THE CASE OF TENURES upon the Commission of Defective Titles, Argued by all the Judges of Ireland, with their Resolution, and the Reasons of their Resolution.  
DUBLIN, Imprinted by the Society of Stationers, Printers to the Kings most excellent Majesty. 1637.   

TO THE RIGHT HONOURABLE, THOMAS Viscount WENTWORTH Lord Deputy general of Ireland.  
MY LORD,  
THis work is Yours by more than one Interest, and therefore it returns naturally unto YOU, for to lay aside my particular respects, (it being by Your Lordship's favour that I serve his Majesty in this place,) You are Pater Patriae, and not more by Your Office, then by your love to this nation, and your most equal, and indifferent dispensation of justice, (next under his Majesty) the Father of this Church, and Commonwealth; And for whom can an oblation of this nature be more proper? beside, all that is here, as it was at first spoken, in an humble obedience to Your Lordship's Order, so it was after upon a noble invitation from You digested into this form, and it is now made public by Your Commandment; so that in all the passages of it, it carries Your Image, Your Superscription, and therefore by this dedication, I do not so much give it, as restore it. If there be any thing in it, that is mine, that answers Your expectation, even in that, that it answers Your expectation, I have my reward; for all that are below Your Lordship, I hope it shall have this use, it shall satisfy them, that Your Lo: proceed in this business have been in all points agreeable both to Honour, and justice; God lead Your Lordship by the hand, until You have finished those great, and heroical works so happily begun, May they all prosper to the high pleasure of Almighty God, the increase of Honour, and Revenue to his Majesty, of peace, and prosperity to this Kingdom, and to Your own immortal glory.  
Your Lordship's most humble servant James Barry.   

The Case of Tenors upon the Commission of Defective Titles.  
Trin. 13. Caroli Regis.  
AT the late enquiry concerning His Majesty's Title to the County of Mayo, there was an Act of State published, wherein it was declared, that it was not his Majesty's intention, to take from his people any thing that was justly theirs, and that therefore none, who held any Lands, or other Hereditaments whatsoever within that County, by Letters-patents from the Crown, should be any ways prejudiced by finding his Majesty's Title, although their Letters-patents were not found, or well and certainly found, in the great Office then intended to be taken, but that they should have the same benefit of them, as if they had been specially found, so as they did produce their Letters-patents, or the enrolment thereof, before the Lord Deputy and Council, at the Council Board, by a certain day limited in the Act; and that they were allowed by that Board, to be good and effectual in Law.  
In pursuance of that Act, there were several Letters-patents produced, and among the rest, the Lord- Viscount Dillon did show forth Letters-patents, obtained from his late Majesty, and passed upon the late Commission of Defective titles; Upon perusal and consideration whereof, his Majesty's Council were of opinion, that they were void in law; And therefore it was thought fit, and so ordered by the Lord Deputy and Council, that the doubt arising upon the Letters-patents, should be drawn up into a Case, and that that Case should be openly argued at the Council Board, by Council learned on both sides.  

The Case was after drawn up in these words.  
KIng JAMES by Commission under the great Seal, dated the second day of March, in the fourth year of his reign, did authorise certain Commissioners, to grant the Manor of Dale, by Letters patents under the great Seal of this Kingdom, to A. and his heirs, and there is no direction given in the said Commission, touching the tenure to be reserved.  
There are Letters-patents by colour of the said Commission passed unto A. and his heirs, to hold by Knight's service, as of his Majesty's Castle of Dublin  
The question is, whither the said Letters patents be void in the whole, or only as to the tenure.  
THis Case was argued on several days, first by Nicholas Plunket for the Lord Dillon, and Sergeant Catlin for the King, and after by john Pollexfen for the Lord Dillon, and Osbaldeston Attorney general for the King.  
