For divers reasons

1. Regularly where a Man doth lesse then the authority or commandement committed unto him , there ( the commandement or authority being not pursued ) the Act is voyde ; But where a Man doth that which hee is authorised to doe , and more , there it is good for that which is warranted , and voyde for the rest . Cokes instit . sect. 434. Perk. 189. vid. 8 Coke . 85. But in the Case in question , the Commissioners doe that , which they had authority to doe , and they doe more ; therefore for that which they had authoritie to doe , that is , to grant the Landes , the Letters patents are good , for that which they doe more , that is , the reserving of a tenure they are voyde .

Their authority was , to grant the Mannor of Dale to A. and his heyres , that they have fully done , and if they had stayed there , no man will deny , but they had well executed their authoritie ; but they goe further , and doe more , and Reserve a tenure , therefore for that more , for that Reservation , their Act is onely voyde .

2. Where a Man hath authority to doe an act , and hee doth it in substance , though hee differ in the manner , yet the authority is well executed . As if a Man make a deede of Feoffment of Blacke-acre , and whit-acre , and a letter of atturney to enter into both Acres , and to deliver seisin of both of them according to the forme and effect of the deede ; and hee entreth into Blacke-acre , and delivers seisin secundum formam Cartae , this livery and seisin is good , albeit hee did not enter into both , nor into one in the name of both ; and yet this is done in another manner , then his authoritie warrants ; for his authority was , to enter into both , and to deliver seisin , of both , neyther of which hee doth , no not so much as enter into one in the name of both .

So when the Feoffment is made to two , or more , and a letter of Atturncy to make Livery to both , and the Atturney makes Livery of seisin to one of the feoffees , secundum formam & effectum Cartae , this is good to both , and yet in that Case , hee that is absent may wayve the Livery ; Surely , this is done by the Atturney in another manner , then the authority warrants , for his warrant was to make Livery to both , and the intention of the Feoffor was , that both should take , and the estate bee setled in both , and yet hee makes Livery to one onely , and so , that the estate may bee setled onely in him , and yet hee hath well executed his authority , for in substance hee hath done that which is commanded , and though it differs in the manner , it is not materiall ; both those Cases are put in Cokes instit . sect. 66.

But in the Case in Question , the Commissioners have done in substance , that which was commanded them , therefore their authority is well executed , and the act they have done is good . That they have done in substance , that which was commanded them , appeares in it selfe , for their authority was to grant the Mannor of Dale to A. and his heyres , this they have done : And if they have added any thing to the grant , whereby it may bee sayd to bee done in another manner , yet the act being done in substance , it shall bee good .

3. That wherein they have exceeded their authority , scilicet , the Reservation of the tenure , it is not of the essence of the grant , Of the essence of a grant are onely Grantor , Grantee , and the thing to bee granted , and apt words in an Instrument or Patent ; Besides , of the essence of a grant it cannot bee , for grants were at Common-law , tenures were introduced by the Conquest . Selden in his Not. to Eadmer . 194. Bracton libr. 2. de acquir . rerum domin . The tenure is another distinct thing , aliud from the Land , in that they cannot consist in one person , the Land is the thing granted , that belongs to the Patentee , the tenure is Reserved to the King , that belongs to him , the Reservation is aliud , or supra , or praeter the grant , not alio modo . And therefore the Letters patents may bee voyde for the tenure , and yet good for the grant of the Land .

4. Although it were admitted , that the Reservation of the tenure , bee not a distinct thing , or aliud from that , which they had authority to doe , but is rather a doing of the same thing , for which they had warrant , in another manner then their authority does warrant ; yet it will not follow , that the whole act is voyde : For an authority given , may bee executed in another manner , alio modo then the Commission doth Warrant ; and yet stand good , for that which is done according to the authority .

And that may be in these Cases .

1. Where the authority is cloathed with an interest , for there in many Cases , he that hath the authority may vary from the authority , And the act though it bee done in another manner , shall bee good . As where the custome of a Mannor is , that the Lord may grant Landes by Copy of Court-roll in Fee , if the grant bee in tayle , or but for life , this is good , Stanton and Barnes his Case Hill. 36. Eliz. Roc. 492. in B. R. Cokes instit . sect. 66.

