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actual reversion and remainder.



Case of Impeachment of Waste. 225

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



inteiest.



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 1 receive.

Therefore I think the other side will not affirm, that NO grant 'of
this clause amounts to a grant of trees ; for then, accord- P r P ert y-
ing 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 is said, that if5H.5,
lessee for years without impeachment of waste accept
a confirmation for life, the privilege is gone.

And so are the books in 3 E. III. and 28 H. VIII SE. a
that if a lease be made without impeachment of waste 28H> 8 *
pour autre rie, 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 impeach-
able 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 possi-
bility : Or where there is a lessee for life the remainder

VOL. IV. Q



226 Case of Impeachment, of Waste.

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 a's a real power annexed to the state ; neither
can that be, for it is the law that moldeth estates, and
not mens 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 re*
strains it, or enable an estate more than the law ena-
bles it, or guide an estate otherwise than the law guides
it, they be mere repugnancies and vanities. And there-
fore 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 Mi id may'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 1 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 make im-
peachment for impedimentum) and not for impetitio ;
for it is true that impcdimentum doth extend to all
hindrances, or disturbances, or interruptions, as well
in pais as judicial. But impctitio is merely a judicial
claim or interruption by suit in law, and upon the
matter ail one with hnplacilatio. Wherein first we
may take light of the derivation of 2?npt j ti(io, which is
a compound of the preposition //?, and the verb



Case of Impeachment of Waste. 227

\vhereofthe verb peto itself doth signify a demand, but
yet properly such a demand as is not extra judicial :
for the words petit indicium, petit auditum brevis, etc.
are words of acts judicial ; as for the demand in pals,
it is rather requisitio than petitio, as licet saepius requi-
situs ; so much for the verb peto. But the preposition
in enforceth it more, which signifies against : as Cicero
in Vcrrem, in Catilinam . ; and so in composition, to in-
veigh, 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. l.f. 17. Porter's case, it was pleaded
in bar, that dicta domina reglna mine ipsos Johannem
et Henricum Porter peLere sen occasionare non debet,
that is, implacifare.

So likewise Coke 1. 1. f. 27. case of Alton woods,
quod dicta domina regina mine ipsum proinde aliqua-
liter impetere sen occasionare non dcbet.

So in the book of entries f. 1. lit. D. 15 H. VII. rot. 2.
inter placita regis et super hoc venit W. R. commona-
chus abbatis W. loci illius ordiiiarii, gerensque vices
ipsius abbatis, ad qiioscunque clericos de quolibet crhnine
coram domino rege irnpetilos sive irritatos calumniand 1 .
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 inilio, was caution
to save, and to free men from the extremity of the pe-
nalty, 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
disseisee release all actions, saith Littleton, yet my
entry remains ; but if I release all demands or remedies.

Q 2



225 Case of Impeachment of Waste.

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
si AW. case of 31 assis. I grant, that if I pay not you 10/. per
A clause annum at such feasts, you shall distrain for it in my

that sounds /- f-x i i i i i

toa power, manor or Dale, though this sound executory in power,
amounts to y et j t amounts to a present grant of a rent. So as I

a property, J 111 11*1 11 i

if the state conclude that the discharge or action the law knows,

tear it. g ran t 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 penilus



ignoramus.



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

42E.3J.23. The first I do collect upon the books of 42 Edw. 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
principle 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.

4E.2Fitzh. The same reason is of the books 4 Ed. II. Fitzh. tit.
>0$te Is. and 17 E. III. f. 7. Fitzh. tit. waste 101.
\vheretherewasa clause, Quod liceat facere commo-



tt.

' dum suiim mdiori modo quo poterit. Yet, saith Skip-



Case of Impeachment of Waste. 229

with, doth this amount, that he shall for the making
of his own profit disinherit the lessor ? Nego anise-
quentiam ; so that still the law allows not of the gene-
ral discharge, but of the special that goeth to the ac-
tion.

The second authority by inference is out of 9 H. VI. 9 H.e.f.35.
fol. 35. Fitzh. tit. waste 39. and 32 H. VIII. Dyer f^aste'sp.
47. where the learning is taken, that notwithstanding 3-2 H.S.
this clause be inserted into a lease, yet a man may re- 5
serve 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 Hat repugnant, all one as if it were absque
impetitione vasti, proviso quod non facie t vastum ;
which are contradictories : and note well that in the
book of 9 H. VI. the proviso is quod non facial vastum
votuntarium 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 abfque impetitione vasli, et si contigerit ipsum
facer e vastum tune licebit reintrare. And there Shel-
ley making the objection, that the condition was re-
pugnant, 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 ac-
tion ; and so indeed it ought : those alique rede tenue-
runt.

For the authorities direct, they are two, the one 2727H.6.
H VI. Fitzh. tit. wastes, where a lease was made t F i uh ' fl

. i . f . ut. waste o.

without impeachment or waste, and a stranger com-
mitted waste, and the rule is, that the leflee shall re-
cover in trespass only for the crop of the tree, and not
for the body of the tree. It is true it comes by a did-
tur, 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,



230 Case of Impeachment of Waste.

and reported to my lord Chief Justice here present, as
^ a resolution of law, being our very case.

