and delivers seisin secundum formam Cartae this livery and seisin is good albeit hee did not enter into both nor into one in the name of both and yet this is done in another manner then his authoritie warrants for his authority was to enter into both and to deliver seisin of both neyther of which hee doth no not so much as enter into one in the name of both So vvhen the Feoffment is made to two or more and a letter of Atturncy to make Livery to both and the Atturney makes Livery of seisin to one of the feoffees secundum formam effectum Cartae this is good to both and yet in that Case hee that is absent may vvayve the Livery Surely this is done by the Atturney in another manner then the authority warrants for his warrant was to make Livery to both and the intention of the Feoffor was that both should take and the estate bee setled in both and yet hee makes Livery to one onely and so that the estate may bee setled onely in him and yet hee hath well executed his authority for in substance hee hath done that which is commanded and though it differs in the manner it is not materiall both those Cases are put in Cokes instit sect 66. But in the Case in Question the Commissioners have done in substance that which was commanded them therefore their authority is vvell executed and the act they have done is good That they have done in substance that which vvas commanded them appeares in it selfe for their authority was to grant the Mannor of Dale to A. and his heyres this they have done And if they have added any thing to the grant whereby it may bee sayd to bee done in another manner yet the act being done in substance it shall bee good 3. That wherein they have exceeded their authority scilicet the Reservation of the tenure it is not of the essence of the grant Of the essence of a grant are onely Grantor Grantee and the thing to bee granted and apt words in an Instrument or Patent Besides of the essence of a grant it cannot bee for grants were at Common-law tenures were introduced by the Conquest Selden in his Not. to Eadmer 194. Bracton libr. 2. de acquir rerum domin The tenure is another distinct thing aliud from the Land in that they cannot consist in one person the Land is the thing granted that belongs to the Patentee the tenure is Reserved to the King that belongs to him the Reservation is aliud or supra or praeter the grant not alio modo And therefore the Letters patents may bee voyde for the tenure and yet good for the grant of the Land 4. Although it were admitted that the Reservation of the tenure bee not a distinct thing or aliud from that which they had authority to doe but is rather a doing of the same thing for which they had warrant in another manner then their authority does warrant yet it will not follow that the whole act is voyde For an authority given may bee executed in another manner alio modo then the Commission doth Warrant and yet stand good for that which is done according to the authority And that may be in these Cases 1. Where the authority is cloathed with an interest for there in many Cases he that hath the authority may vary from the authority And the act though it bee done in another manner shall bee good As where the custome of a Mannor is that the Lord may grant Landes by Copy of Court-roll in Fee if the grant bee in tayle or but for life this is good Stanton and Barnes his Case Hill 36. Eliz. Roc. 492. in B. R. Cokes instit sect 66. So where the custome was to grant Copyes for two lives and hee grants to the Husband for life and after to the Wife Durante viduitate This is good Downes and Hopkins Case P. 36. Eliz. B. R. The Statute of 32. Henr. 8. doth enable tenant in tayle to make a Lease for one and twenty yeares if he makes a Lease for twenty yeares onely or to one for tenne yeares and after makes a Lease to another for eleven yeares more this is good and so it hath beene Resolved in Tompson and Traffords Case Hill 35. Eliz. B. R. 2. Where the varying from the authority given is in letter or circumstance and not in a point materiall or in substance for that see the Cases cited before Cokes instit sect 66. Litt. 434. 3. Where the varyance from the authority although it bee in matter of substance is supplyed by operation of law As if a licence bee granted to a Copy-holder for life to make a Lease for tenne yeares if hee shall so long live the Copy-holder makes a Lease for tenne yeares absolutely without the limitation videlicet if hee shall so long live yet adjudged good and the Licence well pursued It was Hatt and Arrowsmiths Case Hillar 38. Elizabeth B. R. And in the Case in question where all agree that the Kings meaning in this Commission was that a tenure in Capite should bee Reserved albeit it bee not expressed in words or if it had beene in expresse termes that a tenure in Capite should bee reserved and they had onely granted the Mannor without reservation of any tenure yet the Law supplying this defect and raysing a tenure in Capite this shall make the grant good 4. VVhere the varyance from the authority is cured by the party himselfe by some other act As if Tenant in tayle Husband and Wife a Bishop c. who are authorized by the Statute of 32. Henr. 8. to make leases for one twenty yeares or three lives of Landes usually lett make a lease of Landes usually lett and of Landes not usually lett reserving one entire Rent all is voyde Shepheards Case But if Tenant in tayle will make such a lease and reserve the accustomed Rent for the Landes usually lett and another Rent for the Landes not usually lett heere the lease shall bee good for the Landes usually lett and voydeable onely for the other for by these severall reservations the varyance from the authority is Cured Tanfeild and Rogers Case Trin. 36. Eliz. B.R. 5. VVhere the varyance from the authority how materiall soever it bee is notwithstanding made voyde eyther by the Common-law or act of Parliament As where the King does licence I. S. to grant twenty Markes annuity in Mortmaine and hee grants the Annuity with clause of distresse by Hussey and Bryan chiefe Iustices and Starky chiefe Baron and Iustice Faierfax the addition of distresse is without warrant and voyde yet all admit the grant of the Rent good notwithstanding 2. 3. H. 7. grants 36. By the Statute of 1. Elizabeth a grant by a Bishop of an ancient Office of Seneschall-ship to two that had never before beene granted but to one is adjudged voyde 10. Coke 61. the Bishop of Salisburyes Case Put case then that such a
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
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-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