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1 Ma. f. 90.
and the third kind of authority is therefore I think the other side will
but couples it with this, that they were first sear, he seise, he shall not have his action ; if he recover and then overthrown by wind; and that makes an by action, he shall not seise : for a man shall not end of it, for sear trees belong to the lessee, stand have both the thing and recompence; it is a bar to ing or felled, and you have a special replication in the highest inheritance, the kingdom of heaven, the book of 44 E. III. that the wind did but rend “ receperunt mercedem suam.” But at the first, it them, and buckle them, and that they bore fruit two is at his election, whether remedy he will use, like years after. And 2ndly, you have ill luck with your as in the case of trespass; where if a man once windfalls, for they be still apple-trees which are but recover in damages, it hath concluded and turned wastes per accidens, as willows or thorns are in the the property. Nay, I invert the argument upon the sight of a house ; but when they are once felled force of the statute of Gloucester thus: that if there they are clearly matter of fuel.
had been no property at common law, yet the staAnother kind of authorities, that make show tute of Gloucester, by restraining the waste, and against us, are those that say that the lessee shall giving an action, doth imply a property : whereto a punish the lessor in trespass for taking the trees, better case cannot be put than the case upon the
which are 5 H. IV. f. 29, and 1 Mar. statute “ de donis conditionalibus," where there are 5 H. 4. f. 29. Dier. f. 90, Mervin's case; and you no words to give any reversion or remight add if you will 9 E. IV. the case mainder; and yet the statute giving a ing an action
A statute givvouched before : unto which the answer is, that formedon, where it lay not before, being implieth an intrespass must be understood for the special property, but an action, implies an actual reverand not for the body of the tree; for those two sion and remainder. books speak not a word, what he shall recover, nor Thus have I passed over the first main part, that it shall be to the value. And therefore 9 E. IV. which I have insisted upon the longer, because I is a good expositor, for that distinguisheth where shall have use of it for the clearing of the second. the other two books speak indefinitely; yea, but 5 H. IV. goes farther, and saith, that the writ shall Now to come to the force of the clause "absque purport arbores suas, which is true in respect of the impetitione vasti.” This clause must of necessity special property ; neither are writs to be varied ac work in one of these degrees, either by way of grant cording to special cases, but are framed to the gene- of property, or by way of power and liberty knit to ral case, as upon lands recovered in value in tail, the state, or by way of discharge of action; whereof the writ shall suppose donum, a gift.
the I , I . 13 H. 7. f. 9.
No grant of some books, as 13 H. VII. f. 9, that say, not affirm, that this clause amounts to a
property. that trespass lies not by the lessor against the lessee grant of trees; for then, according to for cutting down trees, but only waste; but that it is the resolution in Herlackenden's case, they should to be understood of trespass ri et armis, and would go to the executors, and the lessee might grant them have come fitly in question, if there had been no over, and they might be taken after the state deterseisure in this case.
mined. Now it is plain that this liberty is created Upon all which I conclude, that the whole current with the estate, passeth with the estate, and deterof authorities proveth the properties of the trees
mines with the estate. upon severance to be in the lessor by the rules of That appears by 5 Hen. V. where it the common law : and that although the common is said, that if lessee for years without law would not so far protect the folly of the lessor, impeachment of waste accept a confirmation for life, as to give him remedy by action, where the state the privilege is gone. was created by his own act; yet the law never took And so are the books in 3 E. III.
3 E 3. 28 H. from him his property; so that as to the property, and 28 H. VIII. that if a lease be made before the statute and since, the law was ever one. without impeachment of waste pour
Now come I to the third assertion, that the sta autre vie, the remainder to the lessee for life, the tute of Gloucester hath not transferred the property privilege is gone, because he is in of another estate; of the lessee upon an intendment of recompence to so then plainly it amounts to no grant of property, the lessor ; which needs no long speech : it is neither can it any ways touch the property, nor engrounded upon a probable reason, and upon one large the special property of the lessee: for will any special book.
man say, that if you put Marwood and Sanders's case The reason is, that damages are a recompence for of a lease without impeachment of waste, that he property ; and therefore that the statute of Glou may grant the land with the exception of the trees cester giving damages should exclude property. any more than an ordinary lessee? Or shall the
The authority seems to be 12 E. IV. f. windfalls be more his in this case than in the other? 12 E. 4, f. 8.
