Imágenes de páginas

two; and that of the three subdivisions of the first head, viz. on the actors in the conveyance, the use itself, and the form of the conveyance, the first only is here handled.

Excepting therefore incidentally, or by way of inference from his mode of laying down the general principles of the doctrine of uses, we have here no record of Bacon's opinions (and still less of the arguments on which he would found them,) on the chief of those knotty questions which were occupying the courts in his time, and which were much discussed but by no means settled in Chudleigh's case. I have thought it worth while, in some notes at the end of the treatise, to make a few observations on those passages which indicate the result one may suppose he had arrived at, as well as on the difficulty there is, as it appears to me, in reconciling them all. As regards minor points and details of exposition, I have in general contented myself with indicating by a side reference (usually furnished to my hand by one or other of my predecessors) the cases which Bacon had, or ought to have had, before him when he wrote; leaving the reader to inquire for himself, if he so incline, whether the text expounds the law soundly or not.








I HAVE chosen to read upon the Statute of Uses, made 27 H. VIII. ch. 10., a law whereupon the inheritances of this realm are tossed at this day, as upon a sea, in such sort that it is hard to say which bark will sink, and which will get to the haven: that is to say, what assurances will stand good, and what will not. Neither is this any lack or default in the pilots, the grave and learned judges; but the tides and currents of received errors 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 arguments of all the judges assembled in the Exchequer Chamber, in the famous case between Dillon and Freine, concerning an assurance made by Chudleigh, this law began to be reduced to a true and sound exposition; and the false and perverted exposition which had continued for so many years (but, howsoever, never countenanced by any rule or authority of weight, but only entertained in a popular conceit and put in practice at adventure) grew to be controlled. Since which time, as it cometh to pass always

1 See Note A. at the end.


case, 1 Rep.

121. Poph. 71.

1 And. 314.

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 performing this particular duty to the house, to see if I could spend my travel to a more general good of the commonwealth herein. Wherein, 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 observation' 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 those knots which a greater wit, distracted with many matters, would rather cut in two than unknit. 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 reading, 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 the law.

The exposition of this statute consists upon matter without the statute, and matter within the statute.

So Harl. MS. 6688. The common reading is "absolution."

There be three things concerning this statute, and all other statutes, which are helps and inducements to the right understanding of any statute, and yet are no part of the statute itself:

1. The consideration of the case at the common law.

2. The consideration of the mischief which the statute intendeth to redress; as also any other mischief, which an exposition of the statute this way or that way may breed. 3. Certain maxims of the common law, touching exposition of statutes.

Having therefore framed six divisions, according to the number of readings, upon the statute 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 forborn, and, according to the ancient manner, you should have taken some of my points upon my divisions, one, two, or more, as you had 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 their ease 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 an use, and its inception and progression before the statute.

2. The second discourse shall be of the second spring of this tree of uses since the statute, after1 it was lopped and ordered by the statute.

3. The third discourse shall be of the estate of the assurances of the realm at this day upon uses, and what kind of them is convenient and reasonable and not fit to be shaken or 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 of expositions of laws applied to the present purpose.

5. The fifth discourse shall be of the best course to remedy

'Omitted in the editions and MS. 1858.

« AnteriorContinuar »