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 resolution 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. 28 H. 8. estate otherwise than the law guides it, they be 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 implacitatio. 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 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 against; so it is such a demand only where there 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 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 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 impetitos sive irritatos calumniand'. So much ex vi et usu termini. For reason: first, it ought to be considered that the punishment of waste is strict and severe, because the penalty is great, treble damages, and the place wasted: and, again, because the lessee must undertake for the acts of strangers; whereupon I infer, that the reason which brought this clause in use, ab initio, was caution to save, and to free men from the extremity of the penalty, and not any intention to countermand the property. 4 E. 2. Fitzh. 17 E. 3, f. 7 tit waste 15. 101. The same reason is of the books 4 Ed. II. Fitzh. tit. waste 15, and 17 E. III. f. 7. Fitzh. tit. waste 101, Fitzh. uit. waste where there was a clause, Quod liceat facere commodum suum meliori modo quo poterit. Yet, saith Skipwith, doth this amount, that he shall, for the making of his own profit, disinherit the lessor? Nego consequentiam; so that still the law allows not of the general discharge, but of the special that goeth to the action. 9 H. 6. L. 35. 39. .. 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 Fitzh. tit. waste action and abatement: and, as Littleton doth the learning is taken, that notwith- 32 H. 8. 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 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 A clause that if I pay not you ten pounds per annum vastum tunc licebit reintrare. And there Shelley 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, they are of three kinds, two by inference, and the third direct. 42 E. 3, 1. 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. For the authorities direct, they are two, the one 27 H. VI. Fitzh. tit. waste 8, where a 27 H. 6. Fitzh. lease was made without impeachment tit. waste 8. of waste, and a stranger committed waste, and the rule is, that the lessee shall recover in trespass 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. 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 Marlebridge. exception in the prohibition, firmarii non facient vastum, etc. nisi specialem inde habuerint concessionem per scriptum conventionis, mentionem faciens, 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 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. f. 184. 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 ob2 Eliz. Dyer, scurely 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 forfeited? 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. Practice. 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. 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 thesaurus regni ; and it is the matter of our walls, walls not only of our houses, but of our island; so it is a general disinherison to the kingdom to favour that exposition, which tends to the decay of it, being so great already; and to favour waste when the times themselves are set upon waste and spoil. Therefore, since the reason and authorIities of law, and policy of estate do meet, and that those that have, or shall have such conveyances, may enjoy the benefit of that clause to protect them in a moderate manner, that is, from the penalty of the action; it is both good law and good policy for the kingdom, and not injurious or inconvenient for particulars, to take this clause strictly, and therein to affirm the last report. And so I pray judgment for the plaintiff. For the practice, if it were so ancient and common, as is conceived; yet since the authorities have not approved, but condemned it, it is no better than a popular error: it is but pedum visa est via, not recta visa est via. But I conceive it to be neither ancient nor common. It is true I find it first in 19 E. II. mean such a clause, but it is one thing to say that the clause is ancient; and it is another thing to say that this exposition, which they would now introduce, is ancient. And therefore you must note that a practice doth then expound the law, when the act, which is practised, were merely tortuous or void, if the law should not approve it; but that is not the case here, for we 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. 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 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 by a law, than by sions or con And my second proposition is, that nures may take admitting that the tenure of the tenancy resolution in should ensue the tenure of the manor, mony 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 seigniory, which was in capite, as the same 276 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 land in the kingdom of England charged by way and cha of tribute, and all charged tenure. 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 devout men; and great pity it is that it was depraved and corrupted with superstition: This begot the tenure in frankalmoigne, which, though in burden it is less than in soccage, yet in virtue it is more than knight's service. For we read how, during 44 E. 3, f. 45. more supplieth a tenure by knight's service in 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 Elias prayed, rain came after drought, which made the plough go; so that I hold the tenure in frankalmoigne in the first institution indifferent to knight's service and soccage. Setting apart this tenure, there remain the other two, that of knight's service, and that of soccage; the one tending chiefly to defence and protection, the other to profit and maintenance of life. They are all three comprehended in the ancient verse, Tu semper ora, tu protege, tuque labora. But between these two 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 ostendit terga Britannis. And, therefore, howsoever men, upon husbandlike considerations of profit, esteem of soccage tenures; yet the law, that looketh to the greatness of the kingdom, and proceedeth upon considerations of estate, giveth the pre-eminence altogether to knight's service. We see that the ward, who is ward for knight's service land, is accounted in law disparaged, if he be tendered a marriage of the burghers' parentage: and we see that the knight's fees were by the ancient laws the materials of all nobility; for that it appears by divers records how many knight's fees should by computation go to a barony, and so to an earldom. Nay, we see that, in the very summons of Parliament, the knights of the shire are required to be chosen milites gladio cincti; so as the very call, though it were to council, bears a mark of arms and habiliments of war. To conclude, the whole composition of this warlike nation, and the favours of law, tend to the advancement of military virtue and service. But now farther, amongst the tenures by knight's service, that of the king in capite is the most high and worthy; and the reason is double; partly because it is held by the king's crown and person, and partly because the law createth such a privity between the line of the crown and the inheritors of such tenancies, as there cannot be an alienation without the king's license, the penalty of which alienation was by the common law the forfeiture of the state itself, and by the statute of E. III. is reduced to fine and seizure. And although this also has been unworthily termed by the vulgar, not capite, captivity and thraldom; yet that which they count bondage, the law counteth honour, like to the case of tenants in tail of the king's advancement, which is a great restraint by the statute of 34 H. VIII., but yet by that statute it is imputed for an honour. This favour of law to the tenure by knight's service in capite produceth this effect, that wheresoever there is no express service effectually limited, or wheresoever that, Secondly, that in the case present, there is not any such tenure expressed, as can take place, and exclude the tenure in law, but that there is, as it were, a lapse to the law. And, lastly, I will show in what cases the former general rule receiveth some show of exception; and will show the difference between them and our case; wherein I shall include an answer to all that hath been said on the other side. For my first proposition I will divide into four branches; first, I say, where there is no tenure reserved, the law createth a tenure in capite; secondly, where the tenure is uncertain; thirdly, where the tenure reserved is impossible or repugnant to law; and, lastly, where a tenure once created is afterwards extinct. Per Prisot in 1.7. For the first, if the king give lands and say nothing of the tenure, this is a fine, 33 H. 6, tenure in capite; nay, if the king give whiteacre and blackacre, and reserves a tenure only of whiteacre, and that a tenure expressed to be in soccage; yet you shall not for fellowshipsake, because they are in one patent, intend the like tenure of blackacre; but that shall be held in capite. So, if the king grant land, held as of a manor, with warranty, and a special clause of recompense, and the tenant be impleaded, and recover in value, this land shall be held in capite, and not of the manor. So, if the king exchange the manor of Dale for the manor of Sale, which is held in soccage, although it be by the word excambium, yet that goeth to equality of the state, not of the tenure, and the manor of Dale, if no tenure be expressed, shall be held in capite. So much for silence of tenure. For the second branch, which is uncertainty of tenure; first, where an ignoramus is found by office, this, by the common law, is a tenure in capite, which is most for the king's benefit; and the presumption of law is so strong, that it amounts to a direct finding or affirmative, and the party shall have a negative or traverse, which is somewhat strange to a thing indefinite. Eliz. Dyer, 306. 5 Mar. Dyer. 44. |