PREFACE.

THIS argument has been recovered by Mr. Spedding, and is here translated from the Law French in which it is preserved, Lansd. MSS. 1121. It seems to be a complete and careful report, but not a revised one, and I have had sometimes to fill up or correct an obscure or mutilated sentence conjecturally.

The case itself is fully reported by Coke, who argued on the same side with Bacon, and by Anderson and Popham, who gave judgment on that same side; and Mr. Hargrave, in his MS. notes on Popham's Reports in the British Museum, mentions an unedited report by Owen, also one of the majority of the judges, in the Library of Lincoln's Inn.

I believe Bacon does not exaggerate the importance attached to the case and decision at the time, in his frequent mention of it in the Reading; and the discussion which the whole doctrine of uses there met with must unquestionably have helped "to reduce it to a true and sound exposition:" yet it seems equally clear that "the many doubts and perplexed questions which had since arisen, and were not yet resolved" at the time of the Reading, have ended by restricting the authority of the decision to a very small part of the ground over which it was conceived to extend, and in fact overruling the doctrine of the majority, at least, of the judges who decided in favour of the defendants.

For though it be true that some of the judges in that majority did point out that the particular limitations in Chudleigh's settlement were such as might exist at Common Law, and that in such cases they would have been destroyed in the event which happened, yet they mostly went on the doctrine of the scintilla juris, which applied equally to springing and shifting uses as to those in the nature of contingent remainders, and would have made them all equally destructible before vesting; and some of them, and some also of those who did not go upon

this ground, seem to have been prepared to hold (as Coke inclined) that all limitations unknown to the Common Law should, after the statute, be held void in the creation.

In Bacon's argument, which was in Easter Term, 1594, and was the last delivered, there is no notice whatever of this Common Law character of these limitations: and the inference one would naturally draw from this seems to me confirmed by Coke's report of the argument (after judgment delivered), and by other notices,-viz. that the observation came from the judges themselves.

There are passages in this argument which illustrate the Reading, though we must, of course, be cautious of confounding the arguments of the advocate with the subsequent conclusions of the expositor.

CHUDLEIGH'S CASE.

THE ARGUMENT OF FRANCIS BACON.

HE states the case to be that, Sir Richard Chidley, being seised in fee of a manor whereof the land in question was parcel, infeoffed Sir G. S. and others to the use of himself and the heirs of his body by sundry wives, remainder to the use of the feoffees and their heirs during the life of Christopher Chidley his eldest son, remainder in tail to the first, second, third, and so to the tenth son of the said Chr. Chidley, remainder to the other sons of the said Richard then living, viz. to Thomas, to Oliver, and Nicholas, the remainder to his own right heirs in fee and then died in the lifetime of his feoffees: and so, there being an intermediate remainder between the estate of the feoffees for the life of Chr. and the remainder in fee which was in Chr., the feoffees infeoffed the said Chr., so excluded from the limitations. Afterwards Chr. has issue, Streightley Chidley and John Chidley, and the said Chr. infeoffs Sir John Chichester, who infeoffs Philip Chichester, under whom the defendant claims. Streightly died without issue; John Chidley enters and grants a lease to the plaintiff, on whom the defendant re-enters; and the plaintiff brings trespass. And so the title is between the assignee of Christopher, who makes title under1 the feoffees in disaffirmance of the contingent use, and the issue of John Chidley, who claims by the contingent use. And the simple question is but this: If the possession be estranged from the first privity at the time when the contingent use ought to arise, and all possibility gone of reviving it by the return of the feoffees (who have granted away their future right included in the livery), whether the springing use be not utterly extinct. And he held that it was.

The case being of great importance, touching the Queen in

Que connaye del feoffees.

Br. Feoffm.

al uses, 16.

her prerogative and the subjects in their assurances, was on the side which I argue notably declared by Mr. Attorney General', who, foreseeing the downfal and destruction of the uses which have so long reigned, made a history of their lives and ripped them up from their cradle, demonstrating that they were engendered in fraud and deceit, and manifesting the notes and discredits which sundry good laws from time to time have inflicted on them. Which course I do not intend to follow. But

the matter thereafter is good and pertinent. And in confutation I will not bind myself to Mr. Attorney's order, but pursue my own course, which is the order the matter itself more aptly induces for resolution and decision: suffice it that no material thing is objected but it shall be answered: what is of weight shall be expressly refuted; the others of less importance I will shake off in the course of my argument.

In my order I will first endeavour to remove all prejudices, and make it appear evidently that the case on my side is not foiled with any contrary authorities, but stands now to be determined by the judges; and having freed the judges from coming prejudicate by any former judgments, I will set forth the consideration of the Statute which is the oracle of this question. Then having made the Statute clear, or at least favourably ambiguous for my side, I will capitulate the multitude of inconveniences which such springing uses set on foot in the state of the government: for, as no expediency ought to cause judges to decline from the truth of the law where it is express and direct, so in ambiguis eam sequimur rationem quæ vitio caret.

The prejudice which I have to remove in this cause is in two kinds: the one controls the cases of authority (which have been put with advantage); the other is a generally received opinion, with a continued practice which is more forcible.

Touching authorities, they first object the case of Mantell in 34 H. VIII., which was that Mantell had covenanted in consideration of money and marriage to stand seised to the use of his wife for the term of her life, and after to the use of the heirs of his body, and it was agreed by the judges, on great advice, that the use was raised by the covenant. On which Mr. Brooke says "that the land was saved to the issue"; by which Mr. Atkinson enforces that the use arises out of the

1 Coke.

The professional rivalry with him seems to break out here and below, though they were on the same side.

possession which the King had by attainder. To which I answer legis aliud agentis parva auctoritas. The reason of this resolution was no other than what every student at this day knows to be clear, viz. that such a covenant is not executory by action of covenant, but an use rises of itself. As then nothing comes of it, Mr. Brooke abridges this case in point of difference with 21 H. VII. where the covenant was that the land should descend, which covenant gives but an action. Otherwise it is here. And so the opinion is but an inference. But it also has its particular answer: viz. that this use is executed and arises in Mantell himself, and not only in the issue of his body. And the reason is not because he has a freehold in the particular estate (for this is only in right of his wife; and I agree that if a man make a lease for life to a feme covert, the remainder to the right heirs of the husband, this is not executed in the husband, as it would be if the particular estate had been limited to himself,) but the cause of its being executed is that the law understands that in the interim, until there is an heir of the body of Mantell, the use' in fee is in Mantell himself; and by reason of this doubling and confusion of uses the law is, that the limitation in tail is in himself; as in the famous cause 34 & 35 Eliz. lately pending between the Earl of Bedford and heirs female; where it was adjudged, after long argument, that if a man make a feoffment in fee to the use of one in tail, the remainder to the use of his right heirs; inasmuch as the law intends an use to him and his heirs until he has right heirs, and the having a double use, one to him and his heirs executed, the other to his right heirs contingent should be impertinent; for this reason the use was executed in himself, and by the bargain and sale he granted it away. And if it be so in Mantell's case then is it nothing more than tenant in tail attainted of felony, which does not forfeit the estate tail. And so the case is doubly

answered.

In 38 Hen. VIII. Br. Assurances 1., is the case of a device and invention for preventing the heir from aliening: and the device was that a feoffment should be made to the use of the ancestor for life without impeachment of waste, and after to the use of the heir and his heirs until he consented or concluded to aliene, and after to the use of a stranger and his heirs. To this case I answer, first that it is founded on a palpable error; and in

1 i, e. the old use.

[Moor, 718.]