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 to take the occasion of performing this particular made 27 Hen. VIII. a law, whereupon the inherit-duty to the house, to see if I could, by my travel, ances of this realm are tossed at this day, like a bring the exposition thereof to a more general good ship upon the sea, in such sort, that it is hard to say of the commonwealth. 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 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 cestuy 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 66 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 subpoena 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 alterius. And they have a good division likewise of rights: Jus precarium: Jus fiduciarium: Jus legitimum. 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 di rection. 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, 3. Ordered and guided by conscience either by the private conscience of the feoffee; or the general conscience of the realm, which is chancery. The two former of which, because they be matters more thoroughly beaten, and we shall have occasion hereafter to handle them, we will not now dilate upon : But the third, we will speak somewhat of; both because it is a key to open many of the true reasons, and learnings of uses, and because it tendeth to decide our great and principal doubts at this day. Coke, solicitor, entering into his argument of Chudleigh's case, said sharply and fitly: "I will put never a case but it shall be of an use, for an use in law hath no fellow;" meaning, that the learning of uses is not to be matched with other learnings. Anderson, chief justice, in the argument of the same case, did truly and profoundly control the vulgar opinion collected upon 5 E. IV. that there might be possessio fratris of an use; for he said, that it was no more but that the chancellor would consult with the rules of law, where the intention of the parties did not specially appear; and therefore the private conceit, which Glanville, justice, cited in the 42 Reginæ, in the case of Corbet, in the common pleas, of one of Lincoln's Inn, whom he named not, but seemed to allow, is not sound; which was, that an use was but a limitation, and did ensue the nature of a possession. This very conceit was set on foot in 27 H. VIII. in the Lord Darcie's case, in which time they began to heave at uses: for thereafter the realm had many ages together put in ure the passage of uses by will, they began to argue that an use was not deviseable, but that it did ensue the nature of the land; and the same year after, this statute was made; so that this opinion seemeth ever to be a prelude and forerunner to an act of parliament touching uses; and if it be so meant now, I like it well but in the mean time the opinion itself is to be rejected; and because, in the same case of Corbet, three reverend judges of the court of common pleas did deliver and publish their opinion, though not directly upon the point adjudged, yet obiter as one of the reasons of their judgment, that an use of inheritance could not be limited to cease; and again, that the limitation of a new use could not be to a stranger; ruling uses merely according to the ground of possession; it is worth the labour to examine that learning. By 3 Hen. VII. you may collect, that if the feoffees had been disseised by the common law, and an ancestor collateral of cestuy que use had released unto the disseisor, and his warranty had attached upon cestuy que use; yet the chancellor, upon this matter showed, would have no respect unto it, to compel the feoffees to execute the estate unto the disseisor: for there the case being, that cestuy que use in tail having made an assurance by fine and recovery, and by warranty which descended upon his issue, two of the judges held, that the use is not extinct; and Bryan and Hussey, that held the contrary, said, that the common law is altered by the new statute; whereby they admit, that by the common law that warranty will not bind and extinct a right of an use, as it will do a right of possession; and the reason is, because the law of collateral warranty is a hard law, and not to be considered in a court of conscience. In 5 Edw. IV. it is said, that if cestuy que use be attainted, query, who shall have the land, for the lord shall not have the land; so as there the use doth not limitate the possession; and the reason is, because the lord hath a rent by title; for that is nothing to 2. The preserving of them. 1. In all these four, you shall see apparently that uses stand upon their own reasons, utterly differing from cases of possession. I would have one case showed by men learned in the law, where there is a deed; and yet there needs a consideration; as for parole, the law adjudgeth it too light to give action without consideration; but a deed ever in law imports a consideration, because of the deliberation and ceremony in the confection of it: and therefore in 8 Reginæ it is solemnly argued, that a deed should raise an use without any other consideration. In the queen's case, a false consideration, if it be of record, will hurt the patent, but want of consideration doth never hurt it; and yet they say that an use is but a nimble and light thing; and now, contrariwise, it seemeth to be weightier than any thing else: for you cannot weigh it up to raise it, neither by deed, nor deed inrolled, without the weight of a consideration; but you shall never find a reason of this to the world's end, in the law: But it is a reason of chancery, and it is this: That no court of conscience will enforce donum gratuitum, though the intent appear never so clearly, where it is not executed, or sufficiently passed by law; but if money had been paid, and so to a person damnified, or that it was for the establishment of his house, then it is a good matter in the chancery. So again I would see in the law, a case where a man shall take by a conveyance, be it by deed, livery, or word, that is not party to the grant: I do not say that the delivery must be to him that takes by the deed, for a deed may be delivery to one man to the use of another. Neither do I say that he must be party to the delivery of the deed, for he in the remainder may take though he be not party; but he must be party to the words of the grant; here again the case of the use goeth single, and the reason is, because a conveyance in use is nothing but a publication of the trust; and therefore so as the party trusted be declared, it is not material to whom the publication be. So