but Danby goes farther, and saith, the law that | speak not a word what he shall recover, nor that gives him the thing, doth likewise give him it shall be to the value. And, therefore, 9 E. IV. means to come by it; but they both agree that the interest is in the lessor. And thus much for the seisure.

be put than the case upon the statute de donis | estate otherwise than the law guides it, they be conditionalibus, where there are no words to give mere repugnancies and vanities. And, therefore, any reversion or remainder; and yet the statute if I make a feoffment in fee, provided the feoffee giving a formedon, where it lay not before, being shall not fell timber, the clause of condition is but an action, implies an actual reversion and void. And so, on the other side, if I make a lease remainder. with a power that he shall fell timber, it is void.

Thus have I passed over the first main part, which I have insisted upon the longer, because I shall have use of it for the clearing of the second.

Now to come to the force of the clause absque impetitione vasti. This clause must of necessity work in one of these degrees, either by way of grant of property, or by way of power and liberty knit to the state, or by way of discharge of action; whereof the first two I reject, the last I receive. Therefore, I think the other side will No graet f not affirm that this clause amounts to a grant of trees; for then, according to the resoJution in Herlackenden's case, they should go to the executors, and the lessee might grant them over, and they might be taken after the state determined. Now it is plain that this liberty is created with the estate, passeth with the estate, and determines with the estate.

That appears by 5 Hen. V. where it is said, that if lessee for years without impeachment of waste accept a confirmation for life, the privilege is gone.

So if I make a lease with a power that he may make feoffment, or that he may make leases for forty years, or that if he make default I shall not be received, or that the lessee may do homage; these are plainly void, as against law, and repugnant to the state. No, this cannot be done by way of use, except the words be apt, as in Mildmay's case: neither is this clause, in the sense that they take it, any better.

Therefore, laying aside these two constructions, whereof the one is not maintained to be, the other cannot be let us come to the true sense of this clause, which is by way of discharge of the action, and no more: wherein I will speak first of the words, then of the reason, then of the authorities which prove our sense, then of the practice, which is pretended to prove theirs; and, lastly, I will weigh the mischief how it stands for our construction or theirs.

It is an ignorant mistaking of any man to take impeachment for impedimentum and not for impetitio; for it is true that impedimentum doth extend to all hindrances, or disturbances, or interAnd so are the books in 3 E. III. and ruptions, as well in pais as judicial. But impetitio 28 H. VIII. that if a lease be made is merely a judicial claim or interruption by suit without impeachment of waste pour autre vie, the in law, and upon the matter all one with implaciremainder to the lessee for life, the privilege is tatio. Wherein first we may take light of the gone, because he is in of another estate; so then derivation of impetitio, which is a compound of plainly it amounts to no grant of property, neither the preposition in and the verb peto, whereof the can it any ways touch the property, nor enlarge verb peto itself doth signify a demand, but yet the special property of the lessee: for will any properly such a demand as is not extrajudicial: man say, that if you put Marwood and Sanders's for the words petit judicium petit auditum brevis, case of a lease without impeachment of waste, &c., are words of acts judicial; as for the demand that he may grant the land with the exception of in pais, it is rather requisitio than petitio, as licet the trees any more than an ordinary lessee? Or sæpius requisitus; so much for the verb peto. But shall the windfalls be more his in this case than the preposition in enforceth it more, which signiin the other for he was not impeachable of waste fies against: as Cicero in Verrem, in Catilinam ; for windfalls no more than where he hath the and so in composition, to inveigh, is to speak clause. Or will any man say, that if a stranger against; so it is such a demand only where there commit waste, such a lessee may seise. These is a party raised to demand against, that is, an things, I suppose, no man will affirm. Again, adversary, which must be in a suit in law; and why should not a liberty or privilege in law be as strong as a privilege in fact as in the case of tenant after possibility: or where there is a lessee for life the remainder for life? for in these cases they are privileged from waste, and yet that trenches not the property.

Now, therefore, to take the second course, that it should be as a real power annexed to the state; aeither can that be, for it is the law that mouldeth estates, and not men's fancies. And, therefore, if men by clauses, like voluntaries in music, run not upon the grounds of law, and do restrain an estate more than the law restrains it, or enable an estate more than the law enables it, or guide an VOL. III.—35

so it is used in records of law.

As Coke, lib. 1, f. 17, Porter's case, it was pleaded in bar, that dicta domina regina nunc ipsos Johannem et Henricum Porter petere seu occasionare non debet, that is, implacitare.

