Landholding in England/Chapter 9

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THE preamble of a statute is often the most illuminating part of it. Like all other human documents, it may contain false statements, and put forth false motives, but none the less, it reveals the intention of the framers, and the general state of things to be altered for better or worse.

The great Statute of Uses of 27 Henry VIII. {1536) was intended to destroy the distinction between legal and "beneficial" ownership of land, and to make the person who benefited the legal tenant, liable for all burdens. This was undoubtedly in accordance with justice. It was also designed to destroy the power which had grown up (through the introduction of uses) of disposing by will of interests in lands. The preamble says that "divers and sundry imaginations, subtle inventions and practices have been used," to evade the Common Law, and to convey lands from one to another "by fraudulent feoffments, fines and recoveries, and other assurances craftily made to secret uses and trusts, and also by will and testaments, sometimes made by bare words (nudeparol), sometimes by signs and tokens, and sometimes by writing, and for the most part made by such persons as be visited with sickness, in their extreme agonies, and pains," or when they had hardly "any good memory." Thus many heirs have been disinherited, lords have lost their wards, marriages, reliefs, heriots, escheats and aids; hardly any person can be sure the land he has bought is his own, or against whom to bring an action to recover his title. Widowers have lost their "tenancy by courtesy," women their dowers; manifest perjuries have been committed; the King has lost the profits and advantages of the lands of persons attainted, and many other inconveniences have happened, and daily increase, "to the utter subversion of the ancient common laws of this realm."

To avoid all these evils, it was now enacted that whoever held lands to the use of another, should be adjudged to be in lawful possession of those lands. "The Statute," says Blackstone, "conveys the possession of the use, and transfers the use into possession." He who uses is "complete owner, as well in law as in equity."

At first, this diminished the power of Chancery, because the Common Law Courts began to look on uses as a mode of conveyance. But the lawyers again found a way to evade the Statute of Uses, and to increase the power of the Chancery. The usual method was this: A conveyed lands to B to the use of C to the use of D. The Statute of Uses decided that only the first use could be executed, and the Common Law Judges laid it down that the powers of the statute were exhausted when once it had been called into operation, and "the limitation of a further use to another person was therefore void."[1]

So the Common Law refused to recognise the right of D to the use. D's only hope was in the Chancellor, to whom he appealed. The Chancellor, "who hath power to moderate and temper the written law and subjecteth himself only to the law of nature and conscience," ruled that, as the obvious intention of A was that D should have the use, this was a trust in equity, though not in law, and ought "in conscience" to be performed. So the old device was revived, and these second uses came to be known as "trusts," and the Statute of Uses had done little but change a word.[2]

The Statute of Uses enacted that fines for alienation, etc., should be paid to the King. It also tried to ensure that secret conveyances introduced into uses should be destroyed, and conveyances be made only by the "solemn and open livery of seizin." It was certainly a very bad thing that the real ownership of any lands should be doubtful or unknown. But here too the statute was outwitted. One way of creating uses was by "bargain and sale." By this, the legal owner (bargainor) contracts to sell his interest in the land to another (the bargainee), and the bargainee pays, or promises to pay for the land. At Common Law, there must have been a proper legal conveyance; but Chancery laid it down that "a use was thus raised in favour of the bargainee, and that the bargainor was the bare legal owner holding to the use and profit of the bargainee" (Digby). The Statute of Uses made "bargain and sale" valid. Before the statute, B would have got the equitable interest; after it, he got the full legal interest. There was no notoriety about "bargain and sale," and thus the legal interest in lands could be conveyed by strictly private acts, which need not be recorded in writing, and might be incapable of legal proof." So the same year Parliament passed the Statute of Enrolments, to prevent clandestine conveyances. And now no estate, nor any use thereof, could be conveyed by bargain and sale, unless said sale was made by writing indented, sealed and enrolled in one of the King's Courts of Record, or within the county where the land in question was situated.

Once more the lawyers defeated a statute. Estates less than freehold—such as those held for a term of years—were not mentioned. So if A bargained to sell B the land for one year there need not be enrolment. The bargain for one year raised a use for one year to B, and by the statute gave B possession of his term as if he had actually entered on the land. Once in possession, B could acquire the freehold by a simple deed—a release—from the owner of the reversion. So, in the case above quoted. A, the day after the sale for one year to B, could grant his remaining interest by release to B, who now held the land by virtue of the very Statute of Uses! This method became very popular, freehold lands were transferred by it until 1841. So secret conveyances were actually re-established, instead of being done away.

The disposal of interest in lands had become so popular, and the opposition to its restriction was so strong, that four years after the Statute of Uses power was given to every tenant in fee-simple to dispose by will of all lands held in soccage, and of two-thirds of that held by knight-service. But in the case of soccage lands, primer seizins, reliefs, and fines were to be retained and over the third part of knight-service lands, the right of wardship, in favour of the King or lord.

By this time the Court of Chancery, which at first professed to exercise that higher kind of justice called equity, was simply complicating land-conveyance, and multiplying the chances of a lawsuit arising out of any transfer of land. The "glorious uncertainty of the law" means the uncertainty of the law of Chancery.

  1. This referred to the famous Tyrrell's case decision: "An use cannot be engendered of an use."
  2. "The various necessities of mankind induced also the judges very soon to depart from the rigour and simplicity of the rules of the common law, and to allow a more minute and complex construction upon conveyance to uses than upon others."—Blackstone, ii. 334.

    "A statute made upon great deliberation … has had little other effect than to make a slight alteration in the formal words of a conveyance."—Ibid. 336.