And because it was a Case of great weight and importance, it was delivered unto the judges, and they were required by the Lord Deputy and Council, to confer and consider of it, and to return unto them their resolution concerning it, but they (upon private conference among themselves) did not agree in opinion, and therefore it was thought necessary, for public satisfaction, that it should be argued solemnly by them all: and thereupon in Trinity term last, the Case was argued by Ryves Puisne judge of his Majesty's Court of Chief place, Barry second Baron of the Exchequer, and Cressy one of the judges of the Court of Chief place: and after on another day appointed for the Case, by Mayart one of the judges of the Common pleas, Bolton Chief Baron, Lowther chief justice of the Common pleas, and Shurly chief justice of the Court of chief place.  
And for that I intent to make as summary a Report as I can, I will first set down such arguments, and objections as were made by them that argued for the maintenance of the Letters patents.  
It was objected by them, That the Letters patents were good for the Land, and void only as to the tenure.  

For diverse reasons  
1. Regularly where a Man doth less than the authority or commandment committed unto him, there (the commandment or authority being not pursued) the Act is void; But where a Man doth that which he is authorised to do, and more, there it is good for that which is warranted, and void for the rest. Coke instit. sect. 434. Perk. 189. vid. 8 Coke. 85. But in the Case in question, the Commissioners do that, which they had authority to do, and they do more; therefore for that which they had authority to do, that is, to grant the Lands, the Letters patents are good, for that which they do more, that is, the reserving of a tenure they are void.  
Their authority was, to grant the Manor of Dale to A. and his heirs, that they have fully done, and if they had stayed there, no man will deny, but they had well executed their authority; but they go further, and do more, and Reserve a tenure, therefore for that more, for that Reservation, their Act is only void.  
2. Where a Man hath authority to do an act, and he doth it in substance, though he differ in the manner, yet the authority is well executed. As if a Man make a deed of Feoffment of Blacke-acre, and whit-acre, and a letter of attorney to enter into both Acres, and to deliver seisin of both of them according to the form and effect of the deed; and he entereth into Blacke-acre, and delivers seisin secundum formam Cartae, this livery and seisin is good, albeit he did not enter into both, nor into one in the name of both; and yet this is done in another manner, than his authority warrants; for his authority was, to enter into both, and to deliver seisin, of both, neither of which he 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 Attorney makes Livery of seisin to one of the feoffees, secundum formam & effectum Cartae, this is good to both, and yet in that Case, he that is absent may wayve the Livery; Surely, this is done by the Attorney in another manner, than 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 be settled in both, and yet he makes Livery to one only, and so, that the estate may be settled only in him, and yet he hath well executed his authority, for in substance he hath done that which is commanded, and though it differs in the manner, it is not material; both those Cases are put in Coke 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, appears in itself, for their authority was to grant the Manor of Dale to A. and his heirs, this they have done: And if they have added any thing to the grant, whereby it may be said to be done in another manner, yet the act being done in substance, it shall be 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 only Grantor, Grantee, and the thing to be granted, and apt words in an Instrument or Patent; Besides, of the essence of a grant it cannot be, for grants were at Common-law, tenors were introduced by the Conquest. Selden in his Not. to Eadmer. 194. Bracton libr. 2. the 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 be void for the tenure, and yet good for the grant of the Land.  
4. Although it were admitted, that the Reservation of the tenure, be not a distinct thing, or aliud from that, which they had authority to do, but is rather a doing of the same thing, for which they had warrant, in another manner than their authority does warrant; yet it will not follow, that the whole act is void: For an authority given, may be executed in another manner, alio modo than 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 clothed with an interest, for there in many Cases, he that hath the authority may vary from the authority, And the act though it be done in another manner, shall be good. As where the custom of a Manor is, that the Lord may grant Lands by Copy of Court-roll in Fee, if the grant be in tail, or but for life, this is good, Stanton and Barnes his Case Hill. 36. Eliz. Roc. 492. in B. R. Coke instit. sect. 66.  
