The Works of the Lord Bacon in Four Volumes ; Opera omnia Quatuor Voluminibus [4] [PDF]

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FRANCIS BACON, Baron of F E R U L A M ,

St yllban,

V iscount A N D

Lord High Chancellor of E ngland. V O L .

IV .

C O N T A I N I N G , I. Propofition for compiling and Amendment of our Laws. II. Offer o f a Digeft of the Laws. III. Elements: Or Maxims and Ufe of the Common Law. IV. Cafes o f Treafon. V. Four Arguments in L a w , never before Printed. viz. i. Impeachment o f Wafte. 2. Lowe’ s Cafe of Tenures. 3. Revocation o f Ufes. 4. Jurifdiftion of the Marches. VI. Draught o f an A ft. VII. Ordinances in Chancery. VIII. Reading on the Statute of Ufes. IX . Refufcitatio: Or Treatifes, &c. re­ lating to the Union.

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X . Charges. X I. Speeches. XII. Obfervations on a Libel, &c. X III. Report o f Lopez’s Treafon. X IV . His Apology concerning the Earl o f EJJex. X V . O f the Plantations in Ireland. X V I. Advice about Sutton’s Efface. X V II. Theological Works. X VIII. Remains in Quarto. X IX . Letters in the Reign of Queen Elizabeth. X X . Treafons of Robert Earl of EJfex. X X I. Letters in the Reign of King James. X X II. Letters concerning the Sollicitorfhip.

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3 ‘ 7’ in blood fhall not have it; but i f an attainted perfon be killed by his fon, this is petty rreafon, for that the privity o f a fon remaincth : for I admit the law to be, that i f the fon kill his father or mother it is petty treafon, and that there remaincth fo much in our laws o f the antient footfteps o f potefias patris and natural obedience, which by the law o f God is the very inftance it felf; and all other government and obedience is taken but by equity, which I add, bccaufe forne have thought to weaken the law in that point. S o if land defeend to the eldeft fon o f a perfon attainted from his anceftor, o f the mother held in knights fervicc, the guardian fhall enter, and oufte the father, bccaufe the law giveth the father that prerogative in refpeft he is his F-N.Br.fo.143; fon and h e ir; for o f a daughter or a fpecial heir in tail he (hall not have i t : but i f the fon be attainted, and the father covenant in confideration o f na­ tural love to ftand feifed o f land to his ufe, this is good enough to raife an ufe, bccaufe the privity o f a natural affection remaineth. S o i f a man be attainted and have a charter of pardon, and be returned o f a jury between his fon and I. S. the challenge remaineth; for he may main­ tain any fuit o f his fon, notwithftanding the blood be corrupted. S o by the ftatute o f 1 1 . the ordinary ought to commit the adminiftration o f his goods that was attainted, and purchafe his charter o f pardon to his children, though born before the pardon, for it is no queftion o f his inheri­ tance : for i f one brother o f the half blood die, the adminiftration ought to r Ed. 6. Adm. be committed to his other brother o f the half blood, i f there be no nearer b y 47' the father. S o i f the uncle by the mother be attainted and pardoned, and land de-33 H. tf. j-y, feend from the father to the fon within age held in focage, the uncle fhall be guardian in focage; for that favoureth fo little o f the privity o f heir, as the poflibility to inherit fhutteth not. B u t i f a feme tenant in tail aflent to the ravifher, and have no iftue, and her coufin is attainted, and pardoned, and purchafeth the rcverfion, he fhall r Ed- 4 - rnot enter for a forfeiture. For though the law giveth it not in point o f in­ heritance, but only as a perquifire to any o f the blood, fo he be next in eftate; yet the recompence is underftood for the ftain o f his blood, which cannot be confidered when it is once wholly corrupted before. S o i f a villain be attainted, yet the lord mall have the iftues o f his villain born before or after the attainder; for the lord hath them jure naturae but as the increafe of a flock. n QUA E R E , whether i f the eldeft fon be attainted and pardoned, the lord F-N- Br- 8i s>fhall have aid o f his tenants to make him a knight, and it feemeth he fhall; for the words o f the writ hath filium primogenitum, and not filium & haere­ dem, and the like writ hath pur file marrter who is no heir. Regifter fol. R eg. 1 1 .

Receditur a placitis juris, potius quam injuriae, maneant impunita.

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T hf. law hath many grounds and pofitive learnings, which are not o f the maxims and conditions o f reafon; but yet are learnings received with the law fet down, and will not have called in queftion: thefo may be rather called placita juris 1han regulae juris ; with luch maxims the law will difpenfe, rather than crimes and wrongs (hould be unpunifhed, quia falus populi fuV

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T h e r e f o r e i f an advowfon be granted to two, and the heirs o f one o f them, and an ufurpation be had, they both fiiall join in a writ o f right o f a d ­ vow fon ; and yet it is a ground in law, that a writ o f right lyeth of no Id s cdatc than a fcc-fimple ; but becaufc the tenant for life hath no other fcvcral a&ion in the law given him, and alfo that the jointure is not broken, and Co the tenant in fee-(implc cannot bring his writ o f right alone; therefore rather than he fiiall be deprived wholly o f remedy, and this wrong unpunidicd, he fiiall join his companion with him, notwithdanding the fccblcnefs o f his edate. 46Edj.11. B u t if lands be given to two, and to the heirs o f one o f them, and th ey lcafe in a praecipe by default, now they fiiall not join in a writ o f right, becaufc the tenant for life hath a fcvcral aftion, v iz . a Quod a deforciat, in which rcfped the jointure is broken. S o i f tenant for life and his lcffor join in a lcafe for years, and the lcfTce commit wade, they fiiall join in punifhing this w afle, and locus va jla tm fhall go to the tenant for life, and the damages to him in reverlion; and yet an attion o f wade lyeth not for tenant for life; but becaufe he in the reverlion cannot have it alone, becaufe o f the mean edate for life, therefore rather than the wade fiiall be unpuniflied, they dull join. 4j- Ed. 3. 3. S o i f tw o coparceners be, and they lcafe the land, and one o f them die, 1 1 H. 6.14. ancj Bath j(puc> and thc Icdce commit wade, the aunt and the id’uc dull join in punifhing this wade, and the idiic fhall recover the moiety o f the place w aded, and the aunt the other moiety and the entire dam ages; and yet actio injuriarum m oritur cum perfona, but in favorabilibu s magis attenditur quod prodejl, quam quod nocet. io Ed. ». S o i f a man recovers by erroneous judgm ent, and hath idue tw o daughters, and one o f them is attainted, the writ o f error dull be brought againd the F. defeent 16. parceners, notwithdanding the privity fail in the one. 33 Eiiz. A lso it is a pofitive ground, that the accedary in felony cannot be pro­ ceeded againd, until the principal be tried ; yet i f a man upon fubtlcty and malice fet a madman by fome device to kill him, and he doth fo ; now foras­ much as the madman is cxcufed becaufe he can have no will nor malice, the law accountcth the inciter as principal, though he be abfent, rather th an the crime dull go unpuniflied. S o it is a ground o f the law, that the appeal o f murther goeth not to the heir where the parry murdered hath a wife, nor to the younger brother Fitz. Corone where there is an elder; yet i f the wife murder her husband, becaufe fhe is Ed9 m 28 6 ^le Party offender, the appeal leaps over to the h e ir; and fo i f the fon and stamf. hb. 1. ’ heir murder his father, it goeth to the fecond brother, fob 60. B u t i f the rule be one o f the higher fort o f maxims that are regulae ratio­ nales, and not pojitivae, then the law will rather endure a particular offence to efcape without punidimenr, than violate fuch a rule. A s it is a rule that penal datutes fhall not be taken by equity, and the datute o f 1 E d . VI. ena. qttas perquifivi 19 de I. N . in indentura dimijfionis f a f f I. B . fpecificat. If I have land wherein fome o f thefe references are true, and the reft falfe, and no land wherein they arc all true, nothing pafleth: as if I have land in the tenure o f I. D . and purchafcd o f I. N . but not fpccified in the indenture to I. B . or i f I have land w hich I purchafcd o f I. N . and fpccified in the indenture o f demife to I. B . and not in the tenure o f I. D . . B u t if I have fomc land wherein all thefe demonftrations are true, and fome wherein part o f them are true, and part falfe, then fliall they be intend­ ed words o f true limitation to pafs only thole lands wherein all thofe circum­ ftances are true.

Reg.

Reg. 14 . Licet difpojitio de intereffe fu tu ro fit inutilis, tamen potcjl fieri declaratio praecedens quae J'ortiatur effeEhm interveniente novo aclu. T he law doth not allow o f grants except there be a foundation o f an intcreft in the grantor; for the law that will not accept o f grants o f titles, or o f things in action which are imperfect interefts, much lefs will it allow a man

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a man to grant or incumbet that which is no intereft at all, but merely future. B ut o f declarations precedent before any intereft veiled the law doth al­ low, but with this difference, fo that there be forne new aft or conveyance to give life and vigour to the declaration precedent. N o w $he bell rule o f diftinftion between grants and declarations is, that grants are never countermandable, not in relpeft o f the nature o f the con­ veyance or inftrument, though fometime in refpeft o f the intereft granted they are, whereas declarations evermore are countermandable in their na­ tures. A nd therefore i f I grant unto you, that if you enter into an obligation to io Eliz. me o f 10 0 /. and after do procure me fuch a leafe, that then the lame obli­ i p H. 6 . 6 i . gation (hall be void, and you enter into fuch an obligation unto me, and a f­ terwards do procure fuch a leafe, yet the obligation is limple, becaufe the defeilance was made of that which was not. S o i f I grant unto you a rent charge out o f white acre, and that it (hall 17 Ed. 3. lie lawful for you to diftrain in all my other lands whereof I am now feifed, and which I (hall hereafter purchafe; although this be but a liberty o f diftrcls, and no rent lave only o f white acre, yet as to the lands afterwards to be purchafed the claufe is void. S o i f a reverfion be granted to I. S. and I. D. a ftrangcr by his deed do 19 Ed. 3. 6. 1+ Eliz. grant to I. S. that i f he purchafe the particular eftate, he will atturne to the grant, this is a void atturnement, notwithftanding he doth afterwards pur­ chafe the particular eftate. B u t o f declarations the law is contrary? as i f the diffeifee make a charter 13, 14 Eliz. io, 21 Eliz, o f feoffment to I. S. and a letter o f attorney to enter and make livery and i f Eliz. feifin, and deliver the deed o f feoffment, and afterwards livery and feifin is made accordingly, this is a good feoffment; and yet he had no other thing than a right at the time o f the delivery o f the charter; but becaufe a deed o f feoffment is but matter o f declaration and evidence, and there is a new aft M. 38. & 39 Eliz. w hich is the livery fubfequent, therefore it is good in law. S o i f a man make a feoffment to I. S. upon condition to enfeoff I. N l 3 6 Eliz. within certain days, and there are deeds made both o f the firft feoffment and the fecond, and letters o f attorney accordingly, and both thofe deeds o f fe­ offment, and letters o f attorney are delivered at a time, fo that the fecond deed o f feoffment and letters o f attorney are delivered when the firft feoffee had nothing in the land; and yet if both liveries be made accordingly, all is good. S o i f I covenant with I S . by indenture, that before liich a day I w ill purchafe the manor o f D. and before the lame day I will levy a fine of the lame land, and that the lame fine lhall be to certain ufes which I exprefs in the lame indenture? this indenture to lewd ufes being but matter o f declara­ tion and countermandable, at my pleafure will fuffice, though the land be purchafed after; becaule there is a new aft to be done, v iz . the fine. i f Eliz. B u t if there were no new aft, then otherwife it is; as i f I covenant with 27 Eliz. m y Ion, in confideration o f natural love, to Hand feifed unto his ufe o f the lands which I lhall afterwards purchale, yet the ule is void ; and the realon is, becaufe there is no new aft, nor tranlmuration o f poffellion following to perfeft this inception; for the ufe mull be limited by the feoffer, and not the fcoffee, and he had nothing at the time o f the covenant. Cam. Plowd. S o if I devife the manor o f D. by fpecial name, o f which at that time I Rigden’s cafe. am not feifed, and after I purchafe it, except I nuke fomc new publication z of

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o f m y will, this device is v o id ; and the reafon is, becaufe that my death, w hich is the confummation o f my will, is the aft o f G od, and not my aft, and therefore no fuch new aft as the law requireth. B ut i f I grant unto I. S . authority by m y deed to demife for years, the land w hereof I am now feifed, or hereafter fhall be feifed •, and after I purchafe the lands, and I S . my attorney doth demife them •, this is a good demife, becaufe the demife o f my attorney is a new aft, and all one with a demife by m y felf. B u t i f I mortgage land, and after covenant with I S . in c o n fu tatio n o f n Eli*; money w hich I receive o f him, that after I have entred for the condition broken, I will ftand feifed to the ufc o f the fame I S . and I enter, and this deed is enrolled, and all within the fix months, yet nothing pafTeth away, becaufe this enrollment is no new aft, but a perfeftive ceremony o f the firfl deed o f bargain and fale; and the law is more ftrong in that cafe, becaufe o f the ve­ hement relation w hich the enrolment hath to the time o f the bargain and fale, at what time he had nothing but a naked condition. S o if tw o jointenants be, and one o f them bargain and fell the whole land, 6 Ed. 6. and before the enrolment his companion dieth, nothing pafTeth of the moiety accrued unto him by furvivor.

