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for Jthat 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:

Fides est obligatio conscientiiC unius ad intentionem
alter ius.

And they have a good division likewise of rights ;
Jus precarium : Jus fidiiciarium: Jus legitimum.

1. A right in courtesy, for the which there is no re-
medy 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 an use.



Reading on the Statute of Uses.

It followeth to consider the parts and properties of
^n use : wherein by the consent of all books, as it was
distinctly delivered by Justice Walmsley in 36 of Eli*
zabeth : That a trust consisteth upon three parts.

The first, that the feoffee will suffer the feoffor to
take the profiss.

The second, that the feoffee upon request of the feof-
for, 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

3. Ordered and guided by conscience: either by the
private conscience of the feoffee ; or the general con-
science 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, entring into his argument of Chud-
Jeigh's case, said sharply and fitly : " I will put never
" a case but it shall be of an use, for a use in law
cc 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 col-
lected upon 5 E. IV. that there might be possessio
fratris of a use ; for he said, that it was no more but
that the chancellor would consult with the rules of



Reading on the Statute of Uses'.

law, where the intention of the parties did not spe-
cially appear; and therefore the private conceit, which
Glanvile, justice, cited in the 42 Reginae, in the case
of Corbet^ in the common pleas, of one of Lincolns
Inn, whom he named not, but seemed to allow, is not
sound ; which was, that a 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 use 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 com-
mon 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 in-
heritance 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 cesiuy que use had released
unto the disseisor, and his warranty had attached upon
cesiuy que use ; yet the chancellor, upon this matter
shewed, would have no respect unto it, to compel the
feoffees to execute the estate unto the disseissor : for
there the case being, that cestuy que use in tail having
made an assurance by fine and recovery, and by war-
ranty 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 com-
mon 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 a use, as it will do a



Heading on the Statute of Uses... 167

right of possession ; and rhe reason is, because the law
of collateral warranty is a hard law, and not to be con-
sidered 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 pos-
session ; and the reason is, because the lord hath a
rent by title ; for that is nothing to the subpcena, be-
cause the feoffee's intent was never to advance the
lord, but only his own blood ; and therefore the query
of the book ariseth, what the trust and confidence of
the feoffee did tye him to do, as whether he should
not sell the land to the use of the feoffee's will, or in
jrios usits ? So favourably they took the intent in those
days, as you find in 27 Hen; VI. that if a man had
appointed his use to one for life, the remainder in fee
to another, and cestuy que use for life had refused,
because the intent appeared not to advance the heir
at all, nor him in reversion, presently the feoffee should
have the estate for life of him that refused, some ways
to the behoof of the feoffor. But to proceed in some
better order towards the disproof of this opinion of
limitation, there be four points wherein we will exa-
mine the nature of uses.

1. The raising of them.

2. The preserving of them.

3. The transferring of them.

4. The extinguishing 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
shewed by men learned in the law, where there is a
deed; and yet there needs a consideration; as for pa-
role, 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 cere-
mony in the confection of it: and therefore in 8 Re-
ginas 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



lfi-8 Reading on the Statute of Uses.

never hurt it ; and yet they say that a 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 considerat on f
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 in force domrm gra<-
tuitum, 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 a person damni-
fied, 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, Hvery, or word, that
is not party to the grant : I do not say that the deli-
very 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
notice simply and nakedly is material to make a covin,
or particeps criminis ; and therefore if the heir which
is in by descent, infeofT one which had notice of the
disseisin, if he were not a disseisor de facto, it is no-
thing : so in 33 H. VI. if a feoffment be made upon
collusion, and feoffee makes a feoffment over upon
good consideration, the collusion is discharged, and it
is not material it they had notice or no. So as it is
put in 14 H. VIII. if a sale be made in a market overt
upon good consideration, although it be to one that
hath notice that they are stolen goods, yet the property
of a stranger is bound 5 though in the book before



Beading on the Statute of Uses. 1G9

remembered 33 H. VI. some opine to the contrary,
which is clearly no law ; so in 3 1 E. III. if assets de-
scend to the heir, and he alien it upon good conside-
ration, although it be to one that had notice of the
debt, or of the warranty, it is good enough. So 25
Ass. p. 1 . if a man enter of purpose into my lands, to
the end that a stranger which hath right, should bring
his priccipe and evict the land, I may enter notwith-
standing 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 no-
thing; and the reason of these cases is, because the
common law lookcth no farther than to see whether
the act were merely actnsjictus infraudcm Icgis; and
therefore wheresoever it findeth consideration given,
it dischargcth the covin.

But come now to the cnse of use, and there it is
otherwise, as it is in 14 II. 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, namelv, to the corrupt
conscience of him that will deal in the land, knowing
it in equity to be another's; and then-tore 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.

.. For the transferring of uses there is no case in
law whereby an action is transferred, but the 'subpa iia
in case ot use was always assignable ; nay farther,
you rind twice 27 II. VIII. fol. K). pla. 9. and fol. 3O.
and pla. 21. that aright 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 Hue,
but to him that hath the possession ; Fitz-IIcrbert an-
swereth, Yes, well enough ; query the reason, saith
the book.



