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to the King and I. D. pour terme de leur vies, this
use is void for a moiety.

Like law is, if the King be seised of land in the
right of his dutchy of Lancaster, and covenanteth by
his letters patents under the duchy seal to stand seised
to the use of his son, nothing passeth.

Like law, if King R. III. who was feoffee to diverse
uses before he took upon him the crown, had, after he
was King, by his letters patents granted the land over,
the uses had not been renewed.

The Queen, speaking not of an imperial Queen but
by marriage, cannot be seised to an use, though she be
a body enabled to grant and purchase without the
King : yet in regard of the government and interest the
King hath in her possession, she cannot be seised to
an use.

A corporation cannot be seised to an use, because
their capacity is to a use certain; again, because they
cannot execute an estate without doing wrong to their
corporation or founder; but chiefly because of the
letter of this statute which, in any clause when it
speaketh of the feoffee, resteth only upon the word,
person, but when it speaketh of cestuy que use, it
addeth person or body politic.

If a bishop bargain or sell lands whereof he is seised
in the right of his fee, this is good during his life ;
otherwise it is where a bishop is infeoffed to him and
his successors, to the use of I. D. and his heirs, that is
not good, no not for the bishop's life, but the use is
inerly void.

Contrary law of tenant in tail ; for if I give land in
tail by deed since the statute to A, to the use of
B and his heirs ; B hath a fee-simple determinable
upon the death of A without issue. And like law,
though doubtful before the statute, was ; for the chief
reason which bred the doubt before the statute, was
because tenant in tail could not execute an estate with-



Reading on the Statute of Uses. 201

out wrong ; but that since the statute is quite taken
away, because the statute saveth no right of intail, as
the statute of 1 R. III. did ; and that reason likewise
might have been answered before the statute, in regard
of the common recovery.

A feme covert and an infant, though under years of
discretion, may be seised to an use ; for as well as
land might descend unto them from a feoffee to use,
so may they originally be infeoffed to an use; yet if it
be before the statute, and they had upon a subpana
brought, executed their estate during the coverture or
infancy, they might have defeated the same ; and
when they should have been seised again to the use,
and not to their own use ; but since the statute no
right is saved unto them.

If a feme covert or an infant be infeoffed to an use
precedent since the statute, the infant or baron come
too late to discharge or root up the feoffment ; but if
an infant be infeoffed to the use of himself and his
heirs, and I. D. pay such a sum of money to the use
of I. G. and his heirs, the infant may disagree and
overthrow the contingent use.

Contrary law, if an infant be infeoffed to the use of
himself for life, the remainder to the use of I. S. and
his heirs, he may disagree to the feoffment as to his
own estate, but not to divest 'the remainder, but it
shall remain to the benefit of him in remainder.

And yet if an attainted person be infeoffed to an
use, the King's title, after office found, shall prevent the
use, and relate above it ; but until office the cestuy
quc use is seised of the land.

Like law of an alien ; for if land be given to an alien
to an use, the use is not void ab initio : yet neither
alien or attainted person can maintain an action to de-
fend the land.

The King's villain if he be infeoffed to an use, the
King's title shall relate above the use ; otherwise in
case of a common person.

But if a lord be infeoffed to the use of his villain,
the use neither riseth, but the lord is in by the com-
mon law, and not by the statute discharged of the use.



202 Reading on the Statute of Uses.

But if the husband be infeoffcd to the use of his
wife for years, if he die the wife shall have the term,
and it shall not inure by way of discharge, although
the husband may dispose of the wife's term.

So if the lord of whom the land is held be infeoffed to
the use of a person attainted, the lord shall not hold by
way of discharge of the use, because of the King's
title, annum, diem et vastum.

A person uncertain is not within the statute, nor
any estate in nubibus or suspense executed : as if I

five land to I. S. the remainder to the right heirs of
. D. to the use of I. N. and his heirs, I. N. is not
seised of the fee-simple of an estate pour vie of J. S.
till I. D. be dead, and then in fee-simple.

Like law, if before the statute I give land to I. S.
pour autre vie to an use, and I. S. dieth, living cestmj
que use, whereby the freehold is in suspense, the statute
cometh, and no occupant entreth : the use is not exe-
cuted out of the freehold in suspense for the occupant,
the disseisor, the lord by escheat. The feoffee upon
consideration, not having notice, and all other persons
which shall be seised to use, not in regard of their
persons but of their title ; I refer them to my division
touching disturbance and interruption of uses.

