As C.

which right was previously vested in C. as tenant in fee,
would change its object, and vest in such son as tenant
in tail; and that, by reason simply of the direction origi-
nally given to the seisin in passing from A., the grantee,
without any supplementary aid from the statute.
was a person ascertained, a person of whom it might be
predicated that if the life interest were removed, he
would be entitled, no son being yet born, to the actual
enjoyment, his use was vested, and therefore, on the crea-
tion of the limitations, gave, under the statute, an estate,
in the land; but still, though vested, it was not abso-
lutely fixed, for his presumptive title was liable to be in
part defeated by the birth of a preferable claimant. In
explaining the process by which the after-born son takes,
the vested uses of B. and C. are sometimes described as
opening to let in the use in favour of the son, but we
seem to express the whole effect more accurately and in-
telligibly by stating simply, that a contingent right to the
enjoyment, in respect of a portion of the fee, on being
supplied with an ascertained object, becomes a vested
right, in the order of its limitation, than by a phrase
which, literally understood, imports that the fee opens
and admits part of its own substance.

This mode of reasoning, however, was too unaffected and direct; ingenious and opposite theories were advanced, and warm disputes arose, disputes which appear less justly referable to a laudable zeal for principle and consistency, than to a perverse desire that the imputation of craft and cunning, by which uses before the statute were sought to be discredited, should deservedly attach to their new condition. The alleged difficulty hinged upon the language of the statute, which, by providing in terms for those cases only "where any person or persons should be seised to the use of any other person or persons," required, as its too rigid expounders

CHAPTER III. inferred, that the seisin to serve, and the capacity to take the use, should be co-existent. But how, at the time of the conveyance, could A., it was asked, be considered, in the instance of the unborn son, as seised to the use of any person? and how, on the birth of a son subsequently to the conveyance, when, by the undisputed operation of the statute, B. and C. had acquired vested estates, which exhausted the legal fee, was it possible that A. could have a seisin commensurate with the estate tail limited to the son, or any seisin whatever? It was admitted that the uses limited to B. and C. were instantly transferred into possession, or, in other words, clothed with the legal estate; but by what process, compatible with that admission, and with the supposed conditions of the statute, the contingent use could take effect, was the grave question which embarrassed the profoundest lawyers.

Attempted solution of the problem by means of the scintilla fiction.

Instead of regarding the seisin, which, before the statute, was at once equitably impressed, as being, under the statute, at once legally impressed with all the uses, and thence drawing the conclusion, that, through the operation of the statute, the use limited to the unborn son was a legal, though a contingent disposition, and the use limited to C. a qualified, though a vested estate-qualified because liable to be affected by the vesting of the prior contingent disposition, each executed, or, in other words, clothed at law, according to "the quality, manner, form and condition of the use: "-instead of adopting this, the obvious and only rational solution, some of the judges considered that the words of the statute would be most aptly met by a FICTION. This fiction consisted in holding, that, although on the execution of the conveyance the legal estate was wholly drawn out of A. and vested in B. and C., yet, in contemplation of law, A. had a possibility of regaining, whenever a son should

be born,-on what hypothesis, short of a presumed reconveyance, they did not explain,-a momentary seisin adequate to feed the use limited in his favour. Over this invention they cast the veil of latinity, and prudently withdrew it, under the learned appellation of scintilla juris et tituli, from familiar examination. Westminster Hall resounded with the debate;-the speeches of the eleven judges, who delivered their opinions seriatim, occupied six days (t). The Lord Chief Justice Popham declared, that, not to cherish the scintilla, would be "to cast the whole commonwealth into a sea of troubles, and endanger it with utter confusion and drowning." The commonwealth had little to fear, but common sense was in imminent danger of perishing between the conflicting elements of fire and water. The scintilla has learned advocates (u) and opponents (v) to this hour; yet the Profession, by a sort of tacit convention, seems to treat the point as purely speculative.

CHAPTER 111.

against the

scintilla doc

trine.

