first extracted out of the land when it comes to the land againe it is naturally extinct for it is Revolutio ad materiam primam 2. Hee that hath all the profits entirely cannot bee said to have part of the profits Sir I. Davys rep 5. The Escheate which is the last resort of the tenure is the land it selfe and therefore the Reservation of the tenure cannot be said to be a distinct thing from the grant of the land as Black-acre from VVhite-acre Obj. It vvas obiected that Tenures in Capite vvere brought in by the Conquest but grants vvere by the Common lavv then if grants have beene ancienter then tenures the tenure of Necessity must bee Aliud from the thing granted To prove that this tenure was brought in by the Norman Conquest Selden was cited in his Spicileg to Eadmer p. 194. vvhere he hath that out of Bracton de Acquir rerum domin lib. 2. Forinsecum servitium dicitur Regale servitium quia spectat ad Dominum Regem non ad alium secundum quod in Conquestu fuit adinventum Resp It was answered that M. Selden in that place does barely recite the words of Bracton not delivering any opinion of his owne For in that Booke cited pag. 170. and in his titles of honour the last edition pag 612. We find that hee was of another opinion and that this tenure was in use in England in the times of the Saxons What were those Thani Majores or Thani Regis among the Saxons but the Kings immediate tenants of lands which they held by personall service as of the Kings person by grand serjeanty or Knights service in Capite The Land so held was in those times called Thainland as land holden in socage was called Reveland so frequently in Domes-Day haec terra fuit terra Regis Edwardi Thainland sed postea conversa est in Reveland Cokes Instit sect 117. After some yeares that followed the comming of the Normans the title of Thane grew out of use and that of Baron and Barony succeeded for Thane and Thain-land Whereby we may understand the true and originall reason of that which we have in the Lord Cromwels Case 2. Coke 81. That every Barony of antient time was held by grand serjeanty By that tenure were the Thain-lands held in the time of the Saxons and those Thain lands were the same that were after called Baronies 'T is true the possessions of Bishops and Abbots were first made subject to Knights service in Capite by VVilliam the Conquerour in the fourth yeare of his Raigne for their lands were held in the times of the Saxons in pura perpetua Eleemosyna free ab omni servitio saeculari But hee then turned their possessions into Baronies and so made them Barons of the Kingdome by tenure so that as to them this tenure and service may be said to be in Conquestu adinventum But the Thain-lands were held by that tenure before As the Kings Thane was a tenant in Capite so the Thanus mediocris or middle Thane was onely a tenant by Knights service that either held of a meane Lord and not immediately of the King or at least of the King as of an Honour or Mannor and not in Capite What was that Trinoda Necessitas which so often occurres in the grants of the Saxon Kings under this forme Exceptis istis tribus Expeditione Arcis pontis exstructione See it in a Charter of King Etheldred in the preface to Cokes 6. Report c. but that which was after expressed by Salvo forinseco servitio Bracton lib. 2. cap. 26. 35. 12. Ed. 1. Gard. 152. 26. Ass 66. Selden Analect Anglobrit 78. And therefore it was said that Sir Henry Spelman was mistaken who in his Glossary verbo feudum referres the originall of feuds in England to the Norman Conquest It is most manifest that Capite tenures tenures by Knights service tenures in socage Frankalmoigne c. were frequent in the times of the Saxons And if we will beleeve what is cited out of an old French Customary in a Mss treatise of the Antiquitie of tenures in England which is in many mens hands all those tenures were in use long before the Saxons even in the times of the Britaines there it is said The first Brittish King divided Brittaine into foure parts And gave one part to the Arch-flamines to pray for him and his posteritie A second part he gave to his Earles and Nobilitie to doe him Knights service A third he divided among husbandmen to hold of him in socage The fourth part he gave to Mechanicall persons to hold in Burgage But that testimony was waiv'd there being little certainty or truth in the Brittish Story before the times of Caesar Neither would they make use of that which we are taught by VVilliam Roville of Alenzon in his preface to the grand Customier of Normandy That all those Customes among which these tenures are were first brought into Normandy out of England by Edward the Confessor Besides that which hath beene said wee finde Feuds both the name and thing in the Lawes of those times among the Lawes of Edward the Confessor cap. 35. vvhere it is thus provided Debent enim universi liberi homines c. secundum feodum suum secundum tenementa sua Arma habere illa semper prompta conservare ad tuitionem regni servitium dominorum suorum c. Lambard Archaionom 135. This Law was after confirmed by VVilliam the conquerour vid. Cokes Instit sect 103. As these tenures were common in those times so were all the fruits of them homage fealty Escuage Reliefes wardships For Reliefes vve have full testimony in the Reliefes of their Earles and Thanes for which See the Lavves of King Canutus cap. 68. 