Because that the Authority appeares within the letters patents themselves and exposition shall be made upon the whole patent 5. Although it be a most ample and large Commission yet it is bounded and circumscribed by the Law with an equall Construction S. that nothing shall bee done in other manner then the Authority warrants in prejudice of the King 6. Because that this reservation of a meane tenure is in other manner then the authority warrants and is in damage and prejudice of the King 7. And lastly because that this expresse reservation controlls the implication of Law and for that the King was deceived in his grant in that it cannot take effect according to his intention therein expressed For these Reasons they did resolve That this expresse Reservation of a meane tenure tends to the destruction of the whole patent and makes it voyde in Law both to the lands and to the tenure The Order of the Councell Board upon this Resolution of the Iudges By the Lord Deputy and Councell WENTWORTH WHereas there was an Act of Councell made at this Board and dated at the Abbey of Boyle the Eleaventh day of Iuly 1635. ordayning and establishing that the Lords Knights Gentlemen and Inhabitants their heires and assignes holding any Castle Mannors Lands Tenements or other haereditaments in the County of Roscoman by or under any effectuall letters patents from his Majesty or any of his Royall predecessors Kings or Queenes of England should have hold possesse and enjoy all the said Castles Mannors Lands Tenements and hereditaments of what kinde or nature soever they be to them and to every of them and to those who hold any estates under them against his Majesty his heires and successors in as full large ample free and beneficiall manner to all intents purposes and constructions as if the truth of their severall Cases and their severall letters patents passed thereupon had bene specially found in the great office then to be taken for finding his Majesties title to the said County and their letters patents accordingly entred in haec verba in the said office so that they did produce their said severall letters patents or the enrollments thereof before us the Lord Deputy and Councell at this Board before the first day of the then next Easter Tearme and that no possession should be taken from any such patentees or their assignes or tenants whose patents should be at this Board allowed to be good and effectuall in Law And whereas the like Acts of Councell were made at this Board for the severall Counties of Slygo Mayo and Gallway and the County of the towne of Gallway And whereas severall letters patents past under his Majestyes great seale of divers lands tenements and hereditaments in the said severall Counties by colour of a Commission under the greate Seale dated the second day of March in the fourth yeare of the Raigne of his Majestyes Royall Father King Iames of blessed memory were presented unto us at this Board which being taken into consideration by us we thought fit for our better Information of the validity of the said letters patents to call before us some of those who claymed by those letters patents as namely our very good Lord the Viscount Dillon of Costillogallen whom wee appointed to attend us with his learned Councell therein which he did accordingly Whereupon his Majestyes learned Councell and the Councell learned of the said Lord Dillon agreed upon a Case drawen up by them to be argued by them on both sides before us which Case followeth in haec verba King Iames by Commission under the greate Seale dated the second day of March in the fourth yeare of his Raigne did authorize certaine Commissioners to grant the mannor of Dale by letters patents under the greate Seale of this Kingdome to A. and his heires and there is no direction given in the said Commission touching the tenure to be reserved There are letters patents by colour of the said Commission passed unto A. and his heires to hold by Knights service that is to say by the twentieth parte of c. as of his Majestyes Castle of Dublyn the question is whither the said letters patents be voyde in the whole or onely to the tenure upon which case his Majesties learned Councell and the learned Councell on the part of the said Viscount Dillon argued before us severall dayes and wee desirous to take such a Resolution in the matter as might be equall and just held fit to advise therein withall his Majestyes Iudges who not agreeing unanimously in opinion wee adjudged it fit that every of them should argue it and deliver his Iudgement and opinion therein before us which they did accordingly Wherein five of them viz. the Lord Chiefe Iustice of his Majesties Court of Kings Bench the Lord Chiefe Iustice of his Majestyes Court of common pleas the Lo Chiefe Baron of his Majestyes Court of Exchequer