44 E. 3, f. 45. 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 more supplieth a tenure by knight's service in Elias prayed, rain came after drought, which capite; if it be a blank once-that the law must made the plough go; so that I hold the tenure in fill it up, the law ever with her own hand writes, frankalmoigne in the first institution indifferent to tenure by knight's service in capite. And therefore knight's service and soccage. Setting apart this the resolution was notable by the judges tenure, there remain the other two, that of knight's of both benches, that where the king service, and that of soccage; the one tending confirmed to his farmers' tenants for life, tenend' per chiefly to defence and protection, the other to pro- servitia debita, this was tenure in capite; for other fit and maintenance of life. They are all three services are servitia requisita, required by the comprehended in the ancient verse, Tu semper ora, words of patents or grants; but that only is sertu protege, tuque labora. But between these two vitium debitum, by the rules of law. services, knight's service and soccage, the law of England makes a great difference: for this kingdom, my lords, is a state neither effeminate nor merchantlike; but the laws give the honour unto arms and military service, like the laws of a nation before whom Julius Cæsar turned his back, 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 conclude, the whole composition of this warlike nation, and the favours of law, tend to the advancement of military virtue and service. The course, therefore, that I will hold in the proof of the first main point, shall be this. First, I will show, maintain, and fortify my former grounds, that wheresoever the law createth the tenure of the king, the law hath no variety, but always raises a tenure in capite. 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. a 8 Per Prisot in 7. For the first, if the king give lands and say nothing of the tenure, this is fine, 33 H. 6, tenure in capite; nay, To con- tenure in capite; nay, if the king give 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. 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 So, if the king grant land, held as of a manor, because it is held by the king's crown and person, with warranty, and a special clause of recompense, and partly because the law createth such a privity and the tenant be impleaded, and recover in value, between the line of the crown and the inheritors this land shall be held in capite, and not of the of such tenancies, as there cannot be an alienation | manor. without the king's license, the penalty of which So, if the king exchange the manor of Dale alienation was by the common law the forfeiture for the manor of Sale, which is held in soccage, of the state itself, and by the statute of E. III. is although it be by the word excambium, yet that reduced to fine and seizure. And although this goeth to equality of the state, not of the tenure, and also has been unworthily termed by the vulgar, the manor of Dale, if no tenure be expressed, shall not capite, captivity and thraldom; yet that which | be held in capite. So much for silence of tenure. 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 advancement, which is a great restraint by the statute of 34 H. VIII., but yet by that statute it is imputed for an honour. This favour of law to the tenure by knight's service in capite produceth this effect, that wheresoever there is no express service effectually limited, or wheresoever that, nure; first, where an ignoramus is found by office, 5 Mar. Dyer. 44. 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 33 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. And, therefore, let the case be, that the king releaseth to his tenant that holds of him in soccage; this release is good, and the tenant shall now hold in capite, for the former tenure being discharged, the tenure in law ariseth. Vide 30 H. 8. Dver 8. H. 7, f. 13. 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 9 Eliz. Coke, the king's service: this deserveth an- Lib. 3, f. 30. swer: for this assertion may be colourably inferred out of Carr's case. King Edward VI. grants a manor, rendering ninety-four pounds rent in fee farm tenendum de East Greenwich in soccage; and after, Queen Mary granteth these rents amongst other things tenendum in capite, and the grantee released to the heir of the tenant; yet the rent shall be in esse, as to the king, but the land, saith the book, shall be devisable by the statute for the whole, as not held in capite. 25 Ast. pl. 60. And so the case of the honour of Pickeringe, where the king granted the bailiwick rendering rent; and after granted the honour, and the bailiwick became forfeited, and 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. So if the king grant land tenendum 25 H. 6, f. 56, 9 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 frankaln:oigne. 