So likewise Coke l. 1, f. 27, case of Alton Woods, quod dicta domina regina nunc ipsum proinde aliqualiter impetere seu occasionare non debet.

So in the book of entries, f. 1, lit. D. 15 H. VII. rot. 2, inter placita regis, et super hoc venit W. B. commonachus abbatis W. loci illius ordinarii, gerensque vices ipsius abbatis, ad quoscunque clericos de quolibet crimine coram domino rege impelitos sire irritatos calumniand'. So much er vi et usu termini.

4 E. 2. Frah 17E 362 101.

For reason: first, it ought to be considered that | The same reason is of the books the punishment of waste is strict and severe, 4 Ed. II. Fitzh. tit. waste 15, and 17 1215 because the penalty is great, treble damages, and E. III. f. 7. Fitzh. tit. waste 101, wa the place wasted: and, again, because the lessee where there was a clause, Quod liceat must undertake for the acts of strangers; where- facere commodum suum meliori modo quo poterit. upon I infer, that the reason which brought this Yet, saith Skipwith, doth this amount, that he clause in use, ab initio, was caution to save, and shall, for the making of his own profit, disinherit to free men from the extremity of the penalty, and the lessor? Nego consequentiam; so that still the not any intention to countermand the property. law allows not of the general discharge, but of the special that goeth to the action.

Add to this, that the law doth assign in most cases double remedy, by matter of suit, and matter in pais; for disseisins, actions and entries; for trespasses, action and seisure; for nuisances, action and abatement: and, as Littleton doth instruct us, one of these remedies may be released without touching the other. If the disseisee release all actions, saith Littleton, yet my entry remains; but if I release all demands or remedies, or the like words of a general nature, it doth release the right itself. And, therefore, I may be of opinion, that if there be a clause of grant in my lease expressed, that if my lessee or his assigns cut down and take away any timber trees, that I and my heirs will not charge them by action, claim, seisure, or other interruption, either this shall inure by way of covenant only, or if you take it to inure by way of absolute discharge, it amounts to a grant of property in the trees, like as the case of 31 Assis. I grant, that A clause that if I pay not you ten pounds per annum power amounts at such feasts, you shall distrain for if the state bear it in my manor of Dale, though this sound executory in power, yet it amounts to a present grant of a rent. So as I conclude that the discharge of action the law knows, grant of the property the law knows, but this same mathematical power being a power amounting to a property, and yet no property, and knit to a state that cannot bear it, the law knoweth not, tertium penitus ignoramus.

sounds to a

to a property,

it.

9 H. 6. L. 36.

£47.

The second authority by inference is out of 9 H. VI. fol. 35. Fitzh. tit. waste 39, and 32 H. VIII. Dyer, fol. 47, where it mad the learning is taken, that notwith- 3 H. & Dy standing this clause be inserted into a lease, yet a man may reserve unto himself remedy by entry: but, say I, if this clause should have that sense, which they on the other side would give it, namely, that it should amount to an abso lute privilege and power of disposing, then were the proviso flat repugnant, all one as if it were absque impetitione vasti, proviso quod non facie! vastum; which are contradictories: and note well that in the book of 9 H. VI., the proviso is quod non faceat vastum voluntarium in domibus; which indeed doth but abridge in one kind, and therefore may stand without repugnancy: but in the latter book it is general, that is to say, absque impetitione vasti, et si contigerit ipsum fetre vastum tunc licebit reintrare. And there Shelley making the objection, that the condition was repugnant, it is salved thus, sed aliqui tenuerunt, that this word impetitione vasti is to be under stood that he shall not be impleaded by waste, or punished by action; and so indeed it ought: those aliqui recte tenuerunt.

For the authorities direct, they are two, the one 27 H. VI. Fitzh. tit. waste 8, where a lease was made without impeachment of waste, and a stranger committed waste, and the For the authorities, they are of three kinds, rule is, that the lessee shall recover in trespass two by inference, and the third direct.

4 E. 3, f. 23, 24.

The first I do collect upon the books of 42 Edw. III. fol. 23 and 24, by the difference taken by Mowbray, and agreed by the court, that the law doth intend the clause of disimpeachment of waste to be a discharge special, and not general or absolute; for there the principal case was, that there was a clause in the lease, that the lessor should not demand any right, claim, or challenge in the lands during the life of the lessee. It is resolved by the book, that it is no bar in waste; but that if the clause had been, that the lessee should not have been impeached for waste, clearly a good bar; which demonstrates plainly, that general words, be they never so loud and strong, bear no more than the state will bear, and to any other purpose are idle. But special words that inure by way of discharge of action, are good and allowed by law.

only for the crop of the tree, and not for the body of the tree. It is true it comes by a dicitur, but it is now a legitur; and a query there is, and rea son, or else this long speech were time ill spent.

