whence they extract notes not only of inquisitions, | must add, that during all the time of the demise, he common recoveries, and indentures of bargains and answered 300l. rent, of yearly increase, above all sales, that cannot but be of record, but also of such that profit of 2133l. 2s. 7d. qu. which had been feoffments, exchanges, gifts by will, and indentures yearly and casually made in the sixteen years one of covenants to raise uses of lands holden in chief, with another next before the which, in the term as are first made in the country without matter of of fourteen years, for so long these profits have been record, and come at the length to be found by office demised by three several leases, did bring 4200%. to or inquisition, that is of record; all which are her Majesty's coffers. I say yearly; which may digested into apt books, and are then sent to the seem strange, that a casual and thereby uncertain remembrancer of the lord treasurer in the exchequer, profit should yearly be all one: but indeed such was to the end that he may make and send out processes the wondrous handling thereof, that the profit was upon them, as he doth upon the extracts of the yearly neither more nor less to her Majesty, howfinal concords of such lands, which the clerk of the soever it might casually be more or less to him that fines doth convey unto him. did receive it. For the writs of covenant answered year by year 1152l. 16s. 8d. the licences and pardons 9341. 3s. 11d. qu. and the mean rates 46l. 2s. in all 2133l. 2s. 7d. qu. without increase or diminution. Thus it is plain, that this new order by many degrees excelleth the former usage; as also for the present advancement of her Majesty's commodity, and for the future profit which must ensue by such discovery of tenures as were concealed before, by awaking of such as had taken a long sleep, and by reviving a great many that were more than half dead. The fees or allowances, that are termly given to these deputies, receiver, and clerks, for recompence of these their pains, I do purposely pretermit; because they be not certain but arbitrary, at the good pleasure of those honourable persons that have the dispensation of the same: howbeit hitherto each deputy and the receiver hath received twenty pounds for his travail in each term, only the doctor hath not allowance of any sum in gross, but is altogether paid in petty fees, by the party or suitor; and the clerks are partly rewarded by that mean also, for their entries, discharges, and some other writings, besides that termly fee which they are allowed. Note. But if the deputies take one penny, besides their known allowance, they buy it at the dearest price that may be; I mean the shipwreck of conscience, and with the irrecoverable loss of their honesty and credit; and therefore since it appeareth which way each of these hath his reward, let us also examine that increase of benefit and gain, which is brought to her Majesty by the invention of this office. At the end of Hilary term 1589, being the last open term of the lease of these profits granted to the late earl of Leicester, which also was to expire at the feast of the Annunciation of the blessed Virgin Mary 1590, then shortly to ensue; the officers above remembered thought it, for good causes, their duties to exhibit to the said right honourable the lord treasurer a special declaration of the yearly profits of these finances, paid into the hanaper during every of the six years before the beginning of the demise thereof made to that earl, conferred with the profits thereof that had been yearly taken during the six last years before the determination of the lease. By which it plainly appeared, that in all those first six years, next before the demise, there had been raised only 12798/. 15s. 7d. ob. and in these last six years of the demise the full sum of 32160l. 4s. 10d. qu. and so in all 19362/. 2s. 2d. ob. qu. more in these last, than in those former six years. But because it may be said, that all this increase redounded to the gain of the fermour only, I Moreover, whereas her Majesty did, after the death of the earl, buy of the countess, being his executrix, the remanent of the last term of three years in those profits, whereof there were only then six terms, that is, about one year and a half, to come, paying for it the sum of 3000/. her Majesty did clearly gain by that bargain the full sum of 11731. 15s. 8d. ob. above the said 3000l. above the rent of 36491. 13s. 10d. ob. qu. proportionably due for that time, and above all fees and other reprises. Neither hath the benefit of this increase to her Majesty been contained within the bounds of this small office, but hath swelled over the banks thereof, and displayed itself apparently, as well in the hanaper, by the fees of the great seal, which yielding 20s. 4d. towards her Majesty for every licence and pardon, was estimated to advantage her highness during those fourteen years, the sum of 37217. 6s. ob. qu. more than without that demise she was like to have found. As also in the court of wards and liveries, and in the exchequer itself: where, by reason of the tenures in chief revived through the only labours of these officers, both the sums for respect of homage be increased, and the profits of wardships, primer seisins, ouster le maine, and liveries, cannot but be much advanced. And so her Majesty's self hath, in this particular, gained the full sum of 87361. 