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A statute giving at action in pielb ao inte

No grant of property.

5 H. 5.

SE. 3. 23 H. 8.

be put than the case upon the statute de donis estate otherwise than the law guides it, they bu 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 sell timber, it is void. Thus have I passed over the first So if I make a lease with a power that he may main part, which I have insisted upon make feoffment, or that he may make leases for

the longer, because I shall have use of forty years, or that if he make default I shall not it for the clearing of the second.

be received, or that the lessee may do homage: Now to come to the force of the clause absque these are plainly void, as against law, and

repug. impetitione visli. This clause must of necessity nant to the state. No, this cannot be done by work in one of these degrees, either by way of way of use, except the words be apt, as in Mildgrant of property, or by way of power and liberty may's case: neither is this clause, in the sense I: nit to the state, or by way of discharge of action; that they take it, any better. whereof the first two I reject, the last I receive. Therefore, laying aside these two constructions,

Therefore, I think the other side will whereof the one is not maintained to be, the other

not affirm that this clause amounts to cannot be: let us come to the true sense of this a grant of trees; for then, according to the reso- clause, which is by way of discharge of the action, lution in Herlackenden's case, they should go to and no more: wherein I will speak first of the the executors, and the lessee might grant them words, then of the reason, then of the authorities over, and they might be taken after the state which prove our sense, then of the practice, which determined. Now it is plain that this liberty is is pretended to prove theirs; and, lastly, I will created with the estate, passeth with the estate, weigh the mischief how it stands for our construcand determines with the estate,

tion or theirs. That appears by 5 Hen. V. where it It is an ignorant mistaking of any man to take

is said, that if lessee for years without impeachment for impedimentum and not for imimpeachment of waste accept a confirmation for petitio ; for it is true that impedimentum doth life, the privilege is gone.

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 impetilio, 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 pelo 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 so it is used in records of law. strong as a privilege in fact ? as in the case of As Coke, lib. I, f. 17, Porter's case, it was tenant after possibility: or where there is a lessee pleaded in bar, that dicta domina regina nunc ipsos for life the remainder for life ? for in these cases Johannem et Henricum Porter petere scu occasionare they are privileged from waste, and yet that non debet, that is, implacitare. trenches not the property.

So likewise Coke l. 1, f. 27, case of Alton Now, therefore, to take the second course, that Woods, quod dicta domina regina nunc ipsum proit should be as a real power annexed to the state; inde aliqualiler impetere seu occasionare non debet. neither can that be, for it is the law that mouldeth So in the book of entries, f. 1, lit. D. 15 H. VII estates, and not men's fancies. And, therefore, rot. 2, inter placiia regis, et super hoc venit W. if men by clauses, like voluntaries in music, run commonachus abbatis W. luci illius ordinarii, not upon the grounds of law, and do restrain an gerensque vices ipsius abbatis, ad quoscunque clericus estate more than the law restrains it, or enable an de quolibet crimine coram domino rege impelitos sire estate more than the law enables it, or guide an irritatos calumniand'. So much er vi et usu termini.

Vol. III.-35

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31 Assis.

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 11. se is because the penalty is great, treble damages, and E. III. f. 7. Fitzh. tit. waste 101, poz. til faste the place wasted : and, again, because the lessee where there was a clause, Quod liceat inust undertake for the acts of strangers; where- facere commodum suum meliori modo quo poterit. upon 1 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

Add to this, that the law doth assign in inost the special that goeth to the action. cases double remedy, by matter of suit, and matter The second authority by inference is out of in pais; for disseisins, actions and entries; for 9 H. VI. fol. 35. Fitzh. tit. waste 39, trespasses, action and seisure ; for nuisances, and 32 H. VIII. Dyer, fol. 47, where in:. tit. wasta action and abatement: and, as Littleton doth the learning is taken, that notwith- 32 H. & Dyer, instruct us, one of these remedies may be released standing this clause be inserted into a without touching the other. If the disseisee lease, yet a man may reserve unto himself remedy release all actions, saith Littleton, yet my entry by entry: but, say I, if this clause should have remains; but if I release all demands or remedies, that sense, which they on the other side would or the like words of a general nature, it doth give it, namely, that it should amount to an absorelease the right itself. And, therefore, I may be lute privilege and power of disposing, then were of opinion, that if there be a clause of grant in my the proviso flat repugnant, all one as if it were lease expressed, that if my lessee or his assigns absque impeti!ione vasti, proviso quod non faciet cut down and take away any tiniber trees, that I vastum ; which are contradictories : and note well and my heirs will not charge them by action, that in the book of 9 H. VI., the proviso is quod claim, seisure, or other interruption, either this non faccat vastum voluntarium in domibus ; which shall inure by way of covenant only, or if you indeed doth but abridge in one kind, and theretake it to inure by way of absolute discharge, it | fore may stand without repugnancy: but in the amounts to a grant of property in the trees, like latter book it is general, that is to say, absque

