excuse in an action of waste; and, again, nisi habeant specialem concessionem may be meant of an absolute grant of the trees themselves; and otherwise the clause absque impetitione vasti taketh away the force of the statute, and looseth what the statute bindeth; but it toucheth not the property at common law. Culpepper's case. 2 Eliz. Dyer, f. 184. For Littleton's case, in his title Of Littleton. Conditions, where it is said, that if a feoffment in fee be made upon condition, that the feoffee infeoff the husband and wife, and the heirs of their two bodies; and that the husband die, that now the feoffee ought to make a lease without impeachment of waste to the wife, the remainder to the right heirs of the body of her husband and her begotten; whereby it would be inferred, that such a lessee should have equal privilege with tenant in tail: the answer appears in Littleton's own words, which is, that the feoffee ought to go as near the condition, and as near the intent of the condition as he may. But to come near is not to reach, neither doth Littleton undertake for that. As for Culpepper's case, it is obscurely put, and concluded in division of opinion; but yet so as it rather makes for us. The case is 2 Eliz. Dyer, fol. 184, and is in effect this: a man makes a lease for years, excepting timber trees, and afterwards makes a lease without impeachment of waste to trees to John a Style, and then granteth the land and trees to John a Down, and binds himself to warrant and save harmless John a Down against John a Style; John a Style cutteth down the trees; the question was, whether the bond were forfeited and that question resorteth to the other question: whether John a Style, by virtue of such lease, could fell the trees? and held by Weston and Brown that he could not: which proves plainly for us, that he had no property by that clause in the tree; though it is true that in that case the exception of the trees turneth the case, and so in effect it proveth neither way. mon. agree the clause to be lawful; nay, we say that it is no sort inutile, but there, is use of it, to avoid this severe penalty of treble damages. But, to speak plainly, I will tell you how this clause came in from 13 of E. I. till about 12 of E. IV. The state tail, though it had the qualities of an inheritance, yet it was without power to alien; but as soon as that was set at liberty, by common recoveries, then there must be found some other device, that a man might be an absolute owner of the land for the time, and yet not enabled to alien, and for that purpose was this clause found out; for you shall not find in one amongst a hundred, that farmers had it in their leases; but those that were once owners of the inheritance, and had put it over to their sons or next heirs, reserved such a beneficial state to themselves. And therefore the truth is, that the flood of this usage came in with perpetuities, save that the perpetuity was to make an inheritance like a stem for life, and this was to make a stem for life like an inheritance; both concurring in this, that they presume to create fantastical estates, contrary to the ground of law. And, therefore, it is no matter though it went out with the perpetuities, as it came in, to the end that men that have not the inheritance should not have power to abuse the inheritance. And for the mischief, and consideration of bonum publicum, certainly this clause with this opposition tendeth but to make houses ruinous, and to leave no timber upon the ground to build them up again; and therefore let men, in God's name, when they establish their states, and plant their sons or kinsmen in their inheritance of some portions of their lands, with reservation of the freehold to themselves, use it, and enjoy it in such sort, as may tend ad ædificationem, and not ad destructionem; for that it is good for posterity, and for the state in general. And for the timber of this realm, it is vivus thesaurus regni; and it is the matter of our walls, For the practice, if it were so ancient walls not only of our houses, but of our island; Practice. and common, as is conceived; yet so it is a general disinherison to the kingdom to since the authorities have not approved, but con- favour that exposition, which tends to the decay demned it, it is no better than a popular error: it of it, being so great already; and to favour waste is but pedum visa est via, not recta visa est via. when the times themselves are set upon waste But I conceive it to be neither ancient nor com- and spoil (Therefore, since the reason and authorIt is true I find it first in 19 E. II. Iities of law, and policy of estate do meet, and mean such a clause, but it is one thing to say that those that have, or shall have such conveythat the clause is ancient; and it is another thing ances, may enjoy the benefit of that clause to proto say that this exposition, which they would tect them in a moderate manner, that is, from the now introduce, is ancient. And therefore you penalty