1 1. The Commission mentioned in the case, is the com­mission that was in force, in the time of his late Maie­sty, for the strengthening of Defective Titles, a Com­mission that was one of the greatest graces, and boun­ties, that ever (before that time) vvas vouchsafed by the kings of England to their Subjects, of this kingdome; a Commission, that was agreed by all, to bee a good, [Page 15] and legall, and effectuall commission, and to contayne in it selfe full power, and authority to grant.

Of vvhich the chiefe Iustice of the Common pleas in his argument fayd, that upon this occasion he did se­riously peruse it, and in his judgement, it was as full, and strong a Commission, for granting the Landes, (concurrentibus hijs quae de jure requiruntur) as any hee had seene. There vvas in the Commission (as hee sayd) plenitudo potestatis, there is not any question of the Commission, nor of the power granted by the Commission; Neyther (as it vvas declared) was it the intention of his Maiesty, to deny unto the Subject, the full benefit of it in all things, wherein the Com­missioners had pursued their authority, given by the Commission; and proceeded according to the law.

For that, that there was no direction in the Com­mission for the tenure, it was no defect in the Com­mission (as the chiefe Baron observed) nor any omis­sion, or negligence in them, that were trusted with the drawing of it, it was done upon good aduise, & of purpose; for the cases of them, that vvere to passe upon that Commission, were so different, and there was such variety of tenures, that it was not possible, to give any certaine direction in the Commission con­cerning them.

Besides the intention of that Commission was not, to give authoritie, for the alteration, or diminution of the Kings tenures; it was intended onely, for the esta­blishing of the estates, and possessions of the Subject: And therefore there is not a vvord in it, of any tenure, so that the purpose of it was, where any former tenure [Page 16] vvas in esse, to preserve it, and where no tenure was in esse, to leave it to the Reservation of the Law.

So that now the Commission being cleared, & agreed to be good, and legall, and to contayne full power, and ample authority to grant the Landes.

The sole Question vvill be, of the pursuance of the Commission, and whither this power gran­ted by the Commission, bee well executed, and pursued by the Commissioners.

2 2. To find out the law in this Case, the severall sorts of authorities in our Bookes were considered, and how they ought to be pursued.

For authorities these differences vvere agreed for Lavv.

All authorities are eyther authorities in law or au­thorities in fait 8. Coke. 146. the 6. Carpenters case.

Authorities in law are, vvhere the law gives authori­tie, vvithout any authoritie from the party; as the lavv gives authority to the Lord, to distraine for his Rent, and service, to the ovvner of the soyle, to di­straine damage feasant, to him in the reversion, to en­ter, and see if vvast be done, and the like.

An authority in fait, is where the authority is given by the party.

Authorities in fait are eyther Nude and bare authorities, or authorities cloathed with an interest Cokes instit. 52.

Nude authorities are given eyther by

• 1. Deede.
• 2. Commission.
• 3. Patent.
• 4. VVrit
• 5. or Act of parliament.

And for all those authorities, it is a certaine rule, and ground in our law, that they are to be pursued strictly, and precisely, both for matter, and forme, or otherwise, the act done, by colour of that authority is voyde. 10. H. 7. 15.

But the execution of authorities that are cloathed vvith an interest are of a more large, and favourable interpretation, then the execution of those, that are but bare authorities. 5. Coke. 94. & 95. in Barwickes case.

3 3. For that. First it will be necessary to enquire.

• VVhat the authority in this Case is,
• whether it be pursued as it ought to be?
• [Page 22]wherein it is not pursued.

The Authority given to the Commissioners in this Case is twofold:

• An Authority expressed in their Commission. S. to grant the mannor of Dale.
• And an Authority implied in lavv, to reserve a tenure in Capite.

For where there is no direction for the tenure, the law will imply a tenure in Capite, as the best for the King.

In this Case then by the very Commission, the tenure is made a part of the grant, and Modus Concessionis, for the authority though it bee twofold, expressed and im­plied, yet both being put togither, that which is to bee done by vertue of that Authority, is but one entire Act, one grant, a grant of the Mannor of Dale, reser­ving a Capite tenure, so that their Authority to grant the land is not absolute, but sub modo, so that they re­serve a tenure in Capite; And although the power to reserve a tenure in Capite; bee onely implyed by the law, and bee not given by expresse vvords in their Commission, that makes no difference:

For by the rule of our Bookes, Authorities im­plied in law, as well as those that are expressed, must be pursued.

Where a letter of Atturney is made to deliver Live­ry of scism, the Atturney hath a tvvofold authority.

An authority expressed in his warrant, and [Page 23] that is generall to deliver seisin.

And an Authoritie implied in lavv, that is, to deliver an Actuall and expresse Livery, and not a Livery in Lavv.