8, where Catesbey affirming that the for he was not impeachable of waste for windfalls lessee at will shall have the great trees, as well as no more than where he hath the clause. Or will lessee for years or life; Fairfax and Jennings cor any man say, that if a stranger commit waste, such rect it with a difference, that the lessor may take a lessee may seise? These things, I suppose, no them in the case of tenant at will, because he hath no man will affirm. Again, why should not a liberty remedy by the statute, but not in case of the termors. or privilege in law be as strong as a privilege in
This conceit may be reasonable thus far, that the fact ? as in the case of tenant after possibility : Or lessee shall not both seise and bring waste; but if | where there is a lessee for life the remainder for
5 H. 5.
life ? for in these cases they are privileged from So in the book of entries f. 1, lit. D. 15 H. VII. waste, and yet that trenches not the property. rot. 2, “ inter placita regis, et super hoc venit W.
Now therefore to take the second course, that it B. commonachus abbatis W. loci illius ordinarii, should be as a real power annexed to the state ; nei gerensque vices ipsius abbatis, ad
clerither can that be, for it is the law that moldeth estates, cos de quolibet crimine coram domino rege impetiand not men's fancies. And therefore if men by tos sive irritatos calumniand'." much ex vi et clauses, like voluntaries in music, run not upon the usu termini. grounds of law, and do restrain an estate more than For reason: first, it ought to be considered, that the law restrains it, or enable an estate more than the punishment of waste is strict and severe, because the law enables it, or guide an estate otherwise than the penalty is great, treble damages, and the place the law guides it, they be mere repugnancies and wasted: and again, because the lessee must undervanities. And therefore if I make a feoffment in take for the acts of strangers : whereupon I infer, fee, provided the feoffee shall not fell timber, the that the reason which brought this clause in use, clause of condition is void. And so on the other ab inilio, was caution to save, and to free men from side, if I make a lease with a power that he shall the extremity of the penalty, and not any intention fell timber it is void.
to countermand the property. So if I make a lease with a power that he may
Add to this that the law doth assign in most cases make feoffment, or that he may make leases for double remedy, by matter of suit, and matter in forty years, or that if he make default I shall not be pais ; for disseisins, actions and entries ; for tresreceived, or that the lessee may do homage; these passes, action and seisure; for nuisances, action and are plainly void, as against law, and repugnant to abatement: and, as Littleton doth instruct us, one the state. No, this cannot be done by way of use, of these remedies may be released without touching except the words be apt, as in Mildmay's case; nei the other. If the disseissee release all actions, saith ther is this clause, in the sense that they take it, any Littleton, yet my entry remains; but if I release all better.
demands or remedies, or the like words of a general Therefore laying aside these two constructions, nature, it doth release the right itself. And therewhereof the one is not maintained to be, the other fore I may be of opinion, that if there be a clause of cannot be ; let us come to the true sense of this grant in my lease expressed, that if my lessee or his clause, which is by way of discharge of the action, assigns cut down and take away any timber-trees, and no more: wherein I will speak first of the that I and my heirs will not charge them by action, words, then of the reason, then of the authorities claim, seisure, or other interruption, either this which prove our sense, then of the practice, which shall inure by way of covenant only, or if you take is pretended to prove theirs; and lastly, I will it to inure by way of absolute discharge, it amounts to weigh the mischief how it stands for our construction a grant of property in the trees, like as the case of or theirs.
