the whole grant both for the land and tenure was the point wherein they did differ 4. And for the clearing of that they did enquire what the reservation of a tenure is to the grant Whither it be a part of the grant And Modus Concessionis or vvhither it be a distinct thing and Aliud from the grant as this Case is For if as they that argued for the Letters Patents held the reservation of the tenure and the grant of the land bee Aliud Aliud two distinct things in the Consideration of the vvhole grant made and the authoritie given by the said Commission for the making thereof then peradventure the patent may be voyde as to the tenure and yet good for the grant of the land But if the reservation of the tenure be incident unto the authoritie and included vvithin it and the reservation of the tenure and the grant of the land make up but one entire grant so that the one is a part of the other and the Reservation of the tenure bee Modus Concessionis Then the granting of the land reserving a diverse or contrary tenure to that vvhich their Authority did warrant them to reserve is a doing of Idem alio modo And so the whole act is voyde They held that the Reservation of the tenure is Modus Concessionis and that it is not Aliud S. a thing distinct and separate from the authority of the grant of the land but implyedly included within it and incident to it Although a grant may be vvithout Habendum expresse Tenendum Reddendum or Condition yet when they or any of them are added they are de modo Concessionis and doe direct and rule the grant 1. For the Habendum The proper office of the Habendum is to limit the estate yet sometimes it may 1. Alter the estate in the premises 2. Diminish or enlarge 3. Give to a stranger 4. Make the grant voyde 1. It may alter the estate in the premises As where land is given to two in the premises Habendum the one moytie to the one and the other moytie to the other by the premises they have a joynt estate the Habendum makes them tenants in Common Litt. 66. So where land is given to two Habendum to the one for life the remainder to the other By the premises they should have a joynt estate in possession But the Habendum doth alter that and maketh the one sole tenant of the freehold for life and the other sole tenant of the Remainder 8. E. 3. 320. feoffments faits 73. 2. It enlarges or diminishes the estate that would passe by implication in the premises and so destroyes the implication This is common in every grant 3. It gives to a stranger not named in the premises of the grant As if a man gives lands to I.S. Habendum with A. his daughter in Frank-marriage there the wife not named in the premises by the Habendum takes a joynt estate with her husband this Case is vouched in Pl. Com. 158. to be in 4. E. 3. which being not found in that yeare it is there so left without any further reference but you shall finde it in 5. E. 17. so Cokes Instit sect 17. yet vid. 4. E. 3. 4. So likevvise where a lease is made to A. Habendum for twentie yeares the Remainder to B. and his heires here B. gaineth an immediate freehold by the Habendum and yet he is not named in the premises of the deede Plowd Com. 158. 4. It will make the grant voyde As if I have a Rent in Fee and I grant it to another if I stay there the grant shall be for life But if I say further Habendum after the death of I.S. there all shall be voyde Plowd Com. 152. 156. So if the King grants lands by letters patents Habendum from a day to come there the whole grant is made voyd by the Habendum 5. Coke 93. Barwicks Case He in the Reversion for life grants his estate Habendum after Michaelmas and after Michaelmas the tenant atturnes yet Resolved that the grant is voyde though if there had beene no Habendum it had beene good by the premises of the deed Bucklers Case 2. Coke 55. In all these Cases the Habendum being voyde makes voyde the grants which would have beene good without it As the Habendum hath these severall operations in the grant so hath 2. the Reddendum As an estate by implication shall be controlled by an expresse limitation so an implyed Reservation shall be controlled by an expresse Reservation A man makes a lease rendring rent and does not say to whom the rent shall be paid this by implication shall be to the Lessor and his heires But if the words be to the Lessor the heire shall not have it 31. H. 8. Dyer 45. 12. E. 3. Ass 86. Plowd Com. 171. in Hill and Granges Case 10. E. 4. 18. 21. H. 7. 25. The Reservation of a Rent in some Cases shall make severance of the grant and make severall grants and severall reversions As if a man makes a lease of three Mannors reserving twenty shillings for one five pound for another and twenty pound for the third there are severall Reversions and there shall be severall Avowries 14. Eliz. Dyer 308. VVinters Case 9. E. 3. 12. 5. Coke 55. Knights Case 3. For the Tenendum The proper office of the Tenendum is to reserve the tenure and to toll the tenure by implication Before the statute of Quia Emptores terrarum If a man made a feoffment the feoffee held of the feoffor by such services as the feoffor held over But if other services were Reserved then the feoffee held by such services as were reserved That the Donee in tayle shall hold of the donor as the donor held over is Regularly true if the donor make no speciall Reservation for then the speciall Reservation excludes the tenure which the Law would create Cokes Instit sect 19. vid. 34. H. 8. Dyer 52. 4. For the Condition That does likewise direct and rule the grant the Condition does change the qualitie of the grant and makes the estate Conditionall and defeasible which otherwise would be absolute and indefeasible So that all these viz. the Habendum the Reddendum the Tenendum and the Condition are de modo Concessionis and doe Rule and direct the grant the first limits and sets forth the quantity the other describe the quality of the estate And of all these the Tenendum is inseparably annexed to the estate the rest may bee determined and yet the estate continue but the tenure cannot be determined as long as the estate continues 1. The Condition may be released 2. The Rent may be released 3. The estate may be enlarged But the tenure cannot bee destroyed It may bee transferred from one to another in Case of Common persons But a Tenure in Capite cannot be transferred or extinct by any release or grant for it is an incident inseparably annexed to
