was after Coke's report of this and Archer's case, and after many other decisions, and cannot help us much, I think, in settling Bacon's opinion in 42 Eliz. NOTE B. (Page 402.) BACON's application of this principle to the decision of the "great and principal doubts" of his day is not extant. It seems to me clear that he must have expounded it to the maintenance, generally, of springing uses, &c., according to the intention of the settlor, which ought to guide "the private conscience of the feoffee;" and that the "general conscience of the realm" would be called in, partly to "consult with the rules of law, where the intention of parties did not specially appear," (which would exactly hit the final interpretation of Chudleigh's case); and partly perhaps to condemn and avoid attempts in fraud of the policy of the law, as was ultimately done in regard of perpetuities by setting a positive limit within which future uses not limited by way of remainder must rise. I suppose it to have been in aid of this latter function of chancery that he, just below, invokes the aid of parliament. NOTE C. (Page 411.) THIS observation has been thought inconsistent with that in p. 400., that " an use is no covin," the sense of the last-mentioned passage being obscured in the editions by the wrong reading which followed. In Bacon's time and in his view, the point was not, I think, without some practical bearing. It was a question whether uses were to be looked upon as abuses and frauds on the policy of the law, which were only to be tolerated because so inveterate, but to be jealously watched and restrained; or whether they were essentially founded in the necessities of society and therefore sanctioned by "the common law, which is common reason," and were only accidentally ministerial to frauds and covins. Bacon adopts this latter view, and would accordingly give the statute a liberal interpretation. His definition of an use is a general trust of the land, as distinguished from a "confidence or special and temporary trust. But he here infers from history that what led to the habit of putting land into use-i.e. of permanently separating the equitable from the legal ownership was the special unlawful, and not the special lawful, intent, the covin, and not the confidence. And it is indeed obvious that an unlawful purpose could only be carried out by making the lawful ownership apparently general, with a secret understanding about the use to be made of it; whereas a legal purpose might have been always made apparent on the face of the deed of feoffment, and a re-entry provided for on the full performance or the neglect of it. NOTE D. (Page 424.) I UNDERSTAND neither the doctrine Bacon here intends to lay down, nor the arguments by which he supports it; and, so far as I have any apprehension of what may be meant, it seems to be out of place here. As the passage bears upon the interpretation of his views on the controversies of the day, I will state my difficulties at some length. As to the doctrine itself there can be no doubt at all that Bacon did not mean that contingent uses in general are void in their creation since the statute, nor to deny that the statute meddles with them in some sense. Even those who held that, until the time for vesting, a scintilla juris remained in the feoffees on which the statute worked when it became an estate or right of entry, can hardly have denied that this scintilla was the creation of the statute; but Bacon strenuously denies that doctrine, and therefore either he must hold that the statute does its work at the first creation while the use is still contingent (converting it from a contingent use or equity to a contingent estate or title cognisable in the courts of common law); or, if it remain a mere equity until the time for vesting, still the statute must, in his view, have shifted the fiduciary liability, either putting it in gremio legis (as some of the judges have it) or (as I rather believe Bacon would say) making the successive owners of vested estates, while in privity, trustees to preserve the contingent use. But if any such doctrine as this is meant, it should come further on, where indeed it is repeated (pp. 474. 438.) with an intelligible argument from other words of the statute in its support. Here Bacon is professedly dealing not with the description of uses, but with the nature of the possession on which the statute works, as limited by the word "seised."1 As one cannot be seised of a chattel, so chattels are not within the statute; ex. gra., if I grant a lease to A. to the use of B., this remains a trust for B. and is not executed as a legal There is a corresponding passage in the Argument in Chudleigh's case; but it is there more rationally put, from the words "seised to the use &c.," that one cannot be seised to a non-existent use. VOL. VII. G G estate in him. Again, one cannot be seised of a bare right, and therefore these are excluded: ex. gra., if a disseisee bargained and sold the land to a stranger while out of possession, the legal right of entry would not pass from him to the stranger. So far all is clear and consistent. But if a third inference was to be drawn at all sounding like what we have here, it appears to me that it should have been that one cannot hold a contingency to an use, just as he has already laid down that an abeyance cannot be to an use: ex. gra., as he tells us in his Division, that on a feoffment to A. for life with remainder to the right heirs of B., to the use of C. (which is an abeyance), C. will only presently take an estate for the life of A., so would he lay down the same law if the feoffment had been to A. for life with remainder to B. if he shall return from Rome (which would be a contingency). And this might be a fair inference from the fact that B. would not be "seised" in dominico or ut de feodo, and so fulfil the words of the statute, until he returned. But I cannot understand the argument that because of this word "seised" a contingent use cannot be executed out of a seisin in fee-simple. The reason which follows, why "the statute meant not to execute contingent uses" is one which he also alleges in the Argument. Before Popham and others had given their judgment, one can conceive that Bacon was unaware or had forgotten that such a contingent use as the one in that case. a contingent remainder to an unborn child-might have been limited at common law by the feoffee; but the repetition of the opinion here after that judgment, of which Bacon certainly had a full report before him, is puzzling. The only attempt at explanation I can make (and that not satisfactory to my own mind) is that the contingent use seemed to Bacon essentially distinct from the contingent remainder, inasmuch as the ' former allowed the subsequent estates to vest and acted as a shifting use to devest them afterwards when the contingency arose, whereas the latter made all subsequent estates, like itself, to be in abeyance: the feoffee, therefore, before the statute could not create legal estates with incidents similar to those of the contingent uses until the contingency arose. See in the Division, p. 438. NOTE E. (Page 428.) HERE again I think there is a confusion between the estate of the feoffee and the right to the use. If any inference at all is to be drawn from the occurrence of the words "title" and "right" here, it would seem to be that (contrary to Bacon's former position) a right as well as an actual possession may be held to an use. |