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NOTE A. (Page 284.)
BACON has nowhere told us what he considered to be the true result of Chudleigh's case; and I confess I have not been able fully to satisfy myself as to his opinion.
The majority of the judges, and Coke, the reporter, certainly maintained the doctrine of the scintilla juris; viz. that in all cases where there were limitations of uses not at the time vested, the ultimate execution of them depended on a certain right or vestige of estate remaining in the original feoffees, and was therefore liable to be suspended by any event which put this right in abeyance, and destroyed by anything which absolutely barred their reentry. This doctrine, it may be observed, would apply equally to shifting and springing uses as to those in the nature of contingent remainders; the question in all cases would be, when the time or contingency arrived, whether the feoffees had then a right to enter, or were barred by their own act or otherwise.
This doctrine Bacon urged in his Argument, but I think there are indications that he doubted its soundness; 1 at all events, he emphatically repudiates it in this Reading as a "conceit.'
Neither does he in the least incline to the opinion of some of the judges (which was also Coke's, pp. 129b. and 132a.), that the decision tended to invalidate all limitations which are contrary to the rules of the common law: for the whole drift of this treatise is to maintain uses, not as "imitations of possession," but as guided by the intention of the settlor; and moreover he puts many cases of shifting uses in his Division.
1 See his observations on the law before the statute, as remarked on below.
But neither is there any indication of his holding the doctrine that has ultimately prevailed, and founds itself, as to one branch, on Chudleigh's case; viz. that where the use limited is one that might take effect as a remainder at common law, it shall have the incidents of a common law remainder, and is liable to fail on the determination of the preceding estate; but that when it is in its creation independent of particular estates and therefore does not resemble a common law remainder, it shall, if not void at the first as a perpetuity, be indefeasible. There is no indication whatever of his having distinguished between these two classes of limitations, and there is one case at least (p. 344.) which absolutely negatives such a supposition. He there states that on a feoffinent to the use of the feoffor's wife for life, remainder to his unborn child, remainder to B. in fee, although the wife die before the birth of this child and B. comes into possession; yet on the subsequent birth of a child by another wife the estate shall devest from B. and come to the child.
I think a comparison of this supposed case with Chudleigh's, viewed in connexion with some passages of Bacon's Argument, may help us to his real opinion.
In the supposed case the first estate determined naturally, and B. was in under the limitations of the settlement: in Chudleigh's case the trustees' estate was forfeited, and the plaintiff was in by wrong and without privity with the settlement. Now Bacon argued that "the statute succeeds in office to the feoffees," and unquestionably this remained his deliberate opinion in opposition to the theory of the scintilla. But he also argued that "the statute did not alter the law as to the raising of uses, but only to draw the possession after them,” and that therefore as "a contingent use could not rise at common law if the possession of the feoffees was estranged, no more can it now." Now, putting these two passages together, the "estrangement of the possession of the feoffees" before the statute seems to answer to the estrangement of privity of estate at the time when the statute should (as expressed in other passages in the Argument, though with the intermixture of language adapted to the doctrine of the scintilla he was there supporting) receive the estate from the existing cestui que use, and deliver it over to the person entitled on the contingency. In short, I incline to think Bacon held that all uses not vested in possession or remainder at their creation stood on the same footing,
and were not affected by any act or omission of the feoffees to uses (whose functions were gone as soon as created), but were all liable to be barred by any acts of those who had the vested estates which operated to destroy or suspend those estates.
In his argument in Stanhope's case "of Revocation of Uses," of which the date is presumptively during his Solicitor-Generalship, and certainly later than 2 Jac., he cites Chudleigh's case (under the name Freine v. Dillon) as an authority for the position that "it is safe so to construe the statute of 27 Hen. VIII., as that uses may be made subject to the rules of the common law," which corresponds well enough with the use now-a-days made of the case ; but this 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 293.)
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 307.)
THIS observation has been thought inconsistent with that in p. 299., 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 325.)
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 bave denied that this scintilla was the creation of the stat
ute; 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. 389. 343.) 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 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.
1 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.