546 THE ARGUMENT IN LOWE'S CASE OF TENURES IN THE KING'S BENCH.1 THE manor of Alderwasley, parcel of the Duchy and lying out of the county Palatine, was (before the Duchy came to the Crown) held of the King by knight-service in capite. The land in question was held of the said manor in socage. The Duchy and this manor parcel thereof descended to King Henry IV. King Henry VIII. by letters patent 19° of his reign, granted this manor to Anthony Lowe, grandfather of the ward, and then tenant of the land in question, reserving twenty-six pounds ten shillings rent and fealty tantum pro omnibus servitiis; and this patent is under the duchy seal only. The question is how this tenancy is held, whether in capite or in socage. The case rests upon two points, unto which all the questions arising are to be reduced. The first is, whether this tenancy being, by the grant of the King of the manor to the tenant, grown to an unity of possession with the manor, be held as the manor is held, which is expressed in the patent to be in socage. The second, whether the manor itself be held in socage according to the last reservation, or in capite by revivor of the ancient seigniory, which was in capite before the Duchy came to the Crown. Therefore my first proposition is, that this tenancy (which without all colour is no parcel of the manor) cannot be comprehended within the tenure reserved upon the manor, but that the law createth a several and distinct tenure thereupon; and that not guided according to the express tenure of the 1 S. C. in Court of Wards, 9 Co. 123., where the decision was adverse to this argument. I do not know whether there was any way in which the cause could be removed into the King's Bench. manor, but merely secundum normam legis, by the intendment and rule of law, which must be a tenure by knight-service in capite. And my second proposition is, that admitting that the tenure of the tenancy should ensue the tenure of the manor, yet nevertheless, the manor itself, which was first held of the Crown in capite, and the tenure suspended by the conquest of the Duchy to the Crown, being now conveyed out of the Crown under the duchy seal only; (which hath no power to touch or carry any interest, whereof the King was vested in right of the Crown;) 'tis now so severed and disjoined from the ancient seigniory, which was in capite, as the same ancient seigniory is revived, and so the new reservation void, because the manor cannot be charged with two tenures. This case concerneth one of the greatest and fairest flowers of the crown, which is the King's tenures, and that in their creation, which is more than their preservation: for if the rules and maxims of law in the first raising of tenures in capite be weakened, this nips the flower in the bud, and may do more hurt by a resolution in law, than the losses which the King's tenures do daily receive by oblivion or suppression, or the neglect of officers, or the iniquity of jurors, or other like blasts, whereby they are continually shaken. And therefore it behoveth us of the King's council to have a special care of this case as much as in us is to give satisfaction to the court. Therefore before I come to argue these two points particularly, I will speak something of the favour of law towards tenures in capite, as that which will give a force and edge to all that I shall speak afterwards. of so The constitution of this Kingdom appeareth to be a free Monarchy in nothing better than in this; that as there is no land of the subject that is charged to the crown by way tribute, or tax, or tallage, except it be set by parliament; on the other side, there is no land of the subject but is charged to the crown by tenure, mediate or immediate, and that by the grounds of the Common Law. This is the excellent temper and commixture of this estate, bearing marks of the sovereignty of the king, and of the freedom of the subject from tax, whose possessions are feodalia, not tributaria. Tenures, according to the most general division, are of two natures, the one containing matter of protection, and the other matter of profit. That of protection is likewise double, divine protection and military. The divine protection is chiefly procured by the prayers of holy and devout men; and great pity it is, that it was depraved and corrupted with superstition. This begot the tenure in frankalmoigne, which though in burden it is less than in socage, yet in virtue it is more than a knight's service. For we read how during the while Moses in the mount held up his hands the Hebrews prevailed in battle; as well as that when Elias prayed, rain came after drought, which made the plough go; so that I hold that the tenure in frankalmoigne in the first institution indifferent to knightservice and socage. Setting apart this tenure, there remain the other two; that of knight-service, and that of socage; the one tending chiefly to defence and protection, the other to profit and maintenance of life. They are all three comprehended in the ancient verse, Tu semper ora, tu protege, tuque labora. But between these two services, knight-service and socage, the law of England makes a great difference. For this kingdom (my lords) is a state neither effeminate nor merchantlike; but the laws give the honour unto arms and military service, like the laws of a nation before whom Julius Cæsar turned his back, as their own prophet says: Territa quæsitis ostendit terga Britannis. And therefore howsoever men, upon husbandlike considerations of profit, esteem of socage tenures; yet the law, that looketh to the greatness of the kingdom, and proceedeth upon considerations of estate, giveth the preeminence altogether to knight-service. We see that the ward, who is ward for knight-service land, is accounted in law disparaged, if he be tendered a marriage of the burghers' parentage: and we see that the knights' fees were by the ancient laws the materials of all nobility, for that it appears by divers records how many knights' fees should by computation go to a barony, and so to an earldom. Nay, we see that, in the very summons of parliament, the knights of the shire are required to be chosen milites gladio cincti; so as the very call, though it were to council, bears a mark of arms and habiliments of war. To conclude, the whole composition of this warlike nation, and the favour of law, tend to the advancement of military virtue and service. But now farther, amongst the tenures by knight-service, that of the King in capite is the most high and worthy; and the reason is double; partly because it is held of the King's crown and person, and partly because the law createth such a privity between the line of the Crown and the inheritors of such tenancies, as there cannot be an alienation without the King's license; the penalty of which alienation was by the common law the forfeiture of the state itself, and by the statute of E. III. is reduced to fine and seisure. And although this also have been unworthily termed by the vulgar captivity1 and thraldom; yet that which they count bondage, the law counteth honour; like to the case of tenants in tail of the King's advancement, which is a great restraint by the statute of 34 H. VIII. but yet by that statute it is imputed for an honour. This favour of law to the tenure by knight-service in capite produceth this effect, that wheresoever there is no express service effectually limited, or wheresoever that which was once limited faileth, the law evermore supplieth a tenure by knightservice in capite; if it be a blank once, that the law must fill it up, the law ever with her own hand writes, tenure by knightservice in capite. And therefore the resolution was notable by 44 E. 3. f. 45. the judges of both benches, that where the King confirmed to his farmer tenant for life, tenend' per servitia debita, this was a tenure in capite; for other services are servitia requisita, required by the words of patents or grants; but that only is servitium debitum by the rules of law. The course, therefore, that I will hold in the proof of the first main point, shall be this: First, I will show, maintain, and fortify my former grounds, that wheresoever the law createth the tenure of the King, the law hath no variety, but always raises a tenure in capite. Secondly, that in the case present, there is not any such tenure expressed, as can take place and exclude the tenure in law, but that there is as it were a lapse to the law. And, lastly, I will show in what cases the former general rule receiveth some show of exception, and will show the difference between them and our case; wherein I shall include an answer to all that hath been said on the other side. For my first proposition I will divide into four branches; first, I say where there is no tenure reserved, the law createth 1 The words "not capite" are interlined over this, by way of exhibiting the play on the sound; but I think it is the hand and the lighter-coloured ink of a subsequent corrector, who is not generally happy. Per Prisot in fine, 33 H. 6. 1. 7. 8 H. 7. f. 3. 5 Mar. Austin's office. 33 H. 6. f. 7. a tenure in capite; secondly, where the tenure is uncertain; thirdly, where the tenure reserved is impossible or repugnant to law; and lastly, where a tenure once created is afterwards extinct. For the first, if the King give lands and say nothing of the tenure, this is a tenure in capite; nay, if the King give whiteacre and blackacre, and reserves a tenure only of whiteacre, and that a tenure expressed to be in socage, yet you shall not for fellowship sake (because they are in one patent) intend the like tenure of blackacre; but that shall be held in capite. So if the King grant land held as of a manor with warranty, and a special clause of recompense, and the tenant be impleaded, and recover in value; this land shall be held in capite, and not of the manor. So if the King exchange the manor of Dale for the manor of Sale, which is held in socage, although it be by the word excambium; yet that goeth to equality of the state, not of the tenure; and the manor of Dale (if no tenure be expressed) shall be held in capite. So much for silence of tenure. For the second branch, which is incertainty of tenure. First, where an ignoramus is found by office, this, by the common law, is a tenure in capite, which is most for the King's benefit; and the presumption of law is so strong, that it amounts to a direct finding or affirmative, and the party shall have a negative, or traverse, which is somewhat strange to a thing indefinite. So if in ancient time one held of the King, as of a manor by knight-service, and the land return to the King by attainder, and then the King granteth it tenend' per fidelitatem tuntum, and it returneth the second time to the King, and the King granteth it per servitia antehac consueta; now because of the incertainty neither service shall take place, and the tenure shall be in capite, as was the opinion of you my lord chief justice, where you were commissioner to find an office after Austin's death. So if the King grant land tenend de manerio de East Greenwich vel de honore de Hampton, this is void, for the non-certainty, and shall be held of the King in capite. For the third branch; if the King limit land to be discharged of tenure, as absque aliquo inde reddendo, this is a tenure in capite; and yet if one should go to the next, ad proximum, it should be a socage, for the least is next to none at all. But |