5s. 5d. ob. qu. not comprising those profits in the exchequer and court of wards, the very certainty whereof lieth not in the knowledge of these officers, nor accounting any part of that great benefit which the earl and his executrix have made by the demises: which one year with another, during all the thirteen years and a half, I suppose to have been 22637. or thereabouts; and so in all about 271587. above all his costs and expenses. The which albeit I do here report only for the justification of the service in this place; yet who cannot but see withal, how much the royal revenues might be advanced, if but the like good endeavours were showed for her Majesty in the rest of her finances, as have been found in this office for the commodity of this one subject? The views of all which matter being presented to the most wise and princely consideration of her Majesty, she was pleased to demise these profits and fines for other five years, to begin at the feast 596 AN HISTORICAL ACCOUNT OF THE OFFICE OF ALIENATIONS. of the Annunciation 1590, in the thirty-second year | first, that by the diligence of these officers, assisted of her reign, for the yearly rent formerly reserved with such other as can bring good help thereunto, upon the leases of the earl; within the compass of a general and careful collection be made of all the which five years, expired at the Annunciation 1595, tenures in chief: and that the same be digested by there was advanced to her Majesty's benefit, by this way of alphabet into apt volumes, for every part, or service, the whole sum of 130137, 14s. Id. qu. be- shire, of the realm. Then that every office, or inyond the ancient yearly revenues, whien, before any quisition, that findeth any tenure in chief, shall exlease, were usually made of these finances. To press the true quantities of the lands so holden, which if there be added 57001. for the gain given even as in ancient time it was wont to be done by to her Majesty by the yearly receipt of 300%. in way of admeasurement, after the manner of a perrent, from the first demise to the earl, until the time fect extent or survey; whereby all the parts of the of his death, together with the sum of 1173l. 15s. tenancy in chief may be wholly brought to light, 8d. ob. clearly won in those six terms bought of the howsoever in process of time it hath been, or shall countess; then the whole commodity, from the first be torn and dismembered. For prevention, I wish institution of this office, till the end of these last five likewise, first, that some good means were devised years expired at the Annunciation 1595, shall ap- for the restraint of making these inordinate and pear to be 198871. 9s. 9d. ob. qu. To the which covenous leases of lands, holden in chief, for hunsum also if 28550l. 15s. 6d. ob. qu. which the earl dreds or thousands of years, now grown so bold, that and the countess levied hereby, be likewise adjoined, they dare show themselves in fines, levied upon the then the whole profit taken in these nineteen years, open stage of the common pleas; by which one that is, from the first lease to the end of the last, man taketh the full profit, and another beareth the for her Majesty, the earl, and the countess, will empty name of tenancy, to the infinite deceit of her amount unto 48438/. 5s. 4d. This labour hitherto Majesty in this part of her prerogative. Then, that thus luckily succeeding, the deputies in this office no alienation of lands holden in chief should be finding by daily proof, that it was wearisome to the available, touching the freehold or inheritance subject to travel to divers places, and through sun- thereof, but only where it were made by matter of dry hands, for the pursuing of common recoveries, record, to be found in some of her Majesty's treaeither not holden of her Majesty at all, or but partly suries; and lastly, that a continual and watchful holden in chief; and not doubting to improve her eye be had, as well upon these new-founden traMajesty's revenue therein, and that without loss to verses of tenure, which are not now tried per paany, either private person or public officer, if the triam, as the old manner was; as also upon all such same might be managed by them jointly with the pleas whereunto the confession of her Majesty's said rest whereof they had the charge; they found, by attorney-general is expected: so as the tenure of search in the hanaper, that the fruits of those writs the prerogative be not prejudiced, either by the of entry had not, one year with another, in the ten fraud of counsellors at the law, many of which do years next before, exceeded 400/. by the year. | bend their wits to the overthrow thereof; or by the Whereupon they took hold of the occasion then pre- greediness of clerks and attorneys, that, to serve sent, for the renewing of the lease of the former their own gain, do both impair the tenure, and profits; and moved the lord treasurer, and Sir John therewithal grow more heavy to the client, in so Fortescue, under-treasurer and chancellor of the costly pleading for discharge, than the very confesexchequer, to join the same in one and the same sion of the matter itself would prove unto him. I demise, and to yield unto her Majesty 5001. by year may yet hereunto add another thing, very meet not therefor; which is 100. yearly of increase. The only to be prevented with all speed, but also to be which desire being by them recommended to her punished with great severity: I mean that collusion Majesty, it liked her forthwith to include the same, set on foot lately, between some of her Majesty's and all the former demised profits, within one entire tenants in chief, and certain others that have had lease, for seven years, to begin at the said feast of to do in her highness's grants of concealed lands: the Annunciation 1597, under the yearly rent of where, under a feigned concealment of the land it29331. 