and then they would, by their wills, declare how their friends should dispose of their lands; and if those friends would not perform it, the Court of Chancery was to compel them, by reason of the trust; and this trust was called the use of the land, so as the feoffees had the land, and the party himself had the use; which use was in equity, to take the profits for himself, and that the feoffees should make such an estate as he should appoint them; and if he appointed none, then the use should go to the heir, as the estate itself of the land should have done; for the use was to the estate like a shadow following the body. The inconveni By this course of putting lands into ences of putting use, there were many inconveniences | land into use. (as this use which grew first for a reasonable cause), viz. to give men power and liberty to dispose of their own, was turned to deceive many of their just and reasonable rights; as, namely, a man that had cause to sue for his land, knew not against whom to bring his action, nor who was owner of it. The wife was defrauded of her thirds; the husband of being tenant by courtesy; the lord of his wardship, relief, heriot, and escheat; the creditor of his extent for debt; the poor tenant of his lease, for these rights and duties were given by law from him that was owner of the land, and none other, which was now the feoffee of trust, and so the old owner, which we call the feoffor, should take the profits, and leave the power to dispose of the land at his discretion to the feoffee, and yet he was not such a tenant as to be seised of the land, so as his wife could have dower, or the lands be extended for his debts, or that he could forfeit it for felony or treason, or that his heir could be ward for it, or any duty of tenure fall to the lord by his death, or that he could make any leases of it. statutes H. 6. 4 H. 8. 1 R. 3. H. 16. pointed that the action may be tried against him which taketh the profits, which was then cestuy que use by a statute made 1 R. III. Leases and estates made by cestuy que use are made good, and statutes by him acknowledged. 4 H. VII. the heir of cestuy que use is to be in ward. 16 H. VIII. the lord is to have relief upon the death of any cestuy que use. Which frauds nevertheless multiplying daily, 27 II. 8. taking in the end 27 H. VIII. the Parliament, purposing to take away all those uses, lant and reducing the law to the ancient Conveyance of form of conveying of lands by public ment, fine, and livery of seisin, fine, and recovery, did ordain, that where lands were put in trust or use, there the possession and estate should be presently carried out of the friends in trust, and settled and invested on him that had the uses, for such term and time as he had the use. away all uses reduceth the cient form of land by feoff recovery. 32 H. S. giveth of If a man be lands and soc By this statute of 27 H. VIII. the In what manner power of disposing land by will is the stat. of clearly taken away amongst those powerlands frauds; whereupon 32 H. VIII. another by will. statute was made, to give men power to give lands by will in this sort. First, it must be by will in writing. Secondly, he must be seised of an estate in fee-simple; for tenant for another man's life, or term in tail, cannot give land by will, by that statute, 32 H. VIII. he must be solely seised, and not jointly with another; and then being thus seised, for all the land he holdeth in soccage tenure, he may give it by will, except he hold any piece of land in capite, by knight's service of the king; and then, laying all his lacks together, he can give but two parts by will, for the third part of the whole, as well in soccage as in capite, must descend to the heir, to answer wardship, livery, and primer seisin to the crown. And so if he hold lands by knight's service of a subject, he can devise of the land but two parts, and the third the lord by wardship, and the heir by descent, is to hold. seised of capite cage, he cannot parts of the devise but two whole. The third part must descend to vergardship. the heir to an livery, and seisin to the crown. A conveyance pite lands to the by of of fert jointure, or to their good, or to pay debts is And if a man that hath three acres of land holden in capite, by knight's service, do make a jointure to his wife of one, and convey another to any of his for children, or to friends, to take the pro- void for a third fits and to pay his debts, or legacies, or part, by 32 H. 8. daughters' portions, then the third acre, or any part thereof, he cannot give by will, but must suffer it to descend to the heir, and that must satisfy wardship. ance by act exe party of such lands to such uses is not void, but a third part; but if the heir be within age, he shall have one of the Yet a man, having three acres as But a convey. before, may convey all to his wife or cuted in the lifechildren, by conveyance, in his life-time of the time, as by feoffment, fine, recovery, bargain, and sale, or covenant to stand seised to uses, and to disinherit the heir. But if the heir be within age acts to be in when his father dieth, the king or other lord shall have that heir in ward, and shall have one of the three acres during the wardship, and to sue livery and seisin. But at full age the heir shall have no part of it, but it shall go according to the conveyance made by the father. ward. Entailed lands It hath been debated how the thirds shall be set forth. For it is the use that all lands which the father leaveth to descend to the heir, being fee-simple, or in tail, must be part of the thirds; and if it be a full third, then the king, nor heir, nor lord, can intermeddle with the rest; if it be not a full third, yet they must take it so much as it is, and have a supply out of the rest. This supply is to be taken thus; if The manner of it be the king's ward, then by a com- when the part mission out of the court of wards, off thirst whereupon a jury by oath must set making supply a full forth so much as shall make up the thirds, except | carry them to the market or fair, and sell them, the officers of the court of wards can otherwise this sale doth bar me of the property of my goods, agree with the parties. If