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ed, the labourers of those four shires do come forth of their shires, and are known by the name of Cokers to this day.

For Cheshire, we have answered it before, that the reason was, because it was not probable that the statute meant to make that shire subject to the To this we add two things, which are worthy jurisdiction of that council, considering it was consideration; the one, that there is no reason to not subject to the high courts at Westminster, in put us to the proof of the use of this word regard it was a county palatine. And, whereas marches sixty years ago, considering that usage they said, that so was Flintshire too, it matcheth speaks for us; the other, that there ought not to not, because Flintshire is named in the statute be required of us to show so frequent a use of for one of the twelve shires of Wales. the word marches of ancient time in our sense, We showed you likewise effectual differences as they showed in theirs, because there was not between Cheshire and these other shires; for that the like occasion: for, when a lordship marcher | Cheshire hath a chancery in itself, and over Chewas mentioned, it was of necessity to lay it in the marches, because they were out of all counties; but when land is mentioned in any of these counties, it is superfluous to add, in the marches; so as there was no occasion to use the word marches, but either for a more brief and compendious speech to avoid the naming of the four shires, as it is in the statute of 25 E. III., and in the endorsement of accounts; or to give a court cognisance and jurisdiction, as in the bills of complaint; or, ex abundanti, as in the record of Kilpeck.

There resteth the third main part, whereby they endeavour to weaken and extenuate the proofs which we offer touching practice and possession, wherein they allege five things.

shire the princes claim jurisdiction, as Earl of Chester; to all which you reply nothing.

Therefore, I will add this only, that Cheshire went out secundo flumine, with the good will of the state; and this sought to be evicted adverso flumine, cross the state; and as they have opinion of four judges for the excluding of Cheshire, so we have the opinion of two great learned men, Gerrard and Bromley, for the including of Worcester; whose opinions, considering it was but matter of opinion, and came not judicially in question, are not inferior to any two of the other; but we say that there is no opposition or repugnancy between them, but both may stand.

For Cholmley's instructions, the words may well stand, that those shires are annexed by com

First, that Bristol was in until 7 Eliz., and then | mission; for the king's commission or instrucexempted.

Secondly, that Cheshire was in until 11 Eliz., and then went out.

Thirdly, they allege certain words in the instructions to Cholmley, vice-president, in 11 Eliz., at which time the shires were first comprehended in the instructions by name, and in these words, annexed by our commission: whereupon they would infer that they were not brought in the statute, but only came in by instructions, and do imagine that when Cheshire went out they came in.

Fourthly, they say that the intermeddling with those four shires before the statute, was but a usurpation and toleration, rather than any lawful and settled jurisdiction; and it was compared to that, which is done by the judges in their circuits, who end many causes upon petitions.

Fifthly, they allege Sir John Mullen's case, where it is said consuetudo non præjudicat veritati. There was moved, also, though it were not by the council, but from the judges themselves, as an extenuation, or at least an obscuring of the proofs of the usage and practice, in that we show forth no instructions from 17 H. VIII. to 1 Mariæ. To these six points I will give answer, and, as I conceive, with satisfaction.

For Bristol, I say it teacheth them the right way, if they can follow it; for Bristol was not exempt by any opinion of law, but was left out of the instructions upon supplication made to the

ueen.

tions, for those words are commonly confounded, must co-operate with the statute, or else they cannot be annexed. But for that conceit that they should come in but in 11, when Cheshire went out, no man that is in his wits can be of that opinion, if he mark it: for we see that the town of Glocester, &c., is named in the instructions of 1 Mar., and no man, I am sure, will think that Glocester town should be in, and Glocestershire out.

For the conceit, that they had it but jurisdictionem precariam, the precedents show plainly the contrary; for they had coercion, and they did fine and imprison, which the judges do not upon petitions; and, besides, they must remember that many of our precedents, which we did show forth, were not of suits originally commenced there, but of suits remanded from hence out of the king's courts as to their proper jurisdiction.

For Sir John Mullen's case, the rule is plain and sound, that where the law appears contrary, usage cannot control law; which doth not at all infringe the rule of optima legum interpres consuetudo; for usage may expound law, though it cannot overrule law.

But of the other side I could show you many cases, where statutes have been expounded directly against their express letter to uphold precedents and usage, as 2 and 3 Phil. et Mar. upon the statute of Westminster, that ordained that the judges coram quibus formatum erit appellum shall inquire of the damages, and yet the law ruled that

it shall be inquired before the judges of Nisi Prius. And the great reverence given to precedents appeareth in 39 H. VI. 3 E. IV. and a number of other books; and the difference is exceedingly well taken in Slade's case, Coke's Reports, 4, that is, where the usage runs but amongst clerks, and where it is in the eye and notice of the judge; for there it shall be presumed, saith the book, that if the law were otherwise than the usage hath gone, that either the council or the parties would have excepted to it, or the judges ex officio would have discerned of it, and found it; and we have ready for you a calendar of judges more than sit at this table, that have exercised jurisdiction over the shires in that county.

