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“ und by the statute, 5th Edward 3d, c. 4, none shl be put to answere upon suggestion, without indictment or presentnient.
“ Unto which the 420 Edzard 3d, c. 3, adds, without indictment, presentment, or inatter of record.
“ And the Lord Coke sayth, in his 3d report, it hath been confirmed thirty tymes, and thirty tymes thirty more I suppose it would, if it lay in the power of the subject to give any strength unto it.
is And no marvayle, if wee consider evther the worth or the extent of it; for it is as much worth as our lyves or estates are worth, and the extent is as large as any thing we have which we hold precious.
“ For, if we love our liberty, nullus capitur vel imprisonetur: if we would enjoy our lands withont unjust disturbance, nullus disseisieiur de libero tenemerito suo : it we rcgard freedom's franchise, royalty's, and priviledges, nullus disseisietur de libertatibus : if we esteeme our ancient frće custoincs, by which we have gained tytle in our lands, properly in our goods, or interest in our priviledges, nullus disseisietur de liberis consuetudinibus : if we would enjoy the benefit of the laws in general, nullus ut lagetur: or if we rejoyce in the ayre of our own country, nullus exuletur : or if we would be delivered from any kind of oppression, nullus aliquo modo destruelur : nay, if our lyves themselves be dear unto us, and that we would be protected against the inischiefes of power and art, nec super eum ibimus, nec super eum miltemus, nisi per legale judicium parium suorum
per legem terræ.
• In briefe, by virtue of this statute, we have property in our gouds, tytle to our lands, libertye for our persons, and safety for our lives. By 1st & 2d Philip and Mary, (Dyer, fo. 104. p. 11.) en le cuse entre Anderson at Ware, it is turther added, and that justly, that by force of this statute, every free subject may have remedy for every wrong done to his person, lands, or goods : and not only so, for that would but give a recompence for a wrong done; but this statute also prevents wrongs; for by vertue thereof, no man shall be punished before he be condemnvd, and no man shall be condemned before he be heard, and none shall be heard but his just defence shall be allowed.
And yet more breitly, yet hereby freemen differ from bondmen, and subjects from slaves. But it is a subject on which an oralor night enlarge his amplification at pleasure, which I must forbear, having only' so much oratorie left as to let you know that I am no orator; for oratoris est
docere, delectare, et promovere, and I am unable to teach, unapt to delight, and unwilling to stir the affections, because I know I cannot movere, unless ad risum ; nor stir up any affection but that which I most shun.
And will therefore forbear to add more in commendation of this law, (of which much more might be sayd) lest in pursuing it too far, I might be conceyved to be like that philosopher, wbo would extol philosophie unto the skyes, that himselfe might also mount up on her wings.
But qui vadit piane, vadit sane'; wherefore I will proceed more solito, and acquaint you with the several parts into which I have distributed this text."
[To be continued.]
X. On the Statute of Uses, applying to Uses created by
I AM decidedly of opinion with your Wolverhampton Cor
respondent, that uses, created by wills, are executed by the statute, but I differ from him in some points, and must acknowledge that the arguments of Studeus remain, in part, unanswered.
The first argument in opposition to the doctrine, that the statute does apply, is very correctly stated by Mr. Higgs, viz. “ that as the preamble of the statute does not counplain of any hereditaments having been fraudulently transferred by wills, but only by assurances, it was not the intention of the statute to touch uses on legal estates, created by will, but only uses created by assurances;” but the answer does not appear to me to be by any means satisfactory. “ As the enacting part of the statute," it is asserted “ certainly mentions wills, the weight of this argument must rest on the restriction which the preamble may have on the enacting part of the statute ;” and here soine cases are adduced to shew that the preamble, in this case, can have no such restrictive power. Now I cannot agree with Mr. Higgs that the words of the statute apply to wills which desive their being from the statute 32 Hen. 8. BY NANE as sugo gested by him, for the wills adverted to by the statute of uses, were merely testamentary declarations of uses which were previously in existence, and not those testamentary dispositions of real estates which derived their efficacy from the statute 32 Hen. 8. which created wills. The statute of uses could not apply by name to those wills, for at the time of passivg that act, no such wills were in existence, nor even in the contemplation of the legislature. It is, therefore, perfectly clear, that the statute of uses does not apply to wills by name. My answer is, that there are sweeping words in the act-words of such comprehensive import, as to include all uses, by what mode soever they were then or might hereafter be created; the words I allude to are" hereafter, and or otherwise by any manner of means whatsoever." Now if those words are of such comprehensive import as I contend they are, it is perfectly clear that Studens's first ar, gument cannot be supported since the preamble cannot restrain the enacting part of an act. But, says Studens, the words “ hereafter, are not words of prospective import," by which I understand, he means, these are not words which can apply to uses created by any mode devised subsequently to the statute of uses; they are words which apply only to the modes of declaring the use." Now I must admit, that those words might have been applied to other modes of declaring the use, besides wills; if any such modes existed, but I am not aware that there were any such at the time of passing the act. They might also have been applied to the other modes of creating uses, than those enumerated, which were in existence at the time of passing the act; but might they not have been applied, as well to such inodes as should be devised subsequently to that period? Then why give them that narrow construction? Why open the door to that inconvenience, which would infallibly happen by clothing uses, created by different modes, with different properties, when by giving them their plain, obvious, and general construction and meaning, you would avoid that objection ? I have endeavoured to shew, that uses created by wills, urder the statute 32 Flen: 3. come within the letter of the statute of uses, but if I have not succeeded in establishing this position, I am confident, I stand with such firmness on other grounds, that all the ingenuity of Studens cannot remove me from them. The spirit with which laws are made, and the objects legislatures have in view, not the letter of the law, are the rule for the construction of laws. Let us then sce with what VOL. 111. NO. 15.
