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 hold 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. 3.1.45. 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

"

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 Priset in fine, 33 H. 6. f. 7.

8 II. 7. f. 3.

5 Mar.
Dyer, f.
161, 162.
[14 Eliz.
Dyer, 306,

Austin's office.

33 H. 6. 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 tantum, 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

you may not take the King's grant by argument; but where they cannot take place effectually and punctually as they are expressed, there you shall resort wholly to the judgment of law.

So if the King grant land tenend si franckment come il est en 14 H. 6. f. 12. son corone, this is a tenure in capite.

case.

If land be given to be held of a lord' not capable, as of Merefeild's Salisbury Plain, or a corporation not in esse, or of the manor of a subject, this is a tenure in capite.

So if land be given to hold by impossible service, as by performing the office of the sheriff of Yorkshire (which no man can do but the sheriff) and fealty, for all service, this is a tenure in capite.

For the fourth branch, which cometh nearest to our case, let us see where seigniory was once and is after extinguished. This may be in two manners, by release in fact, or by unity of possession which is a release or discharge in law.

And therefore let the case be, that the King releaseth to his tenant that holds of him in socage; this release is good, and the tenant shall now hold in capite, for the former tenure being discharged, the tenure in law ariseth.

So the case which is in 1 E. III. A fine is levied to J. S. in tail, the remainder ouster to the King, the state tail shall be held in capite, and the first tenancy, if it were in socage, by the unity of the tenancy shall be discharged, and a new raised thereupon: and therefore the opinion, or rather the quaere, in Dyer, no law.

Vide 30 H. 8.

8

Dyer, 44, 45.

H. 7. 1. 13.

1 E. 3. f. 4.

fine accept;

unde collect.

Thus much for my major proposition: now for the minor, or 4 et 5 P. M. the assumption, it is this: first, that the land in question is discharged of tenure by the purchase of the manor; then that the reservation of the service upon the manor cannot possibly inure to the tenancy; and then if a corruption be of the first tenure, and no generation of the new, then cometh in the tenure per normam legis, which is in capite.

And the course of my proof shall be ab enumeratione partium, which is one of the clearest and most forcible kinds of argu

ment.

If this parcel of land be held by fealty and rent tantum, either it is the old fealty before the purchase of the manor, or it is

3 Co. 30.

Ass. pl. 60.

the new fealty reserved and expressed upon the grant of the manor; or it is a new fealty raised by intendment of law in conformity and congruity of the fealty reserved upon the manor; but none of these: ergo, &c.

That it should be the old fealty, is void of sense; for it is not ad eosdem terminos. The first fealty was between the tenancy and the manor; that tenure is by the unity extinct. Secondly, that was a tenure of a manor, this is a tenure in gross. Thirdly, the rent of twenty-six pounds ten shillings must needs be new, and will you have a new rent with an old fealty? These things are portenta in lege; nay, I demand if the tenure of the tenancy (Lowe's tenure) had been by knight-service, would you have said that had remained? No, but that it was altered by the new reservation; ergo no colour of the old fealty.

That it cannot be the new fealty is also manifest. For the new reservation is upon the manor, and this is no part of the manor: for if it had escheated to the King in an ordinary escheat, or come to him upon a mortmain, in these cases it had come in lieu of the seigniory, and been parcel of the manor, and so within the reservation, but clearly not upon a purchase in fact.

Again the reservation cannot inure, but upon that which is granted; and this tenancy was never granted, but was in the tenant before; and therefore no colour it should come under the reservation. But if it be said, that nevertheless the seigniory of that tenancy was parcel of the manor, and is also granted, and although it be extinct in substance, yet it may be in esse, as to the King's service; this deserveth answer; for this assertion may be colourably inferred out of Carr's case.

King Edward VI. grants a manor, rendering ninety-four pounds rent in fee farm tenendum de East Greenwich in socage; and after, Queen Mary grants these rents amongst other things tenendum in capite, and the grantee released to the heir of the tenant; yet the rent shall be in esse, as to the King, but the land (saith the book) shall be devisable by the statute for the whole, as not held in capite.

And so the case of the honour of Pickering, where the King granted the bailiwick, rendering rent, and after granted the honour, and the bailiwick became forfeited, and the grantee took forfeiture thereof, whereby it was extinct; yet the rent remaineth as to the King out of the bailiwick extinct.