J70 Beading on the Statute of Uses.

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 Re-
ginse, Delamer's case, where the case was in effect
tenant in tail of an use, the remainder in fee ; tenant
in tail made a feoffment in fee ; tenant, by the statute
of 1 R. JII. and the feoffee infeoffed him in the re-
mainder of the use, who made it over; and there
question being made, whether the second feoffee
should have the use in remainder, it is said that the
second feoffee must needs have the best right in con-
science ; because the first feoffee claimed nothing but
in trust, and the cesuy que use cannot claim it against
his sale ; but the reason is apparent, as was touched
before, that a use in essc was but a thing in action, or
in suit to be brought in court of conscience, and where
the subpoena was to be brought against the feoffee, in
possession to execute the estate, or against the feoffee
out of possession to recontinue the estate, always the
subpoena might be transferred ; for still the action at
the common law was not stirred but remained in the
feoffee ; and so no mischief of maintenance or trans-
ferring rights.

And if a 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 con-
veyance, 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 mar-
vel that you find no case before E. IV. his time, of
contingent uses, where there be not six 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



Reading on tlie Statute of Uses. 171

upon the alienation 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 per-
sons 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 II. VIII. Halfpenny's case,
where this very point was as in the 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 seme I : and though Brudenell, chief justice,
urged the ground of possession to be otherwise, yet he
was over-ruled 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 asd
acts, like unto those by which they are created anil
raised; that which passeth by livery ought to be avoided
by entry ; that which passeth by grant, by claim ;
that which passeth by way of charge, determineth
by way of discharge: and so a use which is raised
but by a declaration or limitation, may cease by
words of declaration or limitation, as the civil law
saith, in his magis consentaneum esf, qnam ut ilsdcm
inodis res dissolvantur quibus constituantiir.

For the inception and progression of uses, I have
for a precedent in them searched other laws, because
states and commonwealths have common accidents ;
and I find in the civil law, that that which cometh
nearest in name to the use, is nothing like in matter,
which is itsiitfructiis : for iisusfructus et dominium is



Reading on the Statute of Uses.

with them, as with us particular tenancy and inherit-
ance. But that which resembleth the use most isjldet
commissio^ and therefore you shall find in Justinian,
lib. 2. that they had a form in testaments, to give in-
heritance to one to the use of another, Hceredem con-
Stituo Caiitm ; rogo autcm te, Caie, ut Jucreditatem
rcstituas Scio. And the text of the civilians saith,
that for a great time if the heir did not as he was re-
quired, cestmj que use had no remedy at all, until about
the time of Augustus Caesar there grew in custom a
flattering form of trust, for they penned it thus : liogo
te per salufcm Augusti, or per fortnnam August!^ etc.
Whereupon Augustus took the breach of trust to sound
in derogation of himself, and made a rescript to the
pnctor to give remedy in such cases ; whereupon
within the space of a hundred years, these trusts did
spring and speed so fast, as they were forced to have
a particular chancellor only for uses, who was called
pnctorfidei commissarius ; and not long after, the in-
convenience of them being found, they resorted unto
a remedy much like unto this statute ; for by two de-
crees of senate, called senatus-consultum TrebelLianum
et P&gasictitum, they made cestuy que use to be heir in
substance. I have sought likewise, whether there be
any thing which maketh with them in our law, and I
find that Periam, chief baron, in the argument of
ChudleiglTs case, compareth them to copyholders, and
aptly for many respects.

First, because as an use seemeth to be an heredita*
ment in the court of chancery, so the copy-hold seem-
eth to be an hereditament in the lord's court.

Secondly, this conceit of limitation hath been trou-
blesome in copy-holders as well as in uses; for it hath
been of late days questioned, whether there should be
dowers, tenancies by the courtesy, intails, discontinu-
ances, and recoveries of copyholds, in the nature of
inheritances, at the common law; and still the judg-
ments have weighed, that you must have particular
customs in copy-holds, as well as particular reasons of
conscience in use, and the limitation rejected.

And thirdly, because they both grew to strength



Reading on the Statute of Uses. 173

and credit by degrees: for the copy-holder first had no
remedy at all against the lord, and were as tenancy at
will. Afterwards it grew to have remedy in chan-
cery, and afterwards against their lords by trespass at
the common law; and now, lastly, the law is taken
by some, that they have remedy by eject ione Jlrnhc,
without a special custom cf leasing. So no doubt in
uses : at the first the chancery made question to give
remedy, until uses grew more general, and the chan-
cery more eminent ; and then they grew to have re-
medy in conscience: but they could never obtain any
manner of remedy at the common law, neither against
the feoffee, nor against strangers ; but the remedy
against the feoffee was left to the subpoena ; and the
remedy against strangers to the feoffee.

