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it shall be inquired before the judges of Nisi | were named; so as upon the matter they are Prius. And the great reverence given to prece- named. And of this form are the ancient instrucdents appeareth in 39 H. VI. 3 E. IV. and a num- tions before the statute of 17 H. VIII., when the ber of other books; and the difference is exceed- Princess Mary went down. ingly well taken in Slade's case, Coke's Reports, 4, that is, where the usage runs but amongst clerks, and where it is in the eye and notice of the judge; for there it shall be presumed, saith the book, that if the law were otherwise than the usage hath gone, that either the council or the parties would have excepted to it, or the judges ex officio would have discerned of it, and found it; and we have ready for you a calendar of judges more than sit at this table, that have exercised jurisdiction over the shires in that county.
As for exception, touching the want of certain instructions, I could wish we had them; but the want of them, in my understanding, obscureth the case little. For, let me observe unto you, that we have three forms of instructions concerning these shires extant; the first names them not expressly, but by reference it doth, namely, that they shall hear and determine, &c. within any of the places or counties within any of their commissions; and we have one of the commissions, wherein they
The second form of instructions go farther, for they have the towns, and exempted places within the counties named, with tanquam as well within the city of Glocester, the liberties of the duchy of Lancaster, &c., as within any of the counties of any of their commissions; which clearly admits the counties to be in before. And of this form are the instructions 1 Mariæ, and so long until 11 Eliz.
And the third form, which hath been continued ever since, hath the shires comprehended by name. Now, it is not to be thought, but the instructions which are wanting, are according to one of these three forms which are extant. Take even your choice, for any of them will serve to prove that the practice there was ever authorized by the instructions here. And so upon the whole matter, I pray report to be made to his majesty, that the president and the council hath jurisdiction, according to his instructions, over the four shires, by the true construction of the statute of 34 H. VIII.
LEARNED READING OF MR. FRANCIS BACON,
ONE OF HER MAJESTY'S COUNSEL AT LAW,
THE STATUTE OF USES.
BEING HIS DOUBLE READING TO THE HONOURABLE SOCIETY OF GRAY'S INN. 42 ELIZ. /600
I HAVE chosen to read upon the Sta- ments o all the judges assembled in the Exchetute of Uses, made 27 H. VIII. ch. 10, quer Chamber, in the famous case between Dillon a law whereupon the inheritances of this realm are and Freine, concerning an assurance made by tossed at this day, like a ship upon the sea, in Chudleigh, this law began to be re- Chudleigh's such sort, that it is hard to say which bark will duced to a true and sound exposition, 271. sink, and which will get to the haven; that is to and the false and perverted exposi- And. 314. Reason of writ- say, what assurances will stand good, tion, which had continued for so many years, ing this treatise. and what will not. Neither is this but never countenanced by any rule or authorany lack or default in the pilots, the grave and ity of weight, but only entertained in a populearned judges; but the tides and currents of re-lar conceit, and put in practice at adventure, ceived error, and unwarranted and abusive experience have been so strong, as they were not able to keep a right course according to the law, so as this statute is in great part as a law made in the Parliament, held 35 Reginæ; for, in 37 Reginæ, by the notable judgment given upon solemn argu
grew to be controlled; since which time (as it cometh to pass always upon the first reforming of inveterate errors) many doubts and perplexed questions have risen, which are not yet resolved, nor the law thereupon settled: the consideration whereof moved me to take the occasion of per
Having therefore framed six divisions, accord
forming this particular duty to the House, to see if I could, by my travel, bring the expositioning to the number of readings upon the statute thereof to a more general good of the commonwealth.
itself, I have likewise divided the matter without the statute into six introductions or discourses, so that for every day's reading I have made a triple provision.
1. A preface or introduction. 2. A division upon the law itself. 3. A few brief cases for exercise and argument.
The last of which I would have forborne; and, according to the ancient manner, you should have taken some of my points upon my divisions, one, two, or more, as you should have thought good; save that I had this regard, that the younger sort of the bar were not so conversant in matters upon the statutes; and for that cause I have interlaced some matters at the common law, that are more familiar within the books.
1. The first matter I will discourse unto you is the nature and definition of a use, and its inception and progression before the statute.