of the action; it is both good law and must note that a practice doth then expound the good policy for the kingdom, and not injurious or law, when the act, which is practised, were inconvenient for particulars, to take this clause merely tortuous or void, if the law should not strictly, and therein to affirm the last report. And approve it; but that is not the case here, for we so I pray judgment for the plaintiff. THE ARGUMENT IN LOW'S CASE OF TENURES, IN THE KING'S BENCH. THE manor of Alderwasley, parcel of the duchy, and lying out of the county palatine, was, before the duchy came to the crown, held of the king by knight's service in capite. The land in question was held of the said manor in soccage. The duchy and this manor, parcel thereof, descended to King Henry IV. King Henry VIII. by letters patent the 19th of his reign, granted this manor to Anthony Low, grandfather of the ward, and then tenant of the land in question, reserving twenty-six pounds ten shillings rent and fealty, tantum pro omnibus servitiis, and this patent is under the duchy-seal only. The question is, how this tenancy is held, whether in capite or in soccage. ancient seigniory is revived, and so the new reservation void; because the manor cannot be charged with two tenures. (This case concerneth one of the greatest and fairest flowers of the crown, which is the king's tenures, and that in their creation; which is more than their preservation: for if the rules and maxims of law in the first raising of tenures in capite be weakened, this nips the flower in the bud, and may do more hurt by a resolution in law, than the losses which the king's tenures do daily receive by oblivion or suppression, or the neglect of officers, or the iniquity of jurors, or other like blasts, whereby they are continually shaken: and therefore it behoveth us of the king's council to The case resteth upon a point, unto which all have a special care of this case, as much as in us the questions arising are to be reduced. The first is, whether this tenancy, being by the grant of the king of the manor to the tenant grown to a unity of possession with the manor, be held as the manor is held, which is expressed in the patent to be in soccage. The second, whether the manor itself be held in soccage according to the last reservation, or in capite by revivor of the ancient seigniory, which was in capite before the duchy came to the crown. Therefore my first proposition is, that this tenancy, which without all colour is no parcel of the manor, cannot be comprehended within the tenure reserved upon the manor, but that the law createth a several and distinct tenure thereupon, and that not guided according to the express tenure of the manor, but merely secundum normam legis, by the intendment and rule of law, which must be a tenure by knight's service in capite. The king's te more hurt by a resolution in law, than by con And my second proposition is, that nures may take admitting that the tenure of the tenancy should ensue the tenure of the manor, many suppres yet, nevertheless, the manor itself, ceaiments. which was first held of the crown in capite, the tenure suspended by the conquest of the duchy to the crown, being now conveyed out of the crown under the duchy-seal only, which hath no power to touch or carry any interest, whereof the king was vested in right of the crown, is now so severed and disjoined from the ancient seigniory, which was in capite, as the same 276 is, to give satisfaction to the court.) Therefore, before I come to argue these two points particu larly, I will speak something of the favour of law towards tenures in capite, as that which will give a force and edge to all that I shall speak afterwards. No land in the kingdom of charged by way and of tribute, and all charged tenure. The constitution of this kingdom appeareth to be a free monarchy in no- England thing better than in this: that as there is no land of the subject that is charged to the crown by way of tribute, or tax, or talliage, except it be set by Parliament: so, on the other side there is no land of the subject but is charged to the crown by tenure, mediate or immediate, and that by the grounds of the common law. This is the excellent temper and commix. ture of this estate, bearing marks of the sovereignty of the king, and of the freedom of the subject from tax, whose possessions are feodalia, not tributaria. Tenures, according to the most general division, are of two natures, the one containing matter of protection, and the other matter of profit; that of protection is likewise double, divine protection and military. The divine protection is chiefly procured by the prayers of holy and devout men; and great pity it is that it was depraved and corrupted with superstition: This begot the tenure in frankalmoigne, which, though in burden it is less than in soccage, yet in virtue it is more than knight's service. For we read how, during 44 E. 3, f. 45. more supplieth a tenure by knight's service