So where the custome was , to grant Copyes for two lives , and hee grants to the Husband for life , and after to the Wife Durante viduitate . This is good . Downes and Hopkins Case P. 36. Eliz. B. R. The Statute of 32. Henr. 8. doth enable tenant in tayle , to make a Lease for one and twenty yeares , if he makes a Lease for twenty yeares onely , or to one for tenne yeares , and after makes a Lease to another for eleven yeares more , this is good , and so it hath beene Resolved in Tompson , and Traffords Case , Hill . 35. Eliz. B. R.

2. Where the varying from the authority given , is in letter , or circumstance , and not in a point materiall , or in substance , for that see the Cases cited before Cokes instit . sect . 66. & Litt. 434.

3. Where the varyance from the authority , although it bee in matter of substance , is supplyed by operation of law . As if a licence bee granted to a Copy-holder for life , to make a Lease for tenne yeares , if hee shall so long live , the Copy-holder makes a Lease for tenne yeares absolutely , without the limitation , videlicet , if hee shall so long live , yet adjudged good ; and the Licence well pursued . It was Hatt and Arrowsmiths Case Hillar . 38. Elizabeth . B. R.

And in the Case in question , where all agree , that the Kings meaning in this Commission was , that a tenure in Capite should bee Reserved , albeit it bee not expressed in words ; or if it had beene in expresse termes , that a tenure in Capite should bee reserved , and they had onely granted the Mannor , without reservation of any tenure , yet the Law supplying this defect , and raysing a tenure in Capite , this shall make the grant good .

4. Where the varyance from the authority is cured by the party himselfe , by some other act , As if Tenant in tayle , Husband and Wife , a Bishop , &c. who are authorized by the Statute of 32. Henr. 8. to make leases for one & twenty yeares , or three lives of Landes usually lett , make a lease of Landes usually lett , and of Landes not usually lett , reserving one entire Rent , all is voyde : Shepheards Case ; But if Tenant in tayle will make such a lease , and reserve the accustomed Rent for the Landes usually lett , and another Rent for the Landes not usually lett , heere the lease shall bee good for the Landes usually lett , and voydeable onely for the other ; for by these severall reservations , the varyance from the authority is Cured . Tanfeild and Rogers Case Trin. 36. Eliz. B.R.

5. Where the varyance from the authority ( how materiall soever it bee ) is notwithstanding made voyde , eyther by the Common-law , or act of Parliament ; As where the King does licence I. S. to grant twenty Markes annuity in Mortmaine , and hee grants the Annuity with clause of distresse , by Hussey , and Bryan chiefe Iustices , and Starky chiefe Baron , and Iustice Faierfax , the addition of distresse is without warrant , and voyde ; yet all admit the grant of the Rent good notwithstanding , 2. & 3. H. 7. grants 36.

By the Statute of 1. Elizabeth . a grant by a Bishop of an ancient Office of Seneschall-ship to two , that had never before beene granted , but to one , is adjudged voyde , 10. Coke 61. the Bishop of Salisburyes Case , Put case then that such a grant is made by a Bishop to I. S. and to an Infant , joyntly , or the one after the other , this is a materiall varyance , and yet , because the grant in respect of the Infant is voyde , ( as it was held in Scambler and Walters Case , M. 40. & 41. Eliz. B.R. cited in Cokes instit . sect. 1. the grant to I. S. ( as they held ) is good .

5. Although the habendum , tenendum , condition , &c. be partes of a grant , yet the Habendum may be voyde , and the grant good ; as in Auditor Kings case cited in 8. Coke 56. in the Earle of Rutlands Case ; where the Case was , the King granted Landes to A. and his heyres , in the premises , Habendum to him , and his assignes , omitting the word Heyres in the habendum , yet the Fee shall passe by the premises , and the habendum shall be voyde .