69. the Lavves of Edward the Confessour cap. de Heterochijs And what out of the booke of Domes-day Coke hath in his Instit sect 103. Camden in Barke-shire Selden in Eadmer 154. That wardships vvere then in use and not brought in by the Normans as Camden in his Britt 179. Nor by Hen. 3. as Randolph Higden in his Polichronicon And others not understanding him vvould persvvade vid. Seldens Notes on Fortescue 51. Among the priviledges granted by Edward the Confessour to the Cinque-Ports wee meete vvith this that their heires shall not bee in ward Lambards Perambulation of Kent 101. And in the Customes of Kent which are in the Magna charta of Tottells Edition and in Lambards perambulac There is a rule for the vvardship of the heire in Gavell-kind and that he shall not be marryed by the Lord. And those Customes say of themselves that they vvere Devant le Conquest een le Conquest For the Antiquity of wardships in England and Scotland see also Hect. Boet. lib. 11. Buchanan rerum Scot. lib. 6. and the Lawes of Malcolme 2. which prove the Antiquity of wardships in Scotland and therefore in England before the Norman Conquest for in those
the Crowne Obj. It was Obj. that the tenure is Aliud frō the land for the land is the subjects the tenure belongs to the King Resp To that 1. it was Answ that the questiō is not whither the tenure be Aliud from the land for t is cleare the land is one thing and the tenure another but the questiō is whither the reservation of the tenure be Aliud frō the authority of granting the land or included in it as modus concessionis S. they shal grant grant in this māner 2 It was answered both are the Kings But the tenure was asleepe by the possession in the King and it is now to bee awakened by this Commission in which it appeares that the intent and plaine meaning of the King vvas to grant the land to the subject and to reserve the tenure for himselfe And that the Tenure is not such a stranger to the land it is proved by our books in Mary Blages Case 1. H. 4. 2. It is said that land lies naturally in tenure 2. that land lies alwayes in tenure And therefore the tenure is of the nature of the land it arises out of the land and hath existence in the land it is inherent in it and inseparable from it it is upon the matter of the essence of the grant of the land for no grant of land in Feesimple to a common person either from the King or a Common person can be without a tenure either expressed or implyed We have not in our lavv properly Allodium that is any land in the hands of a subject that is not holden Cokes Instit sect 1. The lands onely that are in the Kings possession are free from tenure for a tenant is hee that holdeth of some superior Lord by some service And therefore the King cannot be a tenant because hee hath no superior but God praedium domini Regis est directum dominium cujus nullus est Author nisi Deus And as Bracton saith lib. 1. cap. 8. omnis quidem sub eo ipse sub nullo nisi tantum sub Deo vid. lestatute 16. R. 2. cap. 5. 14. Eliz. Dyer 313. 1. Coke 47. vid. 8. Coke 118. where it is said that it would bee against Common right and reason that the King should hold of any or doe service to any of his Subjects and therefore some have thought it not so proper in the Kings Case to say that he is scised in dominico suo ut de feodo Cowell Interpret verb. feudum institut p. 66. As if feodum or fendum were taken in our law as it is in the feudall law onely for lands held by services But with us it hath another signification Littleton tels us feudum idem est quod haereditas and so it was defined long before Littleton by Bracton and Briton and Fleta And in truth it hath two significations in our bookes In the first it is taken to be the same with an inheritance and so it is proper enough in the Kings Case In the other it is taken for lands held as in that of Hors de son fee. We finde both in Bracton lib. 4. cap. 9. fol. 263. feudum est quod quis tenet ex quacunque causa sibi haeredibus suis c. alio modo dicitur feudum quod quis tenet ab alio sicut dicitur talis tenet de tali tot feuda per servicium militare And agreeing with him is Fleta which for the most part is transcribed out of Bracton lib. 5. cap. 5. And here just occasion might bee taken to cleare our Master Littleton from that imputation which is cast upon him by the Author of the Common wealth of England pag. 127. where hee layes ignorance to his charge for laying that Feodum idem est quod haereditas which saies he it doth not signifie in any language It were easie to make it manifest how proper that sence is But because it hath partly appeared by that which hath beene sayd and for that the Author of that Booke is not knowne for some have doubted whither Sir Thomas Smyth be the Author of it or no Sir Iohn Fernes generositie pag. 99. And so to argue with him would be to fight with a shadow therefore they did abstaine So that it is cleare that onely lands in the Kings possession are free from