And the last authority is the case of Sir Moyle Finch and his mother, referred to my Lord Wrey and Sir Roger Manwood, resolved upon confer ence with other of the judges vouched by Wrey in Herlackenden's case, and reported to my lord chief justice here present, as a resolution of law, being our very case.

Marg

And, for the cases to the contrary, I know not one in all the law direct; they press the ato statute of Marlebridge, which hath an exception in the prohibition, firmarii non facient vastum, etc. nisi specialem inde habuerint concer sionem per scriptum conventionis, mentionem ft ciens, quod hoc facere possint. This presseth not the question; for no man doubteth, but it will

excuse in an action of waste; and, again, nisi | agree the clause to be lawful; nay, we say habeant specialem concessionem may be meant of that it is no sort inutile, but there is use of it, to an absolute grant of the trees themselves; and avoid this severe penalty of treble damages. But, otherwise the clause absque impelitione vasti to speak plainly, I will tell you how this clause taketh away the force of the statute, and looseth came in from 13 of E. I. till about 12 of E. IV. what the statute bindeth; but it toucheth not the The state tail, though it had the qualities of an property at common law. inheritance, yet it was without power to alien; but as soon as that was set at liberty, by common recoveries, then there must be found some other device, that a man might be an absolute owner of the land for the time, and yet not enabled to alien, and for that purpose was this clause found out; for you shall not find in one amongst a hundred, that farmers had it in their leases; but those that were once owners of the inheritance, and had put it over to their sons or next heirs, reserved such a beneficial state to themselves. And therefore the truth is, that the flood of this usage came in with perpetuities, save that the perpetuity was to make an inheritance like a stɩ for life, and this was to make a stem for life like an inheritance; both concurring in this, that they presume to create fantastical estates, contrary to the ground of law.

Culpepper's

121 Dyer, 1 196

For Littleton's case, in his title Of Conditions, where it is said, that if a feoffment in fee be made upon condition, that the feoffee infeoff the husband and wife, and the heirs of their two bodies; and that the husband die, that now the feoffee ought to make a lease without impeachment of waste to the wife, the remainder to the right heirs of the body of her husband and her begotten; whereby it would be inferred, that such a lessee should have equal privilege with tenant in tail: the answer appears in Littleton's own words, which is, that the feoffee ought to go as near the condition, and as near the intent of the condition as he may. But to come near is not to reach, neither doth Littleton undertake for that. As for Culpepper's case, it is obscurely put, and concluded in division of opinion; but yet so as it rather makes for us. The case is 2 Eliz. Dyer, fol. 184, and is in effect this: a man makes a lease for years, excepting timber trees, and afterwards makes a lease without impeachment of waste to trees to John a Style, and then granteth the land and trees to John a Down, and binds himself to warrant and save harmless John a Down against John a Style; John a Style cutteth down the trees; the question was, whether the bond were forfened and that question resorteth to the other question: whether John a Style, by virtue of such lease, could fell the trees? and held by Weston and Brown that he could not: which proves plainly for us, that he had no property by that clause in the tree; though it is true that in that case the exception of the trees turneth the case, and so in effect it proveth neither way.

And, therefore, it is no matter though it went out with the perpetuities, as it came in, to the end that men that have not the inheritance should not have power to abuse the inheritance.

And for the mischief, and consideration of bonum publicum, certainly this clause with this opposition tendeth but to make houses ruinous, and to leave no timber upon the ground to build them up again; and therefore let men, in God's name, when they establish their states, and plant their sons or kinsmen in their inheritance of some portions of their lands, with reservation of the freehold to themselves, use it, and enjoy it in such sort, as may tend ad ædificationem, and not ad destructionem; for that it is good for posterity, and for the state in general.