Baron Barry and Iustice Rives concurred in opinion clearely that the letters patents were voyde in the whole and two onely viz. Iustice Mayart and Iustice Cressy differed from those five in opinion holding that the letters patents were onely voyde as to the tenure we thereupon taking the same into consideration at this Board doe hereby adjudge order and declare that the said letters patents are wholly voyde in Law and consequently that all such letters patents passed under colour of the said Commission and that mention the parcells granted to be held by Knights service as of his Majestyes Castle of Dublyn or by any tenure other then by Knights service in Capite generally are not good effectuall or valid in Law but voyde in the whole And therefore we doe at this Board disallowe all such letters patents soe granted as aforesaid of any lands tenements or hereditaments in any of the said Counties of Roscoman Slygo Mayo Gallway or the county of the towne of Gallway Given at his Majestyes Castle of Dublyn 13. Iuly 1637. R. Dillon Ad. Loftus W. Parsons Gerr. Lowther R. Bolton Chr. VVandesford Ph. Mainwaring Cha. Coote Geo. Radcliffe THE END
THE CASE OF TENVRES upon the Commission of Defective Titles Argued by all the Judges of Ireland with their Resolution and the Reasons of their Resolution DVBLIN Imprinted by the Society of Stationers Printers to the Kings most excellent Majesty 1637. TO THE RIGHT HONOVRABLE THOMAS Viscount WENTWORTH Lord Deputy generall of Ireland MY LORD THis work is Yours by more then one Interest and therefore it returnes naturally unto YOU for to lay aside my particular respects it being by Your Lordships favour that I serve his Majesty in this place You are Pater Patriae and not more by Your Office then by your love to this nation and your most equall and indifferent dispensation of Iustice next under his Majesty the Father of this Church and Common-wealth And for whom can an oblation of this nature be more proper besides all that is heere as it was at first spoken in an humble obedience to Your Lordships Order so it was after upon a noble invitation from You digested into this forme and it is now made publique by Your Commandement so that in all the passages of it it carryes Your Image Your Superscription and therefore by this dedication I doe not so much give it as restore it If there be any thing in it that is mine that answeares Your expectation even in that that it answeares Your expectation I have my reward for all that are below Your Lordship I hope it shall have this use it shall satisfie them that Your Lo proceedings in this businesse have bin in all points agreeable both to Honour and Iustice God leade Your Lordship by the hand untill You have finished those great and heroicall workes so happily begun May they all prosper to the high pleasure of Almighty God the encrease of Honour and Revenew to his Majesty of peace and prosperity to this Kingdome and to Your own immortall glory Your Lordships most humble servant James Barry The Case of Tenures vpon the Commission of Defective Titles Trin. 13. Caroli Regis AT the late enquirie concerning His Maiesties Title to the Countie of Mayo there was an Act of State published wherein it was declared that it was not his Maiesties intention to take from his people any thing that was iustly theirs and that therefore none who held any Lands or other Hereditaments whatsoever within that County by Letters-patents from the Crowne should be any wayes preiudiced by finding his Maiesties Title although their Letters-patents were not found or well and certaynely found in the great Office then intended to be taken but that they should have the same benefit of them as if they had beene specially found so as they did produce their Letters-patents or the enrollment thereof before the Lord Deputy and Councell at the Councell Board by a certayne day limited in the Act and that they were allowed by that Board to be good and effectuall in Law In pursuance of that Act there were severall Letters-patents produced and among the rest the Lord Viscount Dillon did shew forth Letters-patents obtayned from his late Maiestie and passed upon the late Commission of Defective titles Vpon perusall and consideration whereof his Maiesties Councell were of opinion that they were voyde in law And therefore it was thought fit and so ordered by the Lord Deputy and Councell that the doubt arising upon the Letters-patents should be drawne up into a Case and that that Case should be openly argued at the Councell Board by Councell learned on both sides The Case was after drawne up in these words KIng IAMES by Commission under the great Seale dated the second day of March in the fourth yeare of his raigne did authorize certayne Commissioners to grant the Mannor of Dale by Letters patents under the great Seale