So where the custom was, to grant Copies for two lives, and he grants to the Husband for life, and after to the Wife Durante viduitate. This is good. Downs and Hopkins Case P. 36. Eliz. B. R. The Statute of 32. Henr. 8. doth enable tenant in tail, to make a Lease for one and twenty years, if he makes a Lease for twenty years only, or to one for ten years, and after makes a Lease to another for eleven years more, this is good, and so it hath been 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 material, or in substance, for that see the Cases cited before Coke instit. sect. 66. & Litt. 434.  
3. Where the variance from the authority, although it be in matter of substance, is supplied by operation of law. As if a licence be granted to a Copyholder for life, to make a Lease for ten years, if he shall so long live, the Copyholder makes a Lease for ten years absolutely, without the limitation, videlicet, if he shall so long live, yet adjudged good; and the Licence well pursued. It was Hat and Arrowsmiths Case Hillar. 38. Elizabeth. B. R.  
And in the Case in question, where all agree, that the King's meaning in this Commission was, that a tenure in Capite should be Reserved, albeit it be not expressed in words; or if it had been in express terms, that a tenure in Capite should be reserved, and they had only granted the Manor, without reservation of any tenure, yet the Law supplying this defect, and raising a tenure in Capite, this shall make the grant good.  
4. Where the variance from the authority is cured by the party himself, by some other act, As if Tenant in tail, Husband and Wife, a Bishop, etc. who are authorized by the Statute of 32. Henr. 8. to make leases for one & twenty years, or three lives of Lands usually let, make a lease of Lands usually let, and of Lands not usually let, reserving one entire Rent, all is void: Shepherd's Case; But if Tenant in tail will make such a lease, and reserve the accustomed Rent for the Lands usually let, and another Rent for the Lands not usually let, here the lease shall be good for the Lands usually let, and voydeable only for the other; for by these several reservations, the variance from the authority is Cured. Tanfeild and Rogers Case Trin. 36. Eliz. B.R.  
5. Where the variance from the authority (how material soever it be) is notwithstanding made void, either by the Common-law, or act of Parliament; As where the King does licence I. S. to grant twenty Marks annuity in Mortmain, and he grants the Annuity with clause of distress, by Hussey, and Bryan chief justices, and Starky chief Baron, and justice Faierfax, the addition of distress is without warrant, and void; 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 been granted, but to one, is adjudged void, 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, jointly, or the one after the other, this is a material variance, and yet, because the grant in respect of the Infant is void, (as it was held in Scambler and Welter's Case, M. 40. & 41. Eliz. B.R. cited in Coke instit. sect. 1. the grant to I. S. (as they held) is good.  
5. Although the habendum, tenendum, condition, etc. be parts of a grant, yet the Habendum may be void, and the grant good; as in Auditor King's case cited in 8. Coke 56. in the Earl of Rutland's Case; where the Case was, the King granted Lands to A. and his heirs, in the premises, Habendum to him, and his assigns, omitting the word Heirs in the habendum, yet the Fee shall pass by the premises, and the habendum shall be void.  
The condition may be void, as in Litletons' Case a Feoffment upon condition that he shall not alien, and yet the grant remain good.  
6. The reservation of a tenure was not necessary in the grant, if it were not necessary, it is inutile, 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 King's grant may be taken to two intents good, in many Cases, it shall be taken to that intent, which is most beneficial for the King; But if it may be taken, to one intent good, and to another intent void, 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 void grant, vid. 8. Coke. 56. the Earl of Rutland's case, the Lord Staffords case, 8. Coke. 77. the Earl of Cumberlands case, 8. Coke. 167.  
Upon this rule the Case of Priddle and Napper. 11. Coke. 11. was put, which was said, to be a fare stronger Case, than 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 Montacute, to appropriate the Church of Tintinhul to their Priory, and this was, per verba de praesenti tempore.  
It did appear, 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 special words, to take effect, after the death of the present Incumbent; and therefore the licence ought to have been special, otherwise the King was deceived in his grant, and so the appropriation void, 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 general, and therefore, it shall be taken in such sense, 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 remembered, for Construction of the King's grants.  
