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The Genesis of the Statute of Uses the Importance of the Statute of Uses Is Beyond Doubt

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The Genesis of the Statute of Uses the Importance of the Statute of Uses Is Beyond Doubt The English Historical Review No. CCCXXV - October 1967 The genesis of the Statute of Uses THE importance of the Statute of Uses is beyond doubt. The effect which its provisions had upon the development of English land law was revolutionary, and from it have grown the crucial doctrines of the trust. In the political field its importance was not less - it is one of the few statutes with the distinction of having fomented an armed rebellion; when the rebels rose against Henry VH[ in 1536, they demanded not only the abandonment of the king's religious changes, but the abandonment of the statute as well. Sixteenth-century lawyers recognized the significance of the act and both Edward Coke and Francis Bacon gave their law readings upon it. Some subsequent commentators disparaged the statute as having added at most 'three words to a conveyance', but modern authorities have united to re-emphasize the important consequences it produced. To Sir William Holdsworth, the Statute of Uses was 'perhaps the most important addition that the legislature has ever made to our private law'.1 Unfortunately, the immense importance of the statute is equalled by our ignorance about its origin. The Commons' Journals do not begin for more than a decade after the act was passed; such of the Lords' Journals as survive remain silent on the matter, and the roll of parliament is no help at all. The text of the statute, a few associated papers and occasional references by contemporary observers are all that there is to work on.2 The general background, however, is clear.8 The medieval com- mon law made little provision for the settlement of landed property, and none for the device of real estate by will. The use, however, allowed an owner to circumvent these limitations by divesting himself of the legal estate in his property in favour of one or, more 1. W. S. Holdsworth, [History of English Lav (1922-5 2)], iv. 409. 2. I am grateful to Dr. A. R. Myers for his valuable criticisms of the thesis advanced in this essay. 3. The most complete discussion of the subject of uses is found in Holdsworth, iv. 407-80. J. L. Barton, The medieval use', Law Quarterly Review, lxxxi (1965), 562-77 replaces Holdsworth at certain points; cf. R. G. Usher, The significance and early interpretation of the statute of uses', Washington University {St. Louis) Studies, i, pt. ii, no. I. (1913), 42-J5. T. F. T. Plucknett, Contist History of tin Common Lav (4th edn. 1947). PP- 544-55- © Longmans, Green & Company Limited and Contributors, 1967 VOL. LXXXII-NO. CCCXXV DU 674 THE GENESIS OF October generally, a group of feoffees who could fulfil his wishes for him. In its early history the use was clearly tainted with the suspicion of fraud, but so common did it become that by the end of the four- teenth century - probably even from the early years of Richard II's reign - the court of Chancery had to step in to protect and con- trol the device; at common law the feoffees possessed the full legal estate, but at equity the rights of the cestuique use were enforce- able. This immense popularity of the use is readily explained; on the one hand it gave, in a period of party strife, some insurance against the consequences of political misfortune, and on the other it made it possible to escape the burdens of feudal tenure. As Coke remarked, 'there were two Inventors of Uses, Fear and Fraud; Fear in Times of Troubles and civil Wars to save their Inheritances from being forfeited; and Fraud to defeat due Debts, lawful Actions, Wards, Escheats, Mortmains etc.'1 A third factor, quite as important in popularizing the use, was the increasing complexity of society, which encouraged men to look for ways of settling their wealth far more sophisticated than the ancient rights of dower and primo- geniture recognized by the common law.2 In all this the principal sufferer was the Crown. Royal feudal rights were based upon the traditional concept of seisin, but the use made nonsense of tradition. Seisin was now vested in a self-perpetu- ating group of trustees while the control and enjoyment of the prop- erty belonged to a beneficiary who was invulnerable to the claims of any feudal overlord. In consequence, the income which the Crown received from its feudal incidents suffered severely. As early as 1391, parliament clamped down upon the evasion of the Statute of Mortmain by the granting of uses, while in 1398 uses were declared to be forfeit for treason.3 But royal dislike of the use was nullified by the king's obligation to do justice; the interests of so many people were by then expressed as uses, that a strict insistence on the letter of the common law would have been a general invitation to dis- honesty, a charter for fraudulent feoffees. The chancellor's protection of the use had to be encouraged, even though the king's rights were lost by it. And lost they were. 