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R eg. iy . In criminalibus fu fficit generalis m alitia intentionis cum fa llo paris gradus. 1

A l l crimes have their conception in a corrupt intent, and have their con­ fummation and iffuing in fome particular fa ft; which though it be not the faft at w hich the intention o f the malefaftor levelled, yet the law giveth him no advantage o f the error, i f another particular enfue o f as high a nature. T h e r e f o r e i f an impoifoned apple be laid in a p laceto impoifon I. S . and 18 Eliz. SanI D . cometh by chance and eateth it, this is murder in the principal that is ^ r£ cafe com' aftor, and yet the malice in individuo was not againft I. D . S o i f a thief find the door open, and come in by night and rob an houfe,C r.i. peace and be taken with the manner, and break a door to efcape, this is burglary; f' 3° yet the breaking o f the door was without any felonious intent, but it is one entire aft. S o i f a caliver be difeharged with a murderous intent at I. S . and the piece break and ftrike into the eye o f him that difehargeth it, and killeth him, he is felo de fe , and yet his intention was not to hurt him felf; for fe - Caw. Ionia de fe and murder are crimina paris gradus. For i f a man perluade ano­ ther to kill himfelf, and be prefent when he doth fo, he is a murderer. B u t quaere, if I .S . lay impoifoned fruit for fome other ftranger his cne- Cr. juft, peace, m y, and his father or mafter come and eat it, whether this be petty treafon,foL l8, ' 9 becaufe it is not altogether crimen paris gradus. R eg. 16 . M andata licita recipiunt ftritta m interpretationem, fe d illicita latam & extenfam. I n committing o f lawful authority to another, a man may limit it as ftriftly as it pleafeth him, and if the party authorized do tranfgrefs his authority, though it be but in circumflance exprelled, it fhall be void in the whole aft. B u t when a man is author and mover to another to commit an unlaw­ ful aft, then he fhall not excufe himfelf by circumftances not purfued. V

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10H-7.19.if, T h e r e f o r e i f I nuke a letter o f attorney to I .S . to deliver liv e r y and 'i6El Dy- 3j7 .feifin. in the capital mefluage, and he doth it in another place o f th e land, or between the hours o f two and three, and he doth it after or before ; o r if i« Ei.Dy.3j7.1make a charter o f feoffment to I. D. and I.B . and exprefs the feiiin to be 38 h 8 d / 68 delivered to I D . and my attorney deliver it to I. B. in all thefe cafes th e a d o f the attorney, as to execute the eftate, is "void; but i f I lay generally to I . D . whom I mean only to enfeoff, and my attorney make it to his atto rn ey, it (hall be intended, for it is a livery to him in law. 18 El. Sanders B u t on the other fide, i f a man command I. S. to rob I.D . on Shooterscaie.Com., 7 f .£ ^ ancJ he doth it on Gads-hill, or to rob him fuch a day, and he d o th it the next day, or to kill I. D. and he doth it not himfelf but procureth I. B. to do i t ; or to kill him by poifon, and he doth it by violence; in all th efe cafes, notwith(landing the fad be not executed in circumftance, yet he is a c celfary neverthelefs. B u t if it be to kill I. S . and he killeth I. D. miftaking him for I. S . th en Ibidem. the ads are diflant in fubflancc, and he is not acccfiary. A nd be it that the fads be o f differing degrees, and yet o f a kind : A s i f a man bid 7. S. to pilfer away fuch things out o f a houfe, and precifely re drain him to do it fometime when he is gotten in without breaking o f the houfe, and yet he breaketh the houfe, yet he is acccfiary to the burglary: for a man cannot condition with an unlawful ad , but he mud at his peril take heed how he putteth himfelf into another man’s hands. 18 Eliz. in B u t i f a man bid one rob 7. S. as he gocth to Sturbridge-fair, and he rob Sanders cafe, him in his houfe, the variance feems to be o f fubftance, and he is not ac­ pi. C om .47y. ceflary. R eg. 17 . D e fid e & officio In dicts non recipitur quaeftio; fed de feientia, fiv e er ror fit ju r is fiv e fa B i. T h e law doth fo much refped the certainty o f judgments, and the credit and authority o f judges, as it will not permit any error to be afligned that impeacheth them in their truft and office, and in wilful abufe o f the fame; but only in ignorance, and miftaking either o f the law or o f the cafe and matter in fad. F.N.br.fol.ii. A nd therefore i f I will a Sign for error, that whereas the verdid palled for 7 HmC) the court received it contrary, and fo gave judgment againft me, this (hall not be accepted. 3 H. 6. Aff. 3. S o if I will allege for error, that whereas 7. S . offered to plead a diffident bar, the court refufed it, and drove me from it, this error (hall not be al­ lowed. i M. Dy. 1 14. B u t the greateft doubt is where the court doth determine o f the verity o f the matter in f a d ; fo that it is rather a point o f tryal than a point o f judg­ ment, whether it (hall be re-examined in error. i Mar. f . A s i f an appeal o f maim be brought, and the court, by the afliftance i i h*7 40 [ f rhe chirurgeons adjudge it to be a maim, whether the party grieved may bring a writ o f e rro r; and I hold the law to be he cannot. 8 H. 4 .3 . S o i f one o f the Prothonotaries o f the common pleas bring an affize o f his office, and allege fees belonging to the fame office in certainty, and ifiue is i Mar. Dy. 89. taken upon thefe fees, this ifliie (hall be tryed by the judges by w ay o f exa* Mir'D e a m in a tio n , and i f they determine it for a plaintiff, and he have judgment to recover arrearages accordingly, the defendant can bring no writ o f error o f this judgment, though the fees in truth be other.

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S o i f a woman bring a writ o f dower, and the tenant plead her husband ***■ *-g J ?D was alive, this Hull be tried by proofs and not by jury, and upon judgment An. i and committing the charge o f every county to a lord or carl, did England 'into dired, that thofe earls, within their limits, fhould look to the matter o f the i/kewTerakd Peace> and take charge o f the conftables, and reform publick annoyances, c« ™ T w /*?/r*.and (wear the people to the crown, and take pledges o f the freemen for tl'itheir allegiance; for w hich purpofe the county did once every year keep a court, called the fherifPs tourne; at w hich all the county (except women, clergy, children under twelve, and not aged above fixry) did appear to give or renew their pledges for allegiance. A n d the court was called, Curia franci plegii, a view o f the pledges of freem en; or, Turnus comitatus. Subdivifion of A t w hich meeting or court there fell, by occaiion o f great afTemblies, CTurt^imo much blood-fhed, fcarcity o f viduals, mutinies, and the like mifehiefs, which hundreds. arc incident to the congregations o f people, by w hich the K in g was moved to allow a fubdivilion o f every county into hundreds, and every hundred to have a court, whereunto the people o f every hundred fhould be aflembled. tw ice a year for furvey o f pledges, andufc o f that juftice w hich was formerly executed in that grand court for the co u n ty; and the count or earl appointed a bailiff under him to keep the hundred court. The charge o f B u t in the end, the Kings o f this realm found it neceflary to have all kcn Cfromy ^ e x e c u tio n o f juftice immediately from thcmfelves, by fuch as were more bound earls, and com - than earls to that fcrvice, and readily fobjeft to corrosion for their negli(heriff t0 the gcncc or abufe; and therefore took to ihcmfelves the appointing o f a fhcriff yearly in every county, calling them Vicecomites, and to them directed fuch writs and precepts for executing juftice in the county, as fell out needful to have been difpatchcd, committing to the fhcriff cujiodiam comitatus; by w hich the earls were fpared o f their toils and labours, and that was laid upThe flieriff is on the fheriffs. So as now the fheriff doth all the K in g’s bufinefs in the lundredcourt* councy>and that is now called the fheriffs Tourne-, that is to fay, he is judge ^un re c s ,^ ^ g rand COurt for the county, and alfo o f all hundred courts not given aw ay from the crown. County court H e hath another court called the county court belonging to his office, bePhT a!ffy wherein men may fuc monthly for any debt or damages under 40 /. and may y e have writs for to replevy their cattle diftrained and impounded by others, and there try the caufe o f their diftrefs; and by a writ called ju jlicies, a man m ay fee for any fern ; and in this court the fheriff by a w rit called an exigent doth proclaim men feed in courts above to render their bodies, or elfe they be out-lawed. The office of T h i s flieriff doth ferve the K in g ’s writs o f procefs, be they femmons, atihc ffienti tachments to compel men to anfwer to the law, and all writs o f execution o f the law , according to judgm ents o f fuperior court, for taking o f mens goods, lands, or bodies, as the caufe requireth. Hundredcourrs T h e hundred courts were moft o f them granted to religious men, nobletowhomatfiift men> and others o f great place. And alfo many men o f good quality have srante ‘ 4 " attained

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attained by charter, and £bme by ufagc within manors o f their ow n liberty o f keeping law-days, and to ufe there juftice appertaining to a law-day. W h o s o e v e r is lord o f the hundred court, is to appoint tw o high con- j^nrj 1 ae (tables o f tire hundred, and alfo is to appoint in every village a petty con- pointtwohighftable w ith a tiching-man to attend in his abfence, and to be at his com -cotlftab!csmandment when he is prefent in all Cervices o f his office for his affiftance. T h e r e have been by ufc and Statute law (befidcs furveying o f the pledges o f freemen, and giving the oath o f allegiance, and making conftables) many additions o f powers and authority given to the ftewards o f leets and law-days to be put in ure in their courts; as for example, they may punifii inn-keepers, victuallers, bakers, butchers, poulterers, fifhmongers, and tradefmen o f all forts, felling w ith under weights or meafures, or at excelfive prices, or things unwholfome, or ill made in deceit o f the people. T h e y may punifli thofe that do (top, ftraiten, or annoy the high-ways, or do not according to the provifion enacted, repair or amend them, or divert water courfes, or deftroy trey o f hfh, or ufc engines or nets to take deer, conies, pheafants, or par- what matters tridges, or build pigeon houfes; except he be lord o f the manor, or parfon Ve^andf o f the church. T h e y may alfo take prefentment upon oath o f the twelve law-days, fw orn jury before them o f all felonies; but they cannot try the malefactors, only they mult by indenture deliver over thofe prefentments o f felony to the judges, when they come their circuits into that county. All thofe courts before mentioned are in ufe, and exercifed as law at this day, concerning the (hcrifPs law-days and leets, and the offices o f high conftables, petty conftables, and tithing-m en; howbeit, w ith fome further additions by ftatute laws, lay­ ing charge upon them for taxation for poor, for foldiers, and the like, and dealing without corruption, and the like. C o n s e r v a t o r s o f the peace were In ancient times certain, w hich were Confervators affigned by the King to fee the peace maintained, and they were called to ^ r'tCfoT the office b y the K in g’s writ, to continue for term o f their lives, or at theofiife.oratthe K in g’s pleafure. King’spleafure. F o r this fervice, choice was made o f the beft men o f calling in the coun-What their ofrry, and but few in the fhire. T h e y m ight bind any man to keep the peace,ficc was and to good behaviour, by recognizance to the K in g w ith furcties, and they m ight by warrant fend for the party, dire&ing their warrant to the flieriff or conftable, as they pleafe, to arreft the parry and bring him before them. This they ufed to do, when complaint was made by any that he (food in fear of another, and fo took his oath ; or elfe, where the confervator himfelf did, without oath or complaint, fee the difpofition o f any man inclined to quar­ rel and breach o f the peace, or to mif-bchave him felf in fome outragious manner o f force or fraud : there by his own diferetion he might fend for fu ch a fellow, and make him find fureties o f the peace, or o f his good be­ haviour, as he fliould fee caufe; or elfe commit him to the goal i f he re­ filled. T h e judges o f either bench in fV efim infier, barons o f the exchequer, ma- Confervators fter o f the rolls, and juftices in eire and aflizes in their circuits, were all without w rit confervators o f the peace in all (hires o f England, and continue to this office, day. B u t n ow at this day confervators o f the peace are out o f ufe, and in lieu J “a^ “ rdof xl o f chem there are ordained juftices o f peace, affigned by the K ing’s commif- ETlieu oV^on lions in every county, w hich are moveable at the King’s pleafure; but th e Pervat°rs-.Powp o w e r o f placing and difplacing juftices o f the peace is by ufe delegated from kpred wffie the K in g to the Chancellor. Chancellor. T

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T h a t there fhould be juftices o f peace by commiflions, it was firft enafted by a ftatute made i Ed'W . III. and their authority augmented by many ftatutes made fince in every King’s reign. To tine ofT h e y are appointed to keep four feffions every yea r; that is, every quarter lenders to^ the o n e Thele feffions are a fitting o f the juftices to difpatch the affairs o f their to recompenfc commiflions. T h ey have power to hear and determine in their leflions, all the patty grtc- fcloniec breaches o f the peace, contempts and trcfpafles, Co far as to fine the 17.R1.cap. io.oftender to the crown, but not to award recompence to the party grieved. &v.Dyer69^. a T h e y are to fupprefs riots and tumults, to reftore poffeflions forcibly dTnquicr de" taken away, to examine all felons apprehended and brought before th em ; murder car. ce to fce impotent poor people, or maimed foldiers provided for, according to ^Authority of the laws ; and rogues, vagabonds, and beggars punifhed. T h ey are both to thejuflices of Hccnfc and fupprcls ale-houlcs, badgers of corn and victuals, and to punifh peace, &c. foreftallcrs, regrators, and engroflers. T h r o u g h thele, in effe£t, run all the county fervices to the crown, as taxations o f fublidics, mufixing men, arming them, and levying forces, that is done by a fpecial commiffion or precept from the King. A n y o f thele jultices by oath taken by a man that he ftandeth in fear that another man will beat him, or kill him, or burn his houfe, are to fend for the party by warrant o f atBeating, kil- tachment directed to the Iheriff or conftable, and then to bind the party with houfc&rnU1S°f fa reties by recognizance to the King to keep the peace, and alfo to appear Attachments at the next fcffions o f the peace; at which next feffions, when every juftice the pea«y Pcacc hath therein delivered all their recognizances lb taken, then the parRecognizance ties are called and the caufe o f binding to the peace examined, and both parhvCTcd^by'the t'es being heard, the whole bench is to determine as they fee caufe, either to juflicesat their continue the party fo bound, or elle to difeharge him. leflions. T h e juftices o f peace in their feffions arc attended by the conftables and b"thtf°fSbfahfts o f all hundreds and liberties within the county, and by the fherift or rices of the his deputy, to be employed as occafion fhall ferve in executing the precepts !***• and directions o f the court. T h ey proceed in this fort, the fheriff doth fummon twenty four freeholders, difereetmen o f the laid county, w hereof fome lixteen are felected and fworn, and have their charge to ferve as the grand jury, the party indided is to traverfe the indidment, or elle to confels it, and Co fubmit himfelf to be fined as the court fhall think meet (regard had to the ofience) except the punifhmentbe certainly appointed (as often it is) by fpecial ftatutes. The authority T h e juftices o f peace are many in every county, and to them are brought the peacemit of ill traitors, felons, and other malefadors o f any fort upon their firft appretheir leflions. hcnlion; and that juftice to whom they are brought examineth them, and heareth their accufations, but judgeth not upon i t ; only if he find the fufpicion but light, then he taketh bond with furetics o f the acculed to appear either at the next alfizes, i f it be a matter o f treafon or felo n y; or elfe at the quarter feffions, if it be concerning riot or mif-behaviour, or fome other fmall offence. And he alfo then bindeth to appear thofe that give teftimony and profccutc the acculation, all the acculcrs and witnefles, and fo fetteth the party at large. And at the alfizes or feffions (as the cafe fiftieth out) he certifieth the re­ cognizances taken o f the accufed, accufers, and witnefles, who being there are called, and ‘appearing, the caufe o f the accufed is debated according to law for his clearing or condemning. B u t if the party accufed feem upon pregnant matter in the accufation, and to the juftice to be guilty, and the offence heinous, or the offender taken with the manner, then the juftice is to commit the party by his war­ rant called a mittimus, to the goaler o f the common goal o f the county, 4 there