there be no wardship due to the king, then the other lord is to have this supply by a commission out of the chancery, and jury thereupon. What is a sale bona fide and there is a pri the parties. II. By sale. Property in goods by sale. By sale what not, when any man may convey his own goods to vate reservation another: and although he may fear exeof trust between cution for debts, yet he may sell them outright for money at any time before the execution served, so that there be no reservation of trust between them; paying the money, he shall have the goods again; for that trust, in such case, doth prove plainly a fraud to prevent the creditors from taking the goods in execution. saving that if he be a horse he must be ridden two a Of markets, and what sale ought to be markets such a made in. But if the thief be condemned of the felony, or outlawed for the same, or outlawed in any personal action, have committed a forfeiture of goods to the crown, then the true owner is without remedy. If the thief be felony, or out the stolen goods to the crown, without re condemned for lawed, or forfeit the owner is medy. But if he make fresh pursuit he may take his goods Or if he proseagainst the thief from the thief. cuted the law and convict hima of the same fe have his goods lony, he shall again by a writ Nevertheless, if fresh after the goods were stolen, the true owner maketh pursuit after the thief and goods, and taketh the goods with the thief, he may take them again. And if he make no fresh pursuit, yet if he prosecute of restitution. the felon so far as a justice requireth, that is, to have him arraigned, indicted, and found guilty (though he be not hanged, nor have judgment of death,) or have him outlawed upon the indictment; in all these cases he shall have his goods again, by a writ of restitution to the party in whose hands they are. IV. By waving of goods. By waving of goods a property is gotten thus. A thief having stolen goods being pursued, flieth away and leaveth the goods. This leaving is called waving, and the property is in the king; except the lord of the manor have a right to it by custom or charter. But if the felon be indicted, adjudged, or found guilty, or outlawed at the suit of the owner of these goods, he shall have restitution of these goods as before. ten. V. By straying. By straying property in live cattle is thus gotWhen they come into other men's grounds, straying from the owners, then the party or lord into whose grounds or manors they come causeth them to be seized, and a withe put about their necks, and to be cried in three markets adjoining, showing the marks of the cattle; which done, if the true owner claimeth them not within a year and a day, then the property of them is in the lord of the manor whereunto they did stray, if he have all strays by custom or charter, else to the king. VI. Wreck, and when it shall be said to be. By shipwreck property of goods is thus gotten. When a ship laden is cast away upon the coasts, so that no living creature that was in it when it began to sink escapeth to land with life, then all those goods are said to be wrecked, and they belong to the crown if they be found; except the lord of the soil adjoining can entitle himself unto them by custom, or by the king's charter. VII. Forfeitures. By forfeitures goods and chattels are thus gotten. If the owner be outlawed, if he be indicted of felony or treason, or either confess it, or be found guilty of it, or refuse to be tried by peers or jury, or be attainted by judgment, or fly for felony, although he be not guilty, or suffer the exigent to go forth against him, although he be not outlawed, or that he go over the seas without license, all the goods he had at the judgment he forfeiteth to the crown, except some lord by charter can claim them. For in those cases prescripts will not serve, except it be so ancient, that it hath had allowance before the justices in eyre in their circuits, or in the King's Bench in ancient What probate of the will is, manner it is and in what made. The proving of the will is thus. They are to exhibit the will into the bishop's court, and there they are to bring the witnesses, and there they are to be sworn, and the bishop's officers are to keep the will original, and certify the copy thereof in parchment under the bishop's seal of office, which parchment so sealed, is called the will proved. IX. By letters of administration. By letters of administration property in goods is thus gotten. When a man possessed of goods dieth without any will, there such goods as the executors should have had if he had made a will were by ancient law to come to the bishop of the diocess, to dispose for the good of his soul that died, he first paying his funerals and debts, and giving the rest, ad pios usus. Pii usus. This is now altered by statute laws, so as the bishops are to grant letters of administration of the goods at this day to the wife if she require it, or children, or next of kin; if they refuse it, as often they do, because the debts are greater than the estate will bear, then some creditor, or some other, will take it as the bishop's officers shall think meet. It groweth often in question what bishop shall have the right of proving wills, and granting administration of goods. If there be but one executor made, Executor may yet he may refuse the executorship the bishop, if he coming before the bishop, so that he had the hath not intermeddled with any of the goods. goods before, or with receiving debts, or paying legacies. 1. Judgments. 3. Debts by sealed. 