31 Assis. I grant, that if I pay not you 31 Assis. A It is an ignorant mistaking of any man to take 101. per annum at such feasts, you shall clause that impeachment for impedimentum, and not for impe distrain for it in my manor of Dale, titio ; for it is true that impedimentum doth extend though this sound executory in power,
amounts to a
property, to all hinderances, or disturbances, or interruptions, yet it amounts to a present grant of a the state' bear as well in pais as judicial. But impetitio is merely rent. So as I conclude that the disa judicial claim or interruption by suit in law, and charge of action the law knows, grant of the proupon the matter all one with implacitatio. Wherein perty the law knows, but this same mathematical first we may take light of the derivation of impetitio, power being a power amounting to a property, and which is a compound of the preposition in, and the yet no property, and knit to a state that cannot verb peto, whereof the verb peto itself doth signify bear it, the law knoweth not, “ tertium penitus a demand, but yet properly such a demand as is not ignoramus." extra judicial : for the words "petit judicium, petit For the authorities, they are of three kinds, two auditum brevis,” etc. are words of acts judicial; as by inference, and the third direct. for the demand in pais, it is rather requisitio than The first I do collect upon the books petitio, as “ licet sæpius requisitus ;" so much for of 42 Ed. III. f. 23, and 24, by the
f. 23, 24. the verb peto. But the preposition in enforceth it difference taken by Mowbray, and more, which signifies against ; as “ Cicero in Ver agreed by the court, that the law doth intend the rem, in Catilinam :” and so in composition, to clause of disimpeachment of waste to be a discharge inveigh, is to speak against ; so it is such a demand special, and not general or absolute; for there the only where there is a party raised to demand against, principal case was, that there was a clause in the that is an adversary, which must be in a suit in law; lease, that the lessor should not demand any right, and so it is used in records of law.
claim, or challenge in the lands during the life of As Coke, lib. 1. f. 17, Porter's case, it was the lessee. It is resolved by the book, that it is no pleaded in bar, that “ dicta domina regina nunc bar in waste; but that if the clause had been, that ipsos Johannem et Henricum Porter petere seu oc the lessee should not have been impeached for waste, casionare non debet,” that is, implacitare.
clearly a good bar; which demonstrates plainly, So likewise Coke 1. 1, f. 27, case of Alton woods, that general words, be they never so loud and strong, “ quod dicta domina regina nunc ipsum proinde bear no more than the state will bear, and to any aliqualiter impetere seu occasionare non debet.” other purpose are idle. But special words that inure
sounds to a power
42 E. 3.
tit. waste 15. 17 E 3. f. 7.
case 2 Eliz
by way of discharge of action, are good and allowed away the force of the statute, and looseth what the by law.
statute bindeth; but it toucheth not the property at 4 E. 2. Fitzh. The same reason is of the books 4
Littleton. Fitzh. tit. III. f. 7, Fitzh. tit. waste 101, where conditions," where it is said, that if a
there was a clause, “ Quod liceat facere feoffment in fee be made upon condition, that the commodum suum meliori modo quo poterit.” Yet, feoffee shall infeoff the husband and wife, and the saith Skipwith, doth this amount, that he shall for heirs of their two bodies ; and that the husband die, the making of his own profit disinherit the lessor ? that now the feoffee ought to make a lease without Nego consequentiam; so that still the law allows impeachment of waste to the wife, the remainder not of the general discharge, but of the special that to the right heirs of the body of her husband and goeth to the action.
her begotten; whereby it would be inferred, that 9 H. 6. f. 35.
The second authority by inference is such a lessee should have equal privilege with teFitzh. tit. out of 9 II. VI. fol. 35, Fitzh. tit. wastenant in tail: the answer appears in Littleton's own 32 H. 8. Dyer, 39, and 32. H. VIII. Dyer, f. 47, where words, which is, that the feoffee ought to go as near
the learning is taken, that notwithstand as the condition, and as near the intent of the coning this clause be inserted into a lease, yet a man dition as he may. But to come near is not to reach, may reserve unto himself remedy by entry : but say neither doth Littleton undertake for that. I, if this clause should have that sense, which they As for Culpepper's case, it is ob
Culpepper's on the other side would give it, namely, that it scurely put, and concluded in division should amount to an absolute privilege and power of of opinion ; but yet so as it rather makes Dyer, i 184 disposing, then were the proviso flat repugnant, all for us. The case is 2 Eliz. Dyer, f. 184, and is one as if it were “absque impetitione vasti, proviso in effect this : a man makes a lease for years, quod non faciet vastum ;" which are contradictories: excepting timber-trees, and afterwards makes a lease and note well that in the book of 9 H. VI. the pro- without impeachment of waste to John a Style, and viso is “quod non faciat vastum voluntarium in do- then granted the land and trees to John a Down, and mibus ;” which indeed doth but abridge in one kind, binds himself to warrant and save harmless John a and therefore may stand without repugnancy: but in Down against John a Style ; John a Style cutteth the latter book it is general, that is to say, "absque down the trees; the question was, whether the bond impetitione vasti, et si contigerit ipsum facere vas were forfeited ? and that question resorteth to the tum tunc licebit reintrare.” And there Shelley mak-other question ; whether John a Style, by virtue of ing the objection, that the condition was repugnant, such lease, could fell the trees ? and held by Weston it is salved thus, "sed aliqui tenuerunt," that this and Brown that he could not: which proves plainly word impetitione vasti is to be understood that he for us that he had no property by that clause in shall not be impleaded by waste, or punished by the tree; though it is true that in that case the action ; and so indeed it ought: those “ aliqui recte exception of the trees turneth the case, and so in tenuerunt."
effect it proveth neither way. For the authorities direct, they are For the practice, if it were so ancient 9 H 6. Fitzh.
Practice. two, the one 27 H. VI. Fitzh. tit. waste and common as is conceived ; yet since
8, where a lease was made without the authorities have not approved, but condemned it, impeachment of waste, and a stranger committed it is no better than a popular error: it is but pedum waste, and the rule is, that the lessee shall recover visa est via, not recta visa est via. But I conceive in trespass only for the crop of the tree, and not for it to be neither ancient nor common. It is true 1 the body of the tree. It is true it comes by a dicitur, find it first in 19 E. II. I mean such a clause, bnt but it is now a legitur : and a query there is, and it is one thing to say that the clause is ancient; and reason, or else this long speech were time ill spent. it is another thing to say, that this esposition, which
And the last authority is the case of Sir Moyle | they would now introduce, is ancient. And thereFinch and his mother, referred to my lord Wrey and fore you must note that a practice doth then expound Sir Roger Manwood, resolved upon conference with the law, when the act which is practised, were other of the judges vouched by Wrey in Herlacken- merely tortious or void, if the law should not ap. den's case, and reported to my lord chief justice here prove it: but that is not the case here, for we agree present, as a resolution of law, being our very case. the clause to be lawful; nay, we say that it is in no
And the case to the contrary, I know sort inutile, but there is use of it, to avoid this severe Statute, &c. Marlebridge.
not one in all the law direct: they penalty of treble damages. But to speak plainly, I
press the statute of Marlebridge, which will tell you how this clause came in from 13 of E. hath an exception in the prohibition, “firmarii non 1. till about 12 of E. IV. The state tail, though it facient vastum, etc. nisi specialem inde habuerint had the qualities of an inheritance, yet it was withconcessionem per scriptum conventionis, mentionem out power to alien; but as soon as that was set at faciens, quod hoc facere possint.” This presseth liberty, by common recoveries, then there must be not the question ; for no man doubteth, but it will found some other device, that a man might be an excuse in an action of waste : and again, “ nisi ha- absolute owner of the land for the time, and yet not beant specialem concessionem” may be meant of an enabled to alien, and for that purpose was this absolute grant of the trees themselves; and other clause found ont: for you shall not find in one wise the clause "absque impetitione vasti" taketh amongst a hundred, that farmers had it in their
tit. waste 8.
leases ; but those that were once owners of the in- | reservation of the freehold to themselves, use it, and heritance, and had put it over to their sons or next cnjoy it in such sort, as may tend ad ædificationem, heirs, reserved such a beneficial state to themselves. and not ad destructionem ; for that is good for posAnd therefore the truth is, that the flood of this terity, and for the state in general. usage came in with perpetuities, save that the per And for the timber of this realm, it is rivus thepetuity was to make an inheritance like a stem for saurus regni; and it is the matter of our walls, walls life, and this was to make a stem for life like an not only of our houses, but of our island: so as it is inheritance; both concurring in this, that they pre a general disinherison to the kingdom to favour that sume to create phantastical estates, contrary to the exposition, which tends to the decay of it, being so ground of law.
great already ; and to favour waste when the times And therefore it is no matter though it went out themselves are set upon waste and spoil. Therefore with the perpetuities, as it came in, to the end that since the reason and authorities of law, and the men that have not the inheritance should not have policy of estate do meet, and that those that have, power to abuse the inheritance.
or shall have such conveyances, may enjoy the beneAnd for the mischief, and consideration of bonum fit of that clause to protect them in a moderate publicum, certainly this clause with this opposition manner, that is, from the penalty of the action ; it tendeth but to make houses ruinous, and to leave no is both good law and good policy for the kingdom, timber upon the ground to build them up again; and and not injurious or inconvenient for particulars, therefore let men in God's name, when they estab- to take this clause strictly, and therein to affirm lish their states, and plant their sons or kinsmen in the last report. And so I pray judgment for the the inheritance of some portions of their lands, with plaintiff.
LOW'S CASE OF TENURES:
IN THE KING'S BENCH.
The manor of Alderwasley, parcel of the duchy, tenancy, which without all colour is no parcel of the and lying out of the county Palatine, was, before manor, cannot be comprehended within the tenure the duchy came to the crown, held of the king by reserved upon the manor, but that the law createth knight's service in capite. The land in question a several and distinct tenure thereupon, and that was held of the said manor in socage. The duchy not guided according to the express tenure of the and this manor parcel thereof descended to king manor, but merely secundum normam legis, by the Hen. IV. King Hen. VIII. by letters patent the 19th | intendment and rule of law, which must be a tenure of his reign, granted this manor to Anthony Low, by knight's service in capite. grandfather of the ward, and then tenant of the And my second proposition is, that admitting that land in question, reserving 261. 10s. rent and fealty, the tenure of the tenancy should ensue the tenure “ tantum pro omnibus servitiis," and this patent is of the manor ; yet nevertheless the manor itself, under the duchy-seal only. The question is, how which was first held of the crown in capite, the this tenancy is held, whether in capite, or in socage. tenure suspended by the conquest of the duchy to
The case resteth upon a point, unto which all the crown, being now conveyed out of the crown the questions arising are to be reduced.
under the duchy-seal only, which hath no power to The first is, whether this tenancy, being by the touch or carry any interest, whereof the king was grant of the king of the manor to the tenant grown vested in right of the crown, is now so severed and to an unity of possession with the manor, be held as disjoined from the ancient seigniory, which was in the manor is held, which is expressed in the patent capite, as the same ancient seignory is revived, and to be in socage.
so the new reservation void ; because the manor The second, whether the manor itself be held in cannot be charged with two tenures. socage according to the last reservation ; or in ca This case concerneth one of the The king's te. pite by revivor of the ancient seigniory, which was greatest and fairest flowers of the crown, take more hurt in capite before the duchy came to the crown. which is the king's tenures, and that in by a resolution
in law, than by Therefore my first proposition is, that this their creation ; which is more than their
sions or concealments.