tenure But if they once come into the hands of a Common person there if the feoffor doe not reserve a tenure the law will Before the statute of Quia Emptores Terrarum if a man made a feoffment in fee and reserved no tenure the law did imply a tenure and the feoffee held of the feoffor by such services as the feoffor held over Vpon a feoffment made after that statute if no tenure were expressed the law will imply a tenure de Capitalibus dominis And as it is in the Case of Common persons so in the Kings Case In every grant wherein feesimple passes there must bee a tenure either expressed or implied Of such Necessity is the Reservation of a tenure in the Kings grant that although the King should grant land without any Reservation of tenure or by expresse words absque aliquo inde Reddendo yet the law would create a tenure in Capite 33. H. 6. 7. 6. Coke 7 VVheelers Case 9. Coke 123. Anthony Lowes Case 14. H. 6. 12. The Abbot of St. Bartholomewes Case The King grants lands in fee Tenendum cy frankement come le Roy esten son Corone yet the patentee shall hold in Capite for it is vested in the King by his prerogative and cannot be extinct It is so inseparable it cannot bee released In Anthony Lowes Case The King grants or releases the Services to his tenant and his heires this release cannot extinguish the tenure in all though where the tenure is by Common Knights service or socage it extinguishes all the services but that onely vvhich is an incident inseparable to every tenure viz. fealty And all for this reason Because there is a necessitie of a tenure and the Kings Charter doth not alter the law the tenure and services are part and parcell of the Mannor and shall goe with the Mannor and discend as the Mannor to the heire of the part of the mother although it bee newly created 5. E. 2. Avowry 207. Besides consider the tenure in the Commencement and fruits of it it is ever inherent in and Relative to the land The Commencement of the tenure S. the forme of doing homage and fealty is that hee shall be faithfull and true for the land that he holds The fruits of the tenure what are they but the profits of the land wardship Livery primer seisin reliefe fine for Alienation and the rest And therefore where the land and signiory meete in an equall estate and right in the same person the signiory by unitie of possession is extinguished And there are tvvo reasons given of that extinguishment 1. Because the signiory that was
times it is probable the Lavves of both nations did not much differ As for the times after it appeares they did not by comparing their Regiam Majestatem and our Glanvill Neither is the bare Conjecture of Sir Henry Spelman sufficient to take avvay the force of those Lavves vid. Spelman Glossar verbo Feudum Vpon all this they did Conclude That upon consideration of the Authority given and grant thereupon made the reservation of the tenure cannot bee said to bee Aliud S. a separate and distinct thing from the Authority of granting the land but rather included within it And that the Reservation of the tenure though it bee not ipsa concessio the grant it selfe yet it is Modus concessionis and a part of the grant And that therefore the Authority being not pursued in that the whole grant is voyde 5. And so it was Resolved for these reasons and upon these Authorities 1. The Maine and principall reason vvhy they did Resolve that the Letters patents vvere voyde in the vvhole was because that here the Commissioners had but an Authoritie and that Authoritie they have not pursued By the Commission they were to grant the lands and to reserve a tenure in Capite or to leave the Reservation to the lavv Now there is a tenure by common Knights service reserved so they have executed their Authority in another manner then the Commission vvarrants they have done Idem alio modo And therefore by the rule of the bookes before cited the vvhole grant is voyde It vvas agreed by all that if the Commissioners here had granted the land Reserving a tenure in Capite the Patent vvould have beene good and effectuall or if they had granted the land and reserved no tenure there because the Lavv in that Case vvould rayse a tenure in Capite such a grant vvould have beene good and well warranted by the Commission 2. This Commission is a Nude Authoritie for the interest is in the King and the Commissioners have onely a bare Authority to grant and therefore it ought to be pursued most strictly both in matter and manner and the execution of it is to be expounded strictly This Ansvveres all the Cases that have beene put on the other side where an Authoritie in some sort may be executed alio modo and yet good as the Case of Stanton and Barnes where by Custome the Lord might grant Copy-holds in fee and hee grants a Lesser estate simply or a lesser estate vvith a remainder over And the other Report that hath beene cited betweene Downes and Hopkins where the Custome was to grant Copies for two lives and he grants to the husband for life and after to the wife durante viduitate The Case of Hatt and Arrowsmyth where a Copy-holder for life was licensed to make a lease for yeares si tam diu vixerit and hee makes a