of this Kingdome to A. and his heires and there is no direction given in the sayd Commission touching the tenure to be reserved There are Letters-patents by colour of the sayd Commission passed unto A. and his heyres to hold by Knights service as of his Maiesties Castle of Dublin The question is whither the sayd Letters patents be voyde in the whole or onely as to the tenure THis Case was argued on severall dayes first by Nicholas Plunket for the Lord Dillon and Serjeant Catlin for the King and after by Iohn Pollexfen for the Lord Dillon and Osbaldeston Atturney generall for the King And because it was a Case of great weight and importance it was delivered unto the Iudges and they were required by the Lord Deputy and Councell to conferre and consider of it and to returne unto them their resolution concerning it but they upon private conference among themselves did not agree in opinion and therefore it was thought necessary for publique satisfaction that it should be argued solemnly by them all and therevpon in Trinity terme last the Case was argued by Ryves Puisne Iudge of his Maiesties Court of Chiefe place Barry second Baron of the Exchecquer and Cressy one of the Iudges of the Court of Cheife place and after on another day appointed for the Case by Mayart one of the Iudges of the Common pleas Bolton Chiefe Baron Lowther chiefe Iustice of the Common pleas and Shurly chiefe Iustice of the Court of chiefe place And for that I intend to make as summary a Report as I can I will first set downe such arguments and obiections as were made by them that argued for the mayntenance of the Letters patents It was obiected by them That the Letters patents were good for the Land and voyde onely as to the tenure For divers reasons 1. Regularly where a Man doth lesse then the authority or commandement committed unto him there the commandement or authority being not pursued the Act is voyde But where a Man doth that which hee is authorised to doe and more there it is good for that which is warranted and voyde for the rest Cokes instit sect 434. Perk. 189. vid. 8 Coke 85. But in the Case in question the Commissioners doe that which they had authority to doe and they doe more therefore for that which they had authoritie to doe that is to grant the Landes the Letters patents are good for that which they doe more that is the reserving of a tenure they are voyde Their authority was to grant the Mannor of Dale to A. and his heyres that they have fully done and if they had stayed there no man will deny but they had well executed their authoritie but they goe further and doe more and Reserve a tenure therefore for that more for that Reservation their Act is onely voyde 2. VVhere a Man hath authority to doe an act and hee doth it in substance though hee differ in the manner yet the authority is well executed As if a Man make a deede of Feoffment of Blacke-acre and whit-acre and a letter of atturney to enter into both Acres and to deliver seisin of both of them according to the forme and effect of the deede and hee entreth into Blacke-acre
vpon the same reason It vvas adjudged in B. R. Betweene one Hegge and Crosse 33 et 34. Eliz. vvhich you may see in Bucklers case 2. Coke 55. Where the Case vvas Tenant for life makes a lease for yeares and after grants the reversion to A. Habendum from a day to come for life after the day the lessee for yeares attorns in that Case the Habendum is voyde yet that voyde Habendum makes voyde the vvhole grant and excludes the implication of Lavv in the premisses and no estate shall passe by implication of Lavv in the premisses against the expresse limitation of the party in the Habendum see the Cases cited before p. 26. So our Tenendum although it be voyde yet the expresse reservation in the Tenendum shall exclude the implication of Lavv. For that opinion of Martyn in 4. H. 6. 22. that vvas Cited on the other part that if land be given in frank-marriage reserving a rent the reservation of the rent is voyde by reason of the implyed tenure in frankmarriage that opinion as vvas said may vvell be doubted of for vvee find as good Authority against it in the old Tenures fol. 211 That the Reservation of the rent is good and destroyes the frank-mariage and makes it a Common Estate tayle But the best opinion is that both of them shall stand togither S. the gift in frankmarriage and also the Reservation of the rent S. that the donce in frankmarriage shall hold quitt of the rent untill the fourth degree be past and then the rent shall take effect and so vvas the opinion of the Iudges in VVebb and Potters Case in 24. Eliz. and so are the bookes to be understood 13. E. 1. formedon 63. 31. E. 1. tayle 31. 