in the while Moses in the mount held up his hands, which was once limited, faileth, the law everthe Hebrews prevailed in battle; as well as when Elias prayed, rain came after drought, which made the plough go; so that I hold the tenure in frankalmoigne in the first institution indifferent to knight's service and soccage. Setting apart this tenure, there remain the other two, that of knight's service, and that of soccage; the one tending chiefly to defence and protection, the other to profit and maintenance of life. They are all three comprehended in the ancient verse, Tu semper ora, tu protege, tuque labora. (But between these two services, knight's service and soccage, the law of The course, therefore, that I will hold in the England makes a great difference: for this king-proof of the first main point, shall be this. First, dom, my lords, is a state neither effeminate nor I will show, maintain, and fortify my former merchantlike; but the laws give the honour unto grounds, that wheresoever the law createth the arms and military service, like the laws of a na- tenure of the king, the law hath no variety, but tion before whom Julius Cæsar turned his back, always raises a tenure in capite. as their own prophet says: Territa quæsitis ostendit terga Britannis. And, therefore, howsoever men, upon husbandlike considerations of profit, esteem of soccage tenures; yet the law, that looketh to the greatness of the kingdom, and proceedeth upon considerations of estate, giveth the pre-eminence altogether to knight's service. We see that the ward, who is ward for knight's service land, is accounted in law disparaged, if he be tendered a marriage of the burghers' parentage: and we see that the knight's fees were by the ancient laws the materials of all nobility; for that it appears by divers records how many knight's fees should by computation go to a barony, and so to an earldom. Nay, we see that, in the very summons of Parliament, the knights of the shire are required to be chosen milites gladio cincti; so as the very call, though it were to council, bears a mark of arms and habiliments of war. To con•(" clude, the whole composition of this warlike nation, and the favours of law, tend to the advancement of military virtue and service.) Secondly, that in the case present, there is not any such tenure expressed, as can take place, and exclude the tenure in law, but that there is, as it were, a lapse to the law. And, lastly, I will show in what cases the former general rule receiveth some show of exception; and will show the difference between them and our case; wherein I shall include an answer to all that hath been said on the other side. For my first proposition I will divide into four branches; first, I say, where there is no tenure reserved, the law createth a tenure in capite; secondly, where the tenure is uncertain; thirdly, where the tenure reserved is impossible or repugnant to law; and, lastly, where a tenure once created is afterwards extinct. For the first, if the king give lands Per Privol in and say nothing of the tenure, this is a fine, 33 H. 6, tenure in capite; nay, if the king give 8 H. 7, f. 3, b. whiteacre and blackacre, and reserves a tenure only of whiteacre, and that a tenure expressed to be in soccage; yet you shall not for fellowshipsake, because they are in one patent, intend the like tenure of blackacre; but that shall be held in capite. So, if the king grant land, held as of a manor, with warranty, and a special clause of recompense, and the tenant be impleaded, and recover in value, this land shall be held in capite, and not of the manor. So, if the king exchange the manor of Dale for the manor of Sale, which is held in soccage, although it be by the word excambium, yet that goeth to equality of the state, not of the tenure, and the manor of Dale, if no tenure be expressed, shall be held in capite. So much for silence of tenure. But now farther, amongst the tenures by knight's service, that of the king in capite is the most high and worthy; and the reason is double; partly because it is held by the king's crown and person, and partly because the law createth such a privity between the line of the crown and the inheritors of such tenancies, as there cannot be an alienation without the king's license, the penalty of which alienation was by the common law the forfeiture of the state itself, and by the statute of E. III. is reduced to fine and seizure. And although this also has been unworthily termed by the vulgar, not capite, captivity and thraldom; yet that which they count bondage, the law counteth honour, For the second branch, which is uncertainty of telike to the case of tenants in tail of the king's nure; first, where an ignoramus is found by office, advancement, which is a great restraint by the this, by the common law, is a tenure in capite, statute of 34 H. VIII., but yet by that statute it is which is most for the king's benefit; and the preimputed for an honour. This favour of law to the