Now for the cases whereupon uses were put in prac-
tice, Coke in his reading doth say well, that they were
produced sometimes for fear, and many times for fraud.
But I hold that neither of these cases were so much
the reasons of uses, as another reason in the begin-
ning, which was, that the lands by the common law
of England were not testamentary or deviseable; and
of late years, since the statute, the case of the con-
veyance for sparing of purchases and execution of
estates; and now last of all an excess of evil in mens
minds, affecting to have* the assurance of their estate
and possession to be revocable in their own times, and
irrevocable after their own times.

Now for the commencement and proceeding of
them, I have considered what it hath been in course
of common law, and what it hath been in course of
statute. For the common law the conceit of Shelley
in 24 II. VIII. and of Pollard in 27 II. VIII. seemeth
to me to be without ground, which was, that the use
succeeded the tenure : for after that the statute of
Quia emptorcs terra-rum, which was made 18 E. I.
had taken away the tenure between the feoffor and
the feoffee, and left it to the lord paramount ; they
said that the feoffment being then merely without con-
sideration, should therefore intend an use to the feoffor;
which cannot be ; for by that reason, if the feoffment



174 Beading on the Statute of Uses.

before the statute had been made ienendum de capita-
libus daminis, as it must be, there should have been
an use unto the feoffor before that statute. And
again, if a grant had been made of such things as
consist not in tenure, as advowsons, rents, villains, and
the like, there should have been an use of them, wherein
the law was quite contrary ; for after the time that uses
grew common, it was nevertheless a great doubt whe-
ther things that did lie in grant, did not carry a con-
sideration in themselves because of the deed.

And therefore I do judge that the intendment of a
use to the feofTor, where the feofTment was made with-
out consideration, grew long after, when uses waxed
general ; and for this reason, because when feoffments
were made, and that it rested doubtful whether it were
in use or in purchase, because purchases were things
notorious, and uses were things secret, the Chancellor
thought it more convenient to put the'purchaser to prove
his consideration, than the feoffor and his heirs to
prove the trust ; and so made the intendment towards
the use, and put the proof upon the purchaser.

And therefore as uses were at the common law in
reason, for whatsoever is not by statute, nor against
Jaw, may be said to be at the common law ; and both
the general trust and the special, w r ere things not pro-
hibited by the law, though they were not remedied by
the law ; so the experience and practice of uses were
not ancient; and my reasons why I think so are
these:

First, I cannot find in any evidence before king
R. II. his time, the clause ad opus et usum, and the
very Latin of it savoureth of that time: for in ancient
time, about Edw. I. his time, and before, when
lawyers were part civilians, the Latin phrase was
much purer, as you may see by Bracton's writing, and
by ancient patents and deeds, and chiefly by the
register of writs, which is good Latin ; wherein this
phrase, ad opus et usum, and the words, ad opus, is a
barbarous phrase, and like enough to be the penning
of some chaplain that was not' much past his grammar,
where he had found opus et usus coupled together, and



Reading on the Statute of Uses. 175

that they did govern an ablative case ; as they do
indeed since this statute, for they take away the land
and put them into a conveyance.

Secondly, I find in no private act of attainder, the
clause of forfeiture of lands, the words, " which he
hath in possession or in use," until Ed. IV's reign.

Thirdly, I find the word " use" in no statute until
7 Rich. II. cap. 11. Of provisory and in 15 Rich.
Of mortmain.

Fourthly, I collect out of Choke's speech in 8 Ed. IV.
where he saith* that by the advice of all the judges it
was thought that thtfubpa-na did not lie against the
heir of the feoffee which was in by law, butcestuy que
use was driven to his bill in parliament, that uses even
in that time were but in their infancy ; for no doubt,
but at the first the chancery made difficulty to give
remedy at all, and did leave it to the particular con-
science of the feoffee : but after the chancery grew ab-
solute, as may appear by the statute of 13 H. VI. that
complainants in chancery should enter into bond to
prove their suggestions, which sheweth that the chan-
cery at that time began to embrace too far, and was
used for vexation ; yet nevertheless it made scruple to
give remedy against the heir being in by act in law,
though he were privy : so that it cannot be that uses
had been of any great continuance when they made
that question ; as for the case of mairimonii prtdociiti,
it hath no affinity with uses ; tor wheresoever there was
remedy at the common law by action, it cannot be in-
tended to be of the nature of a use.

And for the book commonly vouched of 8 Ass.
where Earl calleth the possession of a conuzee upon a
fine levied by consent and entry in aut.rc droit, and 4 t
of E. III. where there is mention of the fepffors that
sued by petition to the King, they be but implica-
tions of no moment. So as it appearcth the first
practice of uses was about Richard II. his time , and
the great multiplying and overspreading of them was
partly during the wars in France, which drew most of
the nobility to be absent from their possessions ; and
partly during the time of the trouble and civil war be-



Online LibraryFrancis BaconThe works of Francis Bacon, baron of Verulam, viscount St. Alban, and lord high chancellor of England (Volume 4) → online text (page 15 of 46)