The condition may bee voyde , as in Litletons Case a Feoffment upon condition that hee shall not alien , and yet the grant remayne good .

6. The reservation of a tenure was not necessary in the grant , if it were not necessary , it is invtile , and utile per inutile , non vitiatur . 3. Coke 10. Dowties case .

7. The honour of the King shall be preferred before his profit 9. Coke 131. in Bewlyes case : and therefore when the Kings grant may bee taken to two intents good , in many Cases , it shall be taken to that intent , which is most beneficiall for the King ; But if it may bee taken , to one intent good , and to another intent voyde , there for the honour of the King , and the benefit of the Subject , it shall be taken in such manner , that the grant of the King may take effect , for it was not the intent of the King , to make a voyde grant , vid. 8. Coke . 56. the Earle of Rutlands case , the Lord Staffords case , 8. Coke . 77. the Earle of Cumberlands case , 8. Coke . 167.

Vpon this rule the Case of Priddle and Napper . 11. Coke . 11. was put , which was sayd , to bee a farre stronger Case , then the Case in Question , and that , in Case of an authority executed in other manner , alio modo , and yet good : The point resolved , as to this purpose , was this , King Henr. 8. did grant Licence to the Prior and Covent of Mountacute , to appropriate the Church of Tintinhul to their Priory , and this was , per verba de praesenti tempore .

It did appeare , that at the time of the licence , the Church was full of an Incumbent , and so that no appropriation could be made , in praesenti , but in futuro , by speciall wordes , to take effect , after the death of the present Incumbent ; and therefore the licence ought to have beene speciall , otherwise the King was deceived in his grant , and so the appropriation voyde , which by colour of that licence , they made to take effect , after the death of the Incumbent : But it was resolved , that the appropriation was sufficient in law , for the licence was generall , and therefore , it shall be taken in such sence , that it may take effect , that is to take effect , after the death of the Incumbent . And the reason there given , is the rule before remembred , for Construction of the Kings grants .

In which Case it is to be observed , first that the licence or authority given by the King was in generall wordes , to make the appropriation presently . Secondly that this authority could not bee executed in that manner . Thirdly by vertue of that licence , they make the appropriation in futuro , S. to take effect after the death of the Incumbent ; So they doe it in another manner , then their authority warrants , and yet good , and their authority well pursued .

Then if that authority executed in so different a manner , from the wordes of the authority , was adjudged to be well executed , much more shall it in this Case be sayd to be well executed , when they have pursued the very wordes of the authority , and if to some intent there might be a construction made , to make the grant voyde , yet if by another construction , the grant may bee made good , and the Kings intention fulfilled , without any prejudice to him , then for the honour of the King , and the benefit of the Subject , that Construction shall bee made , that the grant shall bee good , and such Construction may bee made in this Case , for heere the tenure reserved being voyde ( as it is agreed by all ) a tenure in Capite , ( being the tenure intended by the Commission ) shall bee raysed by implication of law ; by this Construction the grant shall bee made good , and the Kings intention shall bee fulfilled , without any prejudice to him .

They agree , that in all grants of Lands by Letters patents heere in Ireland , by vertue of the Kings Commission , or letter Missive under the privy Signet , if that tenure be not reserved , eyther by the Letters patents , or by the law , which is directed by the sayd Commission , or letter Missive , there the grant shall bee voyde in the whole , both for the Land and tenure .

And therefore , where the king gives power , to grant Lands , and to reserve a tenure , which the law will not create , or to reserve some other thing , which the law it selfe will not reserve ; as if the Commission had beene , to grant landes , and to reserve a tenure by Knights service , if the land be granted , reserving a tenure in socage , the grant is voyde in the whole .

So if the Commission had beene , to grant land , and to reserve twenty shillings Rent , and they reserve tenne shillings ; In these Cases the Commissioners have not done so much , as they should , the king is prejudiced , and no construction or implication of law can helpe , as in our Case it doth .

And heere in this Case , the tenure reserved shall not toll that tenure , which is implyed by the law , because the tenure reserved is voyde : For that they cited the Case of Littleton , in his Chapter of Frank-almoigne , sect. 140.

