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 1 H. 6. 4 H. 8. 1 R. 3. H. 7. 16 H.8. 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 H. 8. taking in the end 27 H. VIII. the Parliament, away all uses redoceth the cient form of land by feoff Burnt, fine, and recovery. purposing to take away all those uses, and reducing the law to the ancient of form of conveying of lands by public 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. the stat of power to dis will. 32 H. 8. giveth pose of lands by 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 clearly taken away amongst those frauds; whereupon 32 H. VIII. another 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 wer guardship, the heir to an livery, sin to the crown. A conveyance pite lands to the jointure, or to be of the wife for her his children for vold for a third part, by 32 H. 8. 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 children, or to friends, to take the profits and to pay his debts, or legacies, or 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. by exe. party of such lands to such uses is not void, but a third heir be within part; but if the 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 autentif children, 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 acres to be in when his father dieth, the king or other ward. 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. Entailed lands part of the thirds. The king nor if an infull third part end to the be left to de heir. 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 it be the king's ward, then by a commission out of the court of wards, whereupon a jury by oath must set The statutes the testator to himself, and if 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 saving that if he be a horse he must be ridden two due to the king, then the other lord is to have this hours in the market or fair, between ten and five supply by a commission out of the chancery, and o'clock, and tolled for in the toll book, and the jury thereupon. seller must bring one to avouch his sale, known to the toll book keeper, or else the sale bindeth me not. And for any other goods, where the sale in a market or fair shall bar the owner, being not the seller of his property, it must be sale in a market or fair where usually things of that nature are sold. As for example: if a man steal a horse, and sell him in Smithfield, the true owner is barred by this sale; but if he sell the horse in Cheapside, Newgate, or Westminster Market, the true owner is not barred by this sale, because these markets are usual for flesh, fish, &c., and not for horses. But in all those cases the statutes do give power to give power to him that maketh the will set out the third to set forth, and appoint of himself, it be not a third which lands shall go for thirds, and neither king nor lord can refuse it. And if it be not enough, yet they must out of the rent. take that in part, and only have a supply in manner as before is mentioned out of the part, yet the king or lord must take that in part, and have a supply rest. Property in goods. Of the several ways whereby a man may] get property in goods] or chattels. A deed of gift ceive his creditors is void against them, but good against the exe 1. By gift. I. Property by gift. By gift the property of goods may of good to be passed by word or writing; but if there be a general deed of gift made of all his goods, this is suspicious to be cutors, adminis done upon fraud, to deceive the creder of the party ditors. himself. or ven And if a man who is in debt make a deed of gift of all his goods to protract the taking of them in execution for his debt, this deed of gift is void, as against those to whom he stood indebted; but as against himself, his own executors or administrators, or any man to whom afterwards he shall sell or convey them, it is good. Of markets, and what markets such a sale ought to be made in. But if the thief be condemned of the If the thief be felony, or outlawed for the same, or outlawed in any personal action, have committed a forfeiture of goods the crown, then the true owner is without remedy. or to the stolen goods to the crown, without re the owner is medy. But if be make fresh pursuit he may from the thief. Or cuted the law fake his goods if he prose against the thief of the same fe have his goods of restitution. convict him 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 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. V. By straying. By straying property in live cattle is thus gotten. When 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 got ten. 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 and in what made. The proving of the will is thus. They are to exhibit the will into the bishop's of the will is, court, and there they are to bring the manner it is 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 urus. 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 added the hath not intermeddled with any of the goods. goods before, or with receiving debts, or paying legacies. Executor ought 1. Judgments. to pay. 2. Stat. recogn 3. Debts by bonds and bills 4. Rent unpaid. 5. Servants' 6. Head work. men. Shop book, and contracts by word. And if there be more executors than one, so many as list may refuse; and if any one take it upon him, the rest that did once refuse may when they will take it upon them, and no executor shall be further charged with debts or legacies than the value of the goods come to his hands. So that he foresee 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 Z by shop-books and contracts before those by bond, arrearages of rent, and servants', or workmen's wages, he shall pay the same over again to those others in the said degrees. Debts due in But yet the law giveth them choice, equal degree of that where divers have debts due in record, the exe cutor may pay equal degree of record or specialty, he which of them he please before may pay which of them he will, before suit commenced. Any one executor may do as X. Property by legacy. administrators may retain; bo cause the exe cutors are some debts be Property by legacy is where a man Executors or any suit brought against him; but if maketh a will and executors, and giveth suit be brought he must pay them that get judg-legacies, he or they to whom the legament against him. cies are given must have the assent of charged to pay the executors, or one of them, to have fore legacies 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. re leased, and as Any one executor may convey the och allt goods, or release debts without his comgether, but if a panion, and any one by himself may do sets wanting, he as much as all together; but one man's sha!! only be releasing of debts or selling of goods, shall not charge the other to pay so much of the goods, if there be not enough to pay debts; but it shall charge the party himself that did so release or convey. discharged. 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. Executor dieth And if an executor die making an making his exe- executor, the second executor is executor to the first testator. cutor, the se cond executor shall be execu. tor to the first testator. But otherwise, if the adminis trator die cutor, or if ad committed of his goods. But if an administrator die intestate, then his administrator shall not be executor or administrator to the first. But making his exe in that case the bishop, whom we call ministration be the ordinary, is to commit the administration of the first testator's goods to his wife, or next of kin, as if he had died intestate. Always provided, that that which the executor did in his lifetime is to be allowed for good. And so if an administrator die, and make his executor, the executor of the administration administrator shall not be executor to the first intestate; but the ordinary must new commit the administration of the goods of the first intestate again. In both cases the ordinary shall commit of the of the first intestate. 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 |