Herein, though I could not be ignorant either of the difficulty of the matter, which he that taketh in hand shall soon find, or much less of my own unableness, which I had continual sense and feeling of; yet, because I had more means of absolution than the younger sort, and more leisure than the greater sort, I did think it not impossible to work some profitable effect; the rather because where an inferior wit is bent and constant upon one subject, he shall many times, with patience and meditation, dissolve and undo many of the knots, which a greater wit, distracted with many inatters, would rather cut in two than unknit: and, at the least, if my invention or judgment be too barren or too weak, yet, by the benefit of other arts, I did hope to dispose or digest the authorities and opinions which are in cases of uses in such order and method, as they should take light one from another, though they took no light from me. And like to the matter of my reading shall my manner be, for my meaning is to revive and recontinue the ancient form of read-assurances of this realm at this day upon uses, ing, which you may see in Mr. Frowicke's upon the prerogative, and all other readings of ancient time, being of less ostentation, and more fruit than the manner lately accustomed for the use then was, substantially to expound the statutes by grounds and diversities; as you shall find the readings still to run upon cases of like law and contrary law; whereof the one includes the learning of a ground, the other the learning of a difference; and not to stir conceits and subtle doubts, or to contrive a multitude of tedious and intricate cases, whereof all, saving one, are buried, and the greater part of that one case which is taken, is commonly nothing to the matter in hand; but my labour shall be in the ancient course, to open the law upon doubts, and not to open doubts upon
2. The second discourse shall be of the second spring of this tree of uses since the statute. 3. The third discourse shall be of the estate of the
and what kind of them is convenient and reasonable, and not fit to be touched, as far as the sense of law and a natural construction of the statute will give leave; and what kind of them is inconvenient and meet to be suppressed.
4. The fourth discourse shall be of certain rules and expositions of laws applied to this present purpose.
5. The fifth discourse shall be of the best course to remedy the same inconveniences `now afoot, by construction of the statute, without offering either violence to the letter or sense.
6. The sixth and last discourse shall be of the course to remedy the same inconveniences, and to declare the law by act of Parliament; which last I think good to reserve, and not to publish. The nature of a use is best discerned by considering, first, what it is not, and uses before the then what it is; for it is the nature of all human science and knowledge to proceed most safely, by negative and exclusion, to what is affirmative and inclusive.
Of the nature of
3. Certain maxims of the common law, touch-1 R. III. which saveth any right or interest of ing exposition of statutes.
entails, must be understood of entails of the pos
6 H. 7. 5. 15 H. 7. 2.
EH. 5. 3.
Br. Forfeiture, 14.
5 H. 5. 3.
Co. Lit. 272
session, and not of the part of the use, because | mon law, so as the law knoweth it, but protects it a use is no right nor interest. So, again, you not; and, therefore, when the question cometh, see that Littleton's conceit, that a use should whether it hath any being in nature or in conamount to a tenancy at will, whereupon a release science, the law accepteth of it; and therefore might well inure, because of privity, is controlled Littleton's case is good law, that he by 4 and 15 H. VII., and divers other that had but forty shillings freehold in 15 1.7.13 books, which say that cestuy que use is use, shall be sworn of an inquest, for per. Ch. J. punishable in an action of trespass towards the that is ruled secundum dominium naturale, and not feoffees; only 5 H. V. seemeth to be secundum dominiam legitimum, nam natura domiat some discord with other books, nus est, qui fructum ex re percipit. And so, no where it is admitted for law, that if there be cestuy doubt, upon subsidies and taxes cestuy 21 H. 7. 6. que use of an advowson, and he be outlawed in a que use should have been valued as an personal action, the king should have owner; so, likewise, if cestuy que use had released the presentment; which case Master his use unto the feoffee for six pounds, or conEwens, in the argument of Chudleigh's tracted with a stranger for the like sum, there was did seek to reconcile thus: where cestuy no doubt but it was a good condition or contract que use, being outlawed, had presented in his whereon to ground an action upon the case for the own name, there the king should remove his in- money: for a release of a suit in the chancery is a cumbent; but no such thing can be collected good quid pro quo; therefore, to conclude, though upon the book: and, therefore, I con- a use be nothing in law to yield remedy by course ceive the error grew upon this, that be- of law, yet it is somewhat in reputation of law cause it was generally thought, that a use was and in conscience; for that may be something in but a pernancy of profits; and then, again, because conscience which is nothing in law, like as that the law is, that, upon outlaw in a personal action, may be something in law which is nothing in the king shall have the pernancy of the profits, conscience; as, if the feoffees had made a feoffthey took that to be one and the selfsame thing ment over in fee, bona fide, upon good consideracestuy que use had, and which the king was en- tion, and, upon a subpœna brought against them, titled unto; which was not so; for the king had had pleaded this matter in chancery, this had remedy in law for his pernancy of the profits, but been nothing in conscience, not as to discharge cestuy que use had none. The books go further, them of damages. and say, that a use is nothing, as in 2 7 H. 7. 11, 12, H. VII. det was brought and counted sur leas for years rendering rent, &c. The defendant pleaded in bar, that the plaintiff nihil habuit tempore dimissionis: the plaintiff made a special replication, and showed that he had a use, and issue joined upon that; wherefore it appeareth, that if he had taken issue upon the defendant's plea, it should have been found against
2 H. 7. 4.
A second negative fit to be understood is, that a use is no covin, nor it is no collusion, as the word is now used; for it is to be noted, that where a man doth remove the estate and possession of lands or goods, out of himself unto another upon trust, it is either a special trust, or a general trust.