as the case of 31 Assis. I grant, that impetitione vasti, et si contigerit ipsum fucere A clause that if I pay not you ten pounds per annum vastum tunc licebit reintrare. And there Shelley power annunts at such feasts, you shall distrain for making the objection, that the condition was reif the state bear it in my manor of Dale, though this pugnant, it is salved thus, sed aliqui tenuerunt,

sound executory in power, yet it that this word impetitione vasti is to be underamounts to a present grant of a rent. So as I stood that he shall not be impleaded by waste, or conclude that the discharge of action the law punished by action; and so indeed it ought: knows, grant of the property the law knows, but those aliqui recte tenuerunt. this same mathematical power being a power For the authorities direct, they are two, the one amounting to a property, and yet no property, and 27 H. VI. Fitzh. tit. waste 8, where a 27 H. 6. Fitzt. knit to a state that cannot bear it, the law knoweth lease was made without impeachment til, waste & not, tertium penitus ignoramus.

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.

only for the crop of the tree, and not for the body 4. E. 3, f. 23,

The first I do collect upon the books of the tree. It is true it comes by a dicitur, but

of 42 Edw. III. fol. 23 and 24, by the it is now a legitur ; and a query there is, and readifference taken by Mowbray, and agreed by the son, or else this long speech were time ill spent. court, that the law doth intend the clause of dis- And the last authority is the case of Sir Moyle impeachment of waste to be a discharge special, Finch and his mother, referred to my Lord Wrey and not general or absolute; for there the princi- and Sir Roger Manwood, resolved upon conferpal case was, that there was a clause in the lease, ence with other of the judges vouched by Wrey that the lessor should not demand any right, in Herlackenden's case, and reported to my lord claim, or challenge in the lands during the life of chief justice here present, as a resolution of law, the lessee. It is resolved by the book, that it is being our very case. no bar in waste; but that if the clause had been, And, for the cases to the contrary, I know not that the lessee should not have been impeached one in all the law direct; they press the for waste, clearly a good bar; which demonstrates statute of Marlebridge, which hath an

Marlebridge. plainly, that general words, be they never so loud exception in the prohibition, firmarii non facient and strong, bear no more than the state will bear, vastum, etc. nisi specialem inde habuerint concesaud to any other purpose are idle. But special sionem per scriptum conventionis, mentionem fawords that inure by way of discharge of action, ciens, quod hoc facere possint. This presseth not are good and allowed by law.

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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 ahsque impetitione 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; For Littleton's case, in his title of but as soon as that was set at liberty, by common

Conditions, where it is said, that if a recoveries, then there must be found some other feoffinent in fee be made upon condition, that device, that a man might be an absolute owner the feoffee infeoff the husband and wife, and the of the land for the time, and yet not enabled to heirs of their two bodies; and that the husband die, alien, and for that purpose was this clause found that now the feoffee ought to make a lease without out; for you shall not find in one amongst a hunimpeachment of waste to the wife, the remainder dred, that farmers had it in their leases; but to the right heirs of the body of her husband and those that were once owners of the inheritance, her begotten; whereby it would be inferred, that and had put it over to their sons or next heirs, such a lessee should have equal privilege with reserved such a beneficial state to themselves. tenant in tail: the answer appears in Littleton's And therefore the truth is, that the flood of this own words, which is, that the feoffee ought to go usage came in with perpetuities, save that the as near the condition, and as near the intent of perpetuity was to make an inheritance like a sten the condition as he may. But to come near is not for life, and this was to make a stem for life like to reach, neither doth Littleton undertake for that. an inheritance; both concurring in this, that they Culpepper's

As for Culpepper's case, it is ob- presume to create fantastical estates, contrary Eliz Dyer, scurely put, and concluded in division to the ground of law.

