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, The second form of instructions go farther, for 4, that is, where the usage runs but amongst they have the towns, and exempted places within clerks, and where it is in the eye and notice of the the counties named, with tanquam as well within judge; for there it shall be presumed, saith the the city of Glocester, the liberties of the duchy of book, that if the law were otherwise than the usage Lancaster, &c., as within any of the counties of hath gone, that either the council or the parties any of their commissions; which clearly admits would have excepted to it, or the judges ex officio the counties to be in before. And of this form are would have discerned of it, and found it; and we the instructions 1 Mariæ, and so long until 11 Eliz. have ready for you a calendar of judges more than And the third form, which hath been continued sit at this table, that have exercised jurisdiction ever since, hath the shires comprehended by over the shires in that county. name. Now, it is not to be thought, but the inAs for exception, touching the want of certain structions which are wanting, are according to instructions, I could wish we had them; but the one of these three forms which are extant. Take want of them, in my understanding, obscureth the even your choice, for any of them will serve to case little. For, let me observe unto you, that we prove that the practice there was ever authorized have three forms of instructions concerning these by the instructions here. And so upon the whole shires extant; the first names them not expressly, matter, I pray report to be made to his majesty, but by reference it doth, namely, that they shall that the president and the council hath jurisdichear and determine, &c. within any of the places tion, according to his instructions, over the four or counties within any of their commissions; and shires, by the true construction of the statute of we have one of the commissions, wherein they | 34 H. VIII. THE LEARNED READING OF MR. FRANCIS BACON, ONE OF HER MAJESTY'S COUNSEL AT LAW, UPOX THE STATUTE OF USES. BEING HIS DOUBLE READING TO THE HONOURABLE SOCIETY OF GRAY'S INN. 42 ELIZ. 600 The introduo tion. Chudleigh's case, I Rep I Have chosen to read upon the Sta- ments o all the judges assembled in the Exche tute 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 resuch sort, that it is hard to say which bark will duced to a true and sound exposition, 121.020 II. sink, and which will get to the haven ; that is to and the false and perverted exposi- 1 Aud. 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 experi- grew to be controlled; since which time (as it ence have been so strong, as they were not able to cometh to pass always upon the first reforming of keep a right course according to the law, so as this inveterate errors) many doubts and perplexed statute is in great part as a law made in the Par- questions have risen, which are not yet resolved, liament, held 35 Reginæ; for, in 37 Reginæ, by nor the law thereupon settled: the consideration the notable judgment given upon solemnn argu- whereof moved me to take the occasion of persurning this particular duty to the House, to see! Having therefore framed six divisions, accordif I could, by my travel, bring the exposition ing to the number of readings upon the statute thereof to a more general good of the common- itself, I have likewise divided the matter without wealth. the statute into six introductions or discourses, so Herein, though I could not be ignorant either that for every day's reading I have made a triple of the difficulty of the matter, which he that provision. taketh in hand shall soon find, or much less of my 1. A preface or introduction. own unableness, which I had continual sense and 2. A division upon the law itself. feeling of; yet, because I had more means of 3. A few brief cases for exercise and arguabsolution than the younger sort, and more leisure ment. than the greater sort, I did think it not impossible The last of which I would have forborne; and, to work some profitable effect; the rather because according to the ancient manner, you should where an inferior wit is bent and constant upon have taken some of my points upon my divisions, one subject, he shall many times, with patience one, two, or more, as you should have thought and meditation, dissolve and undo many of the good; save that I had this regard, that the knots, which a greater wit, distracted with many younger sort of the bar were not so conversant in · inatters, would rather cut in two than unknit: matters upon the statutes; and for that cause I and, at the least, if my invention or judgment be have interlaced some matters at the common law, too barren or too weak, yet, by the benefit of that are more familiar within the books. other arts, I did hope to dispose or digest the 1. The first matter I will discourse unto you authorities and opinions which are in cases of is the nature and definition of a use, and its incepuses in such order and method, as they should tion and progression before the statute. take light one from another, though they took no 2. The second discourse shall be of the second light from me. And like to the matter of my spring of this tree of uses since the statute. reading shall my manner be, for my meaning is 3. The third discourse shall be of the estate of the 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 and what kind of them is convenient and reasonthe prerogative, and all other readings of ancient able, and not fit to be touched, as far as the sense time, being of less ostentation, and more fruit of law and a natural construction of the statute than the manner lately accustomed : for the use will give leave; and what kind of them is inconthen was, substantially to expound the statutes venient and meet to be suppressed. by grounds and diversities; as you shall find the 4. The fourth discourse shall be of certain readings still to run upon cases of like law and rules and expositions of laws applied to this precontrary law; whereof the one includes the learn- sent purpose. ing of a ground, the other the learning of a differ- 5. The fifth discourse shall be of the best ence; and not to stir conceits and subtle doubts, course to remedy the same inconveniences 'now or to contrive a multitude of tedious and intricate afoot, by construction of the statute, without cases, whereof all, saving one, are buried, and the offering either violence to the letter or sense. greater part of that one case which is taken, is 6. The sixth and last discourse shall be of the commonly nothing to the matter in hand; but my course to remedy the same inconveniences, and labour shall be in the ancient course, to open the to declare the law by act of Parliament; which law upon doubts, and not to open doubts upon last I think good to reserve, and not to publish. the law. 