And therefore if the Atturney delivers seisin within the view, though it bee vvarranted by his expresse authoritie, yet because he hath not pursued his impli­ed authoritie, the Act is voyde. And so it vvas resol­ved, P. 3. Eliz. C.B. in Yarhams Case, Cokes Instit. sect. 66.

This then being their Authoritie. S. to grant the Mannor of Dale, and upon the grant to reserve a tenure in capite.

Novv hovv have they executed this authority?

There are Letters Patents passed to A. and his heires, by Colour of the Commission, to be holden by Knights service, as of his Majesties Castle of Dublin.

Here they have not pursued their Authoritie, for where by the Commission either a tenure in Capite ought to have beene reserved, or else the tenure left to the reservation of the law, They expressely reserve a tenure by Common Knights service.

That the Letters Patents as to this tenure (thus reserved) are voyde, it was agreed on all sides.

But whither they should bee onely voyde to the te­nure, or whither the reserving of a tenure, so divers from the tenure intended, and warranted by the Com­mission, shall destroy the whole grant, both for the land and tenure, was the point, wherein they did differ.

4 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 [Page 25] 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.

[Page 26]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 [Page 28] 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 [Page 29] 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 tis 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 [Page 30] 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 VVhite­acre.

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.

'Tis 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 [Page 35] 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 Thain­lands 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 [Page 36] 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 [Page 37] 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 times it is probable, the Lavves of both nations [Page 38] did not much differ, As for the times after, it appeares they did not, by comparing their Regiam Majestatem, and our Glanvill. Neither is the bare Conjecture of Sir Henry Spelman sufficient, to take avvay the force of those Lavves, vid. Spelman. Glossar. verbo Feudum.

Vpon all this they did Conclude, That upon consideration of the Authority given, and grant thereupon made, the reservation of the tenure cannot bee said to bee Aliud. S. a separate and distinct thing from the Authority of granting the land, but rather included within it: And that the Reservation of the tenure, though it bee not ipsa concessio, the grant it selfe, yet it is Modus concessio­nis, and a part of the grant, And that therefore the Authority being not pursued in that, the whole grant is voyde.

5 5. And so it was Resolved, for these reasons, and upon these Authorities.

1. The Maine and principall reason, vvhy they did Resolve that the Letters patents vvere voyde in the vvhole, was, because that here the Commissioners had but an Authoritie, and that Authoritie they have not pursued.

By the Commission they were to grant the lands, and to reserve a tenure in Capite, or to leave the Re­servation to the lavv; Now there is a tenure by com­mon Knights service reserved, so they have executed their Authority in another manner, then the Commis­sion vvarrants, they have done Idem alio modo, And [Page 39] therefore by the rule of the bookes before cited, the vvhole grant is voyde.

It vvas agreed by all, that if the Commissioners here had granted the land, Reserving a tenure in Capi­te, the Patent vvould have beene good, and effectuall, or if they had granted the land, and reserved no te­nure, there because the Lavv in that Case vvould rayse a tenure in Capite, such a grant vvould have beene good, and well warranted by the Commission:

2. This Commission is a Nude Authoritie, for the in­terest is in the King, and the Commissioners have onely a bare Authority to grant, and therefore it ought to be pursued most strictly, both in matter, and manner, and the execution of it is to be expounded strictly.

This Ansvveres all the Cases that have beene put on the other side, where an Authoritie in some sort may be executed alio modo, and yet good, as the Case of Stanton and Barnes, where by Custome the Lord might grant Copy-holds in fee, and hee grants a Lesser estate simply, or a lesser estate vvith a remainder over, And the other Report, that hath beene cited betweene Downes and Hopkins, where the Custome was to grant Copies for two lives, and he grants to the husband for life, and after to the wife durante viduitate; The Case of Hatt and Arrowsmyth, where a Copy-holder for life was licensed to make a lease for yeares, si tam diu vixerit, and hee makes a lease absolutely, without that limitation. The Case of Baron & Feme making a lease upon the Statute of 32. H. 8. The Case of 3. H. 7. where upon a licence to grant an Annuity, he grants it with clause of distresse; And yet for that Case, see [Page 40] the Case of Suttons Hospitall. 10. Coke.

The Case of Priddle and Napper, and all the other Cases, that have beene put upon this ground.

For in all those Cases there is an interest coupled with the Authority, and therefore they are not to bee compared to this Case, in which there is only a meere and a bare Authority.

3. This Commission is a publique authority of Record, to which the subjects may resort, and of which they ought to take Notice, to passe according the Commis­sion at their perill. And therefore if either through ignorance, or Carelesnesse, or otherwise they neglect to have their patents drawne pursuant to the Com­mission, the fault is their owne, they cannot trans­ferre the blame of this to the King, as in like Case it is resolved, upon the Commission of Bankrupts 2. Coke 26. So at the common Law, a patent without reci­tall of a lease for yeares of Record, is voyde, for the subject may resort to the publique Record; The King intends Ardua Regni,

This answeres the objection, touching even that honour of the King, that hath beene spoken of, and cleares his performance of his part in this Case.