And for the timber of this realm, it is vivus the saurus regni ; and it is the matter of our walls, For the practice, if it were so ancient walls not only of our houses, but of our island; and common, as is conceived; yet so it is a general disinherison to the kingdom to since the authorities have not approved, but con- favour that exposition, which tends to the decay deaned it, it is no better than a popular error: it of it, being so great already; and to favour waste is but pedum visa est via, not recta visa est via. when the times themselves are set upon waste But I conceive it to be neither ancient nor com- and spoil. Therefore, since the reason and authormon. It is true I find it first in 19 E. II. Iities of law, and policy of estate do meet, and mean such a clause, but it is one thing to say that those that have, or shall have such conveythat the clause is ancient; and it is another thing ances, may enjoy the benefit of that clause to proto say that this exposition, which they would tect them in a moderate manner, that is, from the Dow introduce, is ancient. And therefore you penalty of the action; it is both good law and must note that a practice doth then expound the good policy for the kingdom, and not injurious of law, when the act, which is practised, were inconvenient for particulars, to take this clause merely tortuous or void, if the law should not strictly, and therein to affirm the last report. And approve it; but that is not the case here, for we so I pray judgment for the plaintiff.

THE ARGUMENT

IN

LOW'S CASE OF TENURES,

IN THE KING'S BENCH.

THE manor of Alderwasley, parcel of the duchy, | ancient seigniory is revived, and so the new reserand lying out of the county palatine, was, before vation void; because the manor cannot be charged the duchy came to the crown, held of the king by with two tenures. knight's service in capite. The land in question was held of the said manor in soccage. The duchy and this manor, parcel thereof, descended to King Henry IV. King Henry VIII. by letters patent the 19th of his reign, granted this manor to Anthony Low, grandfather of the ward, and then tenant of the land in question, reserving twenty-six pounds ten shillings rent and fealty, tantum pro omnibus servitiis, and this patent is under the duchy-seal only. The question is, how this tenancy is held, whether in capite or in soccage. The case resteth upon a point, unto which all have a special care of this case, as much as in us the questions arising are to be reduced.

The first is, whether this tenancy, being by the grant of the king of the manor to the tenant grown to a unity of possession with the manor, be held as the manor is held, which is expressed in the patent to be in soccage.

The second, whether the manor itself be held in soccage according to the last reservation, or in capite by revivor of the ancient seigniory, which was in capite before the duchy came to the crown. Therefore my first proposition is, that this tenancy, which without all colour is no parcel of the manor, cannot be comprehended within the tenure reserved upon the manor, but that the law createth a several and distinct tenure thereupon, and that not guided according to the express tenure of the manor, but merely secundum normam legis, by the intendment and rule of law, which must be a tenure by knight's service in capite.

The king's te

more hurt by a resolution in law, than by

or con

And my second proposition is, that nures may take admitting that the tenure of the tenancy should ensue the tenure of the manor, many suppres. yet, nevertheless, the manor itself, ceaiments. which was first held of the crown in capite, the tenure suspended by the conquest of the duchy to the crown, being now conveyed out of the crown under the duchy-seal only, which hath no power to touch or carry any interest, whereof the king was vested in right of the crown, is now so severed and disjoined from the ancient signiory, which was in capite, as the same

276

This case concerneth one of the greatest and fairest flowers of the crown, which is the king's tenures, and that in their creation; which is more than their preservation: for if the rules and maxims of law in the first raising of tenures in capite be weakened, this nips the flower in the bud, and may do more hurt by a resolution in law, than the losses which the king's tenures do daily receive by oblivion or suppression, or the neglect of officers, or the iniquity of jurors, or other like blasts, whereby they are continually shaken: and therefore it behoveth us of the king's council to

is, to give satisfaction to the court. Therefore, before I come to argue these two points particu larly, I will speak something of the favour of law towards tenures in capite, as that which will give a force and edge to all that I shall speak afterwards.

No

The constitution of this kingdom appeareth to be a free monarchy in nothing better than in this: that as there is no land of the subject that is charged to the crown by way of tribute, or tax, or talliage, except it be set by Parliament: so, on the other side there is no land of the subject but is charged to the crown by tenure, mediate or immediate, and that by the grounds of the common law. This is the excellent temper and commix. ture of this estate, bearing marks of the sovereignty of the king, and of the freedom of the subject from tax, whose possessions are feodalia, not tributaria.

Tenures, according to the most general division, are of two natures, the one containing matter of protection, and the other matter of profit; that of protection is likewise double, divine protection and military. The divine protection is chiefly procured by the prayers of holy and devour men; and great pity it is that it was depraved and corrupted with superstition: This begot the te nure in frankalmoigne, which, though in burden t is less than in soccage, yet in virtue it is more than knight's service. For we read how, during