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.

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 any reversion or remainder; and yet the statute giving a formedon, where it lay not before, being but an action, implies an actual reversion and remainder.

A statute giving an action im. plieth an interest.

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.

No grant of property.

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 not affirm that this clause amounts to a grant of trees; for then, according to the reso- | lution 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 5 H. 5. is said, that if lessee for years without impeachment of waste accept a confirmation for life, the privilege is gone.

3 E. 3. 29 H. 8.

And so are the books in 3 E. III. and 28 H. VIII. that if a lease be made without impeachment of waste pour autre vie, the remainder to the lessee for life, the privilege is gone, because he is in of another estate; so then plainly it amounts to no grant of property, neither can it any ways touch the property, nor enlarge the special property of the lessee: for will any man say, that if you put Marwood and Sanders's case of a lease without impeachment of waste, that he may grant the land with the exception of the trees any more than an ordinary lessee? Or shall the windfalls be more his in this case than in the other? for he was not impeachable of waste for windfalls no more than where he hath the clause. Or will any man say, that if a stranger commit waste, such a lessee may seise. These things, I suppose, no man will affirm. Again, 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; neither 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

mere repugnancies and vanities. And, therefore, if I make a feoffment in fee, provided the feoffee shall not fell timber, the clause of condition is void. And so, on the other side, if I make a lease with a power that he shall fell timber, it is void.

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 repug nant 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 interruptions, as well in pais as judicial. But impetitio is merely a judicial claim or interruption by suit in law, and upon the matter all one with implaci tatio. Wherein first we may take light of the derivation of impetitio, which is a compound of the preposition in and the verb peto, whereof the verb peto itself doth signify a demand, but yet properly such a demand as is not extrajudicial : for the words petit judicium petit auditum brevis, &c., are words of acts judicial; as for the demand in pais, it is rather requisitio than petitio, as licet sæpius requisitus; so much for the verb peto. But the preposition in enforceth it more, which signifies against: as Cicero in Verrem, in Catilinam and so in composition, to inveigh, is to speak against; so it is such a demand only where there is a party raised to demand against, that is, an adversary, which must be in a suit in law; and 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 1. 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 ordinari, gerensque vices ipsius abbatis, ad quoscunque clericos de quolibet crimine coram domino rege impetitos sive irritatos calumniand'. So much ex vi et usu termin

4 E. 2. Fitzh. 17 E. 3, f. 7.

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 tit. waste 15. because the penalty is great, treble damages, and E. III. f. 7. Fitzh. tit. waste 101, Fitzh. tit. waste 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.

9 H. 6. f. 35.

39.

Fitzh. tit. waste 32 H. 8. Dyer,

f. 47.

Add to this, that the law doth assign in most 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 action and abatement: and, as Littleton doth the learning is taken, that notwithinstruct 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 impetitione vasti, proviso quod non faciet cut down and take away any timber 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 faceat 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 And there Shelley A clause that if I pay not you ten pounds per annum | vastum tunc licebit reintrare. power amounts 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 amounting to a property, and yet no property, and knit to a state that cannot bear it, the law knoweth not, tertium penitus ignoramus.

31 Assis.

sounds to a

to a property,

it.

For the authorities direct, they are two, the one 27 H. VI. Fitzh. tit. waste 8, where a 27 H. 6. Fitzhe lease was made without impeachment tit. waste S. 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 reason, 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 conference 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.

Marlebridge.

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

excuse in an action of waste; and, again, nisi habeant specialem concessionem may be meant of an absolute grant of the trees themselves; and otherwise the clause absque impetitione vasti taketh away the force of the statute, and looseth what the statute bindeth; but it toucheth not the property at common law.

Culpepper's

Case.

2 Eliz. Dyer, f. 184.

agree the clause to be lawful; nay, we say that it is no sort inutile, but there is use of it, to avoid this severe penalty of treble damages. But, to speak plainly, I will tell you how this clause came in from 13 of E. I. till about 12 of E. IV. The state tail, though it had the qualities of an 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 stem 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.

For Littleton's case, in his title Of Littleton. 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 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 forfeited? 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 Weston 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 case, and so in effect it proveth neither way.

Practice.

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 timber of this realm, it is vivus thesaurus 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 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 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 or 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.

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 particularly, 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 land in the

kingdom of England

of tribute, and

charged by way all land charged

by way of tenure.

The constitution of this kingdom apThe second, whether the manor itself be held 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 was in capite before the duchy came to the crown. is no land of the subject that is charged 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 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

mediate, 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.

And my second proposition is, that nures may take admitting that the tenure of the tenancy Tenures, according to the most general divishould ensue the tenure of the manor, sion, are of two natures, the one containing matmany suppres- yet, nevertheless, the manor itself, ter of protection, and the other matter of profit; cealments. 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 devout 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 tewhereof 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 mor seigniory, which was in capite, as the same ❘ than knight's service. For we read how, during

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