Definition
In legal drafting and interpretation, "but" functions primarily as a limiting or restrictive conjunction. It signals a qualification, exception, or negation of what immediately precedes it. Courts have treated the word as an affirmative indicator of legislative or contractual intent to restrict the scope, effect, or application of a preceding clause.
The term appears in two principal legal uses:
1. As a term of limitation or exception: "But" introduces a condition or carve-out that narrows what has just been stated. In this use, it operates similarly to "except," "provided that," or "save that." A grant of broad authority followed by "but" typically signals that what follows reduces or conditions that authority.
2. As a signal of negative or contrary intent: Bouvier identifies "but" as importing a negative phraseology throughout the clause it introduces, meaning the word does not merely qualify — it actively contradicts or reverses the operative effect of what preceded. Courts examining the intent of drafters have relied on this function when construing wills, deeds, and statutes.
Common Language
Modern common usage (Wiktionary): Apart from, except (for), excluding. Also used as a coordinating conjunction introducing contrast or opposition.
Historical common usage (Webster's 1913): Except; besides; save. Also "except with; unless with; without" (marked as obsolete). Webster's illustrates uses both as a preposition of exclusion and as a conjunction introducing a limiting clause.
The gap between common and legal use is narrow but consequential in drafting contexts. Ordinary readers treat "but" as a simple contrast marker ("I wanted to go, but I couldn't"). Legal interpretation demands more precision: courts ask whether "but" introduces a true exception that removes something from a prior grant, or merely signals contrast. The difference determines whether the clause that follows overrides, qualifies, or simply accompanies what precedes it. Misreading "but" as stylistic contrast when it was intended as a term of limitation is a recurring source of ambiguity in will and deed construction.
Common Confusion
"But" is frequently confused in effect with "and" and "or" when drafters use it loosely as a connective rather than as a term of restriction. In statutory construction, replacing "but" with "and" or "or" can change the legal meaning of a provision entirely. Courts applying plain-meaning rules have had to determine whether "but" in a given instrument functions as a conjunction of addition, contrast, or exception — and these are not interchangeable. Researchers should also note that "but that" and "but for" are distinct legal phrases carrying their own technical meanings and should not be conflated with bare "but."
Why It Matters in Research
The legal significance of "but" appears most acutely in three research contexts:
First, in construction of wills, deeds, and contracts: Historical cases — including those cited in Bouvier — treat "but" as a word of art when it appears in instruments of conveyance or testamentary disposition. A court finding that "but" was used with restrictive intent will read the clause following it as limiting the grant or bequest, not merely commenting on it. Researchers examining older instruments should apply this interpretive lens carefully, especially in jurisdictions with strong plain-meaning traditions.
Second, in statutory interpretation: When "but" appears in legislation, its placement relative to the operative provision determines whether it creates an exception, a condition precedent, or a standalone restriction. Legislative history and structural analysis of the surrounding text become essential. Do not assume "but" is decorative in statutory text.
Third, the Burrill entry in the source material for this term is corrupted — it contains text from an unrelated entry (likely on "Bushel" or "Burning in the Hand") rather than any definition of "but." Researchers relying on Burrill for this term will find no usable content. Bouvier's brief treatment, which quotes from a Kentucky precedent (5 Litt. 164), is the operative historical source.
Historical Dictionary Support
Bouvier provides the only substantive historical legal treatment. His entry is compact but jurisprudentially pointed: "but" limits or restrains what precedes it, and it carries a negative or contrary character throughout the clause it governs. The citation to 5 Litt. (Ky.) 164 grounds this in case authority, though the rule itself is general.
Burrill offers no usable definition of this term. The text appearing under "But" in the source material is a fragment from a separate entry — likely on benefit of clergy or measures — and was included in error. Researchers should treat Burrill as silent on this term.
Webster's 1913 confirms the ordinary-language senses, including the now-archaic prepositional sense ("without," "unless with") that occasionally appears in older legal instruments. When construing documents from the eighteenth or early nineteenth century, that obsolete usage may be controlling and should not be read through a modern lens.
The historical sources collectively establish that "but" was understood as a term of restriction — not mere contrast — when it appeared in legal instruments. Modern drafting guides echo this, though they generally advise against relying on "but" where precision matters, preferring "except," "provided, however, that," or similar formulations.