A Man that holds Landes by Knights service , at this day grants them , by licence to an Abbot , &c. to hold in Frank-almoigne , the tenure reserved is voyde , and hee shall hold by Knights service , and so a gift in Frankmarriage , reserving a Rent , this reservation is voyde , and hee shall hold onely by fealty . 4. H. 6. 22. Otherwise it would be , if the reservation were good , for there the tacite reservation shall bee silent , as in Wheelers case . 6. Coke 6.

They agree , that if these Letters patents had beene made , by Bill signed by the kings owne hand , under the great Seale of England , the tenure reserved would controll the tenure , which the Law would have raysed ; For in Letters patents past in England , the Letters patents are ultima intentio Regis , and the Iudges ( who are to make Construction thereof , ) are to ground their judgement , upon the Letters patents themselves , and the contents thereof , without any regard to the particular , or any thing without the Letters patents , Doddingtons case , 2. Coke . 34.

But in Letters patents of Lands in Ireland , under the great Seale of Ireland , the Letters patents are not ultima intentio Regis , but tota , & sola , prima , & ultima intentio Regis are all to be taken , and gathered out of the Commission , or warrant from the king under the privy Signet , upon which they are passed ; And here the Iudges are to ground their judgement upon the Commission , or warrant , aswell as upon the Letters patents .

And to these seven Arguments , or reasons , all that was spoken by them , that argued for the Letters patents may be reduced .

But it was resolved by the two chiefe Iustices , the chiefe Baron , Baron Barry , and Iustice Ryves ( with whom Baron Lowther agreed in opinion , though hee could not then argue , by reason of sicknesse . )

That the Letters patents are voyde in law , both to the Land , and to the tenure .

In this case five things did fall into consideration . 1. The commission mentioned in the Case , and the authority of it . 2. Authorities , and their severall sorts , and how they ought to be pursued . 3. The Authority in this case , what it is , if it be pursued , as it ought to bee ? wherein it is not pursued . 4. Tenures what they are in the grant , that the reservation of a tenure is modus concessionis , that it is not aliud , or a distinct thing from the grant , that tenures had their originall in England , before the Norman Conquest . 5. The reasons why the Letters patents are voyde in the whole , and the authorities upon which the Resolution is grounded .

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 ) was vouchsafed by the kings of England to their Subjects , of this kingdome ; a Commission , that was agreed by all , to bee a good , and legall , and effectuall commission , and to contayne in it selfe full power , and authority to grant .

Of which 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 was 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 was 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 were 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 word in it , of any tenure , so that the purpose of it was , where any former tenure was 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 will be , of the pursuance of the Commission , and whither this power granted by the Commission , bee well executed , and pursued by the Commissioners .

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 were agreed for Law.

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

Authorities in law are , where the law gives authoritie , without any authoritie from the party ; as the law gives authority to the Lord , to distraine for his Rent , and service , to the owner of the soyle , to distraine damage feasant , to him in the reversion , to enter , and see if wast 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. Writ 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 with 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 .

1. That authorities by Deede are to be pursued strictly , and precisely , both for matter , and manner . See the Case of 12. Ass. 24. 26. Ass. 39.

There the Case was , that the Plaintife did make a Charter of Fee-simple to the Tenant , and a letter of Atturney to deliver Livery of seisin , the Atturney delivers Livery upon condition , this Livery is voyde ; for the authority is not pursued in the manner .

So on the contrary , if the letter of Atturney had beene , to deliver Livery of seisin upon condition , and the Atturney makes Livery without condition , this is voyde . Cokes instit. 258. 11. H. 4. 3. A letter of Atturney is made , to make Livery after the death of I.S. and the Atturney makes Livery during the life of I.S. all is voyde . 40. ass. 38.

If I command a Man , to make a Deede of feoffment in my name , according to a Copy shewen unto him , in Latine , if hee make a Deede of feoffment according to the effect of the same wordes , in English , or French , the Feoffment is without warrant , for in that case , hee does not pursue the authority in the manner , 10. Henr. 7. 9. So where an authority is given to enfeoffe , and he leavyes a Fine , ibid. & 10. Henr. 7. 15.