5. Servants' 6. Head work. men. by word. And if there be more executors than Executor ought one, so many as list may refuse; and to pay if any one take it upon him, the rest 2. Stat. recogn. that did once refuse may when they bonds and bills will take it upon them, and no execu- 1. Rent unpaid. tor shall be further charged with debts wake or legacies than the value of the goods Shop book, come to his hands. So that he foresee and contracts that he pay debts upon record, first debts to the king, then upon judgments, statutes, recognizances, then debts by bond and bill sealed, rent unpaid, servants' wages, payment to head workmen, and, lastly, shop-books, and contracts by word. For if an executor, or administrator pay debts to others before to the king, or debts due by bond before those due by record, or debts Otherwise of But it is not so with administrators, administrators, for they have but one authority given them by the bishop over the goods, which authority being given to many, is to be executed by all of them joined together. Executors or administratore may retain; be cause the executors are charged to pay fore legacies. sonie debts be X. Property by legacy. Property by legacy is where a man maketh a will and executors, and giveth legacies, he or they to whom the legacies are given must have the assent of the executors, or one of them, to have his legacy, and the property of that lease, or other goods bequeathed unto him, is said to be in him; but he may not enter nor take his legacy without the assent of the executors, or one of them, because the executors are charged to pay debts before legacies. And if one of them assent to pay legacies, he shall pay the value thereof of his own purse if there be not otherwise sufficient to pay debts. Legacies are to debts by shopbooks, bills unseled, or con But this is to be understood by debts of record to the king, or by bill and be paid before bond sealed, or arrearages of rent, or servants' or workmen's wages; and tracts by werd. And if an executor die making an not debts of shop-books, or bills unsealed, or making his exe- executor, the second executor is exe-contract by word; for before them legacies are cutor to the first testator. Executor dieth cutor, the se cond executor shall be execu tor to the first testator. But otherwise, if the adminis uator die cutor, or if ad. committed of to be paid. le If the executors do want they may But But if an administrator die intestate, And if the executors doubt that they Executor may then his administrator shall not be exe-shall not have enough to pay every pay, which le cutor or administrator to the first. But legacy, they may pay which they list first. making his exe in that case the bishop, whom we call first; but they may not sell any special ll any legacy ministration be the ordinary, is to commit the adminis- legacy which they will to pay debts, to pay debis. his goods. tration of the first testator's goods to or a lease of goods to pay a money-legacy. his wife, or next of kin, as if he had died intes- they may sell any legacy which they will to pay tate. Always provided, that that which the exe- debts, if they have not enough besides. cutor did in his lifetime is to be allowed for good. If a man make a will, and make no And so if an administrator die, and executors, or if the executors refuse, make his executor, the executor of the the ordinary is to commit administraadministration administrator shall not be executor to tion cum testamento annexo, and take the first intestate; but the ordinary must bonds of the administrators to perform new commit the administration of the the will, and he is to do it in such sort as the goods of the first intestate again. executor should have done, if he had been named. In both cases the ordinary shall comunit of the goods of the first intestate. When a will is made, and no named, admi executor nistration is to be committed cum testamento annero. THE ARGUMENTS IN LAW OF SIR FRANCIS BACON, KNIGHT, THE KING'S SOLICITOR-GENERAL, IN CERTAIN GREAT AND DIFFICULT CASES. TO MY LOVING FRIENDS AND FELLOWS, THE READERS, ANCIENTS, UTTER-BARRISTERS, AND STUDENTS OF GRAY'S INN. I Do not hold the law of England in so mean an account, but that which other laws are held worthy of should be due likewise to our laws, as no less worthy for our state. Therefore, when I found that, not only in the ancient times, but now at this day, in France, Italy, and other nations, the speeches, and as they term them, pleadings, which have been made in judicial cases where the cases were mighty and famous, have been set down by those that made them, and published; so that not only Cicero, a Demosthenes, or an Æschines hath set forth his orations, as well in the judicial as deliberative, but a Marion and a Pavier have done the like by their pleadings; I know no reason why the same should not be brought in use by the professors of our law, for their arguments in principal cases. And this I think the more necessary, because the compendious form of reporting resolutions, with the substance of the reasons lately used by Sir Edward Coke, Lord Chief Justice of the King's Bench, doth not delineate or trace out to the young practisers of law a method and form of argument for them to imitate. It is true, I could have wished some abler person had begun; but it is a kind of order sometimes to begin with the meanest. Nevertheless, thus much I may say with modesty, that these arguments which I have set forth, most of them are upon subjects not vulgar; and therewithal, in regard of the commixture which the course of my life hath made of law with other studies, they may have the more variety, and perhaps the more depth of reason: for the reasons of municipal laws, severed from the grounds of nature, manners, and policy, are like wall flowers, which, though they grow high upon the crests of states, yet they have no deep root: besides, in all public services I ever valued my reputation more than my pains; and, therefore, in weighty causes I always used extraordinary diligence; in all which respects I persuade myself the reading of them will not be unprofitable. This work I knew not to whom to dedicate rather than to the Society of GRAY'S INN, the place whence my father was called to the highest place of justice, and where myself have lived and had my procedure so far as, by his majesty's rare, if not singular grace, to be of both his councils; and therefore few men so bound to their societies by obligation, both ancestral and personal, as I am to yours, which I would gladly acknowledge, not only in having your name joined with mine own in a book, but in any other good office and effect which the active part of my life and place may enable me unto toward the society, or any of you in particular. And so I bid you right heartily farewell. Your assured loving Friend and Fellow, FRANCIS BACON. 267 |