been found against him. So again in 4 Re- Dyer, 215. ginæ, in the case of 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 free- Sec. 464. hold in use, shall be sworn of an inquest, for 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, 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 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 an use is no covin; nor it is no confidence1 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.

1 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.

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 Plowd. 352. 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 will perform his intent. But it is a shorter speech to say, that usus est dominium fiduciarium: Use is an ownership in trust.

So that usus et status, sive possessio, potius differunt secundum rationem fori, quam secundum naturam rei, for what one is in course of law, the other is in course of conscience. And for a trust, which is genus1 to the use, it is exceedingly well defined by Azo, a civilian of great understanding: Fides est obligatio conscientice unius ad intentionem alterius. And they have a good division likewise of rights: Jus precarium: Jus fiduciarium: Jus legitimum: a right in courtesy, for the which there is no remedy at all: a right in trust, for 1 So Harl. MS. 6688. The common reading is "the way."

which there is a remedy, but only in conscience: a right in law.

So much of the nature and definition of an use.

The parts and proper

It followeth to consider the parts and propties of a use. erties of an use wherein it appeareth by the consent of all books, and it was distinctly delivered by Justice Walmsley in 36 of Elizabeth: that the1 trust consisteth upon three parts:

The first, that the feoffee will suffer the feoffor to take the profits: the second, that the feoffee upon the request of the feoffor, or notice of his will, will execute the estate 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 reenter, or bring an action to recontinue the possession. So that these three, pernancy of profits, execution of estates, and defence of the land, are the three points of the

trust.

For the properties of an use, they are exceeding well set forth by Fenner, Justice, in the same case; and they be three:

Uses, saith he, are created by confidence; preserved by privity (which is nothing else but a continuance of the confidence without interruption); and ordered and guided by conscience, either by the private conscience of the feoffee, or the general conscience of the realm, which is Chancery.2

The two former of which, because they be matters more thoroughly beaten and we shall have occasion

1 So Harl. MS. 6688. instead of "a:" i. e. the trust which the feoffee is bound to perform.

2 These passages from the judgments of Walmsley and Fenner do not appear elsewhere.

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.1

Coke, Solicitor, entering into his argument of Chudleigh's case, said sharply and fitly: 2 "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. And Anderson, Chief Justice, in the argument of the same case, did truly and profoundly control the vulgar opinion, collected upon 5 E. IV. 7. that there might be Br. Descent, possessio fratris of an use; for he said that it 36. 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 Glanvile, Justice, cited in 42 Reginæ, in the case of Corbet 3 in the Common Pleas, of 1 Rep. 88. one of Lincoln's Inn, (whom he named not, but seemed well to allow of the opinion,) is not sound; which was, that an use was but an imitation and did ensue the nature of a possession.

This very conceit was set on foot in 27 H. 27 H. 8. 9, 10. VIII. in the Lord Dacre's case, in which time they be

1 See Note B. at the end.

2 I suppose the passage is represented in Coke's own report at the beginning of p. 123. by the parenthesis, "for the treatise shall be only of uses." 3 In Coke's report, 1 Rep. 88., the opinion is given as Glanville's, without allusion to the Lincoln's Inn man. Coke represents the judgment to have been given in Easter Term, which was after this Reading; and, if so, we must suppose this passage to have been subsequently inserted. But the Pleadings show a judgment in Hilary Term and afterwards a writ of error: so that it seems possible Coke's Report may be, wholly or in part, of the judgment delivered just before Bacon's Reading.