lease absolutely without that limitation The Case of Baron Feme making a lease upon the Statute of 32. H. 8. The Case of 3. H. 7. where upon a licence to grant an Annuity he grants it with clause of distresse And yet for that Case see the Case of Suttons Hospitall 10. Coke The Case of Priddle and Napper and all the other Cases that have beene put upon this ground For in all those Cases there is an interest coupled with the Authority and therefore they are not to bee compared to this Case in which there is only a meere and a bare Authority 3. This Commission is a publique authority of Record to which the subjects may resort and of which they ought to take Notice to passe according the Commission at their perill And therefore if either through ignorance or Carelesnesse or otherwise they neglect to have their patents drawne pursuant to the Commission the fault is their owne they cannot transferre the blame of this to the King as in like Case it is resolved upon the Commission of Bankrupts 2. Coke 26. So at the common Law a patent without recitall of a lease for yeares of Record is voyde for the subject may resort to the publique Record The King intends Ardua Regni This answeres the objection touching even that honour of the King that hath beene spoken of and cleares his performance of his part in this Case For the King in favour of his Subjects of this Realme hath granted a good and gracious and effectuall Commission upon which many legall and good and effectuall Letters Patents have beene made that have beene allovved and approved for good But if upon this Commission so good and gratious for the subject the subject shall contrary to the authoritie given by the Commission obtaine Letters patents in fraud and deceit of the Crowne to defeat the King of his tenures in Capite a principall flowre of his Crowne if these Letters patents bee voide where 's the fault certainely in the subject that contrary to the Authoritie of the Commission obtaines this grant in deceit of the King to defeat him of his tenure which vvas but an ill returne for so great and gratious a bountie And that Objection of the operation of law Answeres not the intention of the partie in this case for plainely and apparently the meaning of the Patentee vvas to suppresse the King's tenure in Capite and to hold by a meane and inferiour tenure which was contrary to the authoritie of the Commission and in deceit and prejudice of the King Now that Patents obtained in deceit and prejudice of the King are clearely and wholly and utterly voyde to all intents and purposes is a ground so obvious so positive and infallibly true that they would not cite any booke or authoritie to prove it for it is marvellous cleare and granted of all sides that patents obtayned in deceit and prejudice of the King are altogither voyde If any desire an Authoritie he may have a Cloud of Authorities in the Case of Alton VVoods Coke 1. Report 4. This is an Authoritie appearing within the body of the Record of the Letters Patents themselves for the Letters Patents are ex Assensu of such and such Commissioners virtute secundum intentionem Commissionis c. Now the tenure in Capite being as strongly implied in the Commission as if it had beene expressed as it hath beene confessed of the other part for it is upon this implication that they say the Patent is voyde for the tenure it is as much as if the King had given Commission to grant the land to hold in capite and not otherwise Now in so much as the Commissioners have granted the lands in other Manner and all this appeares within the body of the Record of the letters patents themselves the patent is voyde in the whole for Construction is to bee made upon the whole patent and not upon any part of it distinct as it is Resolved in Bucklers Case 2 Coke 55. And this hitherto hath beene alwayes the constant Resolution of all the Iudges of Ireland our Predecessors That if
is very plaine and manifest that the King is deceived in this grant and that it cannot take effect according to his intention therein expressed For the Authorities on vvhich their Resolution vvas grounded The principall Case vvas that of 12. Ass 24. vvhich as it vvas sayd vvas a Iudgement in effect in the point A Iudgement in a tyme vvhen the Law vvas as flourishing and the Iudges as learned as in any tyme either before or since A Iudgement approoved in all ages subsequent 26. Ass 39. 11. H. 43. c. And no Authority in all our bookes against it for the materiall Cases that have bene put on the other side are of Authorities accoupled vvith an Interest and by Consequence doe not come to the point in question And vvee see that the Authority of this Iudgement is so great and cleare that it is confessed by them that argued on the other part But the reason of the Iudgement given by the Iudge that gives the Iudgement is denyed S. pur ceo que il fait ceo en auter manner and a nevv reason is invented S. because he does not pursue his Authority Heere vvee finde them put to a straight S. to Confesse the Iudgement and denye the reason for vvho better knevv the reason of the Iudgement then the Iudge that gave it This nevv reason S. That he hath not pursued his Authority if it be examined vvill come to the first reason for if it be demaunded why he hath not pursued his authority it must be Answered-pur ceo que il ad fait ceo en auter manner que le authority soy garrant vvhich is the reason of 12. Ass But vvee have other Authorities in the point upon the same reason that of 10. H. 7. 