against the Common Law—ostensibly to "soften its rigour," but in effect to make the transfer of land so difficult, complicated and dubious—and so expensive—that we came to talk of "the glorious uncertainty of the law," meaning that, where "real" property was concerned, a man could hardly be so much in the right that a Court of Chancery might not pronounce him to be in the wrong, or so much in the wrong, that a Court of Chancery might not pronounce him to be in the right. The great business of Chancery concerned the land.
Restrictions on the transference of land are so inconvenient, both to those who wish to sell, and to those who wish to buy, that no sooner was a law made in the interests of the feudal lords than the lawyers found a way to evade it, adapted from the Roman Civil Law. This was by conveying lands to Uses, the masterpiece of legal evasion. The Statute of Mortmain was thus defeated. A man who wished to give land to the Church, but was prevented by Mortmain, would alienate the land to B and C, who agreed to pose before the law as new tenants, but really allowed the "use and profits" of the land to go to the Church. B and C were thus mere holders in trust for the Church.[1] The person who had the "use and profits" was called "cestuy que use." The advantages of this method were obvious. The laity quickly followed the example of the Church. Grants "to uses" were common in Edward in.'s time, and the rule by the time of Henry V. It went on, until there began to be transfers of the "use" itself to a "use," until it was decided that "an use cannot be engendered of an use." The procedure was this: A, a tenant in fee-simple, would make a feoffment (or assignment) to B, C, and D, conveying the land to them, perhaps to his own use, perhaps to the use of E. Several feoffees were usually named, because then there could be no legal succession while any one of them lived. And as by the time of Henry V. the lawyers had decided that the use of lands was an interest distinct from legal ownership,
- ↑ It is evident that tenants connived at evasions of Mortmain. The 15 Richard II. {1391) forbids "religious persons, Parsons, Vicars and others," from buying lands adjoining to their churches, "and the same by sufferance and assent of the tenants, have made churchyards," and have made "parochial buryings "in these churchyards.
