268 CASE OF IMPEACHMENT OF WASTE. 



Practice. For the practice, if it were so ancient and common, as is 

 conceived; yet since the authorities have not approved, 

 but condemned it, it is no better than a popular error : it is 

 but pedum visa est via, not recta visa est via. But I conceive 

 it to be neither ancient nor common. It is true I find it 

 first in 19 E. II. I mean such a clause, but it is one thing 

 to say that the clause is ancient ; and it is another thing to 

 say, that this exposition, which they would now introduce, 

 is ancient. And therefore you must note that a practice 

 doth then expound the law, when the act, which is prac 

 tised, were merely tortuous or void, if the law should not 

 approve it ; but that is not the case here, for we agree the 

 clause to be lawful ; nay, we say that it is in no sort inutile, 

 but there is use of it, to avoid this severe penalty of 

 treble damages. But to speak plainly, I will tell you how 

 this clause came in from 13 of E. I. till about 12 of E. IV. 

 The state tail, though it had the qualities of an inheritance, 

 yet it was without power to alien ; but as soon as that was 

 set at liberty, by common recoveries, then there must be 

 found some other device, that a man might be an absolute 

 owner of the land for the time, and yet not enabled to alien, 

 and for that purpose was this clause found out; for you 

 shall not find in one amongst a hundred, that farmers had 

 it in their leases ; but those that were once owners of the 

 inheritance, and had put it over to their sons or next heirs, 

 reserved such a beneficial state to themselves. And there 

 fore the truth is, that the flood of this usage came in with 

 perpetuities, save that the perpetuity was to make an inhe 

 ritance like a stem for life, and this was to make a stem for 

 life like an inheritance ; both concurring in this, that they 

 presume to create phantastical estates, contrary to the ground 

 of law. 



And, therefore, it is no matter though it went out with 

 the perpetuities, as it came in, to the end that men that 

 have not the inheritance should not have power to abuse the 

 inheritance. 



And for the mischief, and consideration of bonum pub- 

 licum, certainly this clause with this opposition tendeth but 

 to make houses ruinous, and to leave no timber upon the 

 ground to build them up again ; and therefore let men, in 

 God s name, when they establish their states, and plant their 

 sons or kinsmen in the inheritance of some portions of their 

 lands, with reservation of the freehold to themselves, use it, 

 and enjoy it in such sort, as may tend ad &amp;lt;zdificationem, and 

 not ad destructionem ; for that it is good for posterity, and 

 for the state in general. 