2s. 7d. qu. Since which time hitherto, I self, nothing else is sought but only to make a mean to the end of Michaelmas term 1598, not only change of the tenure, which is reserved upon the the proportion of the said increased 1007. but almost grant of those concealments, into that tenure in of one other 1007. also, hath been answered to her chief: in which practice there is no less abuse of Majesty's coffers, for those recoveries so drawn into her Majesty's great bounty, than loss and hinderance the demise now continuing. of her royal right. These things thus settled, the tenure in chief should be kept alive and nourished; the which, as it is the very root that doth maintain this silver stem, that by many rich and fruitful branches spreadeth itself into the chancery, exchequer, and court of ward; so, if it be suffered to starve, by want of ablaqueation, and other good husbandry, not only this yearly fruit will much decrease from time to time, but also the whole body and boughs of that precious tree itself will fall into The things that I wish to be provided are these: danger of decay and dying. Thus I have opened both the first plotting, the especial practice, and the consequent profit arising by these officers and now if I should be demanded, whether this increase of profit were likely to stand without fall, or to be yet amended or made more? I would answer, that if some few things were provided, and some others prevented, it is probable enough in mine opinion, that the profit should rather receive accession than decay. And now, to conclude therewith, I cannot see how it may justly be misliked, that her Majesty should, in a reasonable and moderate manner, demand and take this sort of finance: which is not newly out and imposed, but is given and grown up with the first law itself, and which is evermore accompanied with some special benefit to the giver of the same: seeing that lightly no alienation is made, but either upon recompence in money, or land, or for marriage, or other good and profitable consideration that doth move it: yea rather all good subjects and citizens ought not only to yield that gladly of themselves, but also to further it with other men; as knowing that the better this and such like ancient and settled revenues shall be answered and paid, the less need her Majesty shall have to ask subsidies, fifteens, loans, and whatsoever extraordinary helps, that otherwise must of necessity be levied upon them. And for proof that it shall be more profitable to her Majesty, to have every of the same to be managed by men of fidelity, that shall be waged by her own pay, than either to be letten out to the fermours' benefits, or to be left at large to the booty and spoil of ravenous ministers, that have not their reward; let the experiment and success be in this one office, and persuade for all the rest. Laus Deo. THE 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 HON. SOCIETY OF GRAY'S INN. 42 ELIZ. I HAVE chosen to read upon the statute of uses made 27 Hen. VIII. a law, whereupon the inheritances of this realm are tossed at this day, like a ship upon the 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 upon solemn arguments of all the judges assembled in the exchequer-chamber, in the famous cause between Dillon and Freine, concerning an assurance made by Chudleigh, this law began to be reduced to a true and sound exposition, and the false and perverted exposition, which had continued for so many years, though never countenanced by any rule or authority of weight, but only entertained in a popular conceit, and put in practice at adventure, grew to be controlled; since which time, as it cometh to pass always upon the first reforming of inveterate errors, many doubts and perplexed questions have risen, which are not yet resolved, nor the law thereupon settled: the consideration whereof moved me to take the occasion of performing this particular duty to the house, to see if I could, by my travel, bring the exposition thereof to a more general good of the commonwealth. Herein, though I could not be ignorant of the difficulty of the matter, which he that taketh in hand shall soon find; or much less of my own inability, which I had continual sense and feeling of; yet because I had more means of absolution than the younger sort, and more leisure than the greater sort, I did think it not impossible to work some profitable effect; the rather because where an inferior wit is bent and conversant upon one subject, he shall many times with patience and meditation dissolve and undo many of the knots, which a greater wit, distracted with many matters, would rather cut in two than unknit and at least, if my invention or judgment be too barren or too weak; yet, by the benefit of other arts, I did hope to dispose or digest the authorities or opinions which are in cases of uses in such order and method, as they should take light one from another, though they took no light from me. And like to the matter of my reading shall my manner be, for my meaning is to revive and recontinue the ancient form of reading, which you may see in Mr. Frowicke's upon the prerogative, and all other readings of ancient time, being of less ostentation, and more fruit than the manner lately accustomed for the use then was, substantially to expound the statutes by grounds and diversities; as you shall find the readings still to run upon cases of like law and contrary law; whereof the one includes the learning of a ground, the other the learning of a difference and not to stir concise and subtle doubts, or to contrive a multitude of tedious and intricate cases, whereof all, saving one, are buried, and the greater part of that one case, which is taken, is commonly nothing to the matter in hand; but my labour shall be in the ancient course, to open the law upon doubts, and not to open doubts upon this law. EXPOSITIO STATUTI. The exposition of this statute consists, upon the matter without the statute: upon the matter within the statute. Three things are to be considered concerning these statutes, and all other statutes, which are helps and inducements to the right understanding of any statute, and yet are no part of the statute itself. 