of opinion; but yet so as it rather And, therefore, it is no matter though it weni makes for us. The case is 2 Eliz. Dyer, fol. out with the perpetuities, as it came in, to the 181, and is in effect this: a man makes a lease end that men that have not the inheritance should for years, excepting timber trees, and afterwards not have power to abuse the inheritance. makes a lease without impeachment of waste to And for the mischief, and consideration of trees to John a Style, and then granteth the land bonum publicum, certainly this clause with this and trees to John a Down, and binds himself to opposition tendeth but to make houses ruinous, warrant and save harmless John a Down against and to leave no timber upon the ground to build John a Style; John a Style cutteth down the them up again; and therefore let men, in God's trees; the question was, whether the bond were name, when they establish their states, and plant fortered ? and that question resorteth to the other their sons or kinsmen in their inheritance of some question: whether John a Style, by virtue of portions of their lands, with reservation of the such lease, could fell the trees? and held by freehold to themselves, use it, and enjoy it in Westun and Brown that he could not: which such sort, as may tend ad ædificationem, and not proves plainly for us, that he had no property by ad destructionem ; for that it is good for posterity, that clause in the tree; though it is true that in and for the state in general. that case the exception of the trees turneth the And for the timber of this realm, it is vivus the case, and so in effect it proveth neither way. 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 demned 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 author

It is true I find it first in 19 E. II. I ities of law, and policy of estate do meet, and mean such a clanse, 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 now 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 oi jaw, when the act, which is practised, were inconvenient for particulars, to take this clausa 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.

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The manor of Alderwasley, parcel of the duchy, ancient seigniory is revived, and so the new resere and 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 This case concerneth one of the greatest and was held of the said manor in soccage. The fairest flowers of the crown, which is the king's duchy and this manor, parcel thereof, descended to tenures, and that in their creation ; which is more King Henry IV. King Henry VIII. by letters than their preservation : for if the rules and maxpatent the 19th of his reign, granted this manor ims of law in the first raising of tenures in capite to Anthony Low, grandfather of the ward, and be weakened, this nips the flower in the bud, and then tenant of the land in question, reserving may do more hurt by a resolution in law, than the :wenty-six pounds ten shillings rent and fealty, losses which the king's tenures do daily receive tantum pro omnibus servitiis, and this pate is by oblivion or suppression, or the neglect of under the duchy-seal only. The question is, how officers, or the iniquity of jurors, or other like this tenancy is held, whether in capite or in soc- blasts, whereby they are continually shaken : and cage.

therefore it behoveth us of the king's council to 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.

is, to give satisfaction to the court. Therefore, The first is, whether this tenancy, being by the before I come to argue these two points particugrant of the king of the manor to the tenant grown larly, I will speak something of the favour of law to a unity of possession with the manor, be held towards tenures in capite, as that which will give as the manor is held, which is expressed in the a force and edge to all that I shall speak asterpatent to be in soccage.

wards. The second, whether the manor itself be held The constitution of this kingdom ap- No land in the in soccage according to the last reservation, or in peareth to be a free monarchy in nocapite by revivor of the ancient seigniory, which thing better than in this : that as there are trade was in capite before the duchy came to the crown. is no land of the subject that is charged by was

Therefore my first proposition is, that this te- to the crown by way of tribute, or tax, nancy, which without all colour is no parcel of the or talliage, except it be set by Parliament: so, on manor, cannot be comprehended within the tenure the other side there is no land of the subject but reserved upon the manor, but that the law createth is charged to the crown by tenure, mediate or ima several and distinct tenure thereupon, and that mediate, and that by the grounds of the common not guided according to the express tenure of the law. This is the excellent temper and commix. manor, but merely secundum normam legis, by the ture of this estate, bearing marks of the soveintendment and rule of law, which must be a reignty of the king, and of the freedom of the tenure by knight's service in capite.

subject from tax, whose possessions are feodalia, And my second proposition is, that not tributaria. pure furre bake admitting that the tenure of the tenancy Tenures, according to the most general divi

should ensue the tenure of the manor, sion, are of two natures, the one containing matyet, nevertheless, the manor itself, ter of protection, and the other matter of profit;

which was first held of the crown in that of protection is likewise double, divine procapite, the tenure suspended by the conquest of tection and military. The divine protection is the duchy to the crown, being now conveyed out chiefly procured by the prayers of holy and devour of the crown under the duchy-seal only, which men; and great pity it is that it was depraved and hath no power to touch or carry any interest, corrupted with superstition : This begot the ter whereof the king was vested in right of the crown, nure in frankalmoigne, which, though in burden it is now so severed and disjoined from the ancient is less than in soccage, yet in virtue it is more vigniory, which was in capite, as the same than knight's service. For we read how, during

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more hurt by Tesolution in law, than by many suppres. sions or con vaiments.