In which Case it is to be observed, first that the licence or authority given by the King was in general words, to make the appropriation presently. Secondly that this authority could not be executed in that manner. Thirdly by virtue of that licence, they make the appropriation in futuro, S. to take effect after the death of the Incumbent; So they do it in another manner, than their authority warrants, and yet good, and their authority well pursued.  
Then if that authority executed in so different a manner, from the words of the authority, was adjudged to be well executed, much more shall it in this Case be said to be well executed, when they have pursued the very words of the authority, and if to some intent there might be a construction made, to make the grant void, yet if by another construction, the grant may be made good, and the King's intention fulfilled, without any prejudice to him, then for the honour of the King, and the benefit of the Subject, that Construction shall be made, that the grant shall be good, and such Construction may be made in this Case, for here the tenure reserved being void (as it is agreed by all) a tenure in Capite, (being the tenure intended by the Commission) shall be raised by implication of law; by this Construction the grant shall be made good, and the King's intention shall be fulfilled, without any prejudice to him.  
They agree, that in all grants of Lands by Letters patents here in Ireland, by virtue of the King's Commission, or letter Missive under the privy Signet, if that tenure be not reserved, either by the Letters patents, or by the la, which is directed by the said Commission, or letter Missive, there the grant shall be void 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 la itself will not reserve; as if the Commission had been, to grant lands, and to reserve a tenure by Knight's service, if the land be granted, reserving a tenure in socage, the grant is void in the whole.  
So if the Commission had been, to grant land, and to reserve twenty shillings Rend, and they reserve ten shillings; In these Cases the Commissioners have not done so much, as they should, the king is prejudiced, and no construction or implication of la can help, as in our Case it doth.  
And here in this Case, the tenure reserved shall not toll that tenure, which is employed by the la, because the tenure reserved is void: For that they cited the Case of Littleton, in his Chapter of Frank-almoigne, sect. 140.  
A Man that holds Lands by Knight's service, at this day grants them, by licence to an Abbot, etc. to hold in Frank-almoigne, the tenure reserved is void, and he shall hold by Knight's service, and so a gift in Frankmarriage, reserving a Rent, this reservation is void, and he shall hold only by fealty. 4. H. 6. 22. Otherwise it would be, if the reservation were good, for there the  reservation shall be silent, as in Wheelers case. 6. Coke 6.  
They agree, that if these Letters patents had been made, by Bill signed by the kings own hand, under the great Seal of England, the tenure reserved would control the tenure, which the Law would have raised; For in Letters patents passed in England, the Letters patents are ultima intentio Regis, and the judges (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 Seal 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 judges 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 chief justices, the chief Baron, Baron Barry, and justice Ryves (with whom Baron Lowther agreed in opinion, though he could not then argue, by reason of sickness.)  
That the Letters patents are void 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 several 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 be? wherein it is not pursued.  
4. Tenors 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 tenors had their original in England, before the Norman Conquest.  
5. The reasons why the Letters patents are void 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 Majesty, 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 kingdom; a Commission, that was agreed by all, to be a good, and legal, and effectual commission, and to contain in itself full power, and authority to grant.  
Of which the chief justice 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 Lands, (concurrentibus hijs quae de jure requiruntur) as any he had seen. There was in the Commission (as he said) plenitudo potestatis, there is not any question of the Commission, nor of the power granted by the Commission; Neither (as it was declared) was it the intention of his Majesty, 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 chief Baron observed) nor any omission, or negligence in them, that were trusted with the drawing of it, it was done upon good advice, & of purpose; for the cases of them, that were to pass upon that Commission, were so different, and there was such variety of tenors, that it was not possible, to give any certain direction in the Commission concerning them.  
Besides the intention of that Commission was not, to give authority, for the alteration, or diminution of the King's tenors; it was intended only, 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 legal, and to contain full power, and ample authority to grant the Lands.  