2. For authorities by Commission , that they must be pursued , it is the Earle of Leicesters case in Plowd . Com. 380.

The Earle of Leicester , 1. Mar. was indicted of high treason , before Sir Richard Sowthwell , & seaven other Commissioners , by vertue of a Commission , directed to the sayd Sir Richard and fourteene more .

After another Commission was directed to Sir Thomas White , and others reciting that where the Earle of Leicester stood indicted , before Sir Richard Sowthwell , and fourteene other Commissioners , of divers Treasons , &c.

It gave them authority , ad indictamentum praedictum recipiendum , & ipsum Robertum super inde audiendum , &c. ac debito fine triandum , terminandum , &c.

By colour of that Commission , they did arraigne him upon that indictment found before eight of the Commissioners , he confessed the treasons , &c. and had his judgement .

It was resolved , that all that was done was voyde , and coram non iudice , for that they did not pursue their authority .

3. Authority by Patent must be pursued .

The King licences an Abbot and Covent to Alien , the Abbot sole Aliens , it is voyde , 21. Henr. 7. 7. & 8. And the rule given by Frowicke , when the King makes any grant or Licence , it ought to bee executed accordingly , and strictly , as if the King grants me Licence , to make a feoffment by Deede , I cannot make a Feoffment without Deede ; Nor e Contra , So that the Licence must ever be pursued , or otherwise the act done , is not warranted by the Licence , vid. 18. ass. Pl. ultimo . The Lord Cliffords case 2. Coke . 80. Stamf. prarog . Regis 31.

The Licence was to levy a Fine of the Mannor of Dale , to find two Chapleines , and he would have levyed the fine , leaving out the Chapleines , and could not be suffered . 3. Ed. 3. 5. Stamf. ubi supra , vid. 30. Ed. 3. 17.

4. Authorities by Writ must bee pursued .

In a praecipe quod reddat there must bee two Summoners , therefore summons by one Summoner is not good , Plowd . Com. 393. 50. Ed. 3. 16.

5. Authority given by Parliament must bee pursued .

The Statute of Merton Cap. 3. ordaynes , that in a Redisseisin , the Sheriffe assumptis secum custodibus placitorum Coronae , &c. accedat ad tenementum illud de quo facta fuerit querela . If the Sheriffe take but one Coroner , it is not good , for the act appoints a number , two at the least , which number ought to be satisfied , or else the authority given by the Act is not pursued , 23. ass. 7. Plowd . Com. 393.

So that by the Rule of all these Books it is manifest , that a Nude authority must be pursued strictly , both for matter and manner , or the act done by colour of the authority is voyde .

But in what Cases , the Act so voyde for not pursuing of the authority , shall bee voyde in the whole , or in part onely , this difference was taken .

Where hee that hath an authority doth that which hee is authorized to doe , & aliud , and another thing distinct from that for which hee hath authority . And where hee doth the same thing which hee is authorised to doe alio modo , in another manner , then the authority does warrant .

In the first Case it is good , for that which is warranted , and voyde for the aliud . In the other it is voyde for the whole .

And therefore if a letter of Atturney be made to I. S. to make Livery of seisin in white-acre , and hee makes Livery in white-acre , and Blacke-acre , there hee doth Idem & aliud : And therefore it is good for white-acre , that is according to his authority , and pursuant to it , and voyde for Black-acre , which is Aliud from his authoritie , Perk. 38.

Otherwise it would bee , if the letter of Atturney were to make Livery of one acre , and hee makes Livery of two acres , there it is voyde for both ; because he couples both togither ; and it is not named in certaine in the feoffment , of which Acre Livery shall be made ; according to 4. H. 7. 5. But in the case of Perk : the Acre is named in certaine , White-acre , and so a difference .

