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been strong arguments for the notoriety of conveyances of land in every stage of the law in this country. With regard to moveables, the things being of themselves capable of manual delivery and subtraction, a parol expression of consent seemed at all times sufficient to consummate and publish the transfer; but where lands or houses are the subjects of the conveyance, the transferee must come to the thing, which remains stationary and unchanged, and the conversion of the property and change of title require to be effected and promulged by an ostensible relinquishment by the one party and occupation by the other, accompanied by expressions to testify the intention, and to make the transaction amount to a delivery of the possession. In the first ages, indeed, of man in his social state, the history of most nations makes men-tion of authorised ceremonies accompanying the transfers of property in land, sometimes popular and arbitrary, and sometimes judicial, and transacted before magistrates.(m) As the possession of land carried with it, in the feudal times, a reciprocity of personal duties, some notoriety and solemnity in the conveyance of this species of property, seems to have been very proper under a system of polity, in which the transfer of land implied an investiture as well as a grant. The subject of these transmutations being either corporeal or incorporeal, and things untangible and incorporeal being incapable of actual delivery, the notoriety of this actual delivery was, therefore, where the subject was not corporeal, supplied by the solemnity of an instrument in writing, sealed and delivered. Such things were said to lie not in livery but in grant, as reversions, remainders, rents, advowsons, commons, and such like hereditaments. But manors, houses, and lands, being things of a corporeal existence, and susceptible of a specific transfer, were therefore necessary to be transferred by livery of seisin. While society was in its rudiments, and writing uncommon, the notoriety of the livery was chiefly relied upon till the formality of a written instrument came into use, as an authentication of the livery and seizin, and brought with it some relaxation of the old ceremonies.

The first feudal grants are said to have been gratuitous, whereby the donor parted only with the dominium utile or usufruct to

(m) Vide Heineccius, Rom. Antiq. lib. 2, tit. 1, No. 19, 20; and see the 23d chapter of Genesis.

the vassal, reserving to himself the dominium directum; and, on account of the favour which prompted the gift, there seems to have been much humility in the form of acceptance by the donee, who, being chosen for his personal qualifications or deserts, received from the hands of the superior himself his investiture, (therefore called the investitura propria) in the *presence of the pares curia, and on the land itself, with a rigorous exaction and observance of those circumstances of ceremony, which were calculated to impress the memory of the transaction on the witnesses. The first departure, in practice, from the rigour of the primitive observances, seems to have been a symbolical delivery of the possession; though from the great inconvenience, in many cases, of making the corporeal transfer, this substitution must be but little short of the antiquity of the direct method by livery and -seisin on the land itself; and, indeed, it seems to have been the usage of very remote times.(105) As it was the intention of the words, which were used before writing was adopted, to declare the tenour of the grant, and the nature and obligations of the inwestitare; so, when the practice added writing to the transaction, such writing did only record the fact and the intention of the parties, in a form extremely short and simple.(106)

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It is easy to apprehend how rapidly this simple document would assume a more complicated shape, and modify itself to the more intricate wants and interests of mankind, by qualifying the grant with express stipulations and conditions. And we can readily suppose that it would soon make the principal figure in all conveyances of land, and become the standing evidence of the change of the property. It was the natural effect of this altered state of things, to subtract from the feudal investiture much of its sanctity and and publicity; the improper investiture, as it was called, being received from the *attorneys or stewards of the lord, *[267] instead of the lord himself, came into common practice; the attestation of common witnesses, instead of the pares curia, was re

(105) Thus the delivery of a shoe, was the symbol of the transfer of the land of Elemelech to Boaz. The purchase by Jeremiah of Hanameel's field, was ratified by an instrument, subscribed and sealed, chapter 22, but this seemed to be only a memorial of the transaction, and a method of recording the testimony of the ocular witnesses.

(106) See the account of the breve testatum in the book of feuds, 1 tit. 4. and Craig, lib. 2, Dieg. 2, No. 16.

ceived; and, as these witnesses, being not the pares curia of the particular manor, served as well for one as another, all the lands lying in one county, and intended to be conveyed, might pass by the livery of one parcel in the name of them all.

The ancient form of conveyance thus gradually declined from the dignity of the proper investiture, and yet, slight as it had become in respect to its ceremonial, the ingenuity of men was very early at work in inventing substitutionary methods of evading the necessity of making the livery of seisin by themselves or their attorneys. It is said by a sensible writer,(n) that "earlier than the time of Littleton, it had come into fashion to transmit land by attornment, if there was a tenant, and by a lease and release if there was none; in the first of which cases, the form of getting the consent of the tenant of the ground, to the transfer, supplied the place of that livery, which could not be given; and, in the other case, the grantor gave to the grantee an imaginary lease, in order to put him into possession, and the next minute released." [268] In each of these methods by attornment,(107) and *lease and re

lease, an act was done of an ostensible kind to notify the change of property; for the attorning in one case, and the actual entry upon the lease in the other, was still a ceremony, though but

(7) Dalrymple on feudal property, ch. 6, sect. 3.