For the King in favour of his Subjects of this Realme, hath granted a good, and gracious, and effe­ctuall Commission, upon which many legall, and good, and effectuall Letters Patents have beene made, that have beene allovved, and approved for good.

But if upon this Commission, so good, and gratious for the subject, the subject shall contrary to the autho­ritie given by the Commission obtaine Letters patents, [Page 41] in fraud, and deceit of the Crowne, to defeat the King of his tenures in Capite, a principall flowre of his Crowne, if these Letters patents bee voide, where's the fault? certainely in the subject, that contrary to the Authoritie of the Commission, obtaines this grant in deceit of the King, to defeat him of his tenure, which vvas but an ill returne for so great and gratious a bountie; And that Objection of the operation of law, Answeres not the intention of the partie in this case, for plainely, and apparently, the meaning of the Pa­tentee vvas, to suppresse the King's tenure in Capite, and to hold by a meane, and inferiour tenure, which was contrary to the authoritie of the Commission, and in deceit, and prejudice of the King.

Now that Patents obtained in deceit, and preju­dice of the King, are clearely, and wholly, and utterly voyde, to all intents, and purposes, is a ground so ob­vious, so positive, and infallibly true; that they would not cite any booke, or authoritie to prove it, for it is marvellous cleare, and granted of all sides, that patents obtayned in deceit, and prejudice of the King, are al­togither voyde,

If any desire an Authoritie, he may have a Cloud of Authorities, in the Case of Alton VVoods. Coke. 1. Report.

4. This is an Authoritie appearing within the body of the Record, of the Letters Patents themselves; for the Let­ters Patents are ex Assensu of such and such Commissio­ners, virtute & secundum intentionem Commissionis, &c.

Now the tenure in Capite being as strongly implied [Page 42] in the Commission, as if it had beene expressed; (as it hath beene confessed of the other part) for it is upon this implication, that they say the Patent is voyde for the tenure, it is as much, as if the King had given Com­mission to grant the land, to hold in capite, and not o­therwise.

Now in so much as the Commissioners have gran­ted the lands, in other Manner (and all this appeares within the body of the Record of the letters patents themselves) the patent is voyde in the whole, for Con­struction is to bee made upon the whole patent, and not upon any part of it distinct, as it is Resolved in Bucklers Case. 2 Coke 55.

And this hitherto hath beene alwayes the constant Resolution of all the Iudges of Ireland, our Predeces­sors, That if 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 [Page 43] 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 [Page 44] 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 [Page 45] 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.

[Page 46]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. S ^r 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 [Page 47] voyde Habendum, vvhich stands 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 frank­marriage, 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 Ʋ Ʋebb and Potters Case in 24. Eliz. and so are the [Page 48] 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 [Page 49] 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 Ʋ Ʋoods 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 [Page 50] 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. [Page 51] 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 is very plaine and manifest that the King is deceived in this grant, and that it cannot take effect according to his intention therein expressed.

For the Authorities on vvhich their Resolution vvas grounded.

The principall Case vvas that of 12. Ass. 24. vvhich (as it vvas sayd) vvas a Iudgement in effect in the point, A Iudgement in a tyme, vvhen the Law vvas as flourishing, and the Iudges as learned, as in any tyme either before, or since, A Iudgement approoved in all ages subsequent, 26. Ass. 39. 11. H. 43. &c. And no Authority in all our bookes against it, for the mate­riall Cases that have bene put on the other side, are of Authorities accoupled vvith an Interest, and by Con­sequence doe not come to the point in question.

And vvee see that the Authority of this Iudgement is so great, and cleare, that it is confessed by them that argued on the other part; But the reason of the Iudge­ment given by the Iudge, that gives the Iudgement is denyed. S. pur ceo que il fait ceo en auter manner, and a nevv reason is invented, S. because he does not pursue his Authority.

Heere vvee finde them put to a straight; S. to Con­fesse [Page 52] the Iudgement, and denye the reason, for vvho better knevv the reason of the Iudgement, then the Iudge that gave it, This nevv reason. S. That he hath not pursued his Authority if it be examined, vvill come to the first reason, for if it be demaunded, why he hath not pursued his authority, it must be Answered-pur ceo que il ad fait ceo en auter manner que le authority soy gar­rant, vvhich is the reason of 12. Ass.