The sole Question will be, of the pursuance of the Commission, and whither this power granted by the Commission, be well executed, and pursued by the Commissioners.   

2. To find out the law in this Case, the several sorts of authorities in our Books were considered, and how they ought to be pursued.  
For authorities these differences were agreed for Law.  
All authorities are either authorities in law or authorities in fait 8. Coke. 146. the 6. Carpenter's case.  
Authorities in law are, where the law gives authority, without any authority from the party; as the la gives authority to the Lord, to distrain for his Rent, and service, to the owner of the soil, to distrain damage pheasant, to him in the reversion, to enter, and see if waste be done, and the like.  
An authority in fait, is where the authority is given by the party.  
Authorities in fait are either Nude and bare authorities, or authorities clothed with an interest Coke instit. 52.  
Nude authorities are given either by 

1. Deed.  
2. Commission.  
3. Patent.  
4. Writ  
5. or Act of parliament.    
And for all those authorities, it is a certain rule, and ground in our law, that they are to be pursued strictly, and precisely, both for matter, and form, or otherwise, the act done, by colour of that authority is void. 10. H. 7. 15.  
But the execution of authorities that are clothed with an interest are of a more large, and favourable interpretation, than the execution of those, that are but bare authorities. 5. Coke. 94. & 95. in Barwickes' case.  

1. That authorities by Deed 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 Plaintiff did make a Charter of Fee-simple to the Tenant, and a letter of Attorney to deliver Livery of seisin, the Attorney delivers Livery upon condition, this Livery is void; for the authority is not pursued in the manner.  
So on the contrary, if the letter of Attorney had been, to deliver Livery of seisin upon condition, and the Attorney makes Livery without condition, this is void. Coke instit. 258. 11. H. 4. 3. A letter of Attorney is made, to make Livery after the death of I.S. and the Attorney makes Livery during the life of I.S. all is void. 40. ass. 38.  
If I command a Man, to make a Deed of feoffment in my name, according to a Copy shown unto him, in Latin, if he make a Deed of feoffment according to the effect of the same words, in English, or French, the Feoffment is without warrant, for in that case, he does not pursue the authority in the manner, 10. Henr. 7. 9 So where an authority is given to enfeoff, and he leavyes a Fine, ibid. & 10. Henr. 7. 15.   

2. For authorities by Commission, that they must be pursued, it is the Earl of Leicester's case in Ploughed. Com. 380.  
The Earl of Leicester, 1. Mar. was indicted of high treason, before Sir Richard Sowthwell, & seven other Commissioners, by virtue of a Commission, directed to the said Sir Richard and fourteen more.  
After another Commission was directed to Sir Thomas White, and others reciting that where the Earl of Leicester stood indicted, before Sir Richard Sowthwell, and fourteen other Commissioners, of diverse Treasons, etc.  
It gave them authority, ad indictamentum praedictum recipiendum, & ipsum Robertum super inde audiendum, etc. ac debito fine triandum, terminandum, etc.  
By colour of that Commission, they did arraign him upon that indictment found before eight of the Commissioners, he confessed the treasons, etc. and had his judgement.  
It was resolved, that all that was done was void, 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 void, 21. Henr. 7. 7. & 8. And the rule given by Frowicke, when the King makes any grant or Licence, it ought to be executed accordingly, and strictly, as if the King grants me Licence, to make a feoffment by Deed, I cannot make a Feoffment without Deed; 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 Clifford's case 2. Coke. 80. Stamf. prarog. Regis 31.  
The Licence was to levy a Fine of the Manor of Dale, to find two Chapleines, and he would have levied 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 be pursued.  
In a praecipe quod reddat there must be two Summoners, therefore summons by one Summoner is not good, Ploughed. Com. 393. 50. Ed. 3. 16.   