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 The exposition of this statute con- all human science and knowledge to proceed sists upon matter without the statute, most safely, by negative and exclusion, to what and matter within the statute. is affirmative and inclusive. this statute, and all other statutes, terest in law; and, therefore, Master what it is not which are helps and inducements to the right Attorney Coke, who read upon this Chudleigh's understanding of any statute, and yet are no part statute, said well, that there are but of the statute itself. two rights. 1. The consideration of the case at the com Jus in re: Jus ad rem. mon law. 2. The consideration of the mischief which the The one is an estate, which is Jus in re: the statute intendeth to redress, as also any other other a demand, which is Jus ad rem: but a use mischief, which an exposition of the statute this is neither: so that in 24 H. VIII. it is way or that way may breed. said that the saving of the statute of to uses, pl. 40. 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 a of the naturen statute. The order of it. 3 Rep. 7. Hey. don's case. First, negatively 1 Rep. 121 Bro. Feofl'm. Co. Lit. 272 6 H. 7. 5. 15 H. 7. 2. 6 H. 5. 3. 21 H. 7. 6. Br. Forfeiture, a Dyer 12. 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 her. Ch. I. 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 domi at 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 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 con Ewens, in the argument of Chudleigh's tracted with a stranger for the like sum, there was case, 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 subpæna 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 A second negative fit to be understood is, that 7 H1. 7. 11, 12. H. VII. det was brought and counted a use is no covin, nor it is no collusion, as the sur leas for years rendering rent, &c. The de- word is now used; for it is to be noted, that fendant pleaded in bar, that the plaintiff nihil where a man doth remove the estate and posseshabuit tempore dimissionis: the plaintiff made a sion of lands or goods, out of himself unto another special replication, and showed that he had a se, upon trust, it is either a special trust, or a general and issue joined upon that; wherefore it appear- trust. eth, that if he had taken issue upon the defend- The special trust is either lawful or unlawful. ant's plea, it should have been found against The special trust unlawful is, according to the him. So again in 4 Reginæ, in the cases provided for by ancient statutes of fermours case of the Lord Sandys, the truth of of the profits; as where it is to defraud creditors, the cause was, a fine was levied by cestuy que or to get men to maintain suits, or to defeat the use before the statute, and this coming in question tenancy to the præcipe, or the statute of mortmain, since the statute upon an averment by the plaintiff or the lords of their wardships, or the like; and quod partes fiinis nihil habuerunt, it is said that the those are termed frauds, covins, or collusions. 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, ncc 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 and purposes, which fall out in men's dealings should have been found for him that took the and occasions; and this we call confidence, and averment, because a use is nothing. But these the books do call them intents; but where the books are not to be taken generally or grossly; trust is not special, nor transitory, but general for we see in the same books, that when a use is and permanent, there it is a use; and therefore specially alleged, the law taketh knowledge of these three are to be distinguished, and not it; but the sense of it is, that a use is nothing for confounded; the covin, the confidence, anul which remedy is given by the course of the com- I the use. VOL. 111.-38 2 H. 7. 4. Dyer 215. 6. Secondly, af- case, Plow. a 1 6 E. 4. 7. 1 Rep. 88. So as now we are come by negatives to the by the private conscience of the feoffee, or the affirmative, what a use is, agreeable to general conscience of the realm, which is Barnard and Delamer's case, where it The two former of which, because they be matters more thoroughly beaten, and we shall have by the terre-tenant, that he may suffer now dilate upon: because it is a key to open many of the true that reasons and learnings of uses, and because it tendeth to decide our great and principal doubts Usus est dominium fiduciarium: Use is an at this day. (ohil) owner's life in trust. Coke, solicitor, entering into his argument of eeritori: So that usus et status, sive possessio, potius dif- Chudleigh's case, said sharply and filly : " I will 1. Xl, Eh 2. ferunt secundum rationem fori , quam secundum put never a case but it shall be of a use, for a use in law hath no sellow;” meaning, that the learn- ing of uses is not to be matched with other learn- ings. And Anderson, chief justice, in the argu- control the vulgar opinion collected upon 5 E. IV. that there might be pos- more but that the chancellor would consult with the rules of law, where the intention of the parAnd they have a good division likewise of ties did not specially appear; and therefore the rights when they say there is private conceit, which Glanvile, justice, cited in and Corbet, in the Common Pleas, of seemed well to allow of the opinion, is not tion, and did ensue the nature of a possession. This very conceit was set on foot in in which time they began to heave at uses: for 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 fore- and if it be so meant now, I like it well: but in of the Court of Common Pleas did deliver and ruling uses merely according to the ground of For the properties of a use, they are possession; it is worth the labour to examine exceedingly well set forth by Fenner, that learning. By 3 H. VII. you may collect, justice, in the same case; and they be three: that if the feoffees had been disseised by the 1. Uses, saith he, are created by confidence: common law, and an ancestor collateral of cestuy 2. Preserved by privity, which is nothing else que use had released unto the disseisor, and his but a continuance of the confidence, without in- warranty had attached upon cestuy que use, yet terruption: and, the chancellor, upon this matter showed, would 3. Ordered and guided by conscience: either I have no respect unto it, to compel the feoffees to a 27 H. 8, 9, 10. a use. The parts and The parts. 