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there to remain until the ailizes. And then the juftice is to certify his accufation, examination, and recognizance taken for the appearances and profecution o f the witnefl'es, fo as the judges may, when they come, readily proceed with him as the law requireth. T h e judges o f the ailizes as they be now become into the place o f the Judges o f afantient juftices in eyre, called ju jlicta rii itineraries, w hich in the prime ^ ot Kings after the Conqueft, until H. III. time efpecially, and after inlefler mca-judges in eyre fure even to R. II. time, did execute the juftice o f the realm ; they began in TcmP- R U this fort. T h e King, not able to difpatch bufinefs in his own perfon, eroded the King’s bench, court o f King’s-Bench; that not able to receive all, nor meet to draw the ™ ^ 'jlcsounty_ people all to one place, there were ordained counties, and the fherifts tourns, court,’ ihcriffshundred courts, and particular leets, and law-days, as before mentioned, w hich dealt only with crown matters for the publick ; but not the private law-days,’dealt titles o f lands, or goods, nor the trial o f grand offences of treafons and fc-on,v ln ao'Yn lonies, but all the counties o f the realm were divided into fix circuits. And Ces in eyre tw o learned men well read in the laws of the realm, were aflignedby the K in g ’s commiflion to every circuit, and to ride twice a year through thofe or goads, and (hires allotted to that circuit, making proclamation beforehand, a convenientin alUreafons time, in every county, o f the time o f their coming, and place of their fit- which The” ting, to the end the people might attend them in every county o f that county courts meddle not in. circuit. T h e y were to ftay three or four days in every county, and in that time all the caufes o f that county were brought before them by the parties grieved, and all the prifoners of the laid goal in every (hire, and whatfoever controverfies arifing concerning life, lands, or goods. T he authority of thefe judges in eyre, is in part tranflated by aft o f par- The authority linm/>nr rn mltirpc of* olTi-vr» w hich he nnw rhe wdn-cc n f ctrrnirc nnA i-h./,..

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T h e bufinefs o f the juftices in eyre, and o f the juftices o f affize at this Juftices of afday is much leflened, for that in H . III. time there was erefted the court common-pleas at fVeflminfter, in which court have been ever fince, and yet court of com­ are, begun and handled the great fuits o f lands, debts, benefices and c o n -m^n? !” s;,er, tracts, fines for aflurance of lands and recoveries, which were wont to be rime, either in the King’s-Bench, or elfe before the juftices in eyre. But the Itatute o f Mag. Chart, cap. n . j. is negative againft it, v iz . Communia placita non fequantur curiam nojlram, fe d teneantur in aliquo loco certo ; which locus certus muft be the common-pleas; yet the judges o f circuits have now five juftices o f 3c commiffions by which they fit. fit by fivc T he firft is a commiflion o f oyer and terminer, directed unto them, and o^cr^ndTam any others o f the beft account, in their circuits; but in this commiflion "finer, in th e judges o f aflize are o f the Quorum, Co as without them there can be no ^ eof proceeding. the quorum, T h i s commiflion giveth them power to deal with treafons, murtherSjand®^ all manner o f felonies and mildcmcanors wliatfoever ; and this is the largeft commillion that they have. T h e lecond is a commiflion o f goal delivery, that is only to the judges Goa! delivery themfelves, and the clerk o f the aflize ailociate : and by this commiflion ^rc^ cd onif they are to deal with every prifoner in the goal, for what offence foever he and clerk' oi” be there, and to proceed with him according to the laws o f the realm, a n d ,he affi2CV o l . IV. the Q. a

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the quality o f his offence ; and they cannot by this commilTion do any thing concerning any man, but thofe that are prifoners in the goal. T h e courfe now in ufe o f execution o f this commilTion o f goal delivery, is this. T here is no prifoner but is committed by feme jufhee o f peace, who before he committed him took his examination, and bound his accufers and witneffes to appear and profecute at the goal delivery. T his juftice doth certify thefe examinations and bonds, and thereupon the accufer is called folcmnly into the court, and when he appeareth, he is willed to prepare a bill o f indict­ ment againft the prifoner, and go with it to the grand ju ry, and give evi­ dence upon their oaths, he and the witneffes ; w hich he d o th : and then the grand ju ry write thereupon either billa vera , and then the prifoner fhndeth indicted, or elfe ignoramus, and then he is not touched. T h e The manner grand ju ry deliver thefe bills to the judges in their court, and fo many as ofthe proceed-they find indorfed billa vera , they fend for thofe prifoners, then is every nicesof dr-U" man's indi&ment put and read to him, and they ask him whether he be ot'S d gLllky or not : ^ guilty, kls confeffion is recorded; i f he fay noc for the goaf**guilty, «then he is asked h o w he will be tried ; he anfwercth, by the coun­ delivery. try. T hen the fhcriff is commanded to return the names o f twelve free­ holders to the court, w hich freeholders be fworn to make true delivery be­ tween the K in g and the prifoner ; and then the indiftment is again read, and the witnefles lw om to fpeak their knowledge concerning the faft, and the prifoner is heard at large what defence he can make, and then the ju ry go together and confult. And after a while they come in with a verdid o f guilty or not guilty, w hich verdift the judges do record accordingly. I f any prifoner plead not guilty upon the indictment, and yet will not put him felf to trial upon the ju ry (or Hand mute) he fhall be prefled. T he judges, when m any prifoners are in the goal, do in the end, before they go, perufc every one. Thofe that were indi&cd by the grand jury, and found noc guilty by the feled ju ry, they judge to be quitted, and fo deliver them out o f the goal. Thofe that are found guilty by both juries, they judge to death, and command the fhcriff to fee execution done. T hofe that refufe trial by the country, or ftand mute upon the indictment, they judge to be prefled to death : fome whofe offences are pilfering under twelve pence value, they judge to be whipped. Thofe that confcfs their indict­ ments, they judge to death, whipping, or otherwife, as their offence requireth. And thofe that are not indidted at all, but their bill o f indi&ment returned w ith ignoramus by the grand jury, and all other in the goal, againft whom no bills at all are preferred, they do acquic by proclamation out o f the g o a l; that one way or other they rid the goal o f all the prifoners in it. But becaufe fome prifoners have their books, and be burned in the hand, and fo delivered, it is neceffary to fhew the reafon thereof. T his having their books is called their clergy, which in antient time began thus. Books al’owed F o r the fcarcity of the clergy in the realm o f England, to be difpofed to clergy, or. in religious houfes, or for priefts, deacons, and clerks of pariflics, there was a prerogative allowed to the clergy, that i f any man that could read as a clerk were to be condemned to death, the Bifliop o f the diocefe m ight, i f he would, claim him as a clerk, and he was to fee him tried in the face o f the court. W h e t h e r he could read or not, the book was prepared and brought by the Bifliop, and the judge was to turn to fome place as he fliould think m eet; and i f the prifoner could read, then the Bifliop was to have him de­ livered

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Iivcred over unto him, to difpo£b o f in fomc places o f the clergy, as he fhould think m eet: but if either the Bifhop would not demand him, or that the prifoner could not read, then was he to be put to death. A nd this clergy was allowable in the antient times and law, for all o f- Clergy allowed fences, vvhatfoever they were, except treafon, and the robbing o f churches o f their goods and ornaments. But by many ftatutes made fince, the clergy and robbing of is taken away for murther, burglary, robbery, purfc-cutting, horfe-ftealing, n,ow and diverfe other felonies, particularized by the ftatutes to the judges; and r. inmui&r. lalHy, by a ftatute made 18 .E liz a b e th , the judges themfelves arc appointedl -1" ^ rsl3ryto allow clergy to fuch as can read, being not fuch offenders, from whom Purfc-cu'tclergy is taken away by any ftatute, and to fee them burned in the hand/^K-T-Horfeand fo difeharge them, without delivering, them to thcBifliop; howbeit, the di” eH* oiher'" Biftiop appointeth the deputy to attend the judges with a book, to try ° ffenc" Br rhe whether they can read or not. ^ z/,z..j>uJg«are T h e third commiflion that the judges o f circuits have, is a c o m m if l io n allow cierdireclcd to themfelves only, and the clerk o f affize to take aflizes, by which f^embuincdm they are called juftices o f affize; and the office o f thofe juftices is to do the hand, and right upon writs called affizes, brought before them by fuch as are wrong- ^pHfonfrj fully thruft out o f their lands. O f which number o f writs there was far without the greater ftore brought before them in antient times than n o w ; for that mens Bl f ui ng livery, and that as well where the heir hath been in ward as otherwife. Knight’s ferT h e s e before mentioned be the rights o f the tenure, called knight’s-fervice vice “ in capite, w hich is as much to fay, as tenure de perfona regis, and caput \trfon» reps, being the chiefeft part o f the perfon, it is called a tenure in capite, or in Tenants by chief. And it is alfo to be noted, that as this tenure in capite by knight’s-, were to pay^e- fervice generally was a great fafety to the crown, fo alfo the Conqueror inftilief at the fulltuted other tenures in capite necetlary to his eftate; as namely, he gave diheir Jliich wasvcrs ^anoy°Pyofbeing in truth bond-men at the beginning: but having obtained freedom of c 1 their persons, and gained a cuftom by ufe o f occupying their lands, they now are called copy-holders, and arc fo privileged, that the lord cannot put them out, and all through cuftom. Some copy-holders are for lives, one, two, or three fucceftively; and fome inheritances from heir to heir by cuftom ; and cuftom ruleth thefe eftates wholly, both for widows eftates, fines, harriots, forfeitures, and all other things. Court Jiajon.f M a n o r s being in this fort made at the firft, reafon was that the lord of w't t c u o t^ e (houid hold a court, which is no more than to aftcmble his tenants together at a time by him to be appointed; in w hich court he was to be in­ formed by oath o f his tenants, o f all fuch duties, rents, reliefs, wardships, copy-holds, or the like, that had happened unto h im ; w hich information is called a prefentment, and then his bailiff to feize and diftrain for thofe du­ ties i f they were denied or with-holdcn, which is called a court b aro n : and herein a man may fue for any debt or trcfpafs under forty pound value, and the freeholders are to judge o f the caufe upon proof produced upon both Suit to the fidcs. A nd therefore the freeholders o f thefe manors, as incident to their iorXincidemto tenures, do hold by fuit o f court, w hich is to come to the court, and there the tenure o f to judge between party and party in thofe petty actions; and alfo to inform the freeholders, lord Gf duties, rents, and fervices unpaid to him from his tenants. B y this courfe it is difeerned w ho be the lords o f iands, fuch as i f the tenants die without heir, or be attainted o f felony or treafon, (hall have the land by efcheat. What attainN o w concerning what attainders fliall give the efehcat to the la n d ; it is the efeheaf t o to be noted, that it muft either be by judgment o f death given in fome court the lord. At- 0f record againft the felon found guilty by verdict, or confeftion of the felojudgment.'i.By ny, or it muft be by out-lawry o f him. vcrdiftorconT h e out-lawry groweth in this fort; a man is indicted for felony, being out*lawry,givenot in hold, fo as he cannot be brought in perfon to appear and to be trythe lands to the cd, infomuch that procefs o f capias is therefore awarded to the fhcriff, w ho o f an attaindernoc finding him, returneth, non eft inventus in b alliva mea ; and thereupon by out lawry, another capias is awarded to the ftieriftj w ho likewife not finding him maketh the feme return ; then a writ called an exigent is directed to the fhcriff, com ­ manding him to proclaim him in his county-court five feveral court days, to yield his b o d y; w hich i f the fhcriff do, and the party yield not his body, he is laid, by the default, to be out-lawed, the coroners there adjudging him out­ law ed, and the fheriff making the return o f the proclamations, and o f the judgm ent o f the coroners upon die backlide o f the wrir. T h is is an attain­ der o f felony, whereupon the offender doth forfeit his lands by an efehcat to the lord o f whom they are holden. * Aid money and efeuage money is likewife due unto the lords of their tenants, vidt N. 3.