spirit the statute of uses was enacted, and what objects parliament had in view in passing it? Many inconveniences were found to exist in keeping the use of the estate distinct from the possession. To remedy those inconveniences by converting all uses, into the legal estate, was evidently the intention of our legislators; How then, would I ask, is that intention to be carried into effect? How are the inconveniences of keeping the use distinct from the possession to be obviated in every case; unless uses created by a mode devised subsequently to the passing of the act, are to be transferred into possession? If in passing laws, legislators, evidently meaning to annihilate uses altogether, enumerate certain modes by which those uses may be created, and, omitting others, expressly abolish the uses created by the modes so enumerated, and are silent with respect to the others; yet, I contend, that all the uses, as well those created by the modes enumerated, as the others, are destroyed, because it was the intention that they should
XI. On the same Subject, by Studens, in answer to Mr. Higgs. IT is not disputed by me, that the preamble of a statute will
not restrain the enacting part; all that I contend for is, that you
must look at the preamble, to explain the enacting part, where the latter does not of itself shew, with sufficient clearness, to what cases the legislature meant the statute to extend. Then, is it to be believed, that those by whom the statute of uses was enacted, (chiefly to prevent an indirect devise of the land by devising the use), had, at that time, in their contemplation the future statute of wills?-If there is any doubt, look at the preamble, and that proves, that no other seisin could have been intended by the legislature, (as I argued in my last), than such as might have been derived froin some ASSURANCE, which a will is not.-Mr. Higgs will not look my arguments in the face; for, instead of coutending that the intention of the legislature was that the statute of uses should extend to seisins under the statute of wills; a statute, which was not in existence, nor thought of at the time; he assumes that, and then maintains that the enacting part of a statute may extend it bevond the preamble.
lith respect to the word 'will’ as used in the statute of uscs, Mr. Higgs has got met the arguinent, that the word is appropriated to the declaration of the use; but still the gentleman's mind appears to cling with some fondness to the absurd notion, that because the statute contains the word 'will," it must necessarily be underslood to speak of and include those wills which had no being until some years after; that is to say, that wills under the statute of wills, were in force some years before the statute was passed.
With respect to the future words, or shall hereafter ;'
I did not say that the statute does not contain any words of prospective import, merely (as it would appear from the extract given by Mr. Higgs,) but, I added, which could uffect a scisin, under the subsequent statute of wills; and, I again repeat, that the word hereafier, as used in the statute of uses, can only relate to a seisin, which might have been created, under some assurance, by virtue whereof persons might then stand or be seized.
Mr. Higgs asserts, that the truth of that side of the question which he has contended for was solemnly recognized in the case of Somerville v. Lethbridge, viz. that it was decided by that case, that where there is a devise to one or more to the use of another such use will be executed by the statute of uses. I admit that the question between Mr. Higgs and myself was at issue in and decided by that case: it has certainly put the dispute to rest for ever. But, what was the decision in that case ? I affirm that it was the very reverse of what Mr. Higgs has asserted. The reader has only to look at the certificate of the Judges in 6 Term Rep. 216. to be convinced of the truth of my assertion. I will, however, briefly state the case referred to.
As far as the present question is affected, the case was as follows :-A testator devised lands to Hugh Somerville and H. F. Luttrell, in fee, in trust to and for the use of John Southey Somerville, for 99 years. The chancellor directed a case to be stated for the opinion of the court of King's Bench, upon the following question—What estate John Southey Somerville took, under the will ? The certificate returned by the court of K. B. was, “that Hugh Somerville and H. F. Luttrell, (the devisees to uses) took a fee-simple in the freehold, &c.; and that none of the subsequent limitations, (of which number was the limitation of the use to John Southey Somerville) were limitations of uses executed by the statute.-The Judges then went on to say, that “ if the subsequent limitations of uses, had been limitations of uses, executed by the statute, they were of opinion, that John Soutley Somerville would have taken an estate for a terin of 99 years, &c.”* This case, therefore, is decidedly in favour of the position which I have been all along contending for.
In that case no argument is reported, to shew how the iminediate point bere, in dispute was considered by the court.