Page images
PDF
EPUB

but couples it with this, that they were first sear, and then overthrown by wind; and that makes an end of it, for sear trees belong to the lessee, standing or felled, and you have a special replication in the book of 44 E. III. that the wind did but rend them, and buckle them, and that they bore fruit two years after. And 2ndly, you have ill luck with your windfalls, for they be still apple-trees which are but wastes per accidens, as willows or thorns are in the sight of a house; but when they are once felled they are clearly matter of fuel.

Another kind of authorities, that make show against us, are those that say that the lessee shall punish the lessor in trespass for taking the trees,

5 H. 4. f. 29. 1 Ma. f. 90.

which are 5 H. IV. f. 29, and 1 Mar. Dier. f. 90, Mervin's case; and you might add if you will 9 E. IV. the case vouched before: unto which the answer is, that trespass must be understood for the special property, and not for the body of the tree; for those two books speak not a word, what he shall recover, nor that it shall be to the value. And therefore 9 E. IV. is a good expositor, for that distinguisheth where the other two books speak indefinitely; yea, but 5 H. IV. goes farther, and saith, that the writ shall purport arbores suas, which is true in respect of the special property; neither are writs to be varied according to special cases, but are framed to the general case, as upon lands recovered in value in tail, the writ shall suppose donum, a gift.

And the third kind of authority is 13 H. 7. f. 9. some books, as 13 H. VII. f. 9, that say, that trespass lies not by the lessor against the lessee for cutting down trees, but only waste; but that it is to be understood of trespass vi et armis, and would have come fitly in question, if there had been no seisure in this case.

Upon all which I conclude, that the whole current of authorities proveth the properties of the trees upon severance to be in the lessor by the rules of the common law and that although the common law would not so far protect the folly of the lessor, as to give him remedy by action, where the state was created by his own act; yet the law never took from him his property; so that as to the property, before the statute and since, the law was ever one. Now come I to the third assertion, that the statute of Gloucester hath not transferred the property of the lessee upon an intendment of recompence to the lessor; which needs no long speech: it is grounded upon a probable reason, and upon one special book.

The reason is, that damages are a recompence for property; and therefore that the statute of Gloucester giving damages should exclude property. The authority seems to be 12 E. IV. f. 12 E. 4. f. 8. 8, where Catesbey affirming that the lessee at will shall have the great trees, as well as lessee for years or life; Fairfax and Jennings correct it with a difference, that the lessor may take them in the case of tenant at will, because he hath no remedy by the statute, but not in case of the termors. This conceit may be reasonable thus far, that the lessee shall not both seise and bring waste; but if

[ocr errors]

he seise, he shall not have his action; if he recover by action, he shall not seise: for a man shall not have both the thing and recompence; it is a bar to the highest inheritance, the kingdom of heaven, receperunt mercedem suam." But at the first, it is at his election, whether remedy he will use, like as in the case of trespass; where if a man once recover in damages, it hath concluded and turned the property. Nay, I invert the argument upon the force of the statute of Gloucester thus: that if there had been no property at common law, yet the statute of Gloucester, by restraining the waste, and giving an action, doth imply a property: whereto a better case cannot be put than the case upon the statute "de donis conditionalibus," where there are no words to give any reversion or remainder; and yet the statute giving a ing an action A statute givformedon, where it lay not before, being implieth an inbut an action, implies an actual reversion and remainder.

terest.

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.

[blocks in formation]

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.

8.

And so are the books in 3 E. III. and 28 H. VIII. that if a lease be made 3 E. 3. 28 H. 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 moldeth 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 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 repugnant to the state. No, this cannot be done by way of use, except the words be apt, as in Mildmay's case; nei- | ther 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 hinderances, 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 extra judicial: for the words "petit judicium, petit auditum brevis," etc. 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.

[ocr errors]

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 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.

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 disseissee 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 if I pay not you 31 Assis. A 10l. per annum at such feasts, you shall clause that distrain for 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 power

amounts to a property, if the state' bear

it.

For the authorities, they are of three kinds, two by inference, and the third direct.

42 E. 3. f. 23, 24.

The first I do collect upon the books of 42 Ed. III. f. 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 away the force of the statute, and looseth what the by law.

4 E. 2. Fitzh.

tit. waste 15. 17 E. 3. f. 7. Fitzh. tit. waste 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, 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. f. 35. Fitzh. tit.

waste 39.

32 H. 8. Dyer,

f. 47.

The second authority by inference is out of 9 H. VI. fol. 35, Fitzh. tit. waste 39, and 32. H. VIII. Dyer, f. 47, where the learning is taken, that notwithstanding 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 absolute privilege and power of disposing, then were the proviso flat repugnant, all one as if it were "absque impetitione vasti, proviso quod non faciet vastum;" which are contradictories: and note well that in the book of 9 H. VI. the proviso is "quod non faciat 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 facere 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 understood that he shall not be impleaded by waste, or punished by action; and so indeed it ought: those "aliqui recte tenuerunt."

27 H. 6. Fitzh. tit. waste 8.

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 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 the case to the contrary, I know Statute, &c. Marlebridge. not one in all the law direct: they press the statute of Marlebridge, which hath an 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

statute bindeth; but it toucheth not the property at common law.

Littleton.

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 shall 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 as 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.

Culpepper's case 2 Eliz. Dyer, f. 184.

184, and is

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, f. in effect this: a man makes a lease for years, excepting timber-trees, and afterwards makes a lease without impeachment of waste to John a Style, and then granted 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.

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. I 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 tortious or void, if the law should not approve it: but that is not the case here, for we agree the clause to be lawful; nay, we say that it is in 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 phantastical 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 the 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 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 as 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 authorities of law, and the 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.

THE ARGUMENT

IN

LOW'S CASE OF TENURES:

IN THE KING'S BENCH.

THE manor of Alderwasley, parcel of the duchy, | and lying out of the county Palatine, was, before the duchy came to the crown, held of the king by knight's service in capite. The land in question was held of the said manor in socage. The duchy and this manor parcel thereof descended to king Hen. IV. King Hen. 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 267. 10s. 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 socage. The case resteth upon a point, unto which all 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 an unity of possession with the manor, be held as the manor is held, which is expressed in the patent to be in socage.

The second, whether the manor itself be held in socage 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.

And my second proposition is, that admitting that the tenure of the tenancy should ensue the tenure of the manor; yet nevertheless the manor itself, 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 ancient seignory is revived, and so the new reservation void; because the manor cannot be charged with two tenures.

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

The king's tetake more hurt nures may by a resolution in law, than by many suppres

sions or con

preservation: for if the rules and maxims

cealments. 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 have a special care of this case, as much as in us 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.

[ocr errors]

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 knights' fees should by computation go to a barony, and so to an earldom. Nay, we see that in the very summons of parlia ment, 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.

The constitution of this kingdom apNo land in the But now farther, amongst the tenures by knight's kingdom of peareth to be a free monarchy in service, that of the king in capite is the most high England charged by nothing better than in this; that as and worthy and the reason is double; partly beway of tribute, there is no land of the subject that is cause it is held of the king's crown and person; and all land charged by charged to the crown by way of tribute, and partly because the law createth such a privity way of tenure. or tax, or talliage, except it be set by between the line of the crown and the inheritors of parliament; so on the other side there is no land such tenancies, as there cannot be an alienation of the subject, but is charged to the crown by te- without the king's licence, the penalty of which nure, mediate or immediate, and that by the grounds alienation was by the common law the forfeiture of of the common law. This is the excellent temper❘ the state itself, and by the statute of E. III. is reand commixture of this estate, bearing marks of the duced to fine and seisure. And although this also sovereignty of the king, and of the freedom of the has been unworthily termed by the vulgar, not subject from tax, whose possessions are feodalia, | capite, captivity and thraldom; yet that which they not tributaria. 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, which was limited, faileth, the law evermore supplieth a tenure by knight's service in capite; if it be a blank once

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 socage, yet in virtue it is more than knight's service. For we read how, during the while Moses in the mount held up his hands, the 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 socage. Setting apart this tenure, there remain the other two, that of knight's service, and that of socage; 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 socage, the law of England makes a great difference; for this kingdom, my lords, is a state neither effeminate, nor merchant-like; but the laws give the honour unto arms and military service, like the laws of a nation, before whom Julius Cæsar turned his back, as their own prophet says; "Territa quæsitis ostendit terga Britannis." And therefore howsoever men, upon husband-like considerations of profit, esteem of socage 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.

once

44 E. 3. f. 45.

that the law must fill it up, the law ever with her own hand writes, tenure by knight's service in capite. And therefore the resolution was notable by the judges of both benches, that where the king confirmed to his farmers tenants for life, "tenend' per servitia debita," this was a tenure in capite: for other services are servitia requisita, required by the words of patents or grants; but that only is servitium debitum, by the rules of law.

The course therefore that I will hold in the proof of the first main point, shall be this. First, I will show, maintain, and fortify my former grounds, that wheresoever the law createth the tenure of the king, the law hath no variety, but always raiseth a tenure in capite.

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

« PreviousContinue »