44 E., 1. 45.

the while Moses in the mount held up his hands, which was once limited, faileth, the law everthe Hebrews prevailed in battle; as well as when more supplieth a tenure by knight's service in Elias prayed, rain came after drought, which capite; if it be a blank once—that the law must made the plough go; so that I hold the tenure in fill it up, the law ever with her own hand writes, frankalmoigne in the first institution indifferent to tenure by knight's service in capite. And therefore knight's service and soccage. Setting apart this the resolution was notable by the judges tenure, there remain the other two, that of knight's of both benches, that where the king service, and that of soccage; the one tending confirmed to his farmers’tenants for life, tenend' per chiefly to defence and protection, the other to pro- servitia dcbita, this was tenure in capite; for other fit and maintenance of life. They are all three services are servitia requisita, required by the comprehended in the ancient verse, Tu semper ora, words of patents or grants; but that only is sertu prolege, fuque labora. But between these two vitium debitum, by the rules of law. services, knight's service and soccage, the law of The course, therefore, that I will hold in the England makes a great difference: for this king- proof of the first main point, shall be this. First, dom, my lords, is a state neither effeminate nor I will show, maintain, and fortify my former merchantlike; but the laws give the honour unto grounds, that wheresoever the law createth the arms and military service, like the laws of a na- tenure of the king, the law hath no variety, but tion before whom Julius Cæsar turned his back, always raises a tenure in capite. as their own prophet says: Territa quæsitis osten- Secondly, that in the case present, there is not dit terga Britannis. And, therefore, howsoever any such tenure expressed, as can take place, and men, upon husbandlike considerations of profit, exclude the tenure in law, but that there is, as it esteem of soccage tenures; yet the law, that were, a lapse to the law. looketh to the greatness of the kingdom, and pro- And, lastly, I will show in what cases the forceedeth upon considerations of estate, giveth the mer general rule receiveth some show of exceppre-eminence altogether to knight's service. tion; and will show the difference between them

We see that the ward, who is ward for knight's and our case ; wherein I shall include an answer service land, is accounted in law disparaged, if he to all that hath been said on the other side. be tendered a niarriage of the burghers' parentage: For my first proposition I will divide into four and we see that the knight's fees were by the an- branches; first, I say, where there is no tenure recient laws the materials of all nobility; for that served, the law createth a tenure in capite; secondit appears by divers records how many knight's ly, where the tenure is uncertain; thirdly, where fees should by computation go to a barony, and the tenure reserved is impossible or repugnant to so to an earldom. Nay, we see that, in the very law; and, lastly, where a tenure once created is summons of Parliament, the knights of the shire afterwards extinct. are required to be chosen milites gladio cincli ; so For the first, if the king give lands as the very call, though it were to council, bears a and say nothing of the tenure, this is a fine 33 H. 6, mark of arms and habiliments of war. To con- tenure in capite; nay, if the king give clude, the whole composition of this warlike na- whiteacre and blackacre, and reserves a tenure tion, and the favours of law, tend to the advance-only of whiteacre, and that a tenure expressed to ment of military virtue and service.

be in soccage; yet you shall not for fellowshipBut now farther, amongst the tenures by knight's sake, because they are in one patent, intend the like service, that of the king in capite is the most high tenure of blackacre; but that shall be held in capite. and worthy; and the reason is double; parily So, if the king grant land, held as of a manor, because it is held by the king's crown and person, with warranty, and a special clause of recompense, and partly because the law createth such a privity and the tenant be impleaded, and recover in value, between the line of the crown and the inheritors this land shall be held in capite, and not of the of such tenancies, as there cannot be an alienation manor. without the king's license, the penalty of which So, if the king exchange the manor of Dale alienation was by the common law the forfeiture for the manor of Sale, which is held in soccage, of the state itself, and by the statute of E. III. is although it be by the word <rcambium, yet that reduced to fine and seizure. And although this goeth to equality of the state, not of the tenure, and also has been unworthily termed by the vulgar, the manor of Dale, if no tenure be expressed, shall not capite, captivity and thraldom ; yet that which be held in capite. So much for silence of tenure. they count bondage, the law counteth honour, For the second branch, which is uncertainty of telike to the case of tenants in tail of the king's nure; first, where an ignoramus is found by office, advancement, which is a great restraint by the this, by the common law, is a tenure in capite, statute of 34 H. VIII., but yet by that statute it is which is most for the king's benefit; and the preimputed for an honour. This favour of law to the sumption of law is so strong, that it amounts to a tenure by knight's service in capite produceth direct finding or affirmative, and the party this effect, that wheresoever there is no express shall have a negative or traverse, which srovire effectually limited, or wheresoever that, is somewhat strange to a thingindefinite. Eliz Dver. 306.

Per Prisct in

8 H. 7, f. 3,6

5 Mar. Dyrr. 44.

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