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B u r note, that a man found guilty o f felony by verdidt or confeflion, and Pray« of t(lc praying his clergy, and thereupon reading as a clerk, and fo burnt in th e dcrBy' hand and difeharged, is not attainted; becaufe he by his clergy preventeth the judgm ent o f death, and is called a clerk convict, who lofeth not his lands, but all Iris goods, chattels, leafes, and debts. S o a man indicted, that will not anfwer nor put him felf upon trial, al- He that ftandthough he be by this to have judgment o f preiling to death, yet he doth fa!e™u*c for' forfeit no lands, but goods, chattels, leafes, and debts, except his offence lands, except be treafon, and then he forfeiteth his lands to the crown. for CrcalonS o a man chat killeth him felf fhall not lofe his lands, but his goods, chat-He that killeth cels, leafes, and debts. So o f thofe that kill others in their own defence, or by misfortune. chattels. A man that being purfued for felony, and flyeth for it, lofeth his goods F1ying for fcfbrhis flying, although he return and is tried, and found not guilty o f the ^rlof 'g^ s!* fad . S o a man indided o f felony, i f he yield not his body to the fherifF until He that yieldafter die exigent o f proclamation is awarded againfl: him, this man doth upon thenHforfeit all his goods for his long ftay, although he be not found guilty o f the gent for Wofelony; but none is attainted to lofe his lands, but only fuch as have ju d g -£ £ g°^j“ eth mencs o f death by trial upon verdict, or their ow n confeflion, or that they be by judgm ent o f the coroner’s out-lawed, as before. B e s i d e s the efcliears o f lands to the lords of whom they be holdcn for Lands entailed lack o f heirs, and by attainder for felony (which only do hold place in feeAmple lands) there are alfo forfeiture o f lands to the crown by attainder offon.° treafon; as namely, i f one that hath entailed lands commit treafon, he fo r- Stat. a an entail as above-mentioned. « b/ wT " ' ’ 2. A fine is areal agreement, beginning thus, H aecefi fin alis concordia, & c . what a fine if. This is done before the King’s judges in the court o f common-pleas, c o n - ^ ho^ cerning lands that a man fhould have from another to him and his heirs, or ™ycd hereby" to him for his life, or to him and the heirs males o f his body, or for years certain, whereupon rent may be referved, but no condition or covenants. This fine is a record o f great credit; and upon this fine are four proclamations made openly in the common-pleas; that is, in every term one, for four terms together; and i f any man having right to the feme, make not his claim w ith­ in five years after the proclamations ended, he lofeth his right for ever, ex- Five years non cept he be an infant, a woman covert, a mad-man, or beyond the feas, and barrct!l then his right is feved; (o that he claim within five years after the death o f 1. An infant, her husband's full age, recovery o f his wits, or return, from beyond the feas. Jnt.enK c0" This fine is called a feoffment o f record, becaufe that it includeth all that 3. Mad man. the feoffment doth, and worketh farther o f his own nature, and barreth entails peremptorily, whether the heir doth claim within five years or not, ifment of record, he claim by him that levied the finc. 3. R e c o v e r i e s are where for aflurances offends the parties do agree, that what recoveone (hall begin an adion real againft the other, as though he had good righ tnes “ c‘ to the fend, and the other (hall rtot enter into defence againft it, but allege that he bought the land o f I. H . w ho had warranted unto him, and pray that

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that I. H . m aybe called in to defend the title, w hich I. H . is one o f the c ry Qf the common-pleas, and is called the common-voucher. T his J .H . r r f f c fhall appear and make as i f he would defend it, but fhall pray a day to be court. afllgned him in his nutter o f defence •, w hich being granted him, at the day he maketh default, and thereupon the court is to give judgment againft h im ; w hich cannot be for him to lofc his lands, becaufe he hath it not, buc the party that he hath fold it to, hath that w ho vouched him to w ar­ rant it. judgment for T h e r e f o r e the demandant w ho hath no defence made againft it, muft againft’tbefte- liavc judgm ent to have the land againft him that he fued (who is called the nant in tail, tenant) and the tenant is to have judgm ent againft I. H . to recover in value reiumto'rao- muc^ ^ n d o f his, where in truth he hath none, nor never will. And by ver fo much this device, grounded upon the fttid principles o f law, the firft tenant lofeth !hedcommonft ^ e *and> an^ hath nothing for it; but it is by his own agreement for afluvouchtr. ranee to him that brought it. m Taiieicbcat T h is recovery barreth entails, and all remainders and reverfions that tail and all re- fhould take place after the entails, faving where the K ing is giver o f the enverfions and re- tajl and keepeth the revcrfion to him folf; then neither the heir, nor therethereupon, maindcr, nor reverfion, is barred by the recovery. The reafon T h e reafon w h y the heirs, remainders, and reverfions are thus barred, is mon recovery becaufe in ftrift law the recompencc adjudged againft the crier that was barreth thofein vouchee, is to go in fucceffion o f eftate as the land fhould have done, and reverfions. a, d then it was not reafon to allow the heir the liberty to keep the land it (elf, and alfo to have recom pcnce; and therefore he lofeth the land, and is to truft: to the recompence. The many inT h i s Height was firft invented, when entails fell out to be fo inconvenient bfX^Tntail35 *s before declared, fo that men made no confcience to cut them off, i f they brought in could find law for it. And now by ufo, thofe recoveries are become com r!es& which are m onahuranccs againft entails, remainders, and reverfions, and arc the greateft made now focurity purchafers have for their m oney; for a fine will bar the heir in tail, vevances and an^ not ^ remainder, nor revcrfion, but a common recovery will bar afiurances for them all. u nd>n fines fe U p o n feoffments and recoveries, the eftate doth fettle as the ufo and fe­ offments,' and tent o f the parties is declared by word or writing, before the a d was done: etoe'doth f ° r example, i f they make a writing that one o f them fhall levy a fine, tjeaccording to make a feoffment, or fuffer a common recovery to the oth er; but the ufean d theintent *ntent *s> that one fhould have it for his life, and after his deceafo a ftranger c patties. tQ jjave jn tajj^ an(j thcn a thir(j jn fee-fimple. In this cafe the land fet-

Cotnmon-vou-e r s

tleth in an eftate according to the ufe and intent declared. And that by reafon o f the ftatute made 2 7 H . VIII. conveying the land in pofleflion to him that hath intereft in the ufe, or intent o f the fine, feoffment, or recovery, according to the ufe and intent o f the parties. Bargains, files, U pon this ftatute is likewife grounded the fourth and fifth o f the fix conro fianTt-i^d veyances, v i z . bargains, fales, convenants, to ftand feized to ufes; for this to a ufe, are all ftatute, wherefoever it findeth an ufe, conjoineth the pofleflion to it, and f[°Ufladtydteupon turneth it into like quality o f eftate, condition, rent, and the like, as the ufe hath. what a ufe is. 4. T h e ufe is but the equity and honefty to hold the land in cotifcientia boni v ir i. As for example; I and you agree that I fhall give you money for yo u r land, and you fhall make me alfurance o f it. I pay you the money, but yo u made me no aflurance o f it. H ere although the eftate o f the land be ftill in you, yet the equity and honefty to have it is w ith m e ; and this equity is 4 called

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77

called the ufe, upon w hich I had no remedy but in chancery, until this ftatute was made o f i j H . V III. and n ow this ftatute conjoineth and contain3J asH' 80 eth the land to him that hath the ufe. I for m y money paid to you, have remedy for a the land it fell’ without any other conveyance from y o u ; and it is called a in bargain and fale. B u t the parliament that made that ftatute did forefee, that it would be The «at. o f 17 mifchievous that mens lands (hould fo fuddcnly upon the payment o f a little ^ 8]adn and bach nothing for it; but it is by his ow n agreement for aftuvouchtr. ranee to him that brought it. muTandicheat T h is recovery barreth entails, and all remainders and reverfions that tail and all rc- Ihould take place after the entails, laving where the K ing is giver o f the enverfions and re-raji and keepeth the reverfion to him felf ; then neither the heir, nor theremaindments : , r r . , , , , thereupon, mainder, nor reverlion, is barred by the recovery. The reafon T h e reafon w h y the heirs, remainders, and reverfions are thus barred, is mon recovery becaufe in ftrift law the recompencc adjudged againft the crier that was barreth thofe in vouchee, is to go in fucceftion o f eftatc as the land (hould have done, and remfionsi "nd then it was not reafon to allow the heir the liberty to keep the land it folf, and alfo to have recom pcnce; and therefore he lofcth the land, and is to trull to the recompence. The many in- T h i s Height was firft invented, when entails fell out to be fo inconvenient effotesiruafl is before declared, fo that men made no confcience to cut them off, i f they brought in could find law for it. And now by ufo, thofe recoveries are become comr!es^which are m° u ailuranccs againft entails, remainders, and reverfions, and arc the greatefl made now focurity purchafers have for their m oney; for a fine will bar the heir in tail, vcvance" and ant^ not c^e remainder, nor reverfion, but a common recovery will bar afiurances for them all. u"dn fines fe U p o n feoffments and recoveries, the eftatc doth fettle as the ufo and inoflments,eS and tent o f the parties is declared by word or writing, before the a d was done: efhte'doth fe t^ ^or example> i f they make a writing that one o f them fhall levy a fine, tieaccording tomake a feoffment, or futfer a common recovery to the other; but the ufo an d the intrent of" “ itent ‘s> that one fhould have it for his life, and after his deceafo a ftranger e parties. £o k ave -£ tajj^ anj tjien a rhird in fee-fimple. In this cafe the land fcttleth in an eftate according to the ufo and intent declared. And that by reafon o f the ftatute made 1 7 H . V III. conveying the land in pofieflion to him that hath intereft in the ufo, or intent o f the fine, feoffment, or recovery, according to the ufe and intent o f the parties. Bargains, files, U pon this ftatute is likewife grounded the fourth and fifth o f the fix con­ to fianTfeTid vcyanees, v iz . bargains, lales, convenants, to (land feized to ufes; for this to a ufe, are all ftatute, whercfoever it findeth an ufe, conjoincth the pofieflion to it, and or^flatute?100 turneth it into like quality o f eftate, condition, rent, and the like, as the ufe hath. what a ufe is. 4. T h e ufe is but the equity and honefty to hold the land in confcientia boni v ir i. As for example; I and you agree that I fhall give you money for your land, and you fliall make me affurance o f it. I pay you the money, but you made me no afiiirance o f it. H ere although the eftate o f the land be ftill in you, yet the equity and honefty to have it is w ith m e ; and this equity is 4 called

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called the ufe, upon which I had no remedy but in chancery, until this ftatutew as made o f 1 7 H. VIII. and now this ftatute conjoineth and contain'„0 eth the land to him that hath the ufe. I for my money paid to you, have remedy for a the land it fell, without any other conveyance from y o u ; and it is called a in bargain and (ale. B u t the parliament that made that ftatute did forefee, that it would beThrftat. of 17 mifehievous that mens lands (hould fo fuddenly upon the payment o f a little money be conveyed from them, peradventure in an alehoufe or a tavern up- the payment of op. ftrainablc advantages, did therefore gravely provide another aft in the e'd'infeme parliament, that the land upon payment o f this money fhould not pals dented and enaway, except there were a writing indented, made between the (aid tw o ™ j|^ ( ^ parties, and the (aid writing alfo within fix months inrollcd in feme o f the H.S extendcth courts at JVefiminjler, or in the feftions rolls in the (hire where the land ly- "°^cr'°th^ cj eth ; unlefs it be in cities or corporate towns where they did ufe to en rollm rX L di ' deeds, and there the ftatute extendeth not. 5. T h e fifth conveyance o f a fine is a conveyance to ftand feized to ufes: it * is in this fo rt; a man that hath a wife and children, brethren, and kinsfolks, t0 a u:e. may by writing under his hand and feal agree, that for their or any o f their preferment he will ftand feized o f his lands to their ufes, either for life in tail or fee, fo as he (hall fee caufe; upon which agreement in writing, there uPonanagrcearifeth an equity or honefty, that the land fhould go according to thofe agree- ting to"ftand m ents; nature and reafon allowing thefe provilions; w hich equity and ho- j y y . to the nelly is the ufe. And the ufe being created in this fort, the ftatute o fy , kindred,0* 2 7 H . V III. before mentioned, conveyeth the ellate o f the land, as the ufe is u(e ma.v •* ' } created, &c. appointed. A nd fo this covenant to ftand feized to ufes, is at this day, fince the (aid a covenant to ftatute, a conveyance o f land, and with this difference from a bargain and fale; in that this needeth no enrollment as a bargain and (ale doth, nor need- no enrollment eth it to be in writing indented, as bargain and fale m u ft: and i f the party “ * t>^ 8“lnuar“ « Sinwjft!°to friends would not perform it, the court o f chancery was to compel them by at the b u r n e r of the lauti fljoulD r c - T S i f p ^ ' " ^ " ^ tljc fioufes of IjusbanOrp ; that the word Owner (which anfwereth to dorm- Owner in the nus) was he that had the immediate inheritance, and fo ran the later fta-ftature of + tutes. L et us fee therefore what judgm ent the law maketh o f a timber- 7‘ tree ; and whether the law doth not place it within the lot of him that hath the inheritance as parcel thereof. F i r s t it appeareth by the regifter out o f the words o f the writ o f wade, T h e w r it o f that the wade is laid to be ad exbaeredationem, w hich prefuppofeth haeredi- ^he^t^ng tatem: for there can’t be a difinherifon by the cutting down o f the tree, tim ber to be except there was an inheritance in the tree, quia privatio praefuppomt actum. A g a in it appeareth out o f the words o f the (latute o f Gloucejler well The (brute of obferved, that the tree and the foil are one entire thing, for the words are, cituttfin, quod recuperet rent vaftatam ; and yet the books fpeak, and the very judg- Tcmvlpum* ment in w a lk is, quod recuperet locum vaflatum, which (hews, that res and "or ^cum locus are in expofition o f law taken indifferently: for the lcflor (hall not re- "!Hm’ cover only the flem of the tree, but he (hall recover the very foil, whereuntothe flem continues. And therefore it is notably ruled in i t H. V I. *»»•*• f. 13. f. 13 . that if the Terminor do firft cut down the tree, and then deftroy the Item, the leflor (hall declare upon two feveral w alk s, and recover treble damages for them feverally. But fays the book he mult bring but one writ, for he can recover the place walled but once. A nd farther proof may be fitly alledged out o f Mulliris cafe in the com-Mullin's cafe, mentaries, where it is faid, that for timber-trees tithes (hall not be paid. A nd the reafon o f the book is well to be obferved; for th a t tith e s a re to be pate for tlje rc b e n u c of t(jc in h e rita n c e , ano n o t for th e in h e rita n c e i t felf.

N ay,

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CASE OF I M P E A C H M E N T OF WA S T E .