'By the middle of the fifteenth century the right of the cestuy que use to escape all the more disagreeable incidents of tenure was so well established that on the rare occasions when his protection failed him the Crown would refuse to take advantage of him.'4 With the revival of government in the later 1. CbudltigffsCase. Coke, Reports (1738), i. I2iv. The extent to which enfeoflEment to uses nullified the penalties of treason has not yet been explored. Lands held in use for a traitor seem to have been normally forfeited, but a use might be of more value in preserving the interests of dependents. Perhaps the greatest advantage of the use was the opportunity it gave for concealing titles in a mass of subtleties. 2. See below p. 689 and notes 2 and 3. 3. 15 Richard II, c 5 ; 21 Richard II, c. 3. 4. Barton, ubi supra, p. 574. Barton assembles evidence that Henry IV attempted to reassert royal feudal rights, unsuccessfully, ibid. 573-4. I967 * THE STATUTE OF USES 675 fifteenth century, this situation had to be resolved. The Crown followed a dual policy. On the one hand such royal rights as remained were enforced with the utmost vigour, a policy which ultimately produced the court of Wards, and on the other efforts were made to reassert, by statute, royal rights which had fallen into abeyance, a policy which gave rise to a stream of legislation from the days of Henry VH to the Statute of Uses and beyond.1 The parliament of 1489 made a start with a peripheral attack upon the problem, asserting royal rights over land held in knight service where the cestuique use died intestate leaving an heir under age, and in 1504 a further act made minor changes in the law relating to uses for villeins or socage tenants.2 Although this mild legislative activity was suspended in the early parliaments of Henry V ill's reign, with increased royal indebtedness in the 15 20s, and, apparently, a general tendency for the common law courts to admit the validity of uses, action became imperative.3 In June 1526, the council ordered the rigorous prosecution of evasions of royal rights, and when the first session of the Reformation Parliament met in 1529, a bill to remedy the king's wrongs had a high priority.4 But passage of the bill was not easy and only in the eighth and final session, in April 1536, did an act reach the statute book at last. This much is straightforward and is common knowledge. But the detailed story of the struggle over uses in the Reformation Parliament is anything but clear. To J. A. Froude, the Statute of Uses was little more than an ingredient in the Pilgrimage of Grace: A. F. Pollard treated the conflict over the act as an example of the independence of parliament, and especially of the Commons: F. W. Maitland remarked with more acuity that the statute 'was forced upon an extremely unwilling Parliament by an extremely strong-willed king'.6 Can anything further be said? Sir William Holdsworth certainly believed that it was possible to go beyond Maitland's verdict. Analysis of the evidence convinced him that the Statute of Uses began as a bargain between the Crown and the nobility but ended as a deal between the Crown and the common lawyers. Holdsworth, and his construction was powerfully supported by T. F. T. Plucknett, believed that here was a classic example of the 1. J. Hurstfield, "The revival of feudalism in early Tudor England', History, xxrvii (i952). I3I-45- l. 4 Henry VII, c 17, 19 Henry VII, c. 15; if. Holdsworth, iv. 448-9. 1 Richard HI, c I foreshadowed the Statute of Uses by empowering the ctstuiqut usi to dispose of the legal estate, but this was a misguided attempt to deal with the abuse of enfeoflments to uses, not to protect royal rights. Holdsworth, iv. 444-6, and Barton, ubi supra, p. 5 74. 3. Usher argued that the common law judges increasingly accepted the use (ubi supra, pp. 44-47) and Barton detects a similar movement, except in the years immediately before the 1536 act (ubi supra, pp. 574-6). 4. See below, p. 687, n. 1. 5. J. A. Froude, History ofEngknd(i 871), ii. 502-4; A. F. Pollard, Htroy VIII (1951), pp. 210-11, 232, 235, 269; F. W. Maitland, Equity (1936), p. 34. 676 THE GENESIS OF October importance of the common lawyers at work.1 The thesis ran as follows.
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