But vvee have other Authorities in the point, upon the same reason, that of 10. H. 7. 15. vvhich hath bene remembred, per Keble the most Learned Lawyer of that tyme, quant home ad authority de faire ascun fait a un auter, il doit pursuer son authority, en matter, et en forme, there is Modus concessionis, and by the Case that he there puts, if he does it in other forme, alio modo it is voyde.

If I enfeoffe a man, to enfeoffe another, and hee leavies a fine, this is voyde, yet the matter in substance is the same, for a fyne is but a feoffment of Record, but because that hee hath done it in other manner, all is voyde.

11. H. 7. 13. A letter of Atturney to make liverie to I.S. or I. N. and the Atturney makes livery to both, the livery is voyde in all, and it is not good as to the one, and voyde as to the other, but voyde in the vvhole, because that he hath done it in other manner, then the au­thority warrants.

8. Cooke. 85. In Sir Richard Pexhalls Case, If the King licenses his Tenant, to alien tvvo parts of his Mannor of Dale, vvhich is held in Capite, and he aliens all the mannor, it is voyde in the vvhole, and it is not good [Page 53] for tvvo parts, and voyde for the third, And the reason is, because he doth it in other manner then the license war­rants. vid. 10. H. 7. 13. 38. H. 8. Dyer. 62. 40. Ass. 38. 10. H. 7. 15.

There vvas a Report cited by the Chiefe Iustice of the Common pleas, and the Chiefe Baron, the Case vvas in C.B. in England T.M. 2. Caroli. Betvveene George Bi­shop of Chichester plaintiffe, and Iohn Freeman defendant. Intr. Pasch. 1. Caroli. Rot. 207. And the Case vvas this.

The Bishop of Chichester vvas seised in fee, (in the right of his Bishoprick,) of Allingburne parke, in the County of Sussex, and he, and his predecessors have anciently granted the office of Keeper of this parke for life, vvith the fee of five markes.

Anthony Bishop of Chichester, 2. February. 44. Eliz. by his deede granted the Office of Keeper of the parke to one Freeman for life, Et ulterius concessit pro executione officij predicti the ancient fee of five markes, una cum a livery Coate, or thirteene shillings foure pence for it, Nec non pasturam pro duobus equis, una cum the vvind­falls, vvhich grant vvas confirmed by the Deane, and Chapter.

And whither this grant vvas good against the suc­cessor, or voyde, upon the statute of Anno 1. Eliz. Cap. 25. vvas the question.

In vvhich the doubt vvas, vvhither this Addition of a livery Coate, pasturage, and vvindfalls vvill make the vvhole grant utterly voyde; or if the Lavv shall make such a construction, that for this addition it shall be onely voyde, and shall stand good for the other; vvhich vvas the ancient fee, and vvell granted.

And by Iustice Crooke, and Harvy, against Yelverton, the grant is voyde in the whole, because, that the Bishop hath not pursued the Authority given him by the statute, by reason of this expresse, and nevv addition, and yet they professe, that they had rather have given opinion for the defendant, for that he vvas a poore man, and an ancient servant to the Bishop; and yet in this Case, the Addition, and nevv Augmentation is a severall, and distinct clause in the grant, and the things added de novo, are also severall, and distinct in specie from the an­cient Fee of five Markes.

And in the argument of this Case, Iustice Crooke ci­ted a farre stronger Case to be adjudged in the case of the Archbishop of Canterbury. 43. Eliz. And the Case was this.

Parker Archbishop of Canterbury granted the office of surveyorship, with the ancient fee to one Parker, Et ulterius he granted unto him pasturam pro duobus equis in the parke, and the whole grant was adjudged voyde, and yet here vvas a severall grant, by a severall, and distinct clause, and of another thing, severall, and distinct in specie, Aliud et Aliud.

And these Cases are farre stronger then the Case in question, for here there is not a bare Authority, but an interest accoupled vvith an authority.

And in this Case Iustice Crooke cited Scamblers Case, 41. Eliz. to be adjudged, that the vvhole grant vvas voyde, and not good as to the man of full age, and voyde as to the Infant, as it hath bene cited by some that ar­gued on the other side.

[Page 55] And so upon the whole matter they did resolve.

1. That the Commissioners by this Commis­sion 1 have a good, and legall, and sufficient power, and authority to grant.

2. That all Letters Patents made upon this 2 Commission, in which they have pursued their authority, are good and effectuall in Lavv. S. where they have either reserved an expresse tenure by Knights service in Capite, or no tenure, for there the Lavv implyes a tenure in Capite.

3. But where the Commissioners reserve a 3 meane tenure, the whole patent is voyde.

1. Because, that the Commissioners have but an Authority.

2. Because, that this is but a Nude Authority, and not accoupled with any Interest.

3. Because, it is a publique Authority of Re­cord, whereof the subjects ought to take notice, to passe according at their perill, otherwise the patent shall be in deceipt of the King.

4. 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 [Page 56] 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.