N a y , m y lords, it is notable to confidcr what a reputation the l a w gives to the trees, even after they are fevered by grant, as may be plainly inferc». p. 4. f. 6 1, red out o f Herlackenderis cafe, L . Coke p. 4. f. 6 1. I mean the p rin cip a l c a fe ; where it is refolved; that i f the trees being excepted out o f a leafe be granted to the leffec, or i f the grantee o f trees aceept a leafe o f the land, the property o f the trees drown not, as a term fhould d ro w n in a freehold, but fubfifl as a chattel divided; w hich fhews plainly, th o u gh th ey be madp tranfitory; yet they ftill to fomc purpofes favour o f the in h eritan c e: for i f you go a little farther, and put the cafe o f a ftate tail, w hich is a ftate o f inheritance, then I think clearly they are reannexed. But on th e other fide, i f a man buy com (landing upon the ground, and take a leafe o f the fame ground, where the corn flands, I fay plainly it is rcaffixed, for paria

copulantur cum paribus. A nd it is no lets worthy the note what an operation the inheritance leavcth behind it in matter o f wafle, even when it is gone, as appeareth in the cafe o f tenant after poffibility, w ho (hall not be punifhed; for though the new reafon be, becaufe his eftatc was not within the flatutc o f Glouccjler; yet I will not go from m y old M r. Littleton's reafon, w hich fpeaketh ouc o f the depth o f the common law, he fhall not be punifhed for the inheri­

tance fake which was once in him. B u t this w ill receive a great deal o f illuflration, by confidering the Ter­ and the nature thereof, w hich was well defined by M r. Heath (w ho fpake excellent well to the cafe) that it is fuch as he ought to yield up the inheritance in as good plight, as he received i t ; and therefore the w o rd th e derivation frmarius (w hich is the word o f the flatute o f Marlebrtdge) cometh, as I the word jlr- conccive> a firmando, becaufe he makes the profit o f the inheritance, which murini. otherwife fhould be upon account, and uncertain, firm and certain ; and ac­ cordingly Jeodi firma fee-firm is a perpetuity certain : Therefore the nature and limit o f a particular tenant is to make the inheritance certain, and not to make it worfe. 1. T h e r e f o r e he cannot break the foil otherwife than with his ploughfhare to turn up perhaps a flone, that lyeth aloft; his interefl is in Juperficie not in profundo, he hath but tunicam terrae little more than the veflure. I f w e had firr-timber here, as they have in Mufcovy, he could not pierce the tree to make the pitch come forth, no more than he may break the earth. Tht evidence S o we fee the evidence, w hich is propugnaculum haereditatis, the fortrefs C / S f " ” and defence ° f chc land belongeth not to the leflee, but to the owner o f the inheritance. C^ C ^ ces e^ ate is n° t accounted o f that dignity, that it can do honnuancc'in'the mag c> becaufe it is a badge o f continuance in the blood o f lord and tenant, blood. Neither for m y own opinion can a particular tenant o f a manor have aid Ligni. f i b rnarier, on pur fe r e fit z ch eva lier; becaufe it is given by law upon, ories (hail n?t an indi&ment o f continuance o f blood and privity between lord and tc-

minor’s eflate,

have aid.

nanc>

A nd for the tree w hich is now in queflion, do but confider in w hat a revolution the law moves, and as it were in an orb : for when the tree is young and tender germ en terrae, a fprout o f the earth, the law giveth it to the lcfTee, as having a nature not permanent, and yet ealily reflored : when it comes to be a timber-tree, and hath a nature folid and durable, the law carrieth it to the leflor. But after again i f it become a fear an d a dotard, and its folid parts grow putrefied, and as the poet faith, non ja m m ater a lit, tellus

vtrefqte

3

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CASE OF I M P E A C H M E N T OF WA S T E . virefque mniftrat, then the law returns it back to the lefTee. futim cuique tribuere; th e la w guidin g all things

ju B ic e , this is

ioy

T h is is true w ith line o f

mcafure and proportion. A n d therefore that intcrcft o f the lefTee in th e tree, w h ic h th e books The phrafc call a fpecial property, is fcarce w o rth that name. H e {hall have th e fhade, {£*£ fo fhall he have the (hade o f a r o c k ; but he (lull not have a cryB al or Bri- property in the

Jioll diam ond

g r o w in g upon the rock. H e fhall have th e pannage ; w h y ? v|er^ imlic that is the fruit o f th e inheritance o f a tree, as herb or grafs is o f th e foil, hath but the ' H e fhall have fcafbnablc lo p p in g s ; w h y ? fo he fhall have feafonable diggings Profits of thc o f an open mine. S o as all thefe things are rather profits o f th c tree, than trec’

a n y fpecial property in th c tree.

But about w ords w e w ill not differ.

S o as I conclude this part, that the reafon and w ifd o m o f la w doth m atch th in gs, as th e y confort, aferibing to perm anent Bates perm anent intereB, and to tranfitory Bates tranfitory in tc re B ; and you cannot alter this order o f la w b y fancies o f claufes and liberties, as I w ill tell yo u in th c proper place. A n d therefore the tree B anding belongs clearly to th e o w n e r o f the inheritance. N o w com e I to m y fecond aftcrtion, th at b y th e feverance th e o w n c rfhip or property cannot be altered ; but that he th at h ad th e trees as part o f the inheritance before, m u B have it as a chattel tranfitory after. T h is is pregnant and follow eth o f it felf, for it is the fam e tree Bill, and as th e Scriptu re faith, uti arbor cadit, ita jacet. T h e o w n e r o f th e w h ole m u B needs o w n th c p arts;

h e that o w n e th

th c cloth o w n e th the thread, and he th at o w n e th an engine, w h e n it is entire, o w n eth the parts w h e n it is b ro k e n ; breaking cannot alter property. A n d therefore the book in Herlacketiden’s cafe d o th not B ick to give it HerUkenJm't fom ew h at plain te rm s; and to fay th at it w ere an abfurd th in g, thac t h e ClfclefTee w h ic h hath a particular intereB in th e land, fhould have an abfolute p rop erty in th at w h ic h is part o f th e in h eritan ce: yo u w o u ld h a ve th e lhadow d ra w the b o d y, and th e tw igs d ra w th e trunk. T h e fe are tru ly called abfurditics. A n d therefore in a conclufion fo plain, it fhall be fufficien t to vo u ch th c authorities w ith ou t en fo rcin g th e reafons. A n d although th e divifion be go o d , that w as m ade b y M r . Heath, th at there be four manners o f feveranccs, that is w h e n th e lefTee fells th c tree, or w h e n the leflor fells it, or w h e n a Branger fells it, or w h e n the a ft o f G o d , a tem peft fells it, yet this divifion tendeth rather to explanation th an to p r o o f; and I need it not, becaufe I d o m aintain that in all thefe cafes

the property is in the lcfTor. A n d therefore I w ill ufe a diftribution w h ic h rather prefleth th e proof. Three arguT h e queBion is o f property. T h e r e be three argum ents o f property, dam a- m' tnts ^ P ™ ges, feifiire, and g r a n t ; and acco rd in g to thefe I w ill examine the p rop erty ges,fcifure and o f the trees b y th c authority o f books. P°wcr t0 firft for dam ages. Br*m' dam ages look into the books o f the law , and yo u fliall not find th e lefTee fliall ever recover dam ages, n o t as th e y are a badge o f property ; for th c dam ages, w h ic h he recovcrcth , are o f tw o natures, either fo r the fpe­ cial p ro p erty (as th e y call it) or as he is ch argeable over. A n d for this to avoid len gth , I will feleft three books, one w h e re th e lefTee fhall recover treble dam ages, another w h e re he fhall recover but for his fpecial property, A

F

nd

or

a n d the third w h e n he fhall recover for th e b o d y o f the tree, w h ic h is a fpe­ cial cafe, and Bandeth m erely upon a fpecial reafon.

Vox.. IV.

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CASE OF I M P E A C H M E N T OF WA S T E .

44E. 3. f. 17.

T h e firft is the book o f 4 4 E . III. f . 27. where it is agreed, that i f te­ nant for life be, and a diffeifor commit wafte, the leiTce (hall recover in trefpafs as he (hall anfwer in w afte: but that this is a kind o f recovery o f da­ mages, though per accidens may appear plainly. F o r i f th e left'or d ye , w h e re b y his adtion is gon e, then th e diffeifor is likew ife difeharged, o th erw ife th an for th e fpccial property.

j> £.4. f. 37.

T h e fecond book is 9 E . I V . f. 33. where it is admitted that i f the leflor him fclf cut down the tree, the leffee (hall recover but for his fpecial profic o f (hade, pannage, loppings, becaufe he is not charged over. 44 e .3. f. 44. T h e third is 4 4 E. III. f. 44 . where it is faid, that i f the leffee fell trees to repair the barn which is not ruinous in his own default, and the leftor come and take them away, he (hall have trefpafs, and in that cafe he (hall recover for the very body o f the tree, for he hath an abfolute property in them for that intent. 38 Air. f. 1 . A nd that it is only for that intent appearcth notably by the book 38 A jf. f.

1.

I f the lefl'cc after he h ath cu t d o w n th e tree em plo y it not to repara­

tions, but em plo y other trees o f better value, y e t it is w afte ; w h ic h fliew eth p lain ly th e p rop erty is refpeftive to the em ploym ent.

E. I V . f. 10 0 . goeth farther and (heweth, that the fpecial prow h ic h th e left’c e h ad w as o f the livin g tree, and determ ines as Her-

7 £.4. f. 100.

N ay 3

E

tden’s cafe faith b y fe v cra n ce ; for th en magis dignum trahit adfe minus dignum: for it faith, that th e leftee can ’t p ay th e w o rk m an ’s w ages w ith

thofe parts o f th e tree w h ic h are not tim ber.

m onftration * 7 # . 8. f. 13. cafe o f 2 7

o f p rop erty, w h ic h

H.

A n d fo I leave th e firft d e -

is b y d a m a ge s; exce p t you w ill a d d th e

V II I. f. 1 3 . w h e re itj^ d a id , th at i f tenant for life a n d he in

the reverfion jo in in a leafe for years, and leftee for years fell tim ber trees, th e y (hall jo in in an aftion o f w a f t e ; but he in the reverfion (hall recover th e w h o le d a m a g e s:

an d

great reafon, for th e fpecial p ro p erty w as in th e

leftee for years, the general in him in th e reverfion, fo th e tenant for life m eane h ad neither th e one nor th e other. N o w for th e feifure yo u m ay not look for plentiful au th ority in that : for the leflor, w h ic h h ad th e m ore beneficial rem edy b y aftio n for treble d a ­ m ages, h ad little reafon to refort to th e w eak er rem edy b y feifure, and leafes w ith o u t im peach m ent w e re then rare, as I w ill tell yo u anon.

A n d th ere­

fore the queftion o f th e feifure cam e ch iefly in experience u p o n th e cafe o f th e windfalls, w h ic h co u ld not be puniftied b y a&ion o f wafte.

F ir s t

40 E .3-p l.il.

therefore th e cafe o f 4 0

E.

III. pi. 2 2 . is exprefs, w h ere at th e

K in g ’s fuit in th e b e h a lf o f th e heir o f

Darcy w h o

w as in w a rd , th e K in g ’s

leftee w a s queftioned in w afte, and juftified the tak in g o f th e trees, becaufe th e y w e re o v e rth ro w n b y w in d s, and taken a w a y b y a ftranger.

B u t K n e-

vet faith,

a lth o u g h one be guardian, y e t th e trees, w h e n b y th eir fall th e y are fevered from th e freehold, he hath no p rop erty o f the chattels, but th e y appertain to th e

heir, and th e heir (hall h ave trefpafs o f th em againft a

ftranger, and n o t th e guard ian , no m ore than th e bailiff o f a m anor.

So

th at th at book rules th e intereft o f th e tree to be in th e heir, and goes to ap p o in t farther, th at he (hall have trefpafs fo r th e m ; but o f feifure th ere h a d been n o queftion.

1 h. 7. f. 14.1 S o again in 2

H.

V I I . the w o rd s o f

Brian

are th at for th e tim ber-trees

th e leffor m a y take th em ; for th e y are his, and feemech to take fom e d if­ ference b etw ee n th em an d the gravel.

„

;

t

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CASE OF I M P E A C H M E N T OF WAS T E . ■

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T he like reafon is o f the timber o f an houfe, as appears 34 E . 3. f. 3 . 34. e . f. j-. abridg’d by Brook, tit. wafte, pi. 34. when it is faid, it was doubted who fliould have the timber o f a houfe w hich fell by tem peft; and faith the book, it fecms it doth appertain to the lefl'or ; and good reafon, for it is no wafte, and the leflee is not bound to re-edify i t : and therefore it is relfon the lefl'or have i t ; but ELerlackenden's cafe goes farther, where it is faid that the leflee may help himfelf with the timber, if he will re-edify i t ; but clearly he hath no intereft but towards a fpecial employment. N o w you have had a cafe of the timber-tree, and o f the timber o f the 9 e . 4~f. JJ-. houfe, now take a cafe o f the mine, where that o f the trees is likewife pur, and that is 9 E . IV . f. 53. where it is faid by Needham , that i f a lcafe be made o f land wherein there is tin, or iron, or lead, or coals, or quarry, and the lcflor enter and take the tin or other materials, the leffee fhall punifh him for coming upon his land, but not for taking o f the fubftances. And fo e»f great trees: but D anby goes farther, and faith, the law that gives him the thing, doth likewife give him means to come by i t ; but they both agree that the intereft is in the lcflor: and thus much for the feifure. F o r the grant, it is not fo certain a badge o f property as the other t w o ; for a man may have a property, and yet not grantablc, becaufe it is turned into a right, or otherwife fufpended. And therefore it is true, that by the book in 2 1 EL V I. f. that i f the lefl'or grant the trees, the grantee fhall not take them, no not after th e : leafe expired ; bccaufe his property is but de fu tu ro , expectant; but ’tis as plain on the other fide that the lefl’ee cannot grant them, as was refolved in tw o notable cafes, namely the cafe o f Mar^ MarwooJmi wood and Sanders 4 1. El. in communi banco-, where it was ruled, that th eiW ,n-c tenant o f the inheritance may make a fcoftment "with exception o f timbertrees ; but that if leflee for life or years fet over his eftate with an exception o f the trees, the exception is utterly v o id ; and the like refolution was in the and cafe between Fojier and M ills plaintiff, and Spencer and Boot'd defendant, 2 8 E liz . rot. 820. S?‘ ’“ tr's a b N o w come w e to the authorities, w hich have an appearance to be againft us, w hich are not many, and they be eatily anfwered not by diftinguiftiing fubtilly, but by marking the books advifedly. 1. T h e r e be two books that feem to crofs the authorities, touching the intereft o f the windfalls, 7 EL. V I. and 4 4 . E . III. f. 44 . whereupon wafte 7 h . 6.44 E.3. brought and afligned in the (uccilion o f trees, the juftification is, that th e y f' 4+were overthrown by wind* and fo the leflee took them for fuel, and allowed for a good plea ; but thefe books are reconciled two ways, firft look into both the juftifications, and you fhall find that the plea did not rely only in that they were windfalls, but couples it with this that they were firft fear, and then overthrown by wind ; and that makes an end o f it, for fear trees be­ long to the leflee, (landing or felled, and you have a fpecial replication in the book o f 44. that the wind did but rend them, and buckle them, and that they bore fruit tw o years after. And 2dly, you have ill luck with your windfalls, for they be ftill apple-trees w hich are but waftes per acci­ dens, as willows, or thorns are in the fight o f a houfe ; but when they are once felled, they arc clearly matter o f fuel. A n o t h e r kind of authorities, that make (hew againft u s ; arc thofe that fay that the leflee fliall punifh the leflor in trefpafs for taking the trees, w hich are 3 EL. IV. f. 19 . and 1 M a r. D ier. f. 9 0. M ervin's cafe; and you m ight s « 4 f. 19. add i f you will 9 E . IV . the cafe vouched before, unto w hich the an fw er1 Ma- f ?°is, that trefpafs mult be underftood for the fpecial property, and not for the .12 body

