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THIS was Bacon's Double Reading in Gray's Inn, in the Lent vacation, A. D. 1600. Coke had read to crowded audiences in the Inner Temple on the same subject in 1592,2 and Bacon had argued for the defendants in the great Chudleigh case in 1594; so that we can readily imagine motives for this choice of subject. We have, however, no indication of his having taken any care of his work after the delivery.3
It was first published very incorrectly and evidently from a bad MS., in 1642. Better MSS. have been used and more pains taken by subsequent editors. I have used the common editions and three MSS. in the Harleian collection, Nos. 1858, 6688, and 829, (whereof the second ends abruptly in the middle, and the latter only embraces the last part or "division,") taking indiscriminately what appeared to me the best reading from each. Any merely conjectural emendations of my own I have always noticed as such, as also those
1 One of the Ancients that had formerly read reads in Lent vacation, and is called Double Reader. Preface to 3 Rep. From several entries in the books of Gray's Inn, to which I have had access by the kindness of the treasurer, Mr. Broderip, it seems there was some difficulty in getting the office well filled. In 36 Eliz. the Judges made an order giving them audience next after serjeants.
2 Article Coke in Penny Cyclopædia. 8 But see infra, p. 293. note 3.
various readings which make a serious difference in meaning, but not generally those which are mere matters of style, or which make a clear sense where the common reading was obviously corrupt.
Mr. Rowe, in his elaborately annotated edition of 1804, has divided the treatise into three discourses, corresponding to the portions to which I have affixed separate headings. He has not, however, taken any notice of the plan of the work as indicated by Bacon himself, nor at all adequately pointed out how much is missing of what that plan embraced.
The reading was to extend over six days,1 and on each day there was to be provided an introductory discourse on matter without the statute, a division on the statute, and a few cases for exercise and argument.
The subjects of the six introductions are set forth, and it is very clear that the first part of our treatise exactly corresponds with the first day's matter. The only deficiency I can conjecture is in the recapitulation at the close, which stops short with the "nature and definition of an use," and omits "its inception and progress," which are fully discoursed upon in the body of the lecture.
But it seems equally clear that we have no fragment of any of the other five intended introductions. The remainder of our treatise is entirely on "the law itself;" and besides, the subject of the second day's introduction was to be "the second spring of this tree of uses since the statute," which naturally required the exposition of the statute itself to have gone before.
Bacon not having laid out his six days' divisions as
1 In the books of Gray's Inn is copied an order of the Judges that each double reader should give at least nine readings.
he has his introductions, we can only infer or conjecture the proportion in length of what we have of them to what is missing. Although, guided by MS. authority and the indications of the text, I have separated the general view of the statute from the detailed exposition of the law which follows, yet I incline to think that we have but the first day's work altogether; though it must be admitted that to master the whole of the existing treatise in one day was a hard task for students even in that much listening generation. My reason is, that in page 323., in the opening of the statute, he promises to handle, "in the next day's discourse," the question whether uses shall be executed out of the possession of a disseisor, or other possessions out of privity; and in page 342., in the division on the actors to the conveyance, he refers the subject of the occupant, the disseisor, the lord by escheat, and the feoffee upon consideration without notice, (which seems to be the same question as before, only set out in more detail,) to a division still to come.
What is more material to observe is, that of the three heads on which he was to lecture, viz. the raising, the interruption, and the executing of uses, we have nothing at all of the last 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.
LEARNED READING OF MR. FRANCIS BACON,
ONE OF HER MAJESTY'S COUNSEL AT LAW,
UPON THE STATUTE OF USES:
BEING HIS DOUBLE READING TO THE HONOURABLE SOCIETY OF GRAY'S INN. 42 ELIZ.
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