26. E. 3. grants 75. et 26. Ass 66. For the Case of Littleton 140. A man seised of certaine tenements vvhich he held of his Lord by Knights service at this day grants by license the same tenements to an Abbot in frankalmoigne the Abbot shall hold immediately by Knights service of the same Lord of vvhom his grantor held and shall not hold of his grantor in frankalmoigne In that Case they say the expresse tenure being voyde a tenure by implication of Law does arise It vvas Answered there is a difference betvveene the Kings Case vvhich it the Case in question and the Case of a Common person For the grants of a Common person the rule of Law is that the grant shall be taken most strongly against the grantor For the Kings grants the rule is that they shall be taken most beneficially for the King and most strong against the patentees And vvee have another rule that the grant of the King shall not be extended to passe any thing contrary to the intent of the King expressed in his grant And if the grant cannot take effect according to his intent expressed in his grant the grant is voyde And therefore for the rules put by them that argued on the other side that the patents of the King shall be taken in such sence and to such intent that they shall be good c. It may be Answered that there is another ground in our Lavv that when the King is deceived in his grant so that it cannot take effect according to his intent expressed in his grant the grant is voyde so the best a exposition is to make all these rules to agree together And therefore the rules put on the other side are true vvith this limitation S. Except the King be deceived so that his grant cannot take such effect as he intends by his expresse grant In the Lord Lovells Case 18. H. 8. B. Pat. 104. The King excerta scientia et mero motu grants lands to one and to his heires males if a Common person had made such a grant the Lavv vvould say that the vvord males vvere voyde and the fee simple should passe But vvill the Lavv make such a construction in the Kings grant No there the grant shall be voyde for he vvas deceived in his grant in that it cannot take effect according to his intent expressed in his letters patents And so in the Case of 7. H. 4. 42. 21. E. 3. 47. The Earle of Kents Case If the King hath a vvard of land or a lease of land for yeares and by his letters patents grants the land to another and his heires the grant is voyde and it shall not amount by construction to a grant of his estate or interest vid. 21. Ass 15. And the other bookes Cited in the Case of Alton VVoods upon this ground 29 Eliz. in the Exchecquer the Case vvas King H. 7. was seised of tvvo mannors S. de Ryton et condor he grants ex certa scientia et mero motu totum illud manerium de Ryton et condor adjudged that the grant vvas voyde The like Case vvas resolved 39. Eliz. vvhere the queene vvas seised of the Mannors of Millborne and Saperton in the County of Lincolne and the queene grants ex certa scientia mero motu totum illud Manerium de Millborne cum Saperton in Com Linc and it vvas held that neither of the Mannors did passe And yet if a Common person had made such grants the grantee in both the said Cases should have had both the Mannors So in our Case the King is deceived in his grant in that his grant cannot take effect according to his intention therein expressed For the Kings intention is to make a grant agreeable in all things to the Authority given to the Commissioners by the sayd Commission And that appeares plainely by the very vvords of the letters patents for the vvordes are Sciatis quod nos c. virtute ac secundum intentionem et effectum of the said Commission Dedimus et Concessimus c. as in the patent and he conceived that the vvarrant made by the Commissioners for passing the patent which here vvee call the fiant had bene according to the intent and effect of the said Commission And upon that warrant vvhich exceeded the Authority given to the Commissioners this patent vvas past yet still vvith a reference to the intention and effect of the Commission Now this grant cannot by any possibility take effect according to the Kings intention therein expressed for the Kings intention in the beginning of the grant is that it shall be according to the intention and effect of the Commission vvhich must be a tenure by Knights service in capite either by expresse Reservation or by implication and operation of Lavv. And the tenure reserved in the patent is a tenure by Common Knights service as of the Castle of Dublyn differing altogether from the intention and effect of the Commission so as it is not possible that this tenure expressely reserved can be according to the intention and effect of the Commission or that the intent and effect of the Commission can any vvayes acoord with the tenure expressely reserved in the patent So as it
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
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