sumption of law is so strong, that it amounts to a tenure by knight's service in capite produceth direct finding or affirmative, and the party this effect, that wheresoever there is no express shall have a negative or traverse, which service effectually limited, or wheresoever that, is somewhat strange to a thing indefinite. Dyer. 44. Eliz Dyer, 308 So if in ancient time one held of the king, as of a manor by knight's service, and the land return to the king by attainder, and then the king granteth it tenend' per fidelitatem tantum, and it returneth the second time to the king, Austin's office. and the king granteth it per servitia antehac consueta; now, because of the uncertainty, neither service shall take place, and the tenure shall be in capite, as was the opinion of you, my lord chief justice, where you were commissioner to find an office after Austin's death. So if the king grant land tenend' de manerio de East Greenwich vel de honore de Hampton, this is void for the non-certainty, and shall be held of the king in capite. For the third branch, if the king 3 H. 6, f. 7. limit land to be discharged of tenure, as absque aliquo inde reddendo, this is a tenure in capite, and yet, if one should go to the next, ad proximum, it should be a soccage, for the least is next to none at all; but you may not take the king's grant by argument; but, where they cannot take place effectually and punctually, as they are expressed, there you shall resort wholly to the judgment of the law. Merefeild's case. If land be given to be held of a lordship not capable, as of Salisbury Plain, or a corporation not in esse, or of the manor of a subject, this is a tenure in capite. So if land be given to hold by impossible service, as by performing the office of the sheriff of Yorkshire, which no man can do but the sheriff, and fealty for all service, this is a tenure in capite. For the fourth branch, which cometh nearest to our case; let us see where a seigniory was once, and is after extinguished; this may be in two manners, by release in fact, or by unity of profession, which is a release or discharge in law. then, that the reservation of the service upon the manor cannot possibly inure to the tenancy; and then, if a corruption be of the first tenure, and no generation of the new, then cometh in the tenure per norman legis, which is in capite. And the course of my proof shall be ab enumeratione partium, which is one of the clearest and most forcible kinds of argument. If this parcel of land be held by fealty and rent tantum, either it is the old fealty before the purchase of the manor, or it is the new fealty reserved and expressed upon the grant of the manor, or it is a new fealty raised by intendment of law in conformity and congruity of the fealty reserved upon the manor; but none of these, ergo, &c. That it should be the old fealty, is void of sense; for it is not ad eosdem terminos. The first fealty was between the tenancy and the manor, that tenure is by the unity extinct. Secondly, that was a tenure of a manor, this is a tenure in gross. Thirdly, the rent of twenty-six pounds ten shillings must needs be new, and will you have a new rent with an old fealty? These things are portenta in lege; nay, I demand if the tenure of the tenancy, Low's tenure, had been by knight's service, would you have said that had remained? No, but that it was altered by the new reservation; ergo, no colour of the old fealty. That it cannot be the new fealty is also manifest; for the new reservation is upon the manor, and this is no part of the manor: for if it had escheated to the king in an ordinary escheat, or come to him upon a mortmain, in these cases it had come in lieu of the seigniory, and been parcel of the manor, and so within the reservation, but clearly not upon a purchase in fact. Again, the reservation cannot inure, but upon that which is granted; and this tenancy was never granted, but was in the tenant before; and therefore no colour it should come under the reservation. But if it be said, that nevertheless the seigniory of that tenancy was parcel of the manor, and is also granted; and although it be extinct in substance, yet it may be in esse as to the king's service: this deserveth an- Lib. 3, f. 30. swer: for this assertion may be colourably inferred out of Carr's case. 9 Eliz. Coke, the grantee took forfeiture thereof, whereby it was extinct; yet the rent remaineth as to the king out of the bailiwick extinct. These two cases partly make not against us, and partly make for us: there be two differences that avoid them. First, there the tenures or rents are in esse in those cases for the king's benefit, and here they should be in esse to the king's prejudice, who should otherwise have a more beneficial tenure. Again, in these cases the first reservation was of a thing in esse at the time of the reservation; and then there is no reason the act subsequent of the king's tenant should prejudice the king's interest once vested and settled: but here