliz. they played at double hand, for cestuy que use might sell, and the feoffee might sell, which was a very great uncertainty to the purchaser.

4. For the fourth point of inconvenience towards those exempt from all that come in by law; conveyances in uses were like privileged 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 in his own possessions, but that the wisdom of the law doth reserve certain 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 favoured: and they are principally three.

1. The king and lords, who lost the benefit of attainders, fines for alienations, escheats, aids, herriots, reliefs, &c. 2. The demandents in pracipes either real or personal, for debt and damages, who lost the benefit of their recoveries and executions.

3. Tenants in dower, and by the courtesy, who lost their estates and titles.

1. First for the king: no law doth endow the king or sovereign with more prerogatives than one: for it preserveth and exempteth his person from suits and actions, his possessions from interruption or disturbance, his right from limitation of time, his patents from all deceits 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 until the statute of quia emptores terrarum, the lord was not forced to distract or dismember his signiory or service. So until 15 H. VII. the law was taken, that the lord, upon

his

title of wardship, should oust a reconuzee of a statute, or a termor: So again we see, that the statute of mortmain was made to preserve the lord's escheats and wardships. The tenant in dower is so much favoured, as that it is the common saying and bye-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 heir maintenant : So likewise for the tenant by courtesy, as it is called, and by the law of England, and therefore specially favoured, as a proper conceit and invention of our law. So, again, they principally favour such as have ancient rights, and therefore Lett telleth us that it is commonly said that a right cannot die: and that ground of law, that a freehold cannot be in suspense, showeth it well, insomuch that the law will rather give the land to the first comer, which we call an occupant, than want a tenant to a stranger's action.

And again, the other ancient ground of law of remitter, showeth that where the tenant faileth without folly in the demandant, the law executeth the ancient right. To conclude, therefore, this part, when this practice of feoffments in use did prejudice and damnify all those persons that the ancient common law favoured, and did absolutely cross the wisdom of the law, which was to have conveyances considerate and notorious, and to have trial thereupon clear and not inveigled, it is no marvel that the statute concludeth, that the subtle imaginations and abuses tended to the utter subversion of the ancient common laws of this realm.

The third part giveth a touch of the remedy which the statute intendeth to minister, consisting in two parts. First, the extirpation of feoffments.

Secondly, the taking away of the hurt, damage, and deceit of uses; out of which have been 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 speak of the extinguishment or extirpation of the use, namely, by a unity of possession, but of an extinguishment or extirpation of the feoffment, &c. which is the conveyance itself.

Secondly, out of the words abuse and errors, heretofore used and accustomed, as if uses had not been at the common law, but had been only an erroneous device or practice. To both which I answer.

3. A touch of

the remedy.

27 H. 8.

To the former, that the extirpation which the statute meant was plain, to be of the feoffee's estate, and not of the form of conveyances.

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 of long leases of lands at this day in capite to defraud wardships is an abuse of law, but yet it is according to law, and for the word (errors) the statute meant by it, not a mistaking of the law, but a wandering or going astray, or digressing from the ancient practice of the law, into a byecourse as when we say, erravimus cum patribus nostris, it is not meant of ignorance, but of perversity. But to prove that the statute meant not to suppress the form of conveyances, there be three reasons which are not answerable.

The first is, that the statute in every branch thereof hath words de futuro, that are seised, or hereafter shall be seised; and whereas it may be said that these words were put in, in regard of uses suspended by discontinuance, and so no present seisin to the use, until a regress of the feoffees; that intendment is very particular, for commonly such cases special are brought in by provisos, or special branches, and not intermixed in the body of a statute; and it had been easy for the statute to have," or hereafter shall be seised upon every feoffment, &c. heretofore had or made."

My second reason is upon the words of the statute of inrolment, which saith, that (no hereditaments shall pass, &c. or any use thereof, &c.) whereby it is manifest, that the statute meant to leave the form of conveyance with the addition of a farther ceremony.

The third reason I make is out of the words of the first proviso, where it is said, that no primer seisin, livery, fine, nor alienation, &c. shall be taken for any estate executed by force of the statute, before the first of May, 1536, but that 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 understanding; 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, that read soon after the statute, was in trouble for, and worthily, which, I suppose, was Boiser, 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 call a contrary extremity, is Opinion. that the statute meant only to remedy the mischiefs in the preamble, recited as they grew by reason of divided uses; although the like mischief 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 answer, that I grant the work of the statute is to execute the divided use; and, therefore, to make any use void by this statute which was good before, though it doth participate of the mischief recited in the statute, were to make a law upon a preamble without a purview, which were grossly absurd. But upon the question what uses are executed, and what not; and whether out of the possessions of a disseisin, or other possessions out of privity or not, there you shall guide your exposition according to the preamble; as shall be handled in my next day's discourse, and so much touching the preamble of this law.

law.

For the body of the law, I would wish all readers that Cap. 2. The expound statutes to do as scholars are willed to do: that body of the is, first, to seek out the principal verb; that is, to note and single out the material words whereupon this statute is framed; for there are, in every statute, certain words, which are veins where the life and blood of the statute cometh, and where all doubts do arise and issue forth, and all the rest of the words are but literæ mortuæ, fulfilling words.

The body of the statute consisteth upon two parts. First, a supposition, or case put, as Anderson, 36 Eliz. called it.

Secondly, a purview, or ordinance thereupon.

The cases of the statute are three, and every one hath The cases of his purview: the general case; the case of feoffees to the the statute. 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 upon eight material words: 2. The general four on the part of the feoffees; three on the part of cestuy case. que use; and one common to them both.

The first material word on the part of the feoffees is the word person. This excludes all abeyance; for there can be no confidence reposed but in a person certain. It excludes again all corporations: for they are enabled to a use certain; for note on the part of the feoffor over the statute insists upon the word person; and on the part of cestuy que use, it ever addeth, body politic.