And therefore it is no matter though it went out with the perpetuities, as it came in, to the end that men that have not the inheritance should not have power to abuse the inheritance.

And for the mischief, and consideration of bonum publicum, certainly this clause with this opposition tendeth but to make houses ruinous, and to leave no timber upon the ground to build them up again; and therefore let men in God's name, when they establish their states, and plant their sons or kinsmen in the inheritance of some portions of their lands, with reservation of the freehold to themselves, use it, and enjoy it in such sort, as may tend ad ædificationem, and not ad destructionem; for that is good for posterity, and for the state in general.

And for the timber of this realm, it is vivus thesaurus regni; and it is the matter of our walls, walls not only of our houses, but of our island: so as it is a general disinherison to the kingdom to favour that exposition, which tends to the decay of it, being so great already; and to favour waste when the times themselves are set upon waste and spoil. Therefore since the reason and authorities of law, and the policy of estate do meet, and that those that have, or shall have such conveyances, may enjoy the benefit of that clause to protect them in a moderate manner, that is, from the penalty of the action; it is both good law and good policy for the kingdom, and not injurious or inconvenient for particulars, to take this clause strictly, and therein to affirm the last report. And so I pray judgment for the plaintiff.

THE

ARGUMENT

IN

LOW'S CASE OF TENURES

IN THE KING'S BENCH.

THE manor of Alderwasley, parcel of the dutchy, and lying out of the county palatine, was, before the dutchy came to the crown, held of the king by knight's service in capite. The land in question was held of the said manor in socage. The dutchy and this manor parcel thereof descended to king Henry IV. King Henry VIII. by letters patent the 19th of his reign, granted this manor to Anthony Low, grandfather of the ward, and then tenant of the land in question, reserving 267. 10s. rent and fealty, tantum pro omnibus servitiis, and this patent is under the dutchyseal only. The question is how this tenancy is held, whether in capite, or in socage.

The case resteth upon a point, 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 dutchy 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

The king's

take more

law, than by

conceal

ments.

according to the express tenure of the manor, but merely secundum normam legis, by the intendment and rule of law, which must be a tenure by knight's service in capite.

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, the tenure suspended by the conquest of the dutchy to the crown, being now conveyed out of the crown under the dutchy-seal only, which hath no power to touch or carry any interest whereof the king was vested in right of the crown, is now so severed and disjoined from the ancient seigniory, which was in capite, as the same 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 tenures may flowers of the crown, which is the king's tenures, and hurt by a re- that in their creation; which is more than their presolution in servation: for if the rules and maxims of law in the many sup- first raising of tenures in capite be weakened, this nips pressions or 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 force and edge to all that I shall speak afterwards.

No land in the king

England

charged by

The constitution of this kingdom appeareth to be dom of a free monarchy in nothing better than in this; that as there is no land of the subject that is charged to the way of tri- crown by way of tribute, or tax, or tillage, except it be set by parliament: so on the other side there is no charged by land of the subject, but is charged to the crown by tenure, mediate or immediate, and that by the grounds

bute, and

all land

way of tenure.

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 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 when Elias prayed, rain came after drought, which made the plough go; so that I hold the tenure in frankalmoigne in the first institution indifferent to knight's service and socage. Setting apart this tenure, there remain the other two, that of knight's 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's 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 husband-like 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's service.

We see that the ward, who is ward for knight's service land, is accounted in law disparaged, if he be tendered a marriage of the burghers parentage: and we

see that the knights' fees were by the ancient laws the
materials of the 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 na-
tion, and the favours of law, tend to the advancement
of military virtue and service.

ཝཱ

But now farther, amongst the tenures by knight's service, that of the king in capite is the most high and worthy: and the reason is double; partly because it is held 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 licence, 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 has been unworthily termed by the vulgar, not capite, captivity 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's 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 knight's service 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 knight's service in capite. And therefore 44 E. 3. f. the resolution was notable by the judges of both benches, that where the king confirmed to his farmers tenants 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.

45.