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father likewise; and has tied and made subject (as the proverb is) the parents to their cradle, and so notwithstanding he has the curse of his father, yet he shall have the land of his grandfather. And what is more, if the son marry himself to a woman diffamed, so that she bring bastard slips and false progeny into the family, yet the issue of this woman shall inherit the land, for that the first perpetuator will have it so, who is dead a long time before. And these are the bad effects, besides those of fraud and deceit. And I well know a difference between speaking in the Parliament and before the judges in an argument of law.

Touching the third inconvenience, which is of perplexed and obscure questions; it is a good principle, in obscuris quod minimum est sequamur. Let the law be guide so far as possibly it can be, and make the fewest questions; nam quod certum non est justum non est. And if you look at the case of Earl and Snow in Plowd. Comm. and Delamer's case, you will find the principal reason of the judgment to be no other than this: for it is said, if it were otherwise, many perplexed and intricate questions would arise. Now if this clause which is put in perpetuities be considered, that is to say, that the land shall remain upon forfeiture to him who is next in limitation, as if the other committing the forfeiture were dead, it is not possible for the most learned judge in the land to answer the questions. For there will be heirs without death, the which is a thing prodigious in our law, and is a common highway to many subtle questions; and though there be a like clause of fiction in some statutes, as in the statute of 11 H. VII. it is necessary to note a difference: for statutes can dispense with the grounds of law, which stoops to them and is controlled by them: but no such power have the words of a deed.

But admitting all these inconveniences, says Mr. Atkinson, if you overthrow these perpetuities in uses, yet will there be new devices to do the like by way of possession. Which I do not see how it can be done, for that the grounds of conveyances in possession are more strict; and secundi surculi fraudum minus periculosi. When men see that this device shall be overthrown, they will have little courage to invent the like. And I doubt not but that there will be new attempts of fraud, but it will be long before they grow to such extremity as it is now. And as for the making of like restraints by Will, it is to

be noted, though the case of Scholastica be now law, yet if you adjudicate against perpetuities the law will change in the case of Wills, necessarily and by consequence of reason; quia forma juris condonatur testamentis, non substantia juris. The law grants this favour to testaments, for the suddenness with which men may be surprised, when they cannot call counsel, and at this time being in agony and conflict of sickness, that they cannot [ex]press themselves formally; but to say that the Will shall be as an act of Parliament, to do a thing which is impossible to be done in substance and intent by any form of conveying, carries no sense; and therefore by disabling of this conveyance you also disable the others.

There are also two other inconveniences which I myself have objected. These I will answer and so conclude.

The one is that if possession in privity be necessary when a future use is executed, it is dangerous for bargains and sales, which are the common assurance of the land: for if there be disseisin or dower at the time of the enrolment, it may be said this shall be a discontinuance of the use. The answer is easy this use differs from the contingent use, for that this use is but arrested by the statute and after passes as ab initio.

The other is that the favourable clause which is in divers assurances [will be nugatory]; which is that, after a covenant to execute acts of assurance, it is also covenanted between the parties upon good consideration that if those acts shall not be lawfully executed, or if errors happen to be in them, that then the grantor shall be seised to the same uses; which clause is very beneficial for security of estates, and cures many defects.

But to this and other like inconveniences this one answer is sufficient: That contingent uses are not directly overthrown if the feoffees do nothing to bar themselves, but still preserve their right. And the said feoffees in special cases which pretend favour may be enjoined out of Chancery, where uses always have been ordered, that they shall not do any act to the prejudice of the use which may thereafter arise, and the subpœna in this case be revived.

Therefore I conclude, for that the true intent of the statutes of 27 H. VIII. warrants it, that it is sufficiently clear in itself, and is not swayed by any contrary authority on the other side, but much swayed by the consideration of the inconveniences on this side, that the use must not rise in John Chidley.

CASE OF THE POST-NATI.

PREFACE.

THIS argument was first printed in 1641, together with two of Bacon's speeches in Parliament on the union, "by the author's copy." There is a copy in the British Museum, (King's MSS. 17A. LVI. p. 262.) corrected by Bacon.

It was delivered in Calvin's Case (reported by Coke, 7 Rep. 1.), before Easter Term, 1608, in the Exchequer Chamber, whither an Assize by Calvin and a Chancery suit for discovery of evidence had been adjourned from the King's Bench and the Chancery respectively.

Bacon insists on its being "no feigned case," though " used by His Majesty to give an end to this question: " but, however real the disseisors Richard and Nicholas Smith may have been, one can hardly doubt that the proceedings were from the beginning concerted with the Crown.

The Commissioners appointed under 2 Jac. c. 2. to treat of the Union of England and Scotland had recommended', inter alia, an act to declare that, by the Common Law, natives of either kingdom born after James's accession to the Crown of England were naturalised in both. The Commons not assenting, committees of both Houses met February 25th, 1606-7, Bacon being the spokesman of the Commons to introduce the subject, and Common Lawyers, Civilians, and others following in parts assigned to them. The Lords called on the Judges for their advice; and on the 26th, Popham, Coke, and Fleming, the three chiefs, and seven others gave their opinion in favour of the Postnati, Walmsley being the only dissentient: the Chancellor Ellesmere had in the conference shown his inclination to agree with the majority.

The Commons remained unconvinced and would not pass any declaratory act (H. C. journ. 28° March et passim), and the

1 Moore, Rep. 790.

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