much for the raising of uses. Now as to the preserving of them. 2. There is no case in the common law, wherein | Reginæ, Delamer's case, where the case was in effect notice simply and nakedly is material to make a tenant in tail of an use, the remainder in fee; tenant covin, or particeps criminis; and therefore if the in tail made a feoffment in fee; tenant, by the statute heir which is in by descent, infeoff one which had of 1 R. III. and the feoffee infeoffed him in the renotice of the disseisin, if he were not a disseisor de mainder of the use, who made it over; and there facto, it is nothing: so in 33 H. VI. if a feoffment question being made, whether the second feoffee be made upon collusion, and feoffee makes a feoff should have the use in remainder, it is said, that ment over upon good consideration, the collusion is the second feoffee must needs have the best right in discharged, and it is not material if they had notice conscience; because the first feoffee claimed nothing or no. So as it is put in 14 H. VIII. if a sale be but in trust, and the cestuy que use cannot claim it made in a market overt upon good consideration, against his sale; but the reason is apparent, as was although it be to one that hath notice that they are touched before, that an use in esse was but a thing in stolen goods, yet the property of a stranger is bound; action, or in suit to be brought in court of conscience, though in the book before remembered 33 H. VI. and where the subpoena was to be brought against some opine to the contrary, which is clearly no law; the feoffee in possession to execute the estate, or so in 31 E. III. if assets descend to the heir, and he against the feoffee out of possession to recontinue alien it upon good consideration, although it be to the estate, always the subpœna might be transferred; one that had notice of the debt, or of the warranty, for still the action at the common law was not stirred, it is good enough. So 25 Ass. p. 1. if a man enter but remained in the feoffee; and so no mischief of of purpose into my lands, to the end that a stranger maintenance or transferring rights. which hath right, should bring his præcipe and evict the land, I may enter notwithstanding any such recovery ; but if he enter, having notice that the stranger hath right, and the stranger likewise having notice of his entry, yet if it were not upon confederacy or collusion between them, it is nothing: and the reason of these cases is, because the common law looketh no farther than to see whether the act were merely actus fictus in fraudem legis; and therefore wheresoever it findeth consideration given, it dischargeth the covin. But come now to the case of use, and there it is otherwise, as it is in 14 H. VIII. and 28 H. VIII. and divers other books; which prove that if the feoffee sell the land for good consideration to one that hath notice, the purchaser shall stand seised to the ancient use; and the reason is, because the chancery looketh farther than the common law, namely, to the corrupt conscience of him that will deal in the land, knowing it in equity to be another's; and therefore if there were radix amaritudinis, the consideration purgeth it not, but it is at the peril of him that giveth it: so that consideration, or no consideration, is an issue at the common law; but notice, or no notice, is an issue in the chancery. And so much for the preserving of uses. And if an use being but a right may be assigned, and passed over to a stranger, a multo fortiori, it may be limited to a stranger upon the privity of the first conveyance, as shall be handled in another place: and as to what Glanvile, justice, said, he could never find by any book, or evidence of antiquity, a contingent use limited over to a stranger; I answer, first, it is no marvel that you find no case before E. IV. his time, of contingent uses, where there be not six of uses in all; and the reason I doubt was, men did choose well whom they trusted, and trust was well observed: and at this day, in Ireland, where uses be in practice, cases of uses come seldom in question, except it be sometimes upon the alienations of tenants in tail by fine, that the feoffees will not be brought to execute estates to the disinheritance of ancient blood. But for experience in the conveyance, there was nothing more usual in obits, than to will the use of the land to certain persons and their heirs, so long as they shall pay the chantry priests their wages, and in default of payment to limit the use over to other persons and their heirs ; and so, in case of forfeiture, through many degrees; and such conveyances are as ancient as R. II. his time. 4. Now for determining and extinguishing of uses, I put the case of collateral warranty before, and to that the notable case of 14 H. VIII. Half 3. For the transferring of uses there is no case in law whereby an action is transferred, but the sub-penny's case, where this very point was as in the pœna in case of use was always assignable; nay farther, you find twice 27 H. VIII. fol. 10, pla. 9, and fol. 30, and pla. 21, that a right of use may be transferred; for in the former case Montague maketh the objection, and saith, that a right of use cannot be given by fine, but to him that hath the possession; Fitz-Herbert answereth, Yes, well enough; query the reason, saith the book. And in the latter case, where cestuy que use was infeoffed by the disseisor of the feoffee, and made a feoffment over, Englefield doubted whether the second feoffee should have the use. Fitz-Herbert said, "I marvel you will make a doubt of it, for there is no doubt but the use passeth by the feoffment to the stranger, and therefore this question needeth not to have been made." So the great difficulty in 10 principal case; for a right out of land, and the land itself in case of possession, cannot stand together, but the rent shall be extinct; but there the case is, that the use of the land and the use of the rent shall stand well enough together; for a rent charge was granted by the feoffee to one, that had notice of the use, and ruled, that the rent was to the ancient use, and both uses were in esse simul et semel and though Brudenell, chief justice, urged the ground of possession to be otherwise, yet he was overruled by the other three justices, and Brooke said unto him, he thought he argued much for his pleasure. And to conclude, we see that things may be avoided and determined by the ceremonies and acts, like unto those by which they are created and raised; that which passeth by livery ought to be avoided by |