As for exception, touching the want of certain instructions, I could wish we had them; but the want of them, in my understanding, obscureth the case little. For, let me observe unto you, that we have three forms of instructions concerning these shires extant; the first names them not expressly, but by reference it doth, namely, that they shall hear and determine, &c. within any of the places or counties within any of their commissions; and we have one of the commissions, wherein they

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The second form of instructions go farther, for they have the towns, and exempted places within the counties named, with tanquam as well within the city of Glocester, the liberties of the duchy of Lancaster, &c., as within any of the counties of any of their commissions; which clearly admits the counties to be in before. And of this form are the instructions 1 Mariæ, and so long until 11 Eliz.

And the third form, which hath been continued ever since, hath the shires comprehended by name. Now, it is not to be thought, but the instructions which are wanting, are according to one of these three forms which are extant. Take even your choice, for any of them will serve to prove that the practice there was ever authorized by the instructions here. And so upon the whole matter, I pray report to be made to his majesty, that the president and the council hath jurisdiction, according to his instructions, over the four shires, by the true construction of the statute of 34 H. VIII.

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 HONOURABLE SOCIETY OF GRAY'S INN.

42 ELIZ.

The introduction.

case, Rep.

I HAVE chosen to read upon the Sta- ments o all the judges assembled in the Exchetute of Uses, made 27 H. VIII. ch. 10, | quer Chamber, in the famous case between Dillon a law whereupon the inheritances of this realm are and Freine, concerning an assurance made by tossed at this day, like a ship upon the sea, in Chudleigh, this law began to be re- Chudleigh's such sort, that it is hard to say which bark will duced to a true and sound exposition, 21 sink, and which will get to the haven; that is to and the false and perverted exposi- 1 And. 314. Reason of writ- say, what assurances will stand good, tion, which had continued for so many years, ing this treatise. and what will not. Neither is this but never countenanced by any rule or authorany lack or default in the pilots, the grave and ity of weight, but only entertained in a populearned judges; but the tides and currents of re-lar conceit, and put in practice at adventure, ceived error, 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 given upon solemn argu

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 per

forming 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.

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 in matters upon the statutes; and for that cause I

that are more familiar within the books.

1. The first matter I will discourse unto you is the nature and definition of a use, and its inception and progression before the statute.

Herein, though I could not be ignorant either of the difficulty of the matter, which he that taketh in hand shall soon find, or much less of my own unableness, 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 constant 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 the least, if my invention or judgment behave interlaced some matters at the common law, too barren or too weak, yet, by the benefit of other arts, I did hope to dispose or digest the authorities and 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 read-assurances of this realm at this day upon uses, ing, 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 conceits 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 the law.

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There be three things concerning don's case. this statute, 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 case 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.

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

and what kind of them is convenient and reasonable, and not fit to be touched, as far as the sense of law and a natural construction of the statute will give leave; and what kind of them is inconvenient 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 inconveniences now afoot, by construction of the statute, without offering either violence to the letter or sense.

6. The sixth and last discourse shall be of the course to remedy the same inconveniences, and to declare the law by act of Parliament; which last I think good to reserve, and not to publish. The nature of a use is best discerned by considering, first, what it is not, and uses before the then what it is; for it is the nature of all human science and knowledge to proceed most safely, by negative and exclusion, to what is affirmative and inclusive.

Of the nature of

statute.

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The one is an estate, which is Jus in re: the other a demand, which is Jus ad rem: but a use is neither: so that in 24 H. VIII. it is Bro. Feoffm. said that the saving of the statute of to uses, pl. 40.

3. Certain maxims of the common law, touch- 1 R. III. which saveth any right or interest of ing exposition of statutes.

entails, must be understood of entails of the pos

5 H. 7. 5. 15 H. 7.2.

H. 5. 3.

Br. Forfeiture, 5 H. 5. 3.