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body o f the tree ; for thofe two books fpeak not a word, what he fliall re­ cover, nor that it (hall be to the value. And therefore 9 E . IV . is a good expositor, for that diftinguifheth where the other two books fpeak inde­ finitely ; yea, but 5 H . IV . goes farther, and faith, that the w rit fhall pur­ port arbores fuas, w hich is true in refped o f the fpecial p ro p erty; neither are writs to be varied according to fpecial cafes, but are framed to the gene­ ral cafe, as upon lands recovered in value in tail, the writ fhall fuppofe do­ num a gift. i j H. 7. fc 9 A n d the third kind o f authority is feme books (as 13 H. V II. f. 9.) thac fay, that trefpafs lies not by the lefTor againft the leflee for cutting dow n trees, but only w i d e ; but that is to be underftood o f trefpafs vi & ar­ mis, and would have come fitly in queftion, i f there had been no feifore in this cafe. U pon all which I conclude, that the whole current o f authorities proveth the properties o f the trees upon feverance to be in the lefTor by the rules o f the common la w ; and that although the common law would not fo far protect the folly o f the lefTor, as to give him remedy by adion, where the ftate was created by his own a d ; yet the law never took from him his property; fo that as to the property before the feature and fence, the law was ever one. N o w come I to the third aflertion, that the ftatute o f Gloucejler hath not transferred the property o f the leflee upon an intendment o f recompence to the lefTor, w hich needs no long fpeech : it is grounded upon a probable reafon, and upon one fpecial book. T h e reafon is, that damages are a recompence for property: and there­ fore that the ftatute o f Gloucejler giving damages fhould exclude property ; 11 £.4. f. 8. the authority feems to be i z E . IV . f. 8. where Catesbey affirming that the lefeee at w ill fhall have the great trees, as well as leflee for years or life : Fairfax and Jennings corred it w ith a difference, that the lefTor may take them in the cafe of tenant at w ill; becaufe he hath no remedy by the fta­ tute, but not in cafe o f the termors. T h is conceit may be reafonable thus far, that the leflee fliall not both • feife and bring w afte; but i f he feife, he fhall not have his a d io n ; if he recover by adion, he fliall not feife: for a man fliall not have both the thing and recom pence; it is a bar to the higheft inheritance (the kingdom o f heaven) receperunt mercedem fuam. But at the firft, it is at his eledion, w hether remedy he w ill ufe, like as in the cafe o f trefpafs; where i f a man once recover in damages, it hath concluded and turned the property. N a y, I invert the argument upon the force o f the ftatute o f Gloucejler th u s: that i f there had been no property at common la w ; yet the ftatute o f Gloucejler by reftraining the wafte, and giving an adion, doth imply a property, A ftatute giv- whereto a better cafe cannot be put than the cafe upon the ftatute de doms infptah an°in- conditionalibus, where there are no words to give any reverfion or remaintereft. d e r ; and yet the ftatute giving a formedon, where it lay not before, being but an adion, implies an adual reverfion and remainder. T hus have I pafled over the firft main part, w hich I have infilled upon the longer, becaufe I fliall have ufe o f it for the clearing o f the fecond. N o w to come to the force o f the claufe, abfque impetitione vajli. T h is claufe muft o f neceffity work in one o f thefe degrees, either by w ay o f grant o f property, or by w ay o f power and liberty knit to the ftate, o r by w ay o f difeharge o f adion ; w hereof the firft tw o I rejed, the laft I receive. 1. T h e r e -

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1. T h e r e f o r e I think the other fide w ill not affirm, that this claufc No grant of amounts to a grant o f trees; for then according to the refolution in H e r-ProPert>rlackenden's cafe, they ffiould go to the executors, and the lefl'ee might grant them over, and they might be taken after the ftate determined. N o w it is plain that this liberty is created w ith the eftate, pafiTeth with the eftate, and determines with the eftate. T h a t appears by 3 H en. V. where it is faid, that if lefl'ee for years w ith -rtf. rout impeachment o f wafte accept a confirmation for life, the privilege is gone. A n d (o are the books in 3 A .III. and z8 H . VIII. that i f a leafe be made? E■ ?• without impeachment o f wafte pur auter v ie , the remainder to the lefl'ee fo r18 H' 8' life, the privilege is gone, becaufe he is in o f another eftate; fo then plainly it amounts to no grant o f property, neither can it any ways touch the pro­ perty, nor enlarge the efpecial property o f the lefl'ee; for will any man lay, that i f you put M arwood and Sanders's cafe o f a leafe without impeachment o f wafte, that he may grant the land with the exception o f the trees any more than an ordinary lefl'ee. O r (hall the windfalls be more his in this cafe, than in the other ? for he was not impeachable o f wafte for windfalls no more than where he hath the claufc. O r will any man lay, that i f a ftrangcr commit wafte, fuch a lefl'ee may feife? thefe things I fuppofe no man will affirm. Again, w hy fliould not a liberty or privilege in law be as ftrong as a privilege in fa£t ? as in the cafe o f tenant after poflibility : O r where there is a lefl'ee for life the remainder for life ? for in thefe cafes they are privileged from wrafte, and yet that trenches not the property. N o w therefore to take the fecond courfe, that it fliould be as a real power annexed to the ftate; neither can that be, for it is the law that moldeth eftates, and not mens fancies. And therefore i f men by claufes like volun­ taries in mufick run not upon the grounds o f law, and do reftrain an eftate more than the law reftrains it, or enables an eftate more than the law en­ ables it, or guides an eftate otherwife than the law guides it, they be mere repugnancies and vanities. And therefore i f I make a feoffment in fee, provided the feoffee fliall not fell timber, the claufc o f condition is void. And fo on the other fide, i f I make a leafe with a power that he fliall fell timber, it’s void. S o i f I make a leafe with a power that he may make feoffment, or that he may make leafes for forty years, or that i f he make default, I fliall not be received, or that the leflee may do hom age; thefe are plainly void, as againft law, and repugnant to the ftate. N o, this cannot be done by w ay o f ufe, except the words be apr, as is M ildm a/s cafe: neither is this claufc in th e fenfe that they take it any better. T h e r e f o r e laying afidc thefe two conftru&ions, w hereof the one is not maintained to be, the other cannot be; let us come to the true fenfe o f this claufc, which is by way o f difeharge o f the a&ion, and no more ; wherein I will fpeak firft o f the words, then o f the rcafon, then o f the authorities w hich prove our fenfe, then o f the practice, w hich is pretended to prove th eirs; and laftly, I will weigh the m iichief how it ftands for our conftruftion or theirs. I t is an ignorant miftaking o f any man to take impeachment for impedi­ mentum, and not for impetitto, for it is true that impedimentum doth extend to all hindrances, or difturbances, or interruptions, as well in pais as judi­ cial. But impetitio is merely a judicial claim, or interruption by fuit in law, and upon the matter all one with implacitatio. Wherein firft we may take Y o l . IV . Ee light

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CAS E OF I M P E A C H M E N T OF WAS T E . light o f the derivation o f impetitio, which is a compound o f the proposition in, and the verb peto, w hereof the verb peto it fe lf doth Signify a demand, but yet properly fuch a demand as is not extrajudicial: for the words petit judicium, petit auditum brevis, & c. are words o f ads ju d icial; as for the d e­ mand in pais, it is rather requifitio than petitio, as licet faeptus requifitus; fo m uch for the verb peto. But the prepolition in enforceth it more, w hich fignifies againft, as Cicero tn Verrem, m Catilinam, and fo in compofition, to inveigh is to fpeak ag ain ft: fo it is fuch a demand only where there is a party raifed to demand againft, that is an adverfary, which muft be in a fuit in la w ; and fo it is ufed in records o f law. As Coke lib. i. f. 17 . Porter's cafe it was pleaded in bar, that dida domina

Regina nunc ipjos Jobannem & Henricum Porter petere feu occafmare non debet, that is tmplacitare. So like wife Coke 1. 1 . f. 2 7 . cafe o f Alton woods, quod dida domina regina nunc ipfumproinde aliqualiter impeterefeu occafmare non debet. S o in the book o f entries 1. 1. Utera D . 17 . H . V II. rot. 2. inter placita Regis, & fuper hoc venit N. B. Comonachus abbatis IV. loci illius ordinarii, gerenfque vices ipfius abbatis, ad quofeunque clericos de quolibet crimine co­ ram Domino Rege impetitfive irritat calumntand. So much ex vi & vfu termini. F o r reafon * firft, it ought to be confidercd, that the punifhment o f wafte is ftridt and levere, becaufe the penalty is great, treble damages, and the place wafted : and again, becaufe the leftee muft undertake for the a d s o f ftrangers: whereupon I infer, that the reafon w hich brought this claufe in ufe, ab initio, was caution to fave, and to free men from the extremity o f the penalty, and not any intention to countermand the property. A dd to this that the law doth aftign in moft calcs double remedy, by matter o f fuit and matter in pats for difteifings, adtions, entries, for trefpafles, a&ion and feifure, for nufances, action and abatement ; and as L it ­ tleton doth inftrudt us, one o f thde remedies may be releafed without touch­ ing the other. If the difteifee releafe all addons, faith Littleton, yet m y entry remains; but if I releafe all demands or remedies, or the like words o f a general nature, it doth releafe the right itfelf. And therefore I may be o f opinion, that i f there be a claufe o f grant in m y leafe exprefs’d, that if m y leftee or his afligns cut down and take away any timber-trees, that I and m y heirs will not charge them by addon, claim, feifure, or other interrup­ tion, either this fhall inure by w ay o f covenant only, or i f you take it to inure by w ay o f abfolute difeharge, it amounts to a grant o f property in. A clau r^ c crecs> ^ e as the cafe o f 3 1. A JJif I grant, that i f I pay not you 10 /. founds t o ? ' annum at fuch feafts, you fhall diftrain for it in my manor o f Dale, tho* power, athis found executory in power, yet it amounts to a prefent grant o f a rent. propmy^Vthe S ° as I conclude that the difeharge o f addon the law knows, grant o f the ftate bear«. property the law knows, but this fame mathematical power being a power amounting to a property, and yet no property, and knit to a ftate that can­ not bear it, the law knoweth not, tertium penitus ignoram us: for the autho­ rities they are o f three kinds, tw o by inference, and the third diredd e . 3. f. 13. T h e ftrft I do colledl upon the books o f 4 2 E d w . I I I . f. 23, and 24. b y *4the difference taken by M ow bray, and agreed by the court, that the law doth intend the claufe o f difimpeachment o f wafte to be a difeharge fpecial, and not general or abfolute; for there the principal cafe was, that there was a claufe in the leafe, that the leflor fhotild not demand any right, claim, or challenge in the lands during the life o f the leftee. It is relolved by the book, that it is no bar in w afte; but that if the claufe had been that the 2 c leftee

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leflee fhould not have been impeached for wade, dearly a good b ar; w hich demonftrates plainly, that general words, be they never fo loud and drong, bear no more than the date will bear, and to any other purpofo arc idle. Bur (pedal words that inure by w ay o f difeharge o f a&ion, are good and allowed by law. T h e fame rcafon is o f the books 4 Ed. II. Fitzh. tit. w ade i f . and 1 7 . 4 £- v Fitzh. E. III. f. 7 . Fitzh. tic. wade 1 0 1 . where there was a claufe. Quod liceat™' jacere commodumfuutn meliori modo quo potent. Y e t faith Skipvaith doth tit. * this amount, that he (hall for the m aking o f his ow n profit difinhcrit t h e waftc’ IO,‘ ledor ? Nego confequentiam; fo that dill the law allows not o f the general difeharge, but o f the fpecial that goeth to the action. T h e fecond authority by inference is out o f 9 H . V I. f. 35. Fitzh. tit. 9 h. 6. f. w ade 39. and 32 H . VIII. Dyer f 4 7 . where the learning is taken, that notcitw ithdanding this claufe be inferred intoaleafe, yet a man m ay referve unto h. |9bier. him felf remedy by en try: but fay I, i f this claufe fliould have that fe n fe /+ 7w h ich they on the other fide would give i t ; namely, that it (hould amount to an abfolute privilege and power o f difpofing, then were the provifo flat repugnant, all one as i f it were abfque impetitione vafli, provifo quod non faciet vafum, w hich are contradictories; and note well that in the book o f 9 H . VI. the provifo is quod non faciat vafum voluntarium in domibus; w hich indeed doth but abridge in one kind, and therefore may dand without re­ pugnancy : but in the latter book it is general, that is to (ay abfque impetitione vafli, & f i contigerit ipfumjacere vafum tunc licebit reintrare. And there Shelley making the objection that the condition was repugnant, it is (alv’d thus, fed aliqui tenuerunt, that this word impetitione vafli is to be underdood th at he (hall not be impleaded by w ade, or punifhed by aCtion, and fo in­ deed it o u g h t: Thofc aliqui reBe tenuerunt. F o r the authorities direCt, they are two, the one zyH.Vl. Fitzh. tit. »7 n.6Titzh. w ade 8. where a leafo was made without impeachmenc o f wade, and a nr-waftc 8drangcr committed wade, and the rule is, that the leflee (hall recover in trefpals only for the crop o f the tree, and not for the body o f the tree. Ic is true ic comes by a dicitur, but it is now a legitur; and a quaere there is, and reafbn, or clfe this long fpccch were time ill fpent. A nd the lad authority is the cafe o f Sir Moyle Finch and his mother, re­ ferred to my Lord JVrey and Sir Roger Manviood, refolved upon conference with other o f the judges vouch’d by Wrey in Herlackenderis cafe, and re­ ported to m y lord c h ie f judice, here prefent, as a refolution o f law, being our very cafe. A nd for the cafes to the contrary, I know not one in all the law direCt: Statu* a, they prels the datute o f Marlebridge, which hath an exception in the pro.hurMriJge. hibition, firtnarii nonjacient vafum, 8cc. nifiJpedalem inde habuerint concefli-

onem per feriptum conventionis, mentionem faciens, quod hoc facere pojjint. T h is predeth not the quedion; for no man doubteth, but it will excufe in an aChon o f w a d e ; and again, tufl habeant fpecialemconcejfonem may be meant o f an abfolute grant o f the trees them (elves: and otherwife the claufe, abf­ que impetitione vafli takctli aw ay the force o f the datute, and loofeth what the datute b in d eth ; but it toucheth not the property at common law. F o r L ittleton ’s cafe in his title o f conditions, where it is faid, that i f a UttUtm. feoffment in fee be made upon condition, that the feoffee (hall infeoff the husband and wife, and the heirs o f their tw o bodies; and that the husband die, that now the feoffee ought to make a lcafe without impeachment o f w ad e co the wife, the remainder to the right heirs o f the body o f her hufband,

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Culpepper's cafe,

a Eliz.