It followeth now to see what person may be a cestmj
qne use. The King may be cestuy que use ; but ic
behoveth both the declaration of the use, and the
conveyance itself, to be matter of record, because
the King's title is compounded of both ; I say, not ap- 1
pearing of record, but by conveyance of record. And
therefore if I covenant with I. S. to levy a fine to 'him
to the King's use, which I do accordingly ; and this
deed of covenant be not inrolled, and the deed be
found by office, the use vesteth not. E converse, if
inrolled. If I covenant with I. S. to infeoff him to the
King's use, and the deed be inrolled, and the feoff-
ment also be found by office, the use vesteth.

But if I levy a fine, or surfer a recovery to the King's
use, and declare the use by deed of covenant inrolled,
though the King be not party, yet it is good enough.

A corporation may take an use, and yet it is not



Reading on the Statute of Uses. 203

material whether the feoffment or the declaration be
by deed ; but I may in feoff I. S. to the use of a cor-
poration, and this use may he averred.

An use to a person uncertain is not void in the first
limitation,- but executeth not till the person be in esse >
so that this is positive, that <n use shall never be in
abeyance as a remainder may be, but ever in a person
certain upon the words of the statute, and the estate
of the feoffees shall be in him or them which have the
use. The reason is, because no confidence can be
reposed in a person unknown and uncertain ; and
therefore if I make a feoffment to the use of I. S. for
life, and then to the use of the right heirs of I. D. the
remainder is not in abeyance, but the reversion is in
the feoffor, quousque. So that upon the matter all
persons uncertain in use, are like conditions or limi-
tations precedent.

Like law, if I infeoff one to the use of I. S. for years,
the remainderto the right heirs of I. D. this is not exe-
cuted in abeyance, and therefore not void.

Like law, if I make a feoffment to the use of my
wife that shall be, or to such persons as I shall main-
tain, though I limit no particular estate at all ; yet the
use is good, and shall in the interim return to the
feoffor.

Contrary law, if I once limit the whole fee-simple of
the use out of land, and part thereof to a person un-
certain, it shall never return to the feoifor by way of
fraction of the use: but look how it should have gone
unto the feoffor ; if I begin with a contingent use, so
it shall go to the remainder ; if I intail a contingent use,
both estates are alike subject to the contingent use
when it falleth ; as when 1 make a feoffment in fee to
the use of my wife for life, the remainder to my first
begotten son ; I having no son at that time, the re-
mainder to my brother and his heirs : if my wife die
before I have any son, the use shall not be in me, but
in my brother. And yet if I marry again, and have a
son, it shall divest from my brother, and be in my son,
which is the skipping they talk so much of.

So if I limit an use jointly to two persons, not in esse,



Beading on the Statute of Uses.

and the one cometh to be in esse, he shall take the entire
use ; and yet if the other afterward come in esse> he
shall take jointly with the former ; as if I make a feoff-
ment to the use of my wife that shall be, and my first
begotten son for their lives, and I marry ; my wife
taketh the whole use, and if I afterwards have a son,
he taketh jointly with my wife.

But yet where words of abeyance w-ork to an estate
executed in course of possession, it shall do the like in
uses 3 as if I infeoff A to the use of B for life, the re-
mainder to C for life, the remainder to the right heirs
of B, this is a good remainder executed.

So if I infeoff A to the use of his right heirs, A is in
the fee-simple, not by the statute, but by the common
law.

Now are we to examine a special point of the disa-
bility of such persons as do take by the statute : and
that upon the words of the statute, where diverse per-
sons are seised to the use of other persons ; so that by
the letter of the statute, no use is contained : but
\vhere the feoffor is one, and cesluij que use IB another.

Therefore it is to be seen in what cases the same
persons shall be both seised to the use and cestuy que
use, and yet in by the statute ; and in what cases they
shall be diverse persons, and yet in by the common
law ; wherein I observe unto you three things : First,
that the letter is full in the point. Secondly, that it is
strongly urged by the clause of joint estates following.
Thirdly, that the whole scope of the statute was to
remit the common law, and never to intermeddle
\vhere the common law executed an estate; therefore
the statute ought to be expounded, that where the
party seised to the use, and the ctstuy que use is one
person, he never taketh by the statute, except there be
a direct impossibility or impertinency for the use, to
take effect by the common law.

And if I give land to I. S. to the use of himself and
his heirs, and if I. D. pay a sum of money, then to the
use of I D. and his heirs, I. S. is in of an estate for
life, or for years, by way of abridgement of estate in
course of possession, and I. D, in of the fee-simple by
the statute.



Beading on the Statute of Uses. 205

So if I bargain and sell my land after seven years,
the inheritance of the use only passeth ; and there re-
mains an estate for years by a kind of subtraction of
the inheritance or occupier of rny estate, but merely
at the common law.

But if I infeoff I. S. to the use of himself in tail, and
then to the use of I. D. in fee, or covenant to stand
seized to the use of myself in tail, and to the use of my
wife in fee ; in both these cases the estate tail is exe-
cuted by this statute ; because an estate tail cannot be
re-occupied out of a fee-simple, being a new estate, and
not like a particular estate For life or years, which are
but portions of the absolute fee ; and therefore if I
bargain and sell my land to I. S. after my death with-
out issue, it doth not leave an estate tail in me, nor
vesteth any present fee in the bargain, but is an use
expectant.

So if I infeoff I. S. to the use of I. D. for life, and
then to the use of himself and his heirs, he is in of the
fee-simple merely in course of possession, and as of a
reversion, and not of a remainder.

Contrary law, if I infeoff I. S. to the use of I. D. for
life, then to the use of himself for life, the remainder
to the use of I. N. in fee : Now the law will not admit
fraction of estates ; but I. S. is in with the rest by the
statute.

So if I infeoff I. S. to the use of himself and a
stranger, they shall be both in by the statute, because
they could not take jointly, taking by several titles.

Like law, if I infeoff a bishop and his heirs to the
use of himself, and his successors, he is in by the
statute in the right of his fee.

And as I cannot raise a present use to one out of his
own seisin ; so if I limit a contingent or future use to
one being at the time of limitation not seised, but
alter become seised at the time of the execution of
the contingent use, there is the same reason and the
same law, and upon the same difference which I have
put before.

As if I covenant with my son, that after his mar-
riage I will stand seised of land to the use of himself



206 Reading on the Statute of Uses.

and his heirs; and before marriage I infeoff hinrto
the use of himself and his heirs, and then he marrieth ;
he is in by the common Jaw, and not by the statute 3
like law of a bargain and sale.

But if I had lett to him for life only, then he should
have been in for life only by the common law, and of
the fee-simple by statute. Now let me advise you of
this, that it is not a matter of subtility or conceit to
take the law right, when a man cometh in by the law
in course of possession, and where he cometh in by
the statute in course of possession : but it is material
for the deciding of many causes and questions, as for
warranties, actions, conditions, waivers, suspicions,
and divers other provisoes.

For example ; a man's farmer committed waste :
after he in reversion covenanteth to stand seised to the
use of his wife for life, and after to the use of himself
and his heirs; his wife dies; if he be in his fee un-
touched, he shall punish the waste ; if he be in by the
statute, he shall not punish it.

So if I be infeofTed with warranty, and I covenant
with my son to stand seised to the use of myself for life,
and after to him and his heirs ; if I be in by the statute,
it is clear my warranty is gone .3 but if I be in by the
common law, it is doubtful.

So if I have an eigne right, and be infeofFed to the
use of I. S. for life, then to the use of myself for life,
then to the use of I. D. in fee, I. S. dieth. If I be in
by the common law, I cannot waive my estate, having
agreed to the feoffment : but if I am in by the statute,
yet I am not remitted, because I come in by my own
act : but I may waive my use, and bring an action
presently ; for my right is saved unto me by one of the
savings in the statute. Now on the other side it is to
be seen, where there is a seisin to the use of another
person ; and yet it is out of the statute which is in
special cases upon the ground, wheresoever cestuy qitc
use had remedy for the possession by course of com-
mon law, there the statute never worketh ; and there-
fore if a disseisin were committed to an use, it is in
him by the common law upon agreement : so if one



Reading on the Statute oj Uses. 207

enter as occupant to the use of another, it is in him till
disagreement.

So if a feme infeoff a man, causa matrimonii pralo*
cuti* she hath a remedy for the land again by course
of the law ; and therefore in those special cases the
statute worketh not ; and yet the words of the statute
are general, where any person stands seised by force
of any fine, recovery, feoffment, bargain and sale,
agreement or otherwise ; but yet the teme is to be
restrained for the reason aforesaid.

It remaineth to shew what persons may limit and ,
declare an use : wherein we must distinguish ; for there
are two kinds of declarations of uses, the one of a
present use upon the first conveyance, the other upon
a pow r er of revocation or new declaration ; the latter of
which I refer to the division of revocation : now for
the former.

The King upon his letters patent may declare an
use, though the patent itself implicth an use, if none
be declared.

If the King gives lands by his letters to I. S. and his
heirs, to the use of I. S. for life, the King hath the in-
heritance of the use by implication of the patent, and
no office needeth ; for implication out of matter of
record, amounteth ever to matter of record.

If the Queen give land to I. S. and his heirs to the
use of all the church-wardens of the church of Dale,
the patentee is seised to his own use, upon that con-
fidence or intent - y but if a common person had given
land in that manner, the use had been void by the
statute of 23 H. VIII. and the use had returned to the
feoflfor and his heirs. A corporation may take an use
without deed, as hath been said before ; but can limit
no use without deed.

An infant may limit an use upon a feoffment, fine,
or. recovery, and he cannot countermand or avoid the
use, except he avoid the conveyance ; contrary, if an
infant covenant in consideration of blood or marriage
to stand seised to an use, the use is merely void.

If an infant bargain and sell his land for money, for
commons or teaching, it is good with averment , if for



208 Reading on the Statute of Uses.

money; otherwise : if it be ''proved it is avoidable ; if
for money recited and not paid, it is void : and yet in
the case of a man of full age the recital sufficeth.

Jf baron and feme be seised in the right of the feme,
or by joint purchase during the coverture, and they
join in a fine, the baron cannot declare the use for
longer time than the coverture, and the feme cannot
declare alone ; but the use goeth, according to the li-
mitation of law, unto the feme and her heirs : but they
may both join in declaration of the use in fee ; and if
they sever, then it is good for so much of the inherit-
ance, as they concurred in ; for the law avoucheth all
one as if they joined : as if the baron declare an use to
I. S. and his heirs, and the feme another to I. D. for
life, and then to I. S. and his heirs, the use is good to
I. S. in fee.

And if upon examination the feme will declare the
use to the judge, and her husband agree not to it, it is
void, and the baron's use is only good ; the rest of the
use goeth according to the limitation of law.



THE



ARGUMENTS



LAW



SIR FRANCIS BACON, KNIGHT,



THE KING S SOLICITOR-GENERAL,



CERTAIN GREAT AND DIFFICULT CASES.



VOL. IV.



C 210 ]

To my loving Friends and Fellows*

THE

READERS, ANCIENTS,
UTTER-BARRISTERS, AND STUDENTS,

OF

GRAY'S-INN.



X DO not hold the law of England in so mean an
account, but that which other laws are held worthy
of, should be due likewise to our laws, as no less wor-
thy for our state. Therefore when I found that not only
in the ancient times, but now at this day, in France,
Italy, and other nations, the speeches, and, as they
term them, pleadings, which have been made in judi-
cial cases, where the cases were mighty and famous,
have been set down by those that made them, and
published : so that not only a Cicero, a Demosthenes,
or an ^Eschines, hath set forth his Orations, as well in
the judicial as deliberative ; but a Marrian and a Pa-
vier have done the like by their pleadings ; I know no
reason why the same should not be brought in use by
the professors of our law for their arguments in prin-
cipal cases. And this I think the more necessary, be-
cause the compendious form of reporting resolutions,
with the substance of the reasons, lately used by Sir
Edward Coke, lord Chief Justice of the King's bench,
doth not delineate or trace out to the young practisers
of law a method and form of argument for them to
imitate. It is true I could have wished some abler
person had begun ; but it is a kind of order some-
times to begin with the meanest. Nevertheless thus
much I may say with modesty, that these arguments
which I have set forth, most of them, are upon sub-
jects not vulgar; and therewithal, in regard of the
commixture, which the course of my lite hath made of
law with other studies, they may have the more va-