the reservation was never good, because it is out of a thing extinct in the instant. But the plain reason which turneth Carr's case mainly for us, is, for that where the tenure is of a rent or seigniory, which is afterwards drowned or extinct in the land, yet the law judgeth the same rent or seigniory to be in esse, as to support the tenure: but of what? only of the said rent or seigniory, and never of the land itself; for the land shall be held by the same tenure it was before. And so is the rule of Carr's case, where it is adjudged, that though the rent be held in capite, yet the land was nevertheless devisable for the whole, as no ways charged with that tenure. Why, then, in our case, let the fealty be reserved out of the seigniory extinct, yet that toucheth not at all the land and then of necessity the land must be also held; and therefore you must seek out a new tenure for the land, and that must be in capite. And let this be noted once for all, that our case is not like the common cases of a menalty extinct, where the tenant shall hold of the lord, as the mean held before; as where the menalty is granted to the tenant, or where the tenancy is granted to the mean, or where the menalty descendeth to the tenant, or where the menalty is forejudged. In all these cases the tenancy, I grant, is held as the menalty was held before, and the difference is because there was an old seigniory in being; which remaineth untouched and unaltered, save that it is drawn a degree nearer to the land, so as there is no question in the world of a new tenure; but in our case there was no lord paramount, for the manor itself was in the crown, and not held at all, nor no seigniory of the manor in esse; so as the question is wholly upon the creation of a new seigniory, and not upon the continuance of an old. For the third course, that the law should create a new distinct tenure by fealty of this parcel, guided by the express tenure upon the manor; it is the probablest course of the three: but yet, if the former authorities I have alleged be well understood and marked, they show the law plainly, that it cannot be; for you shall ever take the king's grant ad idem, and not ad simile, or ad proximum, no more than in the case of the absque aliquo reddendo, or as free as the crown; who would not say that in those cases it should amount to a soccage tenure? for minimum est nihilo proximum: and yet they are tenures by knight's service in capite. So if the king by one patent pass two acres, and a fealty reserved but upon the one of them, you shall not resort to this ut expressum servitium regat, vel declaret tacitum. No more shall you in our case imply that the express tenure reserved upon the manor shall govern, or declare the tenure of the tenancy, or control the intendment of law concerning the same. Now will I answer the cases, which give some shadow on the contrary side, and show they have their particular reasons, and do not impugn our case. First, if the king have land by attainder of treason, and grant the land to be held of himself, and of other lords, this is no new tenure per normam legis communis; but the old tenure per normam statuti, which taketh away the intendment of the common law; for the statute directeth it so, and otherwise the king shall do a wrong. So if the king grant land parcel of the demesne of a manor tenendum de nobis, or reserving no tenure at all, this is a tenure of the manor or of the honour, and not in capite: for here the more vehement presumption controlleth the less; for the law doth presume the king hath no intent to dismember it from the manor, and so to lose his court and the perquisites. 25 H. 6, f. 56. 9. So if the king grant land tenendum by a rose pro omnibus servitiis, this is not like the cases of the absque aliquo inde reddendo, or as free as the crown; for pro omnibus servitiis shall be intended for all express service: whereas, fealty is incident, and passeth tacit, and so it is no impossible or repugnant reservation. The case of the frankalmoigne, I This is no mean the case where the king grants frankalmoigne. lands of the Templers to J. S. to hold as the Templers did, which cannot be frankalmoigne; and yet hath been ruled to be no tenure by knight's service in capite, but only a soccage tenure, is easily answered; for that the frankalmoigne is but a species of a tenure in soccage with a privilege, so the privilege ceaseth, and the tenure remains. Wood's case. To conclude, therefore, I sum up my arguments thus: My major is, where calamus legis doth write the tenure, it is knight's service in capite. My minor is, this tenure is left to the law; ergo, this tenure is in capite. For the second point, I will first speak of it according to the rules of the common law, and then upon the statutes of the duchy. First, I do grant, that where a seigniory and a tenancy, or a rent and land, or trees and land, o the like primitive and secondary interest are con joined in one person, yea, though it be in autre |