The special trust is either lawful or unlawful. The special trust unlawful is, according to the cases provided for by ancient statutes of fermours of the profits; as where it is to defraud creditors, or to get men to maintain suits, or to defeat the tenancy to the præcipe, or the statute of mortmain, or the lords of their wardships, or the like; and those are termed frauds, covins, or collusions.
him. So again in 4 Reginæ, in the case of the Lord Sandys, the truth of the cause was, a fine was levied by cestuy que use before the statute, and this coming in question since the statute upon an averment by the plaintiff quod partes fiinis nihil habuerunt, it is said that the defendant may show the special matter of the use, The special trust lawful is, as when I infeoff and it shall be no departure from the first plead- some of my friends, because I am to go beyond ing of the fine; and it is said farther, that the the seas, or because I would exempt the land form of averment given in 4 H. VII. quod partes from some general statute, or bond, which I am finis nihil habuerunt, nec in possessione, nec in usu, to enter into, or upon intent to be reinfeoffed, or was ousted by this statute of 22 H. VIII. and was intent to be vouched, and so to suffer a common no more now to be accepted; but yet it appears, recovery, or upon intent that the feoffees shall that if issue had been taken upon the general | infeoff over a stranger, and infinite the like intents averment, without the special matter showed, it should have been found for him that took the averment, because a use is nothing. But these books are not to be taken generally or grossly; for we see in the same books, that when a use is specially alleged, the law taketh knowledge of it; but the sense of it is, that a use is nothing for which remedy is given by the course of the comOL. III.-38
and purposes, which fall out in men's dealings and occasions; and this we call confidence, and the books do call them intents; but where the trust is not special, nor transitory, but general and permanent, there it is a use; and therefore these three are to be distinguished, and not confounded; the covin, the confidence, and the use.
Usus est dominium fiduciarium: Use is an
So that usus et status, sive possessio, potius dif-
by the private conscience of the feoffee, or the general conscience of the realm, which is chancery.
The two former of which, because they be matters more thoroughly beaten, and we shall have occasion hereafter to handle them, we will not now dilate upon:
But the third we will speak somewhat of; both because it is a key to open many of the true reasons and learnings of uses, and because it tendeth to decide our great and principal doubts at this day.
Coke, solicitor, entering into his argument of Chudleigh's case, said sharply and fitly: "I will put never a case but it shall be of a use, for a use
in law hath no fellow;" meaning, that the learn-
naturam rei, for that one is in course of law, the
5 E. 4. 7.
more but that the chancellor would consult with the rules of law, where the intention of the par
And they have a good division likewise of ties did not specially appear; and therefore the rights when they say there is
Jus precarium: Jus fiduciarium: Jus legitimum.
1. A right in courtesy, for the which there is no remedy at all.
The parts and
private conceit, which Glanvile, justice, cited in
27 H. 8, 9, 10.
1 Rep. 88.
2. A right in trust, for which there is a remedy, sound; which was, that a use was but a limitabut only in conscience. tion, and did ensue the nature of a possession. 3. A right in law. This very conceit was set on foot in And so much of the nature and definition of 27 H. VIII. in the Lord Darcie's case, in which time they began to heave at uses: for It followeth to consider the parts and thereafter the realm had many ages together put properties of a properties of a use: wherein it appear-in action the passing of uses by will, they began eth by the consent of all books, and to argue that a use was not devisable, but that it was distinctly delivered by Justice Walmsley, it did ensue the nature of the land: and the same in 36 of Elizabeth: That a trust consisteth upon year after this statute was made; so that this three parts. opinion seemeth ever to be a prelude and foreThe first, that the feoffee will suffer runner to an act of Parliament touching uses; The parts. the feoffer to take the profits. and if it be so meant now, I like it well: but in The second, that the feoffee upon request of the mean time the opinion itself is to be rejected; the feoffor, or notice of his will, will execute the and because, in the same case of Corestates to the feoffor, or his heirs, or any other at bet and Corbet, three reverend judges his direction. of the Court of Common Pleas did deliver and publish their opinion, though not directly upon the point adjudged, yet obiter as one of the reasons of their judgment, that a use of inheritance could not be limited to cease; and, again, that the limitation of a new use could not be to a stranger; ruling uses merely according to the ground of possession; it is worth the labour to examine that learning. By 3 H. VII. you may collect, that if the feoffees had been disseised by the common law, and an ancestor collateral of cestuy que use had released unto the disseisor, and his warranty had attached upon cestuy que use, yet the chancellor, upon this matter showed, would have no respect unto it, to compel the feoffees to
