from the land or possession, but they bungled so in the business, and expressed themselves in such words, that the Judges, in the exposition of the statute, felt themselves obliged to give them still some existence under the name of trusts." Now I must beg leave to dissent from the opinions advanced by Mr. B.

For on referring to Bacon's Readings on Uses, in his Law Tracts, page 324, I find he remarks, that "however it hath been, by the humour of the times, perverted in erposition, yet in itself is most perfectly and exactly conceived and penned of any law in the book. It is introduced with the most declaring and persuading preamble, 'tis consisting and standing upon the wisest and fittest ordinances, and qualified with the most foresecing and circumspect savings and provisions; and lastly, it is the best pondered in all the words and clauses of it of any statute I find."

Bacon

This may seem a sufficient answer to the somewhat inelegantly expressed charge of your Correspondent. further gives, in page 381, 2, 3, the most indisputable reasons to prove the statute did not intend to extirpate uses, and to these Mr. Saunders, in his invaluable Treatise on Uses and Trusts, page 88, 89, 90, has given his assent. "So that

though the grounds on which Mr. B.'s opinion affects to proceed, are materially different to those I support, yet I humbly presume to have taken mine more happily on the

same occasion."

Pump-court, Temple, 17 Feb. 1804.

SENIOR.

III. Reply to Studens on the Subject of the Statute of Uses, 27 H. 8. c. 10, Vide vol. 2, page 183.

I

HAVE been accused of having no poignancy of wit, with a paucity of argument; however, as this accusation does not in the least affect the truth or the strength of the few arguments which I have advanced, I shall not make any reply to it.

Another accusation is, that I did not quote and refute Mr. Butler's doctrine, as well as that of Mr. Saunders, though it is at the same time acknowledged that both doctrines are alike. If therefore one was proved to be false, the other surely could not require any separate animadversions; although I might have indeed increased by it the multiplicity of my arguments, and so have escaped one of the censures of Studens.

In the soliloquy which Studens has gratuitously attributed to me, it is said, that I hacked and mangled Mr. Saunders's words. It is rather to be lamented that this gentleman should display his powers of "wit" somewhat at the expence of truth; for in the present instance it is evident that my quotation of Mr. Saunders's words is exact, and that the construction I put upon them is allowed by Studens himself to be just.

But it is not my intention to make the Law Journal a vehicle of altercation*. The question to be discussed is, whether the operation of the Statute of Uses extends to uses created by will, or not? Now it is evident that the words of the statute extend to wills as expressly and clearly as any words can do. It is also evident, that the operation of the statute is co-extensive with its words wherever no sufficient reason appears to the contrary. But where the most obvious and just construction of a statute determines the force and extent of its words, .what sufficient reason for restriction can be given? I know of none. The evils intended to be remedied by the present statute are fully set forth in the preamble; and they are these, namely, "that many heirs have been unjustly disinherited, the lords have lost their wards, marriages, reliefs, &c." All these evils arose from the distinction taken between the legal estate of the land and the use of it. Henry the Eighth was himself a good deal irritated by the loss of some of these reliques of feudal tyranny. He summoned his Judges, and directed them to give their advice as to the most effectual means of suppressing this growing innovation. Their opinion was, that "if the possession were united to the use, all would be well." And in conformity to this opinion the Statute of Uses was soon after enacted. The principal operative part of the statute has been quoted in some of the preceding papers, and to them I beg leave to refer the reader. Now, though the inducement for enacting the statute consisted in certain evils enumerated in the statute, yet the mode by which the legislature intended to obviate the evils is what is principally to be regarded in the construction of it. And it is evident, that although the evils which gave rise to it were partial, yet the remedy was intended to be universal; and if my

In this intention we trust all our Correspondents will seriously join. We are happy at all times to afford opportunities for the exercise of talents in the liberal discussion of subjects strictly legal, by close argument and accurate investigation and we hope our Cor dents, will not quit it for the levity of personal satire.

reasoning be just, we must give it a universal construction. That this construction has the sanction of law as well as of reason I shall endeavour to make apparent in answer to the objections of Studens.

This gentleman's first argument is, that as the preamble of a statute does not complain of any hereditaments having been fraudulently transferred by wills, but only by assurances, therefore it was not the intention of the statute to touch uses on legal estates created by will, but only uses created by

assurances.

The answer to this is thus:-As the enacting part of the statute certainly mentions wills and every other mode of creating the legal estate either at that or any future time, the weight of this argument must rest on the restriction which the preamble may have on the enacting part of the statute. But has it this power of restriction? To this Studens has only afforded us a naked assertion. Those who are not satisfied with his assertion will find,

1st, "That strong words in the enacting part of a statute may extend it beyond the preamble," vide Pattison v. Bankes *. And it must be allowed, that the words in the enacting part of the present statute are as strong as any that can be found in our language.