upon Letters of warrant or Commission Letters Patents be made varying in any point materiall from the warrant or Commission and all this appeares within the body of the Letters patents themselves that the Letters patents are all utterly voyde And this hath beene ever agreed upon by reason of the difference betweene the manner of passing of Letters patents in England and Ireland But where the warrant or Commission and the variance doe not appeare within the Letters patents how it shall be ayded for the King by Averment or otherwise hath beene some doubt and Question 5. Although that it be true that this commission is of a vast and large extent yet it is not boundlesse for the law alwayes bounds and circumscribes these ample Authorities with reasonable and equall constructions without prejudice to others as it was resolved upon the Commission of Sewers upon which we have the Reported Cases in 5. Coke 99. Rookes Case 10. Coke 138. This Commission of Sewers gives power and Authoritie to the Commissioners To proceede according to their wisedomes and discretions which is a most ample power yet the law does bound and circumscribe it with an equall Construction S. that their proceedings ought to bee bounded with the rules of Reason Law and Iustice and that their taxes be equall and that all persons that bee subject to the danger or receive benefit by the Reparation be contributary to a ratable and equall contribution of the charge And if they doe otherwise their ordinances are voyde and they cannot make new inventions as Artificiall Mils for casting out of water c. For these generall Commissions are all accompanied in law with an equall and reasonable construction for the execution of them So this Commission is a most ample and large Commission for the securing of the estates of the subjects in their lands but yet it ought to bee so executed according to lavv reason and justice that they doe not prejudice the King in his tenures contrary to their warrant 6. Because that this Reservation of a meane tenure is in other manner than the Authority warrants and to the dammage and prejudice of the King If the Commission were to grant an estate for life and they grant an estate tayle or if the Commission vvere to grant in tayle and they grant in Fee All the patent is voyde because they doe it in other manner then the authoritie warrants for the Habendum is Modus Concessionis If they reserve another Rent then is vvarranted by the Commission or parcell an entire rent where the rent in charge ought to bee reserved although that it bee severall upon the survey yet the whole patent is voide because that they doe it in other manner then the Authoritie vvarrants for the Reddendum is Modus Concessionis Why then shall it not bee the same reason in this Case for here they reserve another tenure then that vvhich is vvarranted by the Commission and therefore they have executed their authority in other manner then their Authoritie warrants for the Tenendum also is Modus Concessionis It was granted by them that argued on the other side that if it bee prejudiciall to the King the whole Patent shall be voyde Novv it is most apparant that this implyed tenure if it be admitted will bee greatly prejudiciall to the King for the King shall loose his tenure and the fruite of his tenure in most Cases for ever and in all Cases for a long time and neither the Master nor the Atturney of the Court of VVards can helpe it And for that the course of Patents here in Ireland was observed First the Commissioners give warrant for drawing of the Patent and the reservation of this meane tenure the Kings Councell draw the Patent accordingly and so it passes the signature of the Lord Deputy the privy signet and the great seale then it is enrolled in the Chauncery All this vvhyle it is taken according to the tenure expressed in the patent vvhen it is enrolled it is transcribed into the Exchecquer and the transcript delivered into the Exchecquer by the master of the Rolls the Lord Chiefe Baron receives it and delivers it to the second Remembrancer and he puts it in charge according to the tenure expressed the Escheator and Feodary informe themselves of the Kings tenures there vvhere if they make enquiry the patent is produced in vvhich an expresse tenure is reserved they cannot judge the contrary and so it passes according to the expresse tenure And so have the Letters patents novv in question passed and the King by colour of them hath lost the profits of the Land and the benefit of the tenure 7. The expresse reservation in the Letters patents excludes the reservation and implication of Law Although as in the case in question it tend to make voyde the whole grant it is a sure rule in Law expressum facit cessare tacitum If the King vpon his Letters patents reserve no tenure it shall be a capite tenure but if another tenure be expressed that shall prevayle 33. H. 6. 7. per prisot In VVheelers Case 6. Coke 6. Where in a patent the vvordes of the Tenendum vvere Tenendum de nobis per servitium unius Rosae pro omnibus servitijs It vvas objected that the tenure as it is expressed cannot stand for that no tenure can bee vvithout fealty and the vvordes are per servitium unius Rosae pro omnibus servitijs 2. It vvas objected that in Case vvhere no tenure is Reserved or in Case vvhere it is expressed to be absque aliquo inde Reddendo the tenure shall be Knights service in Capite And therefore it vvas urged that the tenure in the principall Case must needes be a Capite tenure by Knights service and that the tenure expressed should be voyde and give place to the better tenure for the King These are strong objections yet Resolved in respect of that favour that is given to expresse Reservations that in the said Case fealty that is an incident to all services shall be admitted to stand vvith the vvordes and then the tenure expresly reserved vvas so compleate that it might vvell exclude the Knights service tenure vvhich othervvise the Lavv vvould have implyed Hereby may appeare the favour that is given to expresse Reservations and tenures that thereby a tenure in Capite by Knights service shall be excluded a tenure vvhich shall arise vvhere nothing is Reserved vvhich shall arise though the vvordes bee absque aliquo inde reddendo vid. Sr Iohn Molins case 6. Coke 5. It is agreed on the other side that vvhere the expresse tenure is good there it controlls the implyed tenure but in our Case it is voyd And vvhere a tenure expressed is voyde a tenure by implication of Lavv may arise But it vvas Resolved that although the expresse tenure bee voyde yet no tenure by Implication of Law shall arise against the expresse Reservation And so in the Case of a voyde Habendum vvhich stands
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
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