1 Rep. 88. The properties. Dy160.337. 2 . 239. a 5 E. 4, 7. a 37 H. 6, 36, execute the estate unto the disseisor: for there of this to the world's end, in the law : but it is a the case being, that cestuy que use in tail having reason of chancery, and it is this : made an assurance by fine and recovery, and by That no court of conscience will en- 2 Roll. Abr. warranty which descended upon his issue, two force donum gratuitum, though the in- 795. 180. 303. of the judges held, that the use is not extinct; tent appear never so clearly, where it z and Bryan and Hussey, that held the contrary, is not executed, or sufficiently passed said, that the common law is altered by the new by law; but if money had been paid, and so a statute; whereby they admit, that by the common person damnified, or that it was for the establishlaw that warranty will not bind and extinct a ment of his house, then it is a good matter in the right of a use, as it will do a right of possession; chancery. So again I would see in all the law, and the reason is, because the law of collateral a case where a man shall take by conveyance, be warranty is a hard law, and not to be considered it by deed, livery, or word, that is not party to the in a court of conscience. In 5 E. IV. grant: I do not say that the delivery must be to it is said, that if cestuy que use be at- him that takes by the deed, for a deed may be tainted, query, who shall have the land, for the delivery to one man to the use of another. Neilord shall not have the land; so as there the use ther do I say that he must be party to the livery doth not imitate the possession; and the reason or deed, for he in the remainder may take though is, because the lord hath a tenant in by title; for he be party to neither; hut he must be party to that is nothing to the supænt, because the fe- the words of the grant; here again the case of the offor's intent was never to advance the lord, but use goeth single, and the reason is, because a only his own blood; and therefore the query of conveyance in use is nothing but a publication of the book ariseth, what the trust and confidence the trust; and, therefore, so as the party trusted of the feoffee did tie him to do, as whether he be declared, it is not material to whom the publishould not sell the land to the use of the feoffee's cation be. So much for the raising of uses. will, or in pios usus ? So favourably they took Now as to the preserving of them. the intent in those days, like as you may find in 2. There is no case in the common law wherein 37 H. VI. that if a man had appointed notice simply and nakedly is material to make a his use to one for life, the remainder in coven, or particeps criminis ; and, therefore, if fee to another, and cestuy que use, for life had re- the heir, which is in by descent, infeoff one which Sug. Gilb. 247. fused, because the intent appeared not had notice of the disseisin, if he were not a dis to advance the heir at all, nor him in seisor de facto, it is nothing: so in 33 reversion, presently the feoffee should make the H. VI. if a feoffment be made upon estate for life of him that refused, some ways to collusion, and that feoffee make a feoffment over the behoof of the feoffor. But to proceed in upon good consideration, the collusion is dis. some better order towards the disproof of this charged, and it is not material whether the second opinion of imitation, there be four points wherein feoffee had notice or no. So as it is put in 14 H. we will examine the nature of uses. VIII. if a sale be made in a market overt upon 1. The raising of them. good consideration, although it be to one that hath 2. The preserving of them. notice that they are stolen goods, yet the property 3. The transferring of them. of a stranger is bound; though in the book before 4. The extinguishing of them. remembered, 35 H. VI. there be some opinion to 1. In all these four you shall see apparently the contrary, which is clearly no law; so in 31 that uses stand upon their own reasons, utterly E. III. if assets descend to the heir, and he alien differing from cases of possession. I would have it upon good consideration, although it be to one one case showed by men learned in the law, that had notice of the debt, or of the warranty, yet where there is a deed ; and yet there needs a it is good enough. So 25 Ass. p. 1, if a man consideration; as for parole, the law adjudgeth it enter of purpose into my lands, to the end that a too light to give a use without consideration; stranger which hath right, should bring his but a deed ever in law imports a consideration, præcipe and evict the land, I may enter notwith I because of the deliberation and ceremony in the standing any such recovery : but if he enter, confection of it: and, therefore, in 8 Reginæ it is having notice that the stranger hath right, and the solemnly argued, that a deed should raise a use stranger likewise having notice of his entry, yet without any other consideration. In the queen's if it were not upon confederacy or collusion becase a false consideration, if it be of record, will tween them, it is nothing; and the reason of these hurt the patent, but want of consideration doth cases is, because the common law looketh no never hurt it; and yet they say that a use is but a farther than to see whether the aet were merely nimble and light thing; and now, contrariwise, actus fictus in fraudem legis ; and, therefore, it seemeth to be weightier than any thing else : wheresoever it findeth consideration given, it dis for you cannot weigh it up to raise it, neither by chargeth the coven. deed, nor deed enrolled, without the weight of a! But come now to the case of the use, Dy. 12 consideration; but you shall never find a reason and there it is otherwise, as it is in 14 D. Coup. 33 H. 6. 5. a |
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