Dyer f. 184.

Praftice.

19 £. ».

CASE OF I M P E A C H M E N T OF W A S T E . band and her b e g o tte n w h e re b y it would be inferred, that fuch a leilee fiiould have equal privilege with tenant in tail: the anfwer appears in Little­ ton’s own words, w hich is, that the feoffee ought to go as neat the con d i­ tion, and as near the intent o f the condition as he may, but to come near is not to reach, neither doth Littleton undertake for that. A s for Culpepper’s, z El. f. 18 4 . it is obfeurely put and concluded in divifion o f opinion ; but yet fo as it rather makes for us. T h e cafe is z Eliz. Dyer f. 184 . and is in effeft th is: a man makes a leafe for years, excepting timber-trees, and afterwards makes a leafe without impeachment o f waftc to John a Style, and then granteth the land and trees to John a Down, and binds him felf to warrant and fave harmlefs John a Down againft John a Style; John a Style cutteth down the trees, the queftion was whether the bond were forfeited, and that queftion reforteth to the other queftion; w he­ ther John a Style, by virtue o f fuch leafe, could fell the trees, and held by JVefton and Brown that he could n o t; which proves plainly for us that he had no property by that claufe in the tree , though it is true that in that cafe the exception o f the trees turneth the cafe, and fo in efteft it proveth neither way. F o r the prafticc, if it were fo antient and common, as is conceived; yet fince the authorities have not approved, but condemned it, it is no better than a popular error: it is but pedum vifa eft via, not refta vifa eft via. But I conceive it to be neither antient nor common. It is true I find at firft in 19 E. II. (I mean fuch a claufe) but it is one thing to fay that the claufe is antient; and it is another thing to fay, that this expofition, which they would now introduce, is antient. And therefore you muft note that a prac­ tice doth then expound the law, when the aft which is praftifed, were merely tortuous or void, if the law fiiould not approve i t ; but that is not the cafe here ; for we agree the claufe to be law fu l: nay, we fay that it is in no fort inutile, but there is ufe o f it, to avoid this fevere penalty o f treble damages. But to fpeak plainly, I will tell you how this claufe came in from 13 o f E . L till about 1 z o f E. IV . T h e Jlatute tail though it had the qualities o f an inheritance, yet it was without power to a lie n ; but as foon as that was fet at liberty by common recoveries, then there muft be found fome other device, that a man might be an abfolute owner o f the land for the time, and yet not enabled to alien, and for that purpofe was this claufe found o u t: for you fhall not find in one amongft an hundred, that farmers had it in their lcafes; but thofe that were once owners o f the inheritance, and had put it over to their Tons or next heirs, referved fuch a beneficial ftate to themfelves. And therefore the troth is, that the flood o f this ulage came in with perpetuities, fave that the perpetuity was to make an inheritance like a ftem for life, and this was to make a ftem for life like an inheritance; both concurring in this, that they prefume to create phantaftical eftates, con­ trary to the ground o f law. A nd 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 fiiould not have power to abufe the inheritance. A nd for the mifehief and confideration o f bonum publicum, certainly this claufe with this' expofition tendeth but to make houfes ruinous, and to leave no timber upon the ground to build them up again ; and therefore let men in God’s name, when they eftablilh their ftates, and plant their Tons or kinftnen in the inheritance o f fome portions o f their lands, with refervation o f the freehold to themfelves, u(e it, and enjoy it in fuch fort, as may tend 2 ad

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LOWES

CASE

OF

TENURES.

a d aedificationem, and not ad deftruBwnem ; for that’s good for pofterity, and for the ftate in general. A n d for the timber o f this realm, 'tis vivus thefaurus regni-, and ’ris the matter o f our walls, walls not only o f our houfes, but o f ourMiland : fo as ’tis a general difinherifon to the kingdom to favour that expofition, w hich tends to the decay o f it, being fo great already; and to favour wafte when the times themfelves are let upon wafte and fpoil. Therefore fince the reafon and authorities o f law, and the policy of eftate do meet, and that thofe that have, or (hall have fuch conveyances, may enjoy the benefit o f that claufe to protect them in a moderate manner, that is, from the penalty o f the action ; it is both good law and good policy for the kingdom, and not injurious or inconvenient for particulars, to take this claule ftri&ly, and therein to affirm the laft report, and fo I pray judgm ent for the plaintiff.

The A R G U M E N T

in

L O W E S CASE O F

ji.il. . .

T E N U R E S ; In the K I N G ’s - B E N C H . H E m anor o f Alderwafiey parcel o f the D uchy, and lying out o f the county Palatine was (before the D uchy came to the crown) held o f the K in g by knight’s-forvice in capite. T h e land in queftion was held o f the faid manor in foccage. T h e D uchy and this manor parcel there­ o f defeended to King Henry IV . K in g Henry V III. by letters patent the 19 . o f his reign granted this manor to Anthony Low, grandfather o f the ward, and then tenant o f the land in queftion, referving 2 6 l. 10 s. rent and fealty, tantum pro omnibusfervidis, and this patent is under the D uchyfoal only. T h e queftion is how this tenancy is held, whether in capite or in foccage. T h e cafe refteth upon a point, unto w hich all the queftions arifing are to be reduced. T h e firft is, whether this tenancy being by the grant o f the K in g o f the manor to the tenant, grown to an unity o f poffeffion with the manor, be held as the manor is held, w hich is exprefted in the patent to be in foccage. T h e focond, whether the manor it folf be held in foccage according to the laft reforvation; or in capite by revivor o f the antient feigniory, w hich was in capite before the duchy came to the crown. T h e r e f o r e m y firft propofition is, that this tenancy (which without all colour is no parcel o f the manor) cannot be comprehended within the tenure, referred upon the manor, but that the law createth a feveral and F f diftiniSt

T

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diftinCt tenure thereupon ; and that not guided according to the expreft te­ nure of the manor; but merely fecu ndu m norm am legis, by the intendment and rule of law, which mult be a tenure by knight’s-fervice in capite. A n d my fecond propolition is, that admitting that the tenure o f the te­ nancy (hould enfue the tenure of the manor : yet neverthelefs the manor it felf which was firft held of the crown in capite, the tenure fufpended by the conqueft of the Duchy to the crown, being now conveyed out of the crown under the duchy-feal only; (which hath no power to touch or carry any intereft, whereof the King was verted in right of the crown) is now lo fevered and disjoined from the antient feigniory, which was in capite, as the fame antient feigniory is revived, and fb the new refervation void; becaufe the manor cannot be charged With two tenures. The King’s teT his cafe concerrteth one of the greateft and faireft flowers of the crown, more''hur^by which is the King’s tenures, and that in their creation; which is more than a relolution in their prefemtion: for if the rules arid maxims of law in the firft railing of mYnthlfu brcf-tcnures hi taPtte be Weakened, this nips the flower in the bud, and may do fo n T or con- more hurt by a refolution in law than the Ioffes, which the King’s teccalments. nures do daily receive by oblivion or ftippreflion, or the negleCt of offi­ cers, or the iniquity of jurors, or other like blafts, whereby they are continually lhaken: and Therefore it behoveth us of the King’s coun­ cil to have a Ipecial care of this cafe, as much as in us is to give latiffe&ion to the court. Therefore before I come to argue thefc two points particularly, I will fpeak fomething of the favour of law towards tenures in capite, as that which will give a force arid edge to all that I (hall fpeak afterwards. N o land in the T h e conftitution of this kingdom appeareth to be a free monarchy in kingdom of nothing better than in this; that as there is no land of the fubjeCt that is e X ^ w a y o f charged to the crown by way of tribute, or tax, or tallage, except it be tribute, and all fee b y parliament: lb on the other fide there is no land of the fubjeCt, but by'wnTofte-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 commixture nure. of this effate, bearing marks of the fovereignty of the King, and of the freedom of the fubjeCt from tax, whole pofleflions are feo d a lia , not tri­ bu ta ria .

T e n u r e s , according to the mod general divifion, are of two natures, the one containing matter of protection, and the other matter of profit: that of protection is likewife 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 filperftition. This begot the tenure in franckalmorgne, which though in burthen it is left than in foccage, yet in virtue it is more than knight’s-fervice. For we read how, during the while M ofes in the mount held up his hands, the H e ­ b rew s prevailed in battel, as well as when E lia s prayed, rain came after drought, which made the plough go; fo that I hold the tenure in franck­ almoigne in the firft inftitution indifferent to knight’s-fervice and foccage. Set­ ting apart this tenure, there remaineth the other two, that of knight’s-fer­ vice, and that of foccage ; the one tending chiefly to defence and protection, the other to profit and maintenance of life. They are all three comprehended in the antient verfe, T u fem per ora, tu p ro tege, tuque labora. But between thefe two lerviecs, knight’s-fervice and foccage, the law of E n gland makes a great difference: for this kingdom (my lords) is a ftate neither effeminate, nor merchant-like ; but the laws give the honour unto arms and military fervice,

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fervice, like the laws o f a nation, before whom J u liu s C aefar turned his back, as their ow n prophet lays; T e rrita quaefitis ojlendit terga B rita n n is. A n d therefore howfoever men upon husband-like confiderations o f profit eflecm o f foccage tenures: yet the law that looketh to the greatnefs o f the kingdom, and proceedeth upon confiderations o f eftlte, giveth the preheminence altogether to knight’s-fervice. W e fee that the Ward, w ho is ward for knight’s-fervice-land, is accounted in law difparaged, i f he be tendef'd a martiage o f the bufghers parentage: and w e fee that the knights fees were by the antient laws the materials o f all nobility ; for that it appears by divetfe records how many knights fees Ihould by computation go to a 'barony, and fo to an earldom. N ay, w e fee that in the very funntions o f parliament, the knights of the (bite are re­ quired to be chofen milites gladio cinE ii; fo as the very call, though it were to council, bears a mark o f arms and habiliments o f war. T o conclude, the w hole compofition o f this warlike nation, and the favours o f law tend to the advancement o f military virtue and fervkc. B u t now farther, amongft the tenures by knight’s-fervice, that o f the K in g in capite is the molt high and worthy,- and the reafon is double ; part­ ly becaufe it is held o f the King’s crown and perfon; and partly becaufe the law createth fuch a privity between the line o f the crown, and the inheri­ tors o f luch tenancies, as there cannot be an alienation without the King's licence, the penalty o f w hich alienation was by the common law the for­ feiture o f the flate itfelf, and by the flatute o f E . III. is reduced fo fine and feifure. A nd although this alfo has been unworthily termed by the vulgar (not capite,) captivity and thraldom ; yet that w hich they counE bon­ dage, the law counteth honour, like to the cafe o f tenants in fail o f the K in g ’s advancement, which is a great refixaint by the flatute o f 34 H . V III. but yet by that ilatute it is imputed for an honour. T his favour o f law to the tenure by knight’s-fervice m capite produceth this cffedl, that wherefoever there is no exprefs fervice effectually limited, or wherefoever that, which, was once limited, fiiileth, the law evermore fupplieth a tenure by knight’s-1 fervice in capite; i f it be a blank once------that the law mufl fill it up, the law ever with her— —ow n hand writes----- tenure by knight’s-fervice /«44 capite. A nd therefore the refolufion was notable by the judges o f both benches, that where the King confirmed to his farmers tenants for life, tenend' per fervicia debita, this was a tenure in capite: for other fervices ard fervic ia requifita required by the words o f patents or grants ; but that only is ftrviciu m debitum, by the rules o f law. T h e courfe therefore that I will hold in the p ro o f o f the firfl main point, fliall be this. Firfl I will fhew, maintain, and fortify m y former grounds, that wherefoever the law createth the tenure o f the King, the law hath no variety, but always raifeth a tenure in capite. S f x o n d l y , that in the cafe prefent, there is not any fuch tenure exprefTed, as can take place, and exclude the tenure in law, but that there is as it were a lapfe to the law. A n d laflly, I will fhew in what cafes the former general rule receiveth fomc fhew o f exception; and will {hew the difference between them and o u r cafe ; wherain I (hall include an anfwdr to all that hath been faid on th e other fide. F or. my firfl propofition I will divide into four branches: firfl, I fay, w h e re there is no tenure feferved, the law createth a tenure in ca p ite ; fcc o n d ly , where the tenure is uncertain ; thirdly, where the tenure referved