14.

per. Chỉ J.

mon 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 in con-
science, the law accepteth of it; and therefore
Littleton's case is good law, that he Co. Lit. 272
that had but forty shillings freehold in 15 H.7.13
use, shall be sworn of an inquest, for
that is ruled secundum dominium naturale, and not
secundum dominiam legitimum, nam natura domi-
nus est, qui fructum ex re percipit. And so, no
doubt, upon subsidies and taxes cestuy 21 H. 7. 6.
que use should have been valued as an
owner; so, likewise, if cestuy que use had released
his use unto the feoffee for six, pounds, or con-
tracted with a stranger for the like sum, there was
no doubt but it was a good condition or contract
whereon to ground an action upon the case for the
money: for a release of a suit in the chancery is a
good quid pro quo; therefore, to conclude, though
a use be nothing in law to yield remedy by course
of law, yet it is somewhat in reputation of law
and in conscience; for that may be something in
conscience which is nothing in law, like as that
may be something in law which is nothing in

session, and not of the part of the use, because a use is no right nor interest. So, again, you see that Littleton's conceit, that a use should amount to a tenancy at will, whereupon a release might well inure, because of privity, is controlled by 4 and 15 H. VII., and divers other books, which say that cestuy que use is punishable in an action of 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 seek 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 the book: and, therefore, I conceive the error grew upon this, that because it was generally thought, that a use was but a pernancy of profits; and then, again, because the law is, that, upon outlaw in a personal action, the king shall have the pernancy of the profits, conscience; as, if the feoffees had made a feoffthey took that to be one and the selfsame thing | 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 the profits, but cestuy que use had none. The books go further, and say, that a use is nothing, as in 2 7 H. 7. 11, 12. 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 a 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

Dyer 12.

2 H. 7. 4.

Dyer 215.6.

him. So again in 4 Reginæ, in the case of the Lord Sandys, the truth of the cause was, a fine was levied by cestuy que use before the statute, and this coming in question since the statute upon an averment by the plaintiff quod partes fiinis nihil habuerunt, it is said that the defendant may show the special matter of the use, and it shall be no departure from the first pleading of the fine; and it is said farther, that the form of averment given in 4 H. VII. quod partes finis nihil habuerunt, nec in possessione, nec in usu, was ousted by this statute of 22 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 a use is nothing. But these books are not to be taken generally or grossly; for we see in the same books, that when a use is specially alleged, the law taketh knowledge of it; but the sense of it is, that a use is nothing for which remedy is given by the course of the comVOL. III.-38

ment over in fee, bona fide, upon good consideration, and, upon a subpoena brought against them, had 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 it is no collusion, as the word is now used; for it is to be noted, that where a man doth remove the estate and possession of lands 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 cases 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 to 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 exempt the land from some general 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, and the books do call them intents; but where the trust is not special, nor transitory, but general and permanent, there it is a use; and therefore these three are to be distinguished, and not confounded; the covin, the confidence, and the use.

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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 a use, for a use in law hath no fellow;" meaning, that the learning of uses is not to be matched with other learnings. And Anderson, chief justice, in the argucontrol the vulgar opinion collected ment of the same case, did truly and profoundly upon 5 E. IV. that there might be

So that usus et status, sive possessio, potius differunt secundum rationem fori, quam secundum naturam rei, for that one is in course of law, the other is in course of conscience; and for a trust, which is the way to a use, it is exceedingly well defined by Azo, a civilian of great understanding: Fides est obligatio conscientiæ unius ad inten- sessio fratris of a use; for he said, that it was no tionem alterius. more but that the chancellor would consult with the rules of law, where the intention of the par

pos

5 E. 4. 7.

And they have a good division likewise of ties did not specially appear; and therefore the rights when they say there is

Jus precarium: Jus fiduciarium: Jus legitimum.

1. A right in courtesy, for the which there is no remedy at all.

1 Rep. $8.

private conceit, which Glanvile, justice, cited in
the 42 Reginæ, in the case of Corbet
and Corbet, in the Common Pleas, of
one of Lincoln's Inn, whom he named not, but
seemed well to allow of the opinion, is not

2. A right in trust, for which there is a remedy, sound; which was, that a use was but a limitabut only in conscience.

3. A right in law.

tion, and did ensue the nature of a possession. This very conceit was set on foot in 27 H. 8, 9, 10.

And so much of the nature and definition of 27 H. VIII. in the Lord Darcie's case,

a use.

The parts and

use.

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 at his direction.

1 Rep. 88.

in which time they began to heave at uses: for It followeth to consider the parts and thereafter the realm had many ages together put properties of a properties of a use: wherein it appear-in action the passing of uses by will, they began eth by the consent of all books, and to argue that a use was not devisable, but that it was distinctly delivered by Justice Walmsley, it did ensue the nature of the land: and the same in 36 of Elizabeth: That a trust consisteth upon year after this statute was made; so that this three parts. opinion seemeth ever to be a prelude and foreThe first, that the feoffee will suffer runner to an act of Parliament touching uses; The parts. the feoffer to take the profits. 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 and 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 a 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 H. 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 3. Ordered and guided by conscience: either have no respect unto it, to compel the feoffees to

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; for that those three, pernancy of profits, execution of estates, and defence of the land, are the three points of the trust.

For the properties of a use, they are The properties. exceedingly 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,

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