On the other side , when the same thing is done in another manner than the authority warrants , there is Idem alio modo , and therefore all is voyde ; As in the case of 12. Ass: 24. 26. Ass: 39. 40. Ass: 38. 10. H. 7. 9. the cases already cited .

The true reason why in all those Cases the Act is voyde , is , because the Authoritie is executed Alio Modo , And so is the reason expressely given in the booke of 12. Ass. why the liverye is voyd , because the Attourney doth it in other manner , than the Authoritie warrants .

This is the difference that must rule the case one way or other .

And therefore the onely labour will be to find out under which part of that difference the case in question doth lye .

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

What the authority in this Case is , whether it be pursued as it ought to be ? 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 law , 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 words 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 twofold authority .

An authority expressed in his warrant , and that is generall to deliver seisin .

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

And therefore if the Atturney delivers seisin within the view , though it bee warranted by his expresse authoritie , yet because he hath not pursued his implied authoritie , the Act is voyde . And so it was 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 .

Now how 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. 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 whither 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 whole 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 within 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 which 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 without Habendum , expresse Tenendum , Reddendum , or Condition , yet when they , or any of them are added , they are de modo Concessionis , and doe direct , and rule the grant .

1. For the Habendum .

The proper office of the Habendum is to limit the estate ; yet sometimes it may 1. Alter the estate in the premises . 2. Diminish or enlarge . 3. Give to a stranger . 4. Make the grant voyde .

1. It may alter the estate in the premises .

As where land is given to two in the premises , Habendum , the one moytie to the one , and the other moytie to the other , by the premises they have a joynt estate , the Habendum makes them tenants in Common , Litt. 66. So where land is given to two , Habendum to the one for life , the remainder to the other . By the premises they should have a joynt estate in possession . But the Habendum doth alter that , and maketh the one sole tenant of the freehold for life , and the other sole tenant of the Remainder . 8. E. 3. 320. feoffments & faits . 73.

2. It enlarges or diminishes the estate that would passe by implication in the premises , and so destroyes the implication , This is common in every grant .

3. It gives to a stranger not named in the premises of the grant .

As if a man gives lands to I.S. Habendum with A. his daughter in Frank-marriage , there the wife not named in the premises , by the Habendum , takes a joynt estate with her husband . this Case is vouched in Pl. Com. 158. to be in 4. E. 3. which being not found in that yeare , it is there so left without any further reference , but you shall finde it in 5. E. 17. so Cokes Instit. sect. 17. yet vid. 4. E. 3. 4. So likewise 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. Winters Case . 9. E. 3. 12. 5. Coke 55. Knights Case .

3. For the Tenendum .

The proper office of the Tenendum is to reserve the tenure , and to toll the tenure by implication .

Before the statute of Quia Emptores terrarum , If a man made a feoffment , the feoffee held of the feoffor by such services , as the feoffor held over ; But if other services were Reserved , then the feoffee held by such services as were reserved .

That the Donee in tayle shall hold of the donor , as the donor held over , is Regularly true , if the donor make no speciall Reservation , for then the speciall Reservation excludes the tenure , which the Law would create . Cokes Instit. sect. 19. vid. 34. H. 8. Dyer 52.

4. For the Condition .

That does likewise direct , and rule the grant , the Condition does change the qualitie of the grant , and makes the estate Conditionall , and defeasible , which otherwise would be absolute , and indefeasible :

So that all these . viz. the Habendum , the Reddendum , the Tenendum , and the Condition , are de modo Concessionis , and doe Rule , and direct the grant , the first limits , and sets forth the quantity , the other describe the quality of the estate .

And of all these the Tenendum is inseparably annexed to the estate , the rest may bee determined , and yet the estate continue , but the tenure cannot be determined , as long as the estate continues .

1. The Condition may be released . 2. The Rent may be released . 3. The estate may be enlarged .

But the tenure cannot bee destroyed , It may bee transferred from one to another , in Case of Common persons , But a Tenure in Capite cannot be transferred , or extinct by any release , or grant , for it is an incident inseparably annexed to the Crowne .

Obj. It was Obj. that the tenure is Aliud from the land , for the land is the subjects , & the tenure belongs to the King .