(107) The ceremony of attornment seems at all times to have produced more danger than security to property. The statute 4 Ann, c. 16, s. 9, has, therefore, made all grants and conveyances good without attornment, and thus removed the necessity for making it but its efficacy as an act of notoriety and evidence yet remained, and, as it ap pears, continued to be made an ill use of; for the statute 11 Geo. 2, c. 19, s. 11, reciting that the possession of estates was rendered very precarious, by the frequent and fraudulent practice of tenants, in attorning to strangers, who claim title to the estates of their respective landlords or lessors, who are thereby put out of the possession of their respective estates, and put to the difficulty and expense of recovering the same by action at law; it is, therefore, thereby enacted, that all such attornments shall be void, and the possession not altered; but it is also thereby provided, that the same act shall not extend to affect any attornment made pursuant to any judgment at law, or decree, or order of a court of equity, or made with the privity and consent of the landlord or landlords, lessor or lessors, or to any mortgagees after the mortgage has become forfeited.

slight in comparison of the old formalities which took place upon the feudal feoffment. While the ancient forms of transmission and investiture were thus declining into shadows, the practice of creating secret trusts and confidences, (for such were uses at the common law) for evading the pressure of the feudal burthens, which were daily becoming less tolerable, as social and political changes diminished their utility and their recompence, and for escaping the consequences of attainders and convictions, which multiplied with the contests of factions and the struggles of liberty, was threatening to become universal. "Which practice," says Lord Bacon,(0)" was turned to deceive many of their just and reasonable rights. A man that had cause to sue for land, knew not against whom to bring his action, or who was the owner of it. The wife was defrauded of her thirds, the husband of his curtesy, the lord of his wardship, relief, heriot, and escheat; the creditor of his extent for debt, and the poor tenant of his lease."

The method pursued for remedying these inconveniences, while it failed of accomplishing its immediate purpose, nearly caused all the ancient notorious method of transfer, and even its very shadows and substitutes, to disappear, by giving effect to new and secret conveyances. The statute of the 27th Hen. 8, c. 10, called the Statute of Uses, which had been *preceded by many partial attempts to attain the same object,(108) by fastening upon the interest of the cestui que use the same obligations, and subjecting it to the same remedies in a variety of particular instances, as had before accompanied exclusively the legal ownership, at once identified the use with the legal property in the land, or, as

(o) Use of the Law, 153.

(108) To remedy the inconveniences of these creations of uses and trusts, in respect to lands, a multitude of statutes were enacted for making the cestui que use to be considered, for the particular purpose then in the contemplation of the legislature, the real owner of the land. Thus, the 50th Edw. 3, c. 6, 2 Ric. 2, sess. 2, c. 3, 19 Hen. 7, c. 15, subjected the land to be extended by the creditors of cestui que use; 1 Ric. 2, c. 9, 4 Hen. 4, c. 7, 1 Hen. 6, c. 3, 1 Hen. 7, c. 1, allowed actions for the freehold to be brought against the cestui que use if in the actual pernancy of the profits; 11 Hen. 6, c. 5, made the cestui que use liable to the action of waste; 1 Ric.3, c. 1, gave legal effect to his conveyances and leases, made without the concurrence of his feoffees; and, 4 Hen. 7, c. 17, 19 Hen. 7, c. 15, made him answerable for the feudal perqui sites, and gave the lord the wardship of his heir.

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it is expressed, "transferred the use into the possession;" the operation of which statute is better described, as annexing the possession to the use. Before this statute, equitable estates were created without livery, or entry, or attornment, and by virtue of this statute, these equitable estates, as soon as they were created, became clothed with the legal interest, so that legal estates became grantable without livery, entry, or attornment. The bargain and sale came now, therefore to be the general method of conveyance, which, having once raised the use upon the valuable consideration, left the statute to do the rest of the work; and so completely does form and solemnity seem, at this juncture, to have been lost sight of, that it appears, according to some authorities, and that of Lord Coke among others, that even lands might, in the interval between the statute of uses and enrolments, have been transferred by a parol bargain and sale.(2) Nor does it appear * [270] that such unsolemn *modes of conveyance, where the customs of boroughs have sanctioned them, received a decided and universal prohibition till the great statute of Charles the Second, which is the subject of this treatise, was enacted. In the mean time, it should be remarked, that the evil, which it was the direct purpose of the statute to prevent, eluded its intention in the new shape of a trust, the courts having determined a use upon a use, not to be executed or converted into the legal estate by the statute. The easy and informal transfer of real property, by the secret me. thod of a bargain and sale unrecorded, called for the legislative interference by the statute of enrolments, whereby it was made(9) necessary to register in court these conveyances of the freehold, which were thenceforth required to be in writing, under seal. But this statute omitted to extend its provisions to bargains and sales for terms of years, the consequence of which omission was, the total disappointment of its salutary purpose by the conveyance by lease and release, not then, indeed, for the first time invented, but for the first time founded on a lease made by bargain and sale, to save the necessity of the entry, by the help of the use executed by the statute.

Amidst all these changes, however, under which the old feudal fabric of conveyance had sunk into desuetude, the transfer by parol, if the act of livery accompanied, existed potentially, till the sta

(p) See 2 Inst. 675, 1 Leon. 18. (q) 27 Hen. 8, c. 16.