Spencer Heath Archive

Item 179

Taping by Spencer MacCallum from conversation with Heath.

No date

    

 

/STATUE OF USES A COMMON-LAW SUBTERFUGE/

     William the Bastard abrogated the Common Law insofar as it interfered with his ambitions, but the courts continued to enforce the Common Law as much as possible under his domination even after the king had special laws called statutes enacted. So great was the affection of the courts for the Common Law and so much were they opposed to its abrogation by statutes, they established a rule of interpretation still being observed even unto this day. That rule was that in construing a statute it must always be construed in the light of the Common Law and subordinate thereto. So that the Common Law was held to be always in full effect in all respects except so far as it was definitely and unmistakably set aside by the statute.

     That is the rule for the interpretation of statutes today, except in those States of the Union in which the Common Law as a whole has been expressly repealed by the legislature by its adoption of a statutory code with provision that the Common Law shall no longer have any effect. Under one such code in recent times the State of Indiana for a short time found itself unable to prosecute a person accused of murder because the legislature had failed to provide in the Code any express statute making murder a crime.

In the year /1536/, King Henry VIII caused a statute to be enacted called the Statute of Uses. It had been the practice for noblemen plotting or taking up arms against the King to forfeit their lands to the King if unsuccessful from whom, after the Conquest, all titles were supposed to be derived. To avoid this hazard it became the custom of noblemen plotting against the King to transfer their legal titles to some trusted friend or a Church corporation, reserving to themselves the entire use of the property so transferred or any income derived from it. Thus the King’s enemy when detected no longer had a legal title to be destroyed by the King.

 

During the Wars of the Roses and before, the practice of a nobleman divesting himself of his title in this way became so common that it was an embarrassment to the King. He therefore had his Council set up the Statute of Uses (that’s what statute means — set up), which statute the courts were obliged at least literally to observe. Under the statute, as soon as A, for example, made over his legal title to B as a trustee, the use or beneficial title also was obliged to go with it so that A would have no further claim on B. To evade the consequences of this, the Common Law lawyers with or without the connivance of the courts, fixed up a scheme under which the statute was to be literally observed yet its force and effect was to be avoided entirely. They arranged that A should transfer his title to B as before, reserving beneficial title to himself but with the further provision that the legal title should not remain with B but should move on to C who would then be the trustee instead of B. When a case of this kind came before the courts the judges, looking askance at the statute, held that the statute was complied with so far as the transfer from A to B was concerned, but that it did not have any effect with regard to the transfer to C. The judges opined that the force and virtue of the statute was exhausted when the legal title went to B and the use with it, so that it did not need to apply as regards the use when the legal title passed on to C. This made C the holder of the legal title, leaving the use or beneficial title still with the original owner A, clearly a subterfuge to show to what extent the judges and the lawyers connived to get by the statute of the King. Not even a king can always go against public sentiment.

 

To this day, if B buys a piece of real estate without paying for it in full the legal title is given not to B but to C who holds the legal title and the property in trust for the benefit of B, the purchaser, and A, from whom he purchased, as their interests may appear. If the transfer were from A to B as trustee for both himself and A until the full pur­chase price shall be paid, the Statute of Uses would take effect and A would have no rights in the property even though he had paid a large payment down.