Resp. To that , 1. it was Answ. that the question is not , whither the tenure be Aliud from the land , for t is cleare the land is one thing , and the tenure another : but the question is , whither the reservation of the tenure be Aliud from the authority of granting the land , or included in it , as modus concessionis , S. they shal grant , & grant in this manner .

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 was , 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 law properly Allodium , that is , any land in the hands of a subject , that is not holden , Cokes Instit. sect. 1.

The lands onely that are in the Kings possession are free from tenure , for a tenant is hee that holdeth of some superior Lord , by some service , And therefore the King cannot be a tenant , because hee hath no superior , but God . praedium domini Regis est directum dominium cujus nullus est Author nisi Deus .

And as Bracton saith , lib. 1. cap. 8.

omnis quidem sub eo , & ipse sub nullo , nisi tantum sub Deo .

vid. lestatute . 16. R. 2. cap. 5. 14. Eliz. Dyer . 313. 1. Coke 47. vid. 8. Coke 118. where it is said , that it would bee against Common right and reason , that the King should hold of any , or doe service to any of his Subjects ; and therefore some have thought it not so proper , in the Kings Case , to say , that he is scised in dominico suo ut de feodo . Cowell Interpret . verb. feudum & institut . p. 66. As if feodum or fendum were taken in our law as it is in the feudall law onely for lands held by services .

But with us it hath another signification , Littleton tels us , feudum idem est quod haereditas , and so it was defined , long before Littleton , by Bracton , and Briton , and Fleta .

And in truth it hath two significations in our bookes , In the first , it is taken to be the same with an inheritance , and so it is proper enough in the Kings Case .

In the other it is taken for lands held , as in that of Hors de son fee .

We finde both in Bracton lib. 4. cap. 9. fol. 263. feudum est quod quis tenet ex quacunque causa sibi & haeredibus suis , &c. & alio modo dicitur feudum , quod quis tenet ab alio sicut dicitur talis tenet de tali tot feuda per servicium militare .

And agreeing with him is Fleta ( which for the most part is transcribed out of Bracton ) lib. 5. cap. 5.

And here just occasion might bee taken , to cleare our Master , Littleton , from that imputation which is cast upon him , by the Author of the Common wealth of England , pag. 127. where hee layes ignorance to his charge , for laying , that Feodum idem est quod haereditas , which ( saies he ) it doth not signifie in any language .

It were easie to make it manifest , how proper that sence is , But because it hath partly appeared , by that which hath beene sayd , and for that the Author of that Booke is not knowne , for some have doubted , whither Sir Thomas Smyth be the Author of it , or no , Sir Iohn Fernes generositie , pag. 99. And so to argue with him , would be to fight with a shadow , therefore they did abstaine .

So that it is cleare , that onely lands in the Kings possession are free from tenure , But if they once come into the hands of a Common person , there if the feoffor doe not reserve a tenure , the law will .

Before the statute of Quia Emptores Terrarum , if a man made a feoffment in fee , and reserved no tenure , the law did imply a tenure , and the feoffee held of the feoffor , by such services as the feoffor held over ,

Vpon a feoffment made after that statute , if no tenure were expressed , the law will imply a tenure de Capitalibus dominis .

And as it is in the Case of Common persons , so in the Kings Case , In every grant wherein feesimple passes , there must bee a tenure either expressed , or implied .

Of such Necessity is the Reservation of a tenure in the Kings grant , that although the King should grant land without any Reservation of tenure , or by expresse words absque aliquo inde Reddendo , yet the law would create a tenure in Capite 33. H. 6. 7. 6. Coke 7 Wheelers 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 , which 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 two 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 White-acre .

Obj. It was obiected , that Tenures in Capite were brought in by the Conquest , but grants were by the Common law , 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. where he hath that out of Bracton de Acquir . rerum domin . lib. 2.

Forinsecum servitium dicitur Regale servitium quia spectat ad Dominum Regem , & non ad alium , & secundum quod in Conquestu fuit adinventum .