5. Authority given by Parliament must be pursued.  
The Statute of Merton Cap. 3. ordains, that in a Redisseisin, the Sheriff assumptis secum custodibus placitorum Coronae, etc. accedat ad tenementum illud de quo facta fuerit querela. If the Sheriff 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. Ploughed. 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 void.  
But in what Cases, the Act so void for not pursuing of the authority, shall be void in the whole, or in part only, this difference was taken.  
Where he that hath an authority doth that which he is authorized to do, & aliud, and another thing distinct from that for which he hath authority. And where he doth the same thing which he is authorised to do alio modo, in another manner, than the authority does warrant.  
In the first Case it is good, for that which is warranted, and void for the aliud. In the other it is void for the whole.  
And therefore if a letter of Attorney be made to I. S. to make Livery of seisin in whiteacre, and he makes Livery in whiteacre, and Blacke-acre, there he doth Idem & aliud: And therefore it is good for whiteacre, that is according to his authority, and pursuant to it, and void for Black-acre, which is Aliud from his authority, Perk. 38.  
Otherwise it would be, if the letter of Attorney were to make Livery of one acre, and he makes Livery of two acres, there it is void for both; because he couples both together; and it is not named in certain 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 certain, Whiteacre, 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 void; 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 void, is, because the Authority is executed Alio Modo, And so is the reason expressly given in the book of 12. Ass. why the liverye is void, because the Attorney doth it in other manner, than the Authority warrants.  
This is the difference that must rule the case one way or other.  
And therefore the only labour will be to find out under which part of that difference the case in question doth lie.    

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

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 manor of Dale.  
And an Authority implied in la, 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 be twofold, expressed and implied, yet both being put together, that which is to be done by virtue of that Authority, is but one entire Act, one grant, a grant of the Manor 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; be only employed by the law, and be not given by express words in their Commission, that makes no difference:  
For by the rule of our Books, Authorities implied in law, as well as those that are expressed, must be pursued.  
Where a letter of Attorney is made to deliver Livery of scism, the Attorney hath a twofold authority.  
An authority expressed in his warrant, and that is general to deliver seisin.  
And an Authority implied in la, that is, to deliver an Actual and express Livery, and not a Livery in Law.  
And therefore if the Attorney delivers seisin within the view, though it be warranted by his express authority, yet because he hath not pursued his implied authority, the Act is void. And so it was resolved, P. 3. Eliz. C.B. in Yarhams' Case, Coke Instit. sect. 66.  
This then being their Authority. S. to grant the Manor 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 heirs, by Colour of the Commission, to be holden by Knight's service, as of his Majesty's Castle of Dublin.  
Here they have not pursued their Authority, for where by the Commission either a tenure in Capite ought to have been reserved, or else the tenure left to the reservation of the law, They expressly reserve a tenure by Common Knights service.  
That the Letters Patents as to this tenure (thus reserved) are void, it was agreed on all sides.  
But whither they should be only void to the tenure, or whither the reserving of a tenure, so diverse 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 inquire, what the reservation of a tenure is to the grant,  
Wither 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, be Aliud, & Aliud, two distinct things in the Consideration of the whole grant made, and the authority given by the said Commission, for the making thereof, then peradventure the patent may be void, as to the tenure, and yet good for the grant of the land.  
But if the reservation of the tenure be incident unto the authority, 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 be Modus Concessionis, Then the granting of the land, reserving a divers 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 void.  
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 impliedly included within it, and incident to it.  
Although a grant may be without Habendum, express Tenendum, Reddendum, or Condition, yet when they, or any of them are added, they are de modo Concessionis, and do 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. Altar the estate in the premises.  