Dedication. 211

riety, and perhaps the more depth of reason: for the
reasons of municipal laws, severed from the grounds
of nature, manners, and policy, are like wall flowers,
which though they grow high upon the crests of states,
yet they have no deep root : besides, in all public ser-
vices I ever valued my reputation more than my pains;
and therefore in weighty causes I always used extraor-
dinary diligence ; in all which respects I persuade my-
self the reading of them will not be unprofitable.
This work I knew not to whom to dedicate, rather
than to the Society of GRAY'S-!NN, the place whence
my father was called to the highest place of justice,
and where myself have lived and had my procedure
so far, as by his Majesty's rare if not singular grace,
to be of both his councils : and therefore few men, so
abound to their societies by obligation, both ancestral
and persona], as I am to yours ; which I would gladly
acknowledge not only in having your name joined
with mine own in a book, but in any other good office
and effect which the active part of my life and place
may enable me unto toward the Society, or any of you
in particular. And so I bid you right heartily farewel.

Your assured loving friend and fellow,

FRANCIS BACON,



[212 ]

THE

CASE

or

IMPEACHMENT OF WASTE,

ARGUED

BEFORE ALL THE JUDGES IN THE EXCHEQUER
CHAMBER.



JL HE case needs neither repeating nor opening.
The point is in substance but one, familiar to be put,
but difficult: to be resolved; that is, Whether, upon a
lease without impeachment of waste, the property of
the timber-trees, after severance, be not in him that is
owner of the inheritance ?

The case is of great weight, and the question of
great difficulty : weighty it must needs be, for that it
doth concern, or. may concern, all the lands in Eng-
land ; and difficult it must be, because this question
sails in coirfiuentlis aquarum^ in the meeting or strife
of two great tides. For there is a strong current of
practice and opinion on the one side, and there is a
more strong current, as I conceive, of authorities, both
ancient and late, on the other side. And therefore,
according to the reverend custom of the realm, it is
brought now to this assembly; and it is high time the
question receive an end, the law a rule, and mens
conveyances a direction.

This doubt ariseth and resteth upon two things to
be considered ; first, to consider of the interest and
property of a timber-tree, to whom it belongeth : and
secondly, to consider of the construction and operation
of these words or clause, absque impel it ione vasti: for
within these two branches will aptly fall whatsoever
can be pertinently spoken in this question, without ob-
scuring the question by any other curious division.



Case of Impeachment of Waste. 213

FOR the first of these considerations, which is the
interest or property of a timber-tree, I will maintain
and prove to your lordships three things.

First, That a timber-tree, while it groweth, is merely
parcel of the inheritance, as well as the soil itself.

And, secondly, I will prove, that when either na-
ture, or accident, or the hand of man hath made it
transitory, and cut it ofF from the earth, it cannot
change the owner, but the property of it goes where
the inheritance was before. And thus much by the
rules of the common law.

And, thirdly, I will shew that the statute of Glou-
cester doth rather corroborate and confirm the property
in the lessor, than alter it, or transfer it to the lessee.

And for the second consideration, which is the force
of that clause, absque impctitione vasti, I will also up-
hold and make good three other assertions.

First, That if that clause should be taken in the sense
which the other side would force upon it, that it were
a clause repugnant to the estate and void.

Secondly, That the sense which we conceive and
give, is natural in respect of the words ; and for the
matter agreeable to reason and the rules of the law.

And lastly, That if the interpretation seem ambi-
guous and doubtful, yet the very mischief itself, and
consideration of the commonwealth, ought rather to
incline your lordships judgment to our construction.

My first assertion therefore is, that a timber-tree is
a solid parcel of the inheritance ; which may seem a
point admitted, and not worth the labouring. But
there is such a chain in this case, as that which seemeth
most plain, if it is sharply looked into, doth invincibly
draw on that which is most doubtful. For if the tree
be parcel of the inheritance unsevered, inherent in
the reversion, severance will not alien it, nor the clause
will not divest it.

To open ^therefore the nature of an inheritance :
sense teacheth there be, of the soil and earth, parts
that are raised and eminent, as timber-trees, rocks,
houses. There be parts that are sunk and depressed,



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