MariT' '""' ^ nc ^ ^ ^ e cases to ^ e Contral 7> * know not one
bri a j fi e e ~ in all the law direct : they press the statute of Marie-
bridge, which hath an exception in the prohibition,
firmarii non fad cut vastwn, &c. nisi specialem vide
habuerint concessionemper scriptum convent iojiis, men-
tionem facie ns, 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 impefitione vast? taketh away the force of the
statute, and looseth what the statute bindeth ; but it
toucheth not the property at common law.
Littleton. For Littleton's case in his title Of conditions, whe,re
it is said, that if a feoffment in fee be made upon con-
dition, 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,
\vhich is, that the feoffee ought to go as near the con-
dition, 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.

Cuipcp- As for Culpepper's case, it is obscurely put, and
SEUcDer conc ^ uc ^ e( i m division of opinion; but yet so as it ra-
i. /si. ytr ' ther makes for us. The case is 2 Eliz. Dyer, f. 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 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 3 whether John a Style, by virtue of such



Case of Impeachment of Waste. 23 1

lease, could fell the trees? and held by Western 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 nei-
ther way.

For the practice, if it were so ancient and common. Practice*
as is conceived ; yet since the authorities have not ap-
proved, but condemned it, it is no better than a po-
pular error : it is but pcdum visa est via, not recta visa
cst 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 anci-
ent. And therefore you must note that a practice doth
then expound the law, when the act which is practis-
ed, were merely tortious or void, if the law should
not approve it: but that is not the case here, for w r e
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 se-
vere 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 far-
mers 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 inhe-
ritance ; both concurring in this, that they presume to
create phantastical estates, contrary to the ground of
law.



5 Case of Impeachment of Waste.

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 re-
servation of the freehold to themselves, use it, and
enjoy it in such sort, as may tend ad adificationem, 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 thesau-
rus rcgni ; and it is the matter of our walls, walls not
only of our houses, but of our island : so as it is a ge-
neral disinherison to the kingdom to favour that expo-
sition, which tends to the decay of it, being so great
already ; and to favour waste when the times them-
selves 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 in-
convenient for particulars, to take this clause strictly,
and therein to affirm the last report. And so I pray
judgment for the plaintiff.



[ 233 ]

THE

ARGUMENT

IN

LOW'S CASE OF TENURES.

IN THE KING'S BE> 7 CH.



1 HE 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 Henry
IV. King Henry VIII. by letters patent the 19th of
his reign, granted this manor to Anthony Low, grand-
father of the ward, and then tenant of the land in ques-
tion, reserving 26/. 10^. rent and fealty, tanfum pro
omnibus servitiis, and this patent is under the Duchy-
seal only. The question is, how this tenancy is held,
whether in capitc, 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



234 Loiv's Case of Tenures.

according to the express tenure of the manor, nor
merely secundum normam legis, by the intend ment
and rule of law, which must be a tenure by knight's
service in capife.

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 sus-
pended 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 seigniory is revived, and so the new re-
servation void ; because the manor cannot be charged
with two tenures.

The King's This case concerneth one of the greatest and fairest
take r me y flowers of the crown, which is the King's tenures, and
hurt by a re. that in their creation; which is more than their pre-
kw^tiian'hy servation : for if the rules and maxims of law in the
many sup-' first raising of tenures in capite be weakened, this nips

piessions or , n ..i i j i j 1.1

conceal, the flower in the bud, and may do more hurt by a re-
solution in law, than the losses, which the King's te-
nures 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
2/2 capife, as that which will give a force and edge to
all that J shall speak afterwards.

The constitution of this kingdom appeareth tobc
8 ^ ree monarcn y m nothing better than in this; that
charged by as there is no land of the subject that is charged to the
bute andaii crown by way of tribute, or tax, or talliage, except it
be set by parliament: so on the other side there is no
]and f the sub J ect > but is charged to the crown by
tenure, mediate or immediate, and that by the grounds



Loivs Case of Tenures. 235

of the common law. This is the excellent temper
and commixture of this estate, bearing marks of the
sovereignty of the King, and of the freedom of the
subject from tax, whose possessions arefeodalia, not
tributaria.

Tenures, according to the most general division,
are of two natures, the one containing matter of pro-
tection, and the other matter of profit : that of protec-
tion 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 He-
brews 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 frankmoigne
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 y tu protege, tuque labora. But between these two
services, knight's service and socage, the law of Eng-
land 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
Caesar turned his back, as their own prophet says ;
Tcrrita qutesitis ostendit terga Britannia. And there-
fore howsoever men, upon husband-like considerations
of profi^ esteem of socage tenures; yet the law,
that looketh to the greatness of the kingdom, and pro-
ceedeth upon considerations of estate, giveth the pre-
eminence altogether to knight's service.

We see that the ward, who is ward for knight's ser-
vice land, is accounted in law disparaged, if he be
tendered a marriage of the burghers parentage: and we



236 Low's Case of Tenures.

see that the knights 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 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 na-
tion, and the favours of law, tend to the advance-
ment 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 of 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
licence, 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 seisure.
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 ho-
nour, like to the case of tenants in tail of the King's



Online LibraryFrancis BaconThe works of Francis Bacon, baron of Verulam, viscount St. Alban, and lord high chancellor of England (Volume 4) → online text (page 20 of 46)