case, Plowd. 350.] of one of them was a general case in the realm, therefore they foresaw it, expressed it precisely, and passed over the case e converso, which was but especial and rare. And they were loth to bring in this case', by inserting the word "only" into the first case, to have penned it "to the use only of other persons;" for they had experience what doubt the word "only" bred upon the [Delamere's statute of 1 R. III. After this second case, and before the third case of rents, comes in the two savings: and the reason of it is worth the noting, why the savings are interlaced before the third case. The reason of it is, because the third case needeth no saving, and the first two cases did need savings. And [that] is the reason of that again: it is a general ground, that where an act of parliament is donor, if it be penned with an ac si, it needs not a saving, for it is a special gift, and not a general gift which includes all rights. And therefore in 11 H. VII. where, upon the alienation of women, the statute entitles the heir or him in remainder to enter, you find never a saving, because the statute gives entry not simpliciter, but within an ac si as if no alienation had been made, or if the feme had been naturally dead. Strangers that had right might have entered; and therefore no saving needs. So in the statute of 32 H. VIII. of leases, the statute enacts that the leases shall be good and effectual in law, as if the lessor had been seised of a good and perfect estate in fee-simple; and therefore you find no saving in the statute; and so likewise of divers other statutes, where a statute doth make a gift or title good specially against certain persons, there needs no saving; except it be to exempt some of those persons, as in the statute of 1 R. III. Now to apply this to the case of rents, which is penned with an ac si, namely, "as if a sufficient grant or other lawful conveyance had been made or executed by such as were seised; why, if such a grant of a rent had been made, one that had an ancient right might have entered and have avoided the charge; and therefore no saving needeth: but the first and second 1 This is obscurely expressed but Mr. Rowe seems rightly to understand Bacon to mean, "they were loth to make three cases by inserting the word 'only' into the first section, which would have made it more symmetrical; but they used words sufficient, probably, to include all cases in one, and then added the second case ex abundanti.” 2 I have substituted this for "second saving." If the original had the Arabic numeral the difference is very slight. 3 Quære: : "here or "this"? "Needs" for "is," following Mr. Rowe. I have, with Mr. Rowe, substituted "saving" for "stranger." cases are not penned with an ac si, but absolute, that cestui que use shall be adjudged in estate and possession, which is a judgment of parliament stronger than any fine, to bind all rights: nay, it hath farther words, viz. in lawful estate and possession, which maketh it the stronger [than any]', in the first clause; for if the words only had stood upon the second clause, viz. that the estate of the feoffee should be in cestui que use, then perhaps the gift should have been special, and so the saving superfluous. And this note is very material in regard of the great question, whether the feoffees may make any regress; which opinion, (I mean, that no regress is left unto them,) is principally to be argued out of the saving; as shall be now declared. For the savings are two in number: the first saveth all strangers' rights, with an exception of the feoffees'; the second is a saving out of the exception of the first saving, viz. of the feoffees' in case where they claim to their own proper use. It had been easy in the first saving out of the statute, "other than such persons as are seised, or hereafter should be seised to any use," to have added these words, "executed by this statute; or in the second saving to have added unto the words, "claiming to their proper use," these words," or to the use of any other, not executed by this statute: " but the regress of the feoffee is shut out between the two savings; for it is the right of a person claiming to an use, and not unto his own proper use. But it is to be noted, that the first saving is not to be understood as the letter implieth, that feoffees to use shall be barred of their regress in case that it be of another feoffment than that whereupon the statute hath wrought, but upon the same feoffment; as, if the feoffee before the statute had been disseised, and the disseisor had made a feoffment in fee to I. D. his use, and then the statute came: this executeth the use of the second feoffment; but yet the first feoffees may make a regress, and yet they claim to an use, but not by that feoffment upon which the statute hath wrought. Now followeth the third case of the statute, touching execution of rents; wherein the material words are four: First, "whereas divers persons are seised:" which hath bred a doubt that it should only go to rents in use at the time 1 These words seem to have slipt in from above. ? I have substituted "not" for "and." of the statute; but it is explained in the clause following, viz. 66 as if a grant had been made to them by such as are or shall be seised." The second word is "profit:" for in the putting of the case, the statute speaketh of a rent, but after in the purview is added these words," or profit." The third word is ac si, "that they shall have the rent as if a sufficient grant or other lawful conveyance had been made and executed unto them." The fourth words are the words of liberty or remedies attending upon such rent, "that he shall distrain, &c. and have such suits, entries, and remedies,”—relying again with an ac si, - as if the grant had been made with such collateral penalties and advantages. Now for the provisoes. The makers of this law did so abound with policy and discerning, as they did not only foresee such mischiefs as were incident to this new law immediately, but likewise such as were consequent in a remote degree; and, therefore, besides the express provisoes, they did add three new provisoes, which are in themselves substantive laws. For, foreseeing that by the execution of uses wills formerly made should be overthrown, they made an ordinance for wills: foreseeing likewise that by execution of uses women should be doubly advanced, they made an ordinance for dowers and jointures: foreseeing again that the execution of uses would make frank-tenement pass by contracts parol, they made an ordinance for enrolments of bargains and sales. The two former they inserted into this law, and the third they distinguished into a law apart, but without any preamble, as may appear, being but a proviso to this statute. Besides all these provisional laws, and besides five provisoes, whereof three attend upon the law of jointure, and two [concern, respectively, recognisances to the King's use and persons]1 born in Wales, which are not material to the purpose in hand, there are six provisoes which are natural and true members and limbs of the statute, whereof four concern the part of cestui que use, and two concern the part of the feoffees. The four which concern the part of cestui que use tend all to save him from prejudice by the execution of the estate. 1 Something like what I have inserted in brackets must have slipt out. The first saveth him from the extinguishment of any statute or recognisance. As, if a man had an extent of a hundred acres, and an use of the inheritance of one; now the statute, executing the possession to that one, would have extinguished his extent, being intire, in all the rest: or as, if the conuzor of a statute, having ten acres liable to the statute, had made a feoffment in fee to a stranger of two, and after had made a feoffment in fee to the use of the conuzee and his heirs. And upon this proviso there arise three questions: First, whether this proviso were not superfluous, in regard that cestui que use was comprehended in the general saving, though the feoffees be excluded? Secondly, whether this proviso doth save statutes or executions, with an apportionment, or intire? Thirdly, (because it is penned indefinitely in point of time,) whether it shall go to uses limited after the statute, as well as to those that were in being at the time of the statute: which doubt is rather enforced by this reason, because there was [need thereof] for uses [in being] at the time of the statute; for that the execution of the statute might [not] be waived: but both possession and use, since the statute, may be waived.' The second proviso saveth cestui que use from the charge of primer seisin, liveries, ouster les mains, and such other duties to the King, with an express limitation of time that he should be discharged for the time past, and charged for the time to come; making, namely, May 1536, to be communis terminus. : The third proviso doth the like for fines, reliefs, and heriots; discharging them for the time past, and speaking nothing of the time to come. The fourth proviso giveth to cestui que use all collateral benefits of vouchers, aid-prayers, actions of waste, trespass, conditions broken, &c.2, which the feoffees might have had; and this is expressly limited for estates executed before 1o May 1536. And this proviso giveth occasion to intend that none of these benefits would have been carried to cestui que use by the general words in the body of the law, viz. that the feoffee's estate, right, title, and possession, &c. For the two provisoes on the part of the terretenant, they both 'I have conjecturally added (in brackets) words which will give the sense that seems |