1. The consideration of the statute at the common law. 2. The consideration of the mischief which the statute intendeth to redress, as also any other mischief, which an exposition of the statute this way or that way may breed. construction of the statute, without offering violence to the letter or sense. 6. The sixth and last discourse shall be of the best course to remedy the same inconveniencies, and to declare the law by act of parliament: which last I think good to reserve, and not to publish. The nature of an use is best discerned by considering what it is not, and then what it is; for it is the nature of all human science and knowledge to proceed most safely, by negatives and exclusives, to what is affirmative and inclusive: First, an use is no right, title, or interest in law; and therefore master attorney, who read upon this statute, said well, that there are but two rights: Jus in re: Jus ad rem. The one is an estate, which is Jus in re; the other a demand, which is Jus ad rem: but an use is neither; so that in 24 H. VIII. it is said that the saving of the statute of 1 R. III. which saveth any right or interest of entails, must be understood of entails of the possession, and not of the part of the use, because an use is no right nor interest. again, you see Littleton's conceit, that an use should amount to a tenancy at will, whereupon a release might well inure, because of privity, is controlled by 4 and 5 H. VII. and divers other books, which say So 3. Certain maxims of the common law, touching that cestuy que use is punishable in an action of exposition of statutes. Having therefore framed six divisions, according to the number of readings upon the statute itself, I have likewise divided the matter without the statute into six introductions or discourses, so that for every day's reading I have made a triple provision. 1. A preface or introduction. 2. A division upon the law itself. 3. A few brief cases, for exercise and argument. The last of which I would have forborne: and, according to the ancient manner, you should have taken some of my points upon my divisions, one, two, or more, as you should have thought good; save that I had this regard, that the younger sort of the bar were not so conversant with matters upon the statutes; and for their ease I have interlaced some matters at the common law, that are more familiar within the books. 1. The first matter I will discourse unto you, is the nature and definition of an use, and its inception and progression before the statute. 2. The second discourse shall be of the second spring of this tree of uses since the statute. 3. The third discourse shall be of the estate of the assurances of this realm at this day upon uses, and what kind of them is convenient and reasonable, and not fit to be touched, as far as the sense of law and natural construction of the statute will give leave; and what kind of them is convenient and meet to be suppressed. 4. The fourth discourse shall be of certain rules and expositions of laws applied to this present purpose. 5. The fifth discourse shall be of the best course to remedy the same inconveniencies now a-foot, by trespass towards the feoffees; only 5 H. V. seemeth to be at some discord with other books, where it is admitted for law, that if there be cestuy que use of an advowson, and he be outlawed in a personal action, the king should have the presentment; which case Master Ewens, in the argument of Chudleigh's case, did seem to reconcile thus; where cestuy que use, being outlawed, had presented in his own name, there the king should remove his incumbent; but no such thing can be collected upon that book: and therefore I conceive the error grew upon this, that because it was generally thought, that an use was but a pernancy of profits; and then again because the law is, that, upon outlawries upon personal actions, the king shall have the pernancy of profits, they took that to be one and the self-same thing which cestuy que use had, and which the king was entitled unto; which was not so; for the king had remedy in law for his pernancy of profits, but cestay que use had none. The books go farther, and say, that an use is nothing, as in 2 H. VII. det was brought and counted sur leas for years rendering rent, &c. The defendant pleaded in bar, that the plaintiff "nihil habuit tempore dimissionis:" the plaintiff made a special replication, and showed that he had an use, and issue joined upon that; wherefore it appeareth, that if he had taken issue upon the defendant's plea, it should have been found against him. So again in 4 Reginæ, in the case of the Lord Sandys, the truth of the case was a fine levied by cestuy que use before the statute, and this coming in question since the statute upon an averment by the