The third, that if the feoffee be disseised, and
For the properties of a use, they are
1. Uses, saith he, are created by confidence:
3. Ordered and guided by conscience: either
5 E. 4, 7.
execute the estate unto the disseisor: for there the case being, that cestuy que use in tail having made an assurance by fine and recovery, and by warranty which descended upon his issue, two of the judges held, that the use is not extinct; and Bryan and Hussey, that held the contrary, said, that the common law is altered by the new statute; whereby they admit, that by the common law that warranty will not bind and extinct a right of a use, as it will do a right of possession; and the reason is, because the law of collateral warranty is a hard law, and not to be considered in a court of conscience. In 5 E. IV. it is said, that if cestuy que use be at tainted, query, who shall have the land, for the lord shall not have the land; so as there the use doth not imitate the possession; and the reason is, because the lord hath a tenant in by title; for that is nothing to the supœna, because the feoffor's intent was never to advance the lord, but only his own blood; and therefore the query of the book ariseth, what the trust and confidence of the feoffee did tie him to do, as whether he should not sell the land to the use of the feoffee's will, or in pios usus? So favourably they took the intent in those days, like as you may find in 37 H. VI. that if a man had appointed his use to one for life, the remainder in fee to another, and cestuy que use, for life had reSug. Gilb. 247. fused, because the intent appeared not n. Coup. to advance the heir at all, nor him in reversion, presently the feoffee should make the estate for life of him that refused, some ways to the behoof of the feoffor. But to proceed in some better order towards the disproof of this opinion of imitation, there be four points wherein we will examine the nature of uses.
37 H. 6, 36.
1. The raising of them.
1. In all these four you shall see apparently that uses stand upon their own reasons, utterly differing from cases of possession. I would have one case showed by men learned in the law, where there is a deed; and yet there needs a consideration; as for parole, the law adjudgeth it too light to give a use without consideration; but a deed ever in law imports a consideration, because of the deliberation and ceremony in the confection of it: and, therefore, in 8 Reginæ it is solemnly argued, that a deed should raise a use without any other consideration. In the queen's case a false consideration, if it be of record, will hurt the patent, but want of consideration doth never hurt it; and yet they say that a use is but a nimble and light thing; and now, contrariwise, it seemeth to be weightier than any thing else: for you cannot weigh it up to raise it, neither by deed, nor deed enrolled, without the weight of a consideration; but you shall never find a reason
of this to the world's end, in the law: but it is a reason of chancery, and it is this:
2 Roll. Abr. 786. Plow. 303, 7.403
Dy. 160. 337.
2 Vern. 239.
That no court of conscience will enforce donum gratuitum, though the intent appear never so clearly, where it is not executed, or sufficiently passed by law; but if money had been paid, and so a person damnified, or that it was for the establishment of his house, then it is a good matter in the chancery. So again I would see in all the law, a case where a man shall take by conveyance, be it by deed, livery, or word, that is not party to the grant: I do not say that the delivery must be to him that takes by the deed, for a deed may be delivery to one man to the use of another. Neither do I say that he must be party to the livery or deed, for he in the remainder may take though he be party to neither; but he must be party to the words of the grant; here again the case of the use goeth single, and the reason is, because a conveyance in use is nothing but a publication of the trust; and, therefore, so as the party trusted be declared, it is not material to whom the publication be. So much for the raising of uses. Now as to the preserving of them.
2. There is no case in the common law wherein notice simply and nakedly is material to make a coven, or particeps criminis; and, therefore, if the heir, which is in by descent, infeoff one which had notice of the disseisin, if he were not a disseisor de facto, it is nothing: so in 33 33 H. 6. 5. H. VI. if a feoffment be made upon collusion, and that feoffee make a feoffment over upon good consideration, the collusion is discharged, and it is not material whether the second feoffee had notice or no. So as it is put in 14 H. VIII. if a sale be made in a market overt upon good consideration, although it be to one that hath notice that they are stolen goods, yet the property of a stranger is bound; though in the book before remembered, 35 H. VI. there be some opinion to the contrary, which is clearly no law; so in 31 E. III. if assets descend to the heir, and he alien it upon good consideration, although it be to one that had notice of the debt, or of the warranty, yet it is good enough. So 25 Ass. p. 1, if a man enter of purpose into my lands, to the end that a stranger which hath right, should bring his præcipe and evict the land, I may enter notwithstanding any such recovery: but if he enter, having notice that the stranger hath right, and the stranger likewise having notice of his entry, yet if it were not upon confederacy or collusion between them, it is nothing; and the reason of these cases is, because the common law looketh no farther than to see whether the aet were merely actus fictus in fraudem legis; and, therefore, wheresoever it findeth consideration given, it dis chargeth the coven.
But come now to the case of the use, and there it is otherwise, as it is in 14