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, or the like primitive and secondary interest are con joined in one person, yea, though it be in autre droit; yet, if it be of like perdurable estate, they are so extinct, as by act in law they may be revived, but by grant they cannot. will not extinguish so much as a spark of that which is in the right of the crown; and so a plain revivor. And if it be said that a mischief will follow, for that upon every duchy patent men shall not know how to hold, because men must go back to the ancient tenure, and not rest on the terms limited; for this mischief there grows an easy remedy, which, likewise, is now in use, which is to take both seals, and then all is safe. For, if a man have a seigniory in his own right, and the land descend to his wife, and his wife dieth without issue, the seigniory is revived; but if he will make a feoffment in fee, saving his rent, he cannot do it. But there is a great difference, and let it be well observed, between autre capacitie and autre droit; for in case of autre capacitie the interests are contigua, and not continua, con- Secondly, as the king cannot under the duchyjoined, but not confounded. And, therefore, if seal grant away his ancient seigniory in the right the master of an hospital have a seigniory, and of his crown, so he cannot make any new reserthe mayor and commonalty of St. Albans have vation by that seal, and so, of necessity, it falleth a tenancy, and the master of the hospital be to the law to make the tenure; for every reservamade mayor, and the mayor grant away the tion must be of the nature of that that passeth, as tenancy under the seal of the mayor and com- a dean and chapter cannot grant land of the chapmonalty, the seigniory of the hospital is revived. ter, and reserve a rent to the dean and his heirs, So between natural capacity and politic, if a nor e converso: nor no more can the king grant man have a seigniory to him and his heirs, and a land of the duchy under that seal, and reserve a bishop is tenant, and the lord is made bishop, and tenure to the crown: and therefore it is warily put the bishop, before the statute, grants away the | in the end of the case of the duchy in the commenland under the chapter's seal, the seigniory is revived. taries, where it is said, if the king make a feoffment of the duchy land, the feoffee shall hold in The same reason is between the capacity of capite; but not a word of that it should be by way the crown and the capacity of the duchy, which of express reservation, but upon a feoffment simis in the king's natural capacity, though illus-ply, the law shall work it and supply it. trated with some privileges of the crown; if the king have the seigniory in the right of his crown, and the tenancy in the right of the duchy, as our case is, and make a feoffment of the tenancy, the tenure must be revived; and this is by the ground of the common law. But the case is the more strong by reason of the statute of 1 H. IV., 3 H. V. and 1 H.VII. of the duchy, by which the duchy-seal is enabled to pass lands of the duchy, but no ways to touch the crown: and whether the king be in actual possession of the thing that should pass, or have only a right, or a condition, or a thing in suspense, as our case is, all is one; for that seal To conclude, there is direct authority in the point, but that it is via versa; and it was the Bishop of Salisbury's case: the king had in the right of the duchy a rent issuing out of land, which was monastery land, which he had in the right of the crown, and granted away the land under the great seal of the bishop; and yet, nevertheless, the rent continued to the duchy, and so upon great and grave advice it was in the duchy decreed: so, as your lordship seeth, whether you take the tenure of the tenancy, or the tenure of the manor, this land must be held in capite. And, therefore, &c. THE CASE OF REVOCATION OF USES, IN THE KING'S BENCH. The Case, shortly put, without Names or Dates more | lady were at no loss by the exchange, inserteth than of Necessity, is this. SIR JOHN STANHOPE conveys the manor of Burrough-ash to his lady for part of her jointure, and intending, as is manifest, not to restrain himself, nor his son, from disposing some proportion of that land according to their occasions, so as my into the conveyance a power of revocation and alteration in this manner; provided that it shall be lawful for himself and his son successively to alter and make void the uses, and to limit and appoint new uses, so it exceed not the value of twenty pounds, to be computed after the rents then answered: and that immediately after such declaration, or making void, the feoffees shall stand seised to such new uses; ita quod, her or his son, within six months after such declaration, or making void shall assure, within the same town, tantum terrarum et tenementorum, et similis valoris, as were so revoked, to the uses expressed in the first conveyance. governs the clause precedent of the power, and that it makes it wait and expect otherwise than as by way of inception, but the effect and operation is suspended, till