upon the first reforming of inveterate errors, many doubts and perplexed questions have risen, which are not yet resolved, nor the law thereupon settled: the consideration whereof moved me to take the occasion of performing this particular duty to the house, to see if I could spend my travel to a more general good of the commonwealth herein. Wherein, 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 observation1 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 those knots which a greater wit, distracted with many matters, would rather cut in two than unknit. At the 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 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 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 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.

The exposition of this statute consists upon matter without the statute, and matter within the statute.

1 So Harl. MS. 6688. The common reading is "absolution."

There be three things concerning 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.

3. Certain maxims of the common law, touching 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 forborn, and, according to the ancient manner, you should have taken some of my points upon my divisions, one, two, or more, as you had 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 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, after1 it was lopped and ordered by the statute.

3. The third discourse shall be of the estate of the assurances of the realm at this day upon uses, and what kind of them is convenient and reasonable and not fit to be shaken or 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 of expositions of laws applied to the present purpose.

5. The fifth discourse shall be of the best course to remedy

Omitted in the editions and MS. 1858.

the inconveniences now a foot by 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 inconveniences and to declare the law by act of parliament: which last I think good to reserve, and not to publish.

Nature and

definition of an use.

Br. Feoff. al uses, pl. 40.

The nature of an use is best discerned by considering, first, 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 negative and exclusion, to what is affirmative and inclusive.

First, therefore, an use is no right, title, or interest in law; and therefore Mr. Attorney1, 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 intails, must be understood of intails of the possession, and not of the use, because an use is no Sec. 462, &c. right nor interest; so 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 5 H. VII. 5. and divers other books, which say that cestui que use is punishable in trespass towards the feoffees. Only 5 H. V. 3. tion al Eglise seemeth to be at some discord with other books, where it is

15 H. 7. 2. & 13.

Br. Presenta

pl. 16., and Forfeiture,

pl. 14.

admitted for law, that if there be cestui 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 cestui 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 do rather 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 selfsame thing which cestui que use had, and which the

Coke, who read at the Inner Temple in 1592. He repeats the phrase in his Report of Chudleigh's Case, 1 Rep. 121.; and one may well suppose we have there some fragments of his reading worked up into the argument.

king was entitled unto: which was not so; for the king had remedy in law for his pernancy of the profits, but cestui que use had none.

The books go farther, and say that an use is nothing. As in 2 H. VII. 4. debt was brought and the plaintiff counted upon a demise 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: whereby 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 Dyer, 215. the Lord Sandys, the truth of the case was, a fine was levied by cestui 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 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 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, that when an use is specially alleged, the law taketh knowledge of it. But the sense of it is, that an use is nothing for which any 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 in conscience, the law accepteth of it; and therefore Littleton's case is good law, that he that hath but forty shillings freehold in use, shall be sworn of an inquest, for sec. 164. that is ruled secundum dominium naturale, and not secundum dominium legitimum; nam natura dominus est, qui fructum ex re percipit. And so, no doubt, upon subsidies and taxes cestui que use should have been valued as an owner: so, likewise, if cestui que use had released his use unto the feoffee for six pounds, or contracted with a stranger for the like sum, there was no doubt but it was a good consideration whereon to ground an action upon the case for the money: for the release of a suit in the Chancery is a good quid pro quo. Therefore, to conclude,

Plowd, 352.

though an 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 somewhat in conscience which is nothing in law, like as that may be something in law which is nothing in conscience; as, if the feoffees had made a feoffment over in fee bona fide upon good consideration, and upon a subpœna brought against them they pleaded this matter in Chancery, this had been nothing in conscience, not as to discharge them of damages.

A second negative fit to be understood is, that an use is no covin; nor it is no confidence 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, again, is either lawful, or unlawful.

The special trust unlawful appears in the cases provided for by ancient statutes of pernors 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 these 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 upon 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 an use. And therefore these three are to be distinguished, and not confounded: the covin, the confidence, and the use.

So as now we are come by negatives to the affirmative, what an use is; agreeable to the definition in Delamer's case, where it is said: an use is a trust reposed by any person in the terretenant, that he may suffer him to take the profits, and that he

So Harl. MS. 6688. The common reading is "collusion." Bacon is describing and distinguishing three things; the "covin," the "confidence," which are special trusts, and the "general trust," or use.