2dly, "That the preamble of a statute cannot restrain the enacting part of it where the enacting part is clearly larger than the preamble." Perkins v. Sewell t. And it must be remembered, that the preamble, and the enacting part of the present statute, are not in contradiction to each other; though if they were, we have already seen to which the preference is due, but that the latter has only a greater extension than the former.

Studens himself, as if conscious of the weakness of his first argument, sceks refuge in a second, viz. " that the statute does not contain any words of a prospective import;" and to justify this very strange assertion, he advances another still more strange, viz. " that the word hereafter commonly relates to a seizin, which might be created under some assurance by virtue whereof those persons might then stand or be seized." This sentence, as I comprehend it, appears to imply, that the word "hereafter" has most commonly a reference to the present time only. If Studens did not mean to say this, he then has said nothing to prove that the statute does not contain words of a prospective import.

* B. R. H. 17 Geo. 3, 543. + B. R. 8 Geo. 3. 1 El. 659.

All that now remains to be considered on this question in reply to Studens is,

1st, What construction has been put upon the statute in courts of justice, and what construction those courts ought to have put on it?

1st, Then, the construction which has invariably been put upon it is, that the statute does extend to wills. I shall only adduce one instance of the truth of this proposition, but it is an instance sanctioned by the names of Kenyon, Ashhurst, Grose, and Lawrence, in the case of Somerville v. Lethbridge and as the truth of that side of the question which I have argued for was there solemnly recognized, I imagine that whatever opinions any one may think proper to express respecting it, his practice will be conformable to it.

*

2dly, The construction that ought to be put on this or any other statute is nothing more than a fair and rational interpretation according to received rules. What these rules are I have already shewn; and it must be allowed that those rules justify the construction that has been made.

Studens says, that when a statute operates at all, it operates in a manner invariably the same.-Granted.-But it should be understood, that although a statute be composed of general and precise expressions, yet it can operate only on individual objects; and to determine whether any thing be an object of a statute or not, we must attend to circunstances. Thus, though a murder is universally punished by hanging, yet on any particular killing it may still be a question to be determined by testimony, whether it was done maliciously or accidentally. In like manner, to determine whether any particular expression create a legal or trust estate, we must determine the construction of the instrument of conveyance according to the received rules of interpretation adopted in the class of instruments under consideration, as whether they be deeds, wills, fines, or other instruments.

What Studens says of the practice of the profession is just, and is what I never denied. I only used it, in addition to what I had before attempted to prove, as a means of procuring practical assent.

As to the incidental question of the validity of a devise between the statute of uses and the statute of wills, the determination cannot now be of use. I beg leave, however, to

observe, that it is notorious, that the inability to devise, when the spirit of the nation was so much inclined to it, was the proximate cause of enacting the statute of wills. And therefore it is probable, that if any decision had then taken place, it would have been consonant to the universal opinion of the times, and in observance of the then existing feudal institutions. And that this would have been the fact may I think be fairly argued from the instance which Studens has brought to the contrary. For if even at the time of Sir Edward Clere's case, when alienation of property was so much countenanced and feudality so much undermined, it was then a doubt to be decided by a solemn judicial decision; surely, if a decision had taken place at the time before alluded to, under these circumstances, it would have been different from that in Sir Edward Clere's case. But this point only admits of arguments founded on probabilities: and that which wears the face of probability to one person may seem improbable to another. For the reasons I have advanced in this and in my first paper on this subject, I still think the opinion of Messrs. Hargrave, Butler, Powell, and others on this subject to be just.

The only observation of Studens that now remains unanswered, is" that having a distinction in my mind, I did not act upon it," I do not wish to accuse that gentleman of intentional misrepresentation, but I must observe that I gave an instance which implied and explained the distinction alluded to (in p. 290 of volume 1st) in terms as plain as any that I can devise.

If Studens should make any further remarks on the subject of this paper, he will certainly not have any reply from me, unless he should urge something entirely new, and in a manner more candid than he has in his last production.

Wolverhampton, Nov. 20th, 1803.

T. HIGGS.

IV. Questions arising from the Act of the 43d Geo. 3. c. 46, enabling Persons to deposit Money in the Hands of the Sheriff, in lieu of Bail.

WE insert the following questions at the particular request of a Correspondent, as they may probably induce some of our readers to consider, at large, the effect and operation of this statute; the application of which is so gene