that part also be performed; and if otherwise, then I say plainly, you shall not construe by fractions; but the whole clause and power is void, not in tanto, but in toto. Of the first of them I will give four reasons. Sir John Stanhope, his son, revokes the land in Burrough-ash, and other parcels not exceeding the value of twenty pounds, and within six months assures to my lady and to the former uses Burtonjoice and other lands; and the jury have found that the lands revoked contain twice so much in number of acres, and twice so much in yearly value, as the new lands, but yet that the new lands are rented at twenty-one pounds, and find the lands of Burrough-ash now out of lease formerly made: and that no notice of this new assu-mas; these words shall be inverted by law, as rance was given before the ejectment, but only that Sir John Stanhope had, by word, told his mother that such an assurance was made, not showing or delivering the deed. The first reason is, that the wisdom of the law useth to transpose words according to the sense; and not so much to respect how the words do take place, but how the acts, which are guided by those words, may take place. The question is, Whether Burrough-ash be well revoked? Which question divides itself into three points. First, whether the ita quod be a void and idle clause? for if so, then there needs no new assurance, but the revocation is absolute per se. The next is, if it be an effectual clause, whether it be pursued or no? wherein the question will rest, whether the value of the reassured lands shall be only computed by rents? And the third is, if in other points it should be well pursued, yet whether the revocation can work until a sufficient notice of the new assurance? And I shall prove plainly, that ita quod stands well with the power of revocation; and if it should fall to the ground, it draws all the rest of the clause with it, and makes the whole void, and cannot be void alone by itself. case, com. f. Hill and Graunger's case, comment. Hill and 171. A man in August makes a lease, Graunger's rendering ten pounds rent yearly to be 171. paid at the feasts of Annunciation and Michael they had been set thus, at Michaelmas and the Annunciation: for else he cannot have a rent yearly; for there will be fourteen months to the first year. case, 2 Jac. Co. Fitzwilliams's case, 2 Jac. Co. p. 6, Fitzwilliams's f. 33, it was contained in an indenture p. 6, f. 33. of uses, that Sir William Fitzwilliams should have power to alter, and change, revoke, determine, and make void the uses limited: the words are placed disorderly; for it is in nature first to determine the uses, and after to change them by limitation of new. But the chief question being in the book, whether it might be done by the same deed; it is admitted and thought not worth the speaking to, that the law shall marshal the acts against the order of the words, that is, first to make void, then to limit. So if I convey land and covenant with you to make farther assurance, so that you require it of me, there, though the request be placed last, yet it must be acted first. So if I let land to you for a term, and say, farther, it shall be lawful for you to take twenty timber trees to erect a new tenement upon the land, so that my bailiff do assign you where you shall take them, here the assignment, though last placed, must precede. And, therefore, the gram I shall prove likewise that the value must needs be accounted not a tale value, or an arithmetical value by the rent, but a true value in quantity and quality. And, lastly, that a notice is of necessity, as this marians do infer well upon the word period, which case is. I will not deny, but it is a great power of wit to make clear things doubtful; but it is the true use of wit to make doubtful things clear, or at least to maintain things that are clear to be clear, as they are. And in that kind I conceive my labour will be in this case, which I hold to be a case rather of novelty than difficulty, and, therefore, may require argument, but will not endure much argument, but, to speak plainly to my understanding, as the case hath no equity in it, I might say piety, so it hath no great doubt in law. First, therefore, this it is, that I affirm that the ›lause so that, ita quod, containing the recompense, VOL. III.-36 is a full and complete clause or sentence, that it is complexus orationis circularis: for as in a circle there is not prius nor posterius, so in one sentence you shall not respect the placing of words; but though the words lie in length, yet the sense is round, so as prima erunt novissima et novissima prima. For though you cannot speak all at once so, yet you must construe and judge upon all at once. To apply this; I say these words, so that, though loco et textu posteriora, yet they be potestate et sensu priora: as if they had been penned thus, that it shall be lawful for Sir Thomas Stanhope, so that he assure lands, &c., to revoke; and what difference between, so that he assure, he nay 2 A 2 |