15. vvhich hath bene remembred per Keble the most Learned Lawyer of that tyme quant home ad authority de faire ascun fait a un auter il doit pursuer son authority en matter et en forme there is Modus concessionis and by the Case that he there puts if he does it in other forme alio modo it is voyde If I enfeoffe a man to enfeoffe another and hee leavies a fine this is voyde yet the matter in substance is the same for a fyne is but a feoffment of Record but because that hee hath done it in other manner all is voyde 11. H. 7. 13. A letter of Atturney to make liverie to I.S. or I. N. and the Atturney makes livery to both the livery is voyde in all and it is not good as to the one and voyde as to the other but voyde in the vvhole because that he hath done it in other manner then the authority warrants 8. Cooke 85. In Sir Richard Pexhalls Case If the King licenses his Tenant to alien tvvo parts of his Mannor of Dale vvhich is held in Capite and he aliens all the mannor it is voyde in the vvhole and it is not good for tvvo parts and voyde for the third And the reason is because he doth it in other manner then the license warrants vid. 10. H. 7. 13. 38. H. 8. Dyer 62. 40. Ass 38. 10. H. 7. 15. There vvas a Report cited by the Chiefe Iustice of the Common pleas and the Chiefe Baron the Case vvas in C.B. in England T.M. 2. Caroli Betvveene George Bishop of Chichester plaintiffe and Iohn Freeman defendant Intr. Pasch 1. Caroli Rot. 207. And the Case vvas this The Bishop of Chichester vvas seised in fee in the right of his Bishoprick of Allingburne parke in the County of Sussex and he and his predecessors have anciently granted the office of Keeper of this parke for life vvith the fee of five markes Anthony Bishop of Chichester 2. February 44. Eliz. by his deede granted the Office of Keeper of the parke to one Freeman for life Et ulterius concessit pro executione officij predicti the ancient fee of five markes una cum a livery Coate or thirteene shillings foure pence for it Nec non pasturam pro duobus equis una cum the vvindfalls vvhich grant vvas confirmed by the Deane and Chapter And whither this grant vvas good against the successor or voyde upon the statute of Anno 1. Eliz. Cap. 25. vvas the question In vvhich the doubt vvas vvhither this Addition of a livery Coate pasturage and vvindfalls vvill make the vvhole grant utterly voyde or if the Lavv shall make such a construction that for this addition it shall be onely voyde and shall stand good for the other vvhich vvas the ancient fee and vvell granted And by Iustice Crooke and Harvy against Yelverton the grant is voyde in the whole because that the Bishop hath not pursued the Authority given him by the statute by reason of this expresse and nevv addition and yet they professe that they had rather have given opinion for the defendant for that he vvas a poore man and an ancient servant to the Bishop and yet in this Case the Addition and nevv Augmentation is a severall and distinct clause in the grant and the things added de novo are also severall and distinct in specie from the ancient Fee of five Markes And in the argument of this Case Iustice Crooke cited a farre stronger Case to be adjudged in the case of the Archbishop of Canterbury 43. Eliz. And the Case was this Parker Archbishop of Canterbury granted the office of surveyorship with the ancient fee to one Parker Et ulterius he granted unto him pasturam pro duobus equis in the parke and the whole grant was adjudged voyde and yet here vvas a severall grant by a severall and distinct clause and of another thing severall and distinct in specie Aliud et Aliud And these Cases are farre stronger then the Case in question for here there is not a bare Authority but an interest accoupled vvith an authority And in this Case Iustice Crooke cited Scamblers Case 41. Eliz. to be adjudged that the vvhole grant vvas voyde and not good as to the man of full age and voyde as to the Infant as it hath bene cited by some that argued on the other side And so upon the whole matter they did resolve 1. That the Commissioners by this Commission have a good and legall and sufficient power and authority to grant 2. That all Letters Patents made upon this Commission in which they have pursued their authority are good and effectuall in Lavv. S. where they have either reserved an expresse tenure by Knights service in Capite or no tenure for there the Lavv implyes a tenure in Capite 3. But where the Commissioners reserve a meane tenure the whole patent is voyde 1. Because that the Commissioners have but an Authority 2. Because that this is but a Nude Authority and not accoupled with any Interest 3. Because it is a publique Authority of Record whereof the subjects ought to take notice to passe according at their perill otherwise the patent shall be in deceipt of the King 4.