your exposition according to the preamble; as shall be handled in my next day's discourse. The body of the law. And so much touching the preamble of this law. For the body of the law, I would wish all readers that expound statutes to do as scholars are willed to do; that is, first, to seek out the principal verb; that is, to note and single out the material words whereupon the statute is framed for there are, in every statute, certain words, which are veins where the life and blood of the statute is and runneth, and where all doubts do arise and issue forth; and all the rest of the words are but literæ mortuæ, fulfilling words. The body of the statute consisteth upon two parts : first, a supposition, or case put, as Anderson, 36 Reginæ called it; secondly, a purview, or ordinance thereupon. The cases of the statute are three, and every one hath his purview: the general case; the case of feoffees to the use of some of them; and the case of feoffees to the use or perceivance of rents or profits. The general case is built upon eight material words : four on the part of the feoffees; three on the part of cestui que use; and one common to them both. Bro. feoffm. The first material word on the part of the feoffees is the word person. This excludes all abeyances; for there can be no confidence reposed but in a person certain. It excludes again all corporations ; for they are enabled to an use certain; for note, on the part of the feoffee ever1 the statute insists upon the word "person ;" and on the part of cestui que use, it ever addeth "body politic." 1 This, which Mr. Rowe conjecturally substituted for "feoffor over," is the reading of Harl. MS. 6688. The second word material is the word "seised." This excludes chattels. The reason is, that the statute meant to remit the common law, and not to alter it. Chattels might ever pass by testament or by parol; therefore the use did not pervert them. It excludes rights; for it was against the rules of the common law to grant or transfer rights; and therefore the statute would not execute them. Thirdly, it excludes contingent uses,1 because the seisin can but be to a fee-simple of an use, and, when that is limited, the seisin of the feoffee is spent: for Littleton tells us, that there are but two seisins, one, in dominico ut de feodo, the other, ut de feodo. And the feoffee by the common law could execute but the fee-simple to uses present, and no post uses and therefore the statute meant not to execute them. The third material word is "hereafter." That bringeth in conveyances made after the statute; it brings in, again, conveyances made before and disturbed by disseisin and recontinued after; for it is not said "infeoffed to use hereafter," but "seised." The fourth word is hereditament; which is to be understood of those things whereof an inheritance may be, and not of those things whereof an inheritance is in esse: for if I grant a rent charge de novo for life to an use, this is good enough; yet there is no inheritance in being of this rent. This word likewise excludes annuities, and uses themselves; so that an use cannot be to an use. The first word on the part of cestui que use is the word, "use, confidence, or trust;" whereby it is plain that the statute meant not to make " use vocabulum 1 See Note D. at the end. artis, but it meant to remedy the matter, and not words and in all the clauses it still carrieth the words. The second word is the word " person again : which excludeth all abeyances. It excludeth also all dead uses, which are not to bodies lively and natural; as the building of a church, the making of a bridge: but here, as was noted before, it is ever coupled with body politic. The third word is the word "other." The statute meant not to cross the common law. Now at this time uses were grown into such familiarity, as men could not think of a possession but in course of use; and so every man was said to be seised to his own use, as well as to the use of others: therefore, because the statute would not stir nor turmoil possessions settled at the common law, it putteth in precisely this word "other," meaning the divided use and not the conjoined use. And this causeth the clause of joint feoffees to follow in a branch by itself; for else that case had been doubtful upon this word "other." Collard v. The words that are common to both are words expressing the conveyance whereby the use ariseth;1 of which words those that breed any question are "agreement," "will," "otherwise;" whereby some have inferred that uses might be raised by agreement parol, so there were a consideration, [not] 2 of money or other matter valuable, (for it is expressed in the words before, bargains, sale, and contract,) but of blood, or kindred: the error of which collection 1 Here Harl. MS. 6688. ends. 2 Mr. Rowe conjecturally adds this word, which seems necessary. I have found no authority for it. appeareth in the word immediately following, viz. "will," whereby they might as well conclude that a man seised of land might raise an use by will, especially to any of his sons or kindred, where there is a real consideration, and by that reason mean, betwixt this statute and the statute of 32 H. VIII. of Wills, lands were devisable, especially to any man's kindred : which was clearly otherwise; and therefore those words were put in, not in regard of uses raised by those conveyances, but in regard of uses formerly transferred by those conveyances; for it is clear that an use in esse by simple agreement with consideration or without, or likewise by will, might be transferred; and then there was a person seised to an use by force of that agreement or will, viz. to the use of the assignee. And for the word otherwise," it should by the generality of the word include a disseisin to an use; but the whole scope of the statute crosseth that, which was to execute such uses as were confidences and trusts; which could not be in case of disseisin; for if there were a commandment precedent, then the land was vested in cestui que use upon the entry; and if the disseisin were of the disseisor's own head, then no trust. 66 And thus much for the case or supposition of this statute: here followeth the ordinance and purview thereupon. The purview hath two parts: the first operatio statuti, the effect that the statute worketh; and there is modus operandi, a fiction, or explanation how the statute doth work that effect. The effect is, that cestui que use shall be in possession of like estate as he hath in the use; the fiction quomodo is, that the statute will have the possession of cestui que use, as a new body, com pounded of matter and form, and that the feoffees shall give matter and substance, and the use shall give form and quality. The material words in the first part of the purview are four. The first words are "remainder and reverter." The statute having spoken before of uses in fee-simple, in tail, for life, or years, or otherwise,1 addeth, " or in remainder or reverter: " whereby it is manifest, that the first words are to be understood of uses in possession. For there are two substantial and essential differences of estates: the one limiting the times (for all estates are but times) of their continuances; this maketh the difference of fee-simple, fee-tail, for life, or years; and the other maketh difference of possession, as remainder all other differences of estate are but accidents, as shall be said hereafter.2 These two the statute meant to take hold of, and at the words, "remainder and reverter," it stops; it adds not words, " right, title, or possibility," nor it hath not general words, 66 or otherwise;" whereby it is most plain that the statute meant to execute no inferior uses to remainder or reverter; that is to say, no possibility or contingencies; but estates only, such as the feoffees might have executed by conveyance made. Note also, the very letter of the statute doth take notice of a difference between an use in remainder and an use in reverter; which though it cannot be properly 3 (because it doth 3 1 These words" or otherwise " stand, in the editions and MS., thus: " or otherwise in remainder or reverter." I have transposed them to the place they occupy in the statute. 2 The passage is not extant. 8 According to Bacon, then, it would seem, even after the statute, an use in remainder did not depend on the particular estate. See Notes A. and D. |