Resp. It was answered that M. Selden in that place does barely recite the words of Bracton , not delivering any opinion of his owne :

For in that Booke cited , pag. 170. and in his titles of honour , the last edition , pag , 612. We find that hee was of another opinion , and that this tenure was in use in England , in the times of the Saxons .

What were those Thani Majores , or Thani Regis among the Saxons ? but the Kings immediate tenants of lands , which they held by personall service , as of the Kings person by grand serjeanty , or Knights service in Capite .

The Land so held , was in those times called Thainland , as land holden in socage was called Reveland , so frequently in Domes-Day . haec terra fuit terra Regis Edwardi Thainland , sed postea conversa est in Reveland . Cokes Instit. sect. 117.

After some yeares that followed the comming of the Normans , the title of Thane grew out of use , and that of Baron and Barony succeeded for Thane and Thain-land .

Whereby we may understand the true , and originall reason , of that which we have in the Lord Cromwels Case , 2. Coke 81. That every Barony of antient time was held by grand serjeanty ; By that tenure were the Thain-lands held in the time of the Saxons , and those Thain lands were the same that were after called Baronies .

'T is true the possessions of Bishops and Abbots were first made subject to Knights service in Capite by William the Conquerour , in the fourth yeare of his Raigne , for their lands were held in the times of the Saxons . in pura & perpetua Eleemosyna , free , ab omni servitio saeculari .

But hee then turned their possessions into Baronies , and so made them Barons of the Kingdome , by tenure , so that as to them , this tenure , and service may be said to be in Conquestu adinventum . But the Thain-lands were held by that tenure before ,

As the Kings Thane was a tenant in Capite , so the Thanus mediocris , or middle Thane was onely a tenant by Knights service , that either held of a meane Lord , and not immediately of the King , or at least of the King as of an Honour , or Mannor , and not in Capite .

What was that Trinoda Necessitas , which so often occurres in the grants of the Saxon Kings , under this forme , Exceptis istis tribus Expeditione , Arcis & pontis exstructione ? ( See it in a Charter of King Etheldred in the preface to Cokes 6. Report , &c. ) but that which was after expressed by Salvo forinseco servitio . Bracton . lib. 2. cap. 26. & 35. 12. Ed. 1. Gard. 152. 26. Ass. 66. Selden Analect . Anglobrit. 78.

And therefore it was said that Sir Henry Spelman was mistaken , who in his Glossary verbo feudum , referres the originall of feuds in England , to the Norman Conquest .

It is most manifest , that Capite tenures , tenures by Knights service , tenures in socage , Frankalmoigne , &c. were frequent in the times of the Saxons .

And if we will beleeve what is cited out of an old French Customary in a Mss . treatise of the Antiquitie of tenures in England , which is in many mens hands , all those tenures were in use long before the Saxons , even in the times of the Britaines , there it is said ; The first Brittish King divided Brittaine into foure parts ; And gave one part to the Arch-flamines to pray for him , and his posteritie ; A second part he gave to his Earles and Nobilitie to doe him Knights service ; A third he divided among husbandmen , to hold of him in socage . The fourth part he gave to Mechanicall persons , to hold in Burgage .

But that testimony was waiv'd , there being little certainty , or truth in the Brittish Story before the times of Caesar . Neither would they make use of that , which we are taught by William 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. where 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 William the conquerour , vid. Cokes Instit. sect. 103.

As these tenures were common in those times , so were all the fruits of them , homage , fealty , Escuage , Reliefes , wardships .

For Reliefes , we have full testimony in the Reliefes of their Earles , and Thanes , for which , See the Lawes of King Canutus , cap. 68. & 69. the Lawes 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 were 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 ) would perswade , vid. Seldens Notes on Fortescue . 51.

Among the priviledges granted by Edward the Confessour to the Cinque-Ports , wee meete with 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 wardship of the heire in Gavell-kind , and that he shall not be marryed by the Lord . And those Customes say of themselves , that they were , 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 Lawes of both nations 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 away the force of those Lawes , 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 .