But, extending our views beyond the mere phraseology Arguments of the statute, to its spirit and effect, let us try the matter by the test of principles and facts understood and admitted by all. We know that, before the statute, the use was merely a personal confidence in respect of the land, and that if the trustee conveyed the land to a purchaser without notice, the connexion between the use and the very subject to which it originally related was dissolved, nothing remaining to the cestui que use but an equitable remedy against the trustee for compensation. We know, too, that, before the statute, a contingent use,

(t) Chudleigh's case, 1 Co. R. 120a; S. C. Poph. 70; 1 And. 309.

(u) Sand. Us. 4th ed. 110; Burton's Elem. 4th ed. 61; (but see the note, which seems to re

VOL. I.

F

fute the text).

(v) Bacon on Uses, 47; 1 Sugd. Pow. 13; Fearne's Cont. Rem. 9th ed. 290, 295, n. by Butler; 1 Prest. Est. 170.

CHAPTER III. limited by way of remainder, was not liable to fail by the determination, during its suspense, of the previous interest, on which it was expectant in point of enjoyment. But, after the statute, the case was altogether different. The use limited to the unborn son became so knit to the land, that no conveyance of the legal estate to a purchaser, without notice, could possibly sever the connexion, and so amenable to the rules of law, that the determination, by forfeiture or otherwise, before the birth of a son, of the particular estate, on which the limitation was now dependent in point of tenure, involved its destruction. The inference is plain; the destination in favour of the unborn son had lost, under the statute, its primitive character of a use, for, retaining that character, it would necessarily be affected, on the one hand, by the conveyance of the legal owner, and unaffected, on the other, by accidents occurring to the prior use. But it could have lost its equitable character only by acquiring a legal character, which, again, it could not have acquired otherwise than through the agency of the statute. of the statute. It must either have remained a use, conditioned as uses before the statute were conditioned, or have become, by force of the statute, a legal interest in the land. There was no intermediate state. The statute made no alteration in the condition of the use, short of the superinduction of the legal clothing. Then, are we not compelled to regard the use limited to the unborn son as having instantly put on, in common with its associate limitations, an essentially legal character? The deed, in truth, was no sooner executed, than the statute, imbuing the use with legal qualities, converted it into a contingent remainder; a species of limitation so familiar to the old law, and so exactly agreeing in its nature and incidents, with all that is laid down respecting the actual quality and condition, under the statute, of the contingent use in question, as to ex

cite surprise that the identity should ever have been overlooked.

66

When, after the statute, land was conveyed to uses, all the present uses (i. e. uses in favour of objects as certained) were instantly converted into legal estates; while all the future and contingent uses (i. e. uses in favour of objects to be ascertained) were, in the same instant, converted into legal titles, capable in due season of ripening into estates; for, whatever might be the quality, form, manner, or condition of the use," whether shaped as an estate, right, possibility, privilege, or power, the "use and [legal] interest passed, uno flatu, together in an instant (x)." As, upon a conveyance, before the statute, to A. and his heirs, to the use of B. for life, and after his death, to the use of his first son, (he having no son born), the disposition in favour of the son presently charged A., in respect of his possession of the land, with a contingent equitable title, so, upon the like conveyance after the statute, the same disposition presently charged the land with a contingent legal title. In short, the effect, at the common law, of a conveyance to A. for life, remainder to his first and other unborn sons in tail, remainder to B. in fee, and the effect, under the statute, of a conveyance to C. and his heirs, to the use of A. for life, remainder to the use of the first and other sons of A. in tail, remainder to the use of B. in fee, were the very same; in either case the disposition in favour of the unborn sons was, both in nature and in name, a contingent remainder. Uses limited agreeably, in point of form, to the doctrines of tenure, adopted its laws and its language. Then, take the case of a destination, valid in equity before the statute in the form of a use, but inadmissible at

(x) Heyward's case, 2 Co. R. 35 a; Id. 54 a.

CHAPTER III.

Contingent and were turned, on

future uses

their creation,

into legal

rights by the

statute.