2. Diminish or enlarge.  
3. Give to a stranger.  
4. Make the grant void.    
1. It may alter the estate in the premises.  
As where land is given to two in the premises, Habendum, the one moiety to the one, and the other moiety to the other, by the premises they have a joint 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 joint 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 pass by implication in the premises, and so destroys 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 Frankmarriage, there the wife not named in the premises, by the Habendum, takes a joint estate with her husband. this Case is vouched in Pl. Com. 158. to be in 4. E. 3. which being not found in that year, it is there so left without any further reference, but you shall find it in 5. E. 17. so Coke Instit. sect. 17. yet vid. 4. E. 3. 4. So likewise where a lease is made to A. Habendum for twenty years, the Remainder to B. and his heirs, here B. gaineth an immediate freehold, by the Habendum, and yet he is not named in the premises of the deed. Ploughed. Com. 158.  
4. It will make the grant void.  
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 void, Ploughed. Com. 152. 156.  
So if the King grants lands by letters patents, Habendum from a day to come, there the whole grant is made void 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 void, though if there had been no Habendum, it had been good by the premises of the deed, Bucklers Case, 2. Coke 55.  
In all these Cases, the Habendum being void, makes void the grants, which would have been good without it.  
As the Habendum hath these several operations in the grant, so hath  
2. the Reddendum.  
As an estate by implication shall be controlled by an express limitation; so an employed Reservation shall be controlled by an express Reservation,  
A man makes a lease rendering rend, and does not say to whom the rent shall be paid, this by implication shall be to the Lessor, and his heirs, But if the words be to the Lessor, the heir shall not have it, 31. H. 8. Dyer. 45. 12. E. 3. Ass. 86. Ploughed. 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 several grants, and several reversions.  
As if a man makes a lease of three Manors, reserving twenty shillings for one, five pound for another, and twenty pound for the third, there are several Reversions, and there shall be several Avowries, 14. Eliz. Dyer, 308. Winter's Case. 9 E. 3. 12. 5. Coke 55. Knight's 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, than the feoffee held by such services as were reserved.  
That the Donee in tail shall hold of the donor, as the donor held over, is Regularly true, if the donor make no special Reservation, for then the special Reservation excludes the tenure, which the Law would create. Coke 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 quality of the grant, and makes the estate Conditional, 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 do 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 be 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 be destroyed, It may be 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 Crown.  
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 'tis clear 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 shall grant, & grant in this manner.  
2 It was answered, both are the Kings, But the tenure was asleep by the possession in the King, and it is now to be awakened by this Commission, in which it appears, that the intent, and plain meaning of the King was, to grant the land to the subject, and to reserve the tenure for himself. 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 always 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 employed, We have not in our la properly Allodium, that is, any land in the hands of a subject, that is not holden, Coke Instit. sect. 1.  
The lands only that are in the King's possession are free from tenure, for a tenant is he that holdeth of some superior Lord, by some service, And therefore the King cannot be a tenant, because he 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 be against Common right and reason, that the King should hold of any, or do service to any of his Subjects; and therefore some have thought it not so proper, in the King's Case, to say, that he is scised in dominico suo ut de feodo. cowel Interpret. verb. feudum & institut. p. 66. As if feodum or fendum were taken in our law as it is in the feudal law only for lands held by services.  
But with us it hath another signification, Littleton tells 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 books, In the first, it is taken to be the same with an inheritance, and so it is proper enough in the King's Case.  
In the other it is taken for lands held, as in that of Horse de son fee.  
We find both in Bracton lib. 4. cap. 9 fol. 263. feudum est quod quis tenet ex quacunque causa sibi & haeredibus suis, etc. & 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 be taken, to clear our Master, Littleton, from that imputation which is cast upon him, by the Author of the Common wealth of England, pag. 127. where he lays ignorance to his charge, for laying, that Feodum idem est quod haereditas, which (says he) it doth not signify in any language.  
It were easy to make it manifest, how proper that sense is, But because it hath partly appeared, by that which hath been said, and for that the Author of that Book is not known, for some have doubted, whither Sir Thomas Smyth be the Author of it, or no, Sir john Fernes generosity, pag. 99 And so to argue with him, would be to fight with a shadow, therefore they did abstain.  