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band and her begotten; whereby it would be inferred, that fu c h a leflec fhould have equal privilege w ith tenant in tail: the anfwer appears i n L i t t l e ­ ton’s own words, w hich is, that the feoffee ought to go as near t h e c ondition, and as near the intent o f the condition as he may, but to c o m e near is not to reach, neither doth L ittle to n undertake for that. A s for C ulpepper's, z E l . f. 18 4 . it isobfeurely put and co n clu d ed in diviCulpepper's cafe. fion o f opinion; but yet fo as it rather makes for us. T h e cafe is z E l i z . 1 Eliz. D y e r f. 18 4 . and is in effeft th is: a man makes a leafe for years, exceptin g Dyer f. 184. timber-trees, and afterwards makes a leafe without im peachm ent o f w a lk to J o h n a S tyle, and then granteth the land and trees to J o h n a D o w n , and binds him felf to warrant and fave harmlcfs J o h n a D o w n a g a in lf J o h n a Style J o h n a Style cutteth down the trees, the quelhon was w h e th e r the bond were forfeited, and that queflion reforteth to the other q u e lh o n ; whe­ ther J o h n a S ty le, by virtue ot fuch leafe, could fell the trees, a n d held by JV eflo n and B r o w n that he could n o t; w hich proves plainly for us that he had no property by that claufe in the t r e e ; though it is true th at 111 that cafe the exception o f the trees turneth the cafe, and fo in etfedf it proveth neither way. F o r the pra&icc, i f it were fo antient and common, as is c o n c eiv ed ; yet Pra&ice. fince the authorities have not approved, but condemned it, it is n o better than a popular error: it is but pedum v ifa ejl v ia , not r e [ia v ifa eft v ia . But I conceive it to be neither antient nor common. It is true I find at firft in T9 E. *. 19 E . II. (I mean fuch a claufe) but it is one thing to fay that the claufe is an tien t; and it is another thing to fay, that this expolition, w hich they w ould now introduce, is antient. And therefore you mud note that a prac­ tice doth then expound the law, when the a d w hich is practifed, were merely tortuous or void, i f the law fhould not approve i t ; but that is not the cafe here ; for w e agree the claufe to be la w fu l: nay, w e fay that it is in no fort inutile, but there is ufe o f it, to avoid this fcvcrc penalty o f treble damages. But to fpeak plainly, I will tell you how this claufe came in from 13 o f E . L till about 1 z o f E . IV . T h e fta tu te ta il though it had the qualities o f an inheritance, yet it was without power to alien ; but as foon as that was c_ fet at liberty by common recoveries, then there m ull be found feme other device, that a man m ight be an abfolute owner o f the land for the time, and yet not enabled to alien, and for that purpofc was this claufe found o u t: for you fhall not find in one am ongfl an hundred, that farmers had it in their leafes; but thofe that were once owners o f the inheritance, and had put it over to their fons or next heirs, referved fuch a beneficial flate to themfelvcs. And therefore the troth is, that the flood o f this ulage came in w ith perpetuities, fave that the perpetuity was to make an inheritance like a flem for life, and this was to make a ftem for life like an inheritance; both concurring in this, that they prefume to create phantaflical ellates, con­ trary to the ground o f law. A nd therefore it is no matter, though it went out w ith the perpetuities, as it came in, to the end that men that have not the inheritance fhould not have power to abufe the inheritance. A nd for the m ifehief and confideration o f bonutn publicum, certainly this claufe w ith this' expofition tendeth but to make houfes ruinous, and to leave no timber upon the ground to build them up again ; and therefore let men in G od ’s name, when they eflablifh their flates, and plant their fons or kinfmen in the inheritance o f fome portions o f their lands, with refervation o f the freehold to themfelves, ufe ir, and enjoy it in fuch fort, as may tend 2 ad

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a d aedificationem, and not ad deJlrutUonem ; for that’s good for pofterity, and for the date in general. A n d for the timber o f this realm, 'tis v iv u s thefaurus reg n i; and ’tis the matter o f our walls, walls not only o f our houfes, but o f ouriiiland : fo as ’tis a general difinherifon to the kingdom to favour that expofition, w hich rends to the decay o f it, being fo great already; and to favour wafte when the times themfelves are fet upon wafte and fpoil. Therefore fince the reafon and authorities o f law, and the policy of eftare do meet, and that thofe that have, or fliall have (uch conveyances, may enjoy the benefit o f that claufe to pro ted them in a moderate manner, that is, from the penalty o f th e adion ; it is both good law and good policy for the kingdom, and not injurious or inconvenient for particulars, to take this claufe ftridly, and therein to affirm the laft report, and fo I pray judgment for the plaintiff.

The A R G U M E N T

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L O W E S CASE O

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T E N U R E S ; In the K I N G ’s - B E N C H . H E m anor o f A ld e rw a fie y parcel o f the D uchy, and lying out o f the county P a la tin e was (before the D uchy came to the crown) held o f the King by knight’s-fervice in capite. T h e land in queftion was held o f the faid manor in foccage. T h e D uchy and this manor parcel there­ o f defcended to K ing H en ry IV. K in g H en ry V III. by letters patent the 19 . o f his reign granted this manor to A n th o n y L o w , grandfather o f the ward, and then tenant o f the land in queftion, referving 2 6 l 10 s. rent and fealty, tantum pro omnibus f e r v id is , and this patent is under the D uchyfeal only. T h e queftion is how this tenancy is held, whether in capite or in foccage. T h e cafe refteth upon a point, unto w hich all the queftions ariling are to be reduced. T h e firft is, whether this tenancy being by the grant o f the K in g o f the manor to the tenant, grown to an unity o f poffeffion with the manor, be held as the manor is held, w hich is expreffed in the patent to be in foccage. T h e fecond, whether the manor it felf be held in foccage according to the laft refervation; or in capite by revivor o f the antient feigniory, w hich was in capite before the duchy came to the crown. T h e r e f o r e my firft propofition is, that this tenancy (which without all colour is no parcel o f the manor) cannot be comprehended within the tenure, referred upon the manor, but that the law createth a feveral and F f diftina

T

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diftind tenure thereupon ; and that not guided according to the exprefs te­ nure o f the manor -, but merely fecundum normam legis, by due intendment and rule o f law, which mull be a tenure by knight’s-fervice in Capite. A nd my fecond proportion is, that admitting that the tenure o f the te­ nancy (hould enfue the tenure o f the manor : yet neverthelefs the manor it felf which was firft held o f the crown in capite, the tenure fufpended by the conqueft o f the Duchy to the crown, being now conveyed out o f the crown under the duchy-feal only; (which hath no power to touch or carry any intereft, whereof the King was veiled in right o f the crown) is now I'o fevered and disjoined from the antient feigniory, which was in capite, as the fame antient feigniory is revived, and lb the new refervation void ; becaufc the manor cannot be charged With two tenures. The King’ste- T his cafe conccrneth one of the greateft and faireft flowers of the crown,

which is the King’s tenures, and that in their creation; which is more than a refolution intheir prefervation: for if the rules and maxims of law in the firft railing of mTn,hfub«r tenures in capite be Weakened, this nips the flower in the bud, and may do fions^or con- more hurt by a refolution in law than the Ioffes, which the King’s tecealments. nures daily reccive by oblivion Or fuppreflioW, or the neglcd of offi­ cers, or the iniquity of jurors, or other like blafts, whereby they are continually lhaken: and therefore it bchoveth us of the King’s coun­ cil to have a Ipccial care of this cafe, as much as in us is to give fatiffedion to the court. Therefore before I come to argue thdfe two points particularly, I will fpeak fomething of the favour of law towards tenures in capite, as that which will give a force and edge to all that I lhall fpeak after­ wards. N o land in the T h e conftitution of this kingdom appeareth to be a free monarchy in kingdomof nothing better than in this; that as there is no land of the fubjed that is ed oy”wayof”charged to the crown by way of tribute, or tax, or tallage, except it be tribute, and all fet by parliament: lb on the other fide there is no land of the fubjed, but by'wa^ofte- is charged to the crown by tenure, mediare or immediate, and that by the nure. grounds of the common law. This is the excellent temper and commixture of this eftate, bearing marks of the foretcignty of the King, and of the freedom of the fubjed from tax, whofe pofleflions are feodalia, not tri­ m m eTun^by

butaria.

T e n u r e s , according to the mod general divifion, are of two natures, the one containing matter of protedidn, and the other matter of profit: that of protedion is likewife double, divine protedion and military. The divine protedion is chiefly procured by the prayers of holy and devout men; and great pity it is, that it was depraved and corrupted with filpcrftition. This begot the tenure in franckalmoigne, which though in burthen it is left; than in foccage, yet in virtue it is more than knight’s-fervice. For we read how, during the while M ofes in the mount held up his hands, the He­ b re w s prevailed in battel, as well as when E lia s prayed, rain came after drought, which made the plough go; fb that I hold the tenure in franck­ almoigne in the firft inftitution indifferent to knight’s-fervice and foccage. Set­ ting apart this tenure, there remaineth the other two, that of knight’s-fer­ vice, and that of foccage; the one tending chiefly to defence and protedion, the other to profit and maintenance of life. They are all three comprehended in the antient verfe, T u fem per ora, tu protege, tuque labora. But between thefe two fervices, knight’s-fervice and foccage, the law of E n g la n d makes a great difference: for this kingdom (my lords) is a date neither effeminate, nor merchant-like ; but the laws give the honour unto arms and military fervice,

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fervice, like the laws o f a nation, before whom J u liu s C aefar turned His back, as their ow n prophet (ays; T e rrita quaejitis oflendit terga B rita n n is. A n d therefore howfoever men upon husband-like confiderations o f profit cfteem o f foccage tenures: yet the law that looketh to the greatnefs o f the kingdom, and proceedeth upon confiderations o f eftate, giveth the preheminence altogether to knight’s-fervice. W e fee that the ward, w ho is ward for knight’s-ferviee-land, is accounted in law difparaged, i f he be tendet’d a marriage o f the butghers parentage: and w e fee that the knights fees were by the antient laws the materials o f all nobility ; for that it appears by divetfe records how many knights fees (hould by computation go to a "barony, and fo to an earldom. N ay, w e fee that in the very fummons o f parliament, the knights of the (hire are re­ quired to be chofen milites gladio cin tfi fo as the very call, though it were to council, bears a mark o f arms and Habiliments o f war. T o conclude, the whole compofition o f this warlike nation, and the favours o f law tend to the advancement o f military virtue and fervice. B u t now farther, amongft the tenures by knight's-fervice, that o f the K in g in capite is the moft high and w orthy; and the reafon is double ; part­ ly becaufe it is held o f the King’s crown and perfon; and partly becaufe the law createth fuch a privity between the line o f the crown, and the inheri­ tors o f fuch tenancies, as there cannot be an alienation without the K in g’s licence, the penalty o f which alienation was by the common law the for­ feiture o f the ftate itfelf, and by the ftatute o f E . III. is reduced fo find and feifure. A nd although this alfo has been unworthily termed by thd vulgar (not capite,) captivity and thraldom 5 yet that which they count bon­ dage, the law counteth honour, like to the cafe o f tenants in fail o f the K in g ’s advancement, w hich is a great reftraint by the ftatute o f 34 H . V III. but yet by that ftatute it is imputed for an honour. T his favour o f law to the tenure by knight’s-fervice in capite produceth this effect, that wherefoever there is no exprefi fervice effectually limited, or wherefoever that, w hich was once limited, faileth, the law evermore fupplieth a tenure by knight's-1 fervice in capite; i f it be a blank once------that the law muft fill it up, the law ever with her—«—ow n hand writes----- tenure by knight’s-fervice /'«44 e . J. f.t f . capite. And therefore the refolution was notable by the judges o f both benches, that where the K ing confirmed to his farmers tenants for life, tenend' per fe rv icia debita , this was a tenure in ca p ite : for other fervices ate: f e r v id a requ ifita required by the words o f patents or grants ; but that only isferviciu rn debitum , by the rules o f law. T h e courfe therefore that I will hold in the p ro o f o f the firft main point, fhall be this. Firft I will (hew, maintain, and fortify m y former grounds, that wherefoever the law createth the tenure o f the King, the law hath no variety, but always raifeth a tenure in capite. S e c o n d l y , that in the cafe prefent, there is not any fiich tenure expreffed, as can take place, and exclude the tenure in law, but that there is as it were i lapfe to the law. A n d laftly, I will (hew in what cafes the former general rule receiveth (bmc (hew o f exception; and will (hew the difference between them and our c a fe ; whersin I (hall include an anfwer to all that hath been faid on the other fide. F o r my firft propofition I will divide into four branches: firft, I (ay, where there is no tenufe teferved, the law createth a tenure in capite; fccondly, where the tenure is uncertain ; thirdly, where the tenure referved z

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is impoffible or repugnant to la w ; and laftly, where a tenure o n c e created is afterwards extinft. Per prifett m F o r the firft, i f the K in g give lands and lay nothing o f the tenure, this f ”*' h ' 6' ^ a tcnure m capite-, nay, i f the K in g give whiteacre and blackacre, and f'3'q. 7 referves a tenure only o f whiteacre, and that a tenure exprelled to be in foccage yet you llmll not for fellowfhip lake (becaufe they are in one pa­ tent) intend the like tenure o f blackacre; but that (hall be held in capite. S o i f the K in g grant land, held as o f a manor with w arranty, and a fpecial claufe o f recompence, and the tenant be impleaded, and recover in va­ lue, this land Ihall be held in capite, and not o f the manor. S o i f the K in g exchange the manor of D a le for the manor o f S a le , which is held in foccage, although it be by the words ex ca m b iu m ; yet that goech to equality o f the ftate, not o f the tenure, and the manor o f D a le (if no tenure be exprelTed) Ihall be held tn capite ; fo much for filence o f te­ nure. F o r the fecond branch, w hich is incertainty o f ten u re; firft, where an ignoram u s is found by office, this by the common law is a tenure tn capite, w h ich is m od for the K in g’s benefit; and the prefumption o f law is fo ftrong, that it amounts to a direct finding or affirmative, and the party (hall s Mar.Dytr. f.have a negative or traverfe, w hich is fomewhat ftrange to a thing indc, 4^ . ^ . f i n i t e . . S o i f in antient time, one held o f the K in g, as o f a manor by knight’sfervice, and the land return to the K in g by attainder, and then the K ing granteth it tenend’ per fidelitatem tantum, and it returneth the fecond time Aujlm'i office, to the K in g, and the K in g granteth it per fervida antehac confueta; now becaufe o f the incertainty, neither fervice (hall take place, and the tenure Ihall be in capite, as was the opinion o f you m y lord ch ief juftice, where you were commiflioner to find an office after Auftiris death. . S o i f the K in g grant land tenend' de m aner to de E a ftg re e n vc ic h ; v e l de ho­ nore de H a m p to n ; this is void, for the non-certainty, and (hall be held of the K in g in capite. 3} h . 6. f. 7. F o r the third branch, if the K in g limit land to be difeharged 'o f tenure, . a s abfque aliquo inde reddendo, this is a tenure in capite ; and yet if one (hould go to the next, ad proximum, it (hould be a foccage, for the leaft is next to none at a ll: but you may not take the K in g’s grant by argument; but where they cannot take place effe&ually and punctually, as they are exprefied, there you (hall refort wholly to the judgm ent o f law. i +h . {il