plaintiff "quod partes finis nihil habuerunt," it is said that the defendant may show the special matter of the use, and it shall be no de three are to be distinguished, and not confounded; the covin, confidence, and use. So as now we are come by negatives to the affirmative, what an use is, agreeable to the definition in Plowden, 352, Delamer's case, where it is said: An use is a trust reposed by any person in the terre-tenant, that he may suffer him to take the profits, and that he will perform his intent. But it is a shorter speech to say, that Usus est dominium fiduciarum : Use is an owner's lifeship in trust. So that "usus et status, sive possessio, potius differunt secundum rationem fori, quam secundum naturam rei," for that one of them is in court of law, the other in court of conscience; and for a trust, which is the way to an use, it is exceeding well defined by a civilian of great understanding: parture from the first pleading of the fine; and it is and the books do call them intents; but where the said farther that the averment given in 4 H. VII. trust is not special, nor transitory, but general and "quod partes finis nihil habuerunt, nec in posses-permanent, there it is an use; and therefore these sione, nec in usu," was ousted upon this statute of 27 H. VIII. and was no more now to be accepted: but yet it appears, that if issue had been taken upon the general averment, without the special matter showed, it should have been found for him that took the averment, because an use is nothing. But these books are not to be taken generally or grossly; for we see in the same books, when an use is especially alleged, the law taketh knowledge of it; but the sense of it is, that use is nothing for which remedy is given by the course of the common law, so as the law knoweth it, but protects it not; and therefore when the question cometh, whether it hath any being in nature or conscience, the law accepteth of it; and therefore Littleton's case is good law, that he who hath but forty shillings freehold in use, shall be sworn in an inquest, for it is ruled, "secundum dominium naturale," and not "secundum dominium legitimum, nam natura dominus est, quia fructum ex re percipit." And some doubt if upon subsidies and taxes cestuy que use should be valued as an owner: so likewise if cestuy que use had released his use unto the feoffee for six pounds, or contracted with a stranger for the like sum, there is no doubt but it is a good condition or contract whereon to ground an action upon the case: for money for release of a suit in the chancery is a good quid pro quo; therefore to conclude, though an use be nothing in law to yield remedy by course of law, yet it is somewhat in reputation of law and conscience: for that may be somewhat in conscience which is nothing in law, like as that may be something in law which is nothing in conscience; as if the feoffees had made a feoffment over in fee, bona fide, upon good consideration, and upon a subpœna brought against them, they pleaded this matter in chancery, this had been nothing in conscience, not as to discharge them of damages. A second negative fit to be understood is, that a use is no covin, nor is it a collusion, as the word is now used; for it is to be noted, that where a man doth remove the state and possession of land, or goods, out of himself unto another upon trust, it is either a special trust, or a general trust. The special trust is either lawful or unlawful. The special trust unlawful is, according to the case, provided for by ancient statutes of fermours of the profits; as where it is to defraud creditors, or to get men to maintain suits, or to defeat the tenancy of the præcipe, or the statute of mortmain, or the lords of their wardships, or the like; and those are termed frauds, covins, or collusions. The special trust lawful is, as when I infeoff some of my friends, because I am to go beyond the seas, or because I would free the land from some statute, or bond, which I am to enter into, or upon intent to be reinfeoffed, or intent to be vouched, and so to suffer a common recovery, or upon intent that the feoffees shall infeoff over a stranger, and infinite the like intents and purposes, which fall out in men's dealings and occasions; and this we call confidence, Fides est obligatio conscientiæ unius ad intentionem And they have a good division likewise of rights: 1. A right in courtesy, for the which there is no remedy at all. 2. A right in trust, for which there is a remedy, but only in conscience. 3. A right in law. So much of the nature and definition of a use. It followeth to consider the parts and properties of an use wherein by the consent of all books, as it was distinctly delivered by Justice Walmsley in 36 of Elizabeth: That a trust consisteth upon three parts. The first, that the feoffee will suffer the feoffor to take the profits. The second, that the feoffee upon request of the feoffor, or notice of his will, will execute the estates to the feoffor, or his heirs, or any other by his direction. The third, that if the feoffee be disseised, and so the feoffor disturbed, the feoffee will re-enter, or bring an action to re-continue the possession: so that those three, pernancy of profits, execution of estates, and defence of the land, are the three points of trust. The properties of an use are exceeding well set forth by Fenner, justice, in the same case; and they be three: 1. Uses, saith he, are created by confidence: 2. Preserved by privity, which is nothing else but a continuance of the confidence, without interruption: and, |