So that it is clear, that only lands in the King's possession are free from tenure, But if they once come into the hands of a Common person, there if the feoffor do 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,  
Upon 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 King's Case, In every grant wherein feesimple passes, there must be 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 express 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 'Lows 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 be released. In Anthony 'Lows Case, The King grants, or releases the Services to his tenant, and his heirs, 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 only, which is an incident inseparable to every tenure, viz. fealty, And all for this reason, Because there is a necessity of a tenure, and the King's Charter doth not alter the law; the tenure and services are part and parcel of the Manor, and shall go with the Manor, and descend as the Manor, to the heir of the part of the mother, although it be 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 form of doing homage and fealty is, that he shall be faithful 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, relief, fine for Alienation, and the rest.  
And therefore where the land and signiory meet in an equal estate, and right, in the same person, the signiory by unity 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 again, it is naturally extinct, for it is Revolutio ad materiam primam.  
2. He that hath all the profits entirely, cannot be said to have part of the profits. Sir I. Davys rep. 5.  
The Escheat which is the last resort of the tenure, is the land itself, 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 Whiteacre.  
Obj. It was objected, that Tenors in Capite were brought in by the Conquest, but grants were by the Common la, then if grants have been ancienter than tenors, the tenure of Necessity must be 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 own:  
For in that Book cited, pag. 170. and in his titles of honour, the last edition, pag, 612. We find that he 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 King's immediate tenants of lands, which they held by personal service, as of the King's person by grand serjeanty, or Knight's service in Capite.  
The Land so held, was in those times called Thainland, as land holden in socage was called Reveland, so frequently in Doomsday. haec terra fuit terra Regis Edwardi Thainland, sed postea conversa est in Reveland. Coke Instit. sect. 117.  
After some years that followed the coming of the Normans, the title of Thane grew out of use, and that of Baron and Barony succeeded for Thane and Thainland.  
Whereby we may understand the true, and original reason, of that which we have in the Lord Cromwel's Case, 2. Coke 81. That every Barony of ancient 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 Knight's service in Capite by William the Conqueror, in the fourth year of his Reign, for their lands were held in the times of the Saxons. in pura & perpetua Eleemosyna, free, ab omni servitio saeculari.  
But he than turned their possessions into Baronies, and so made them Barons of the Kingdom, 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 King's Thane was a tenant in Capite, so the Thanus mediocris, or middle Thane was only a tenant by Knight's service, that either held of a mean Lord, and not immediately of the King, or at least of the King as of an Honour, or Manor, and not in Capite.  
What was that Trinoda Necessitas, which so often occurs in the grants of the Saxon Kings, under this form, Exceptis istis tribus Expeditione, Arcis & pontis exstructione? (See it in a Charter of King Etheldred in the preface to Coke 6. Report, etc.) 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, refers the original of feuds in England, to the Norman Conquest.  
It is most manifest, that Capite tenors, tenors by Knight's service, tenors in socage, Frankalmoigne, etc. were frequent in the times of the Saxons.  
And if we will believe what is cited out of an old French Customary in a Mss. treatise of the Antiquity of tenors in England, which is in many men's hands, all those tenors were in use long before the Saxons, even in the times of the Britain's, there it is said; The first British King divided Britain into four parts; 

And gave one part to the Arch-flamines to pray for him, and his posterity;  
A second part he gave to his Earls and Nobility to do him Knights service;  
A third he divided among husbandmen, to hold of him in socage.  
The fourth part he gave to Mechanical persons, to hold in Burgages.    
But that testimony was waived, there being little certainty, or truth in the British 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 Customs (among which these tenors are) were first brought into Normandy out of England by Edward the Confessor.  
Besides that which hath been said, we find Feuds, both the name, and thing in the Laws of those times, among the Laws of Edward the Confessor. cap. 35. where it is thus provided.  
Debent enim universi liberi homines, etc. secundum feodum suum, & secundum tenementa sua, Arma habere, & illa semper prompta conservