The works of Francis Bacon, lord chancellor of England.

CASE OF IMPEACHMENT OF WASTE. 275
excuse in an action of waste; and, again, nisi agree the clause to be lawful; nay, we say
habeant specialem concessionem may be meant of that it is no sort inutile, but there is use of it, to
an absolute grant of the trees themselves; and avoid this severe penalty of treble damages. But,
otherwise the clause absqoze impetitione vasti to speak plainly, I will tell you how this clause
taketh away the force of the statute, and looseth came in from 13 of E. I. till about 12 of E. IV.
what the statute bindeth; but it toucheth not the The state tail, though it had the qualities of an
property at common law. inheritance, yet it was without power to alien;
For Littleton's case, in his title Of but as soon as that was set at liberty, by common
Littleton.
Conditions, where it is said, that if a recoveries, then there must be found some other
feoffinent in fee be made -upon condition, that device, that a man might be an absolute owner
the feoffee infeoff the husband and wife, and the of the land for the time, and yet not enabled to
heirs of their two bodies; and that the husband die, alien, and for that purpose was this clause found
that now the feoffee ought to make a lease without out; for you shall not find in one amongst a hunimpeachment of waste to the wife, the remainder dred, that farmers had it in their leases; but
to the right heirs of the body of her husband and those that were once owners of the inheritance,
her begotten; whereby it would be inferred, that and had put it over to their sons or next heirs,
such a lessee should have equal privilege with reserved such a beneficial state to themselves.
tenant in tail: the answer appears in Littleton's And therefore the truth is, that the flood of this
own words, which is, that the feoffee ought to go usage came in with perpetuities, save that the
as near the condition, and as near the intent of perpetuity was to make an inheritance like a stem
the condition as he may. But to come near is not for life, and this was to make a stem for life like
to reach, neither doth Littleton undertake for that. an inheritance; both concurring in this, that they
Culpepper's As for Culpepper's case, it is ob- presume to create fantastical estates, contrary
EizDyer, scurely put, and concluded in division to the fround of law.
f. 184. of opinion; but yet so as it rather And, therefore, it is no matter though it went
makes for us. The case is 2 Eliz. Dyer, fol. out with the perpetuities, as it came in, to the
184, and is in effect this: a man makes a lease end that men that have not the inheritance should
for years, excepting timber trees, and afterwards not have power to abuse the inheritance.
makes a lease without impeachment of waste to And for the mischief, and consideration of
trees to John a Style, and then granteth the land bonn mpublicntm, certainly this clause with this
and trees to John a Down, and binds himself to opposition tendeth but to make houses ruinous,
warrant and save harmless John a Down against and to leave no timber upon the ground to build
John a Style; John a Style cutteth down the them up again; and therefore let men, in God's
trees; the question was, whether the bond were name, when they establish their states, and plant
forfeited. and that question resorteth to the other their sons or kinsmen in their inheritance of some
question: whether John a Style, by virtue of portions of their lands, with reservation of the
such lease, could fell the trees. and held by freehold to themselves, use it, and enjoy it in
WTeston and Brown that he could not: which such sort, as may tend ad adificationem, and not
proves plainly for us, that he had no property by ad destructionerm; for that it is good for posterity,
that clause in the tree; though it is true that in and for the state in general.
that case the exception of the trees turneth the And for the timber of this realm, it is vivus thecase, and so in effect it proveth neither way. saitrnts regni; and it is the matter of our walls,
For the practice, if it were so ancient walls not only of our houses, but of our island;
and common, as is conceived; yet so it is a general disinherison to the kingdom to
since the authorities have not approved, but con- favour that exposition, which tends to the decay
demned it, it is no better than a popular error: it of it, being so great already; and to favour waste
is but peditm visa est via, not recta visa est via. when the times themselves are set upon waste
But I conceive it to be neither ancient nor corn- and spoil. Therefore, since the reason and authormon. It is true I find it first in 19 E. II. I ities of law, and policy of estate do meet, and
mean such a clause, but it is one thing to say that those that have, or shall have such conveythat the clause is ancient; and it is another thing ances, may enjoy the benefit of that clause to proto say that this exposition, which they would tect them in a moderate manner, that is, from the
now introduce, is ancient. And therefore you penalty of the action; it is both good law and
must note that a practice doth then expound the good policy for the kingdom, and not injurious or
law, when the act, which is practised, were inconvenient for particulars, to take this clause
merely tortuous or void, if the law should not strictly, and therein to affirm the last report. And
approve it; but that is not the case here, for we so I pray judgment for the plaintiff.