No land in the
preservation: for if the rules and maxims We see that the ward, who is ward for knight's
of law in the first raising of tenures in service land, is accounted in law disparaged, if he copile be weakened, this nips the flower in the bud, be tendered a marriage of the burghers parentage: and may do more hurt by a resolution in law, than and we see that the knight's fees were by the ancient the losses, which the king's tenures do daily re laws the materials of all nobility: for that it appears ceive by oblivion or suppression, or the neglect of by divers records how many knights' fees should by officers, or the iniquity of jurors, or other like blasts, computation go to a barony, and so to an earldom. whereby they are continually shaken: and therefore Nay, we see that in the very summons of parliait behoveth us of the king's council to have a spe- ment, the knights of the shire are required to be cial care of this case, as much as in us is, to give chosen “milites gladio cincti ;” so as the very call, satisfaction to the court. Therefore before I come though it were to council, bears a mark of arms and to argue these two points particularly, I will speak habiliments of war. To conclude, the whole comsomething of the favour of law towards tenures in position of this warlike nation, and the favours of capite, as that which will give a force and edge to law, tend to the advancement of military virtue and all that I shall speak afterwards.
service. The constitution of this kingdom ap 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 re. and 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 Tenures, according to the most general division, case of tenants in tail of the king's advancement, are of two natures, the one containing matter of which is a great restraint by the statute of 34 H. protection, and the other matter of profit: that of VIII. but yet by that statute it is imputed for an protection is likewise double, divine protection and honour. This favour of law to the tenure by military. The divine protection is chiefly procured knight's service in capite produceth this effect, that by the prayers of holy and devout men; and great wheresoever there is no express service effectually pity it is, that it was depraved and corrupted with limited, or wheresoever that, which was superstition. This begot the tenure in frankalmoigne, limited, faileth, the law evermore supplieth a tenure which though in burden it is less than in socage, by knight's service in capite; if it be a blank once yet in virtue it is more than knight's service. For —that the law must fill it up, the law ever with her we read how, during the while Moses in the mount own hand writes, tenure by knight's service in held up his hands, the Hebrews prevailed in battle ; capite. And therefore the resolution
41 E 3. 1. 45. as well as when Elias prayed, rain came after was notable by the judges of both drought, which made the plough go; so that I hold benches, that where the king confirmed to his the tenure in frankalmoigne in the first institution farmers tenants for life, “ tenend' per servitia de. indifferent to knight's service and socage. Setting bita,” this was a tenure in capite : for other services apart this tenure, there remain the other two, that are servilia requisita, required by the words of paof knight's service, and that of socage; the one tents or grants; but that only is servitium debitum, tending chiefly to defence and protection, the other by the rules of law. to profit and maintenance of life. They are all The course therefore that I will hold in the proof three comprehended in the ancient verse, “Tu sem of the first main point, shall be this. First, I will per ora, tu protege, tuque labora.” But between show, maintain, and fortify my former grounds, that these two services, knight's service and socage, the wheresoever the law createth the tenure of the king, law of England makes a great difference; for this the law hath no variety, but always raiseth a tenure kingdom, my lords, is a state neither effeminate, nor
in capite. merchant-like; but the laws give the honour unto Secondly, that in the case present there is not arms and military service, like the laws of a nation, any such tenure expressed, as can take place, and before whom Julius Cæsar turned his back, as their exclude the tenure in law, but that there is as it own prophet says ; " Territa quæsitis ostendit terga were a lapse to the law. Britannis." And therefore howsoever men, upon And lastly, I will show in what cases the former husband-like considerations of profit, esteem of general rule receiveth some show of exception; and socage tenures; yet the law, that looketh to the will show the difference between them and our case; greatness of the kingdom, and proceedeth upon con wherein I shall include an answer to all that hath siderations of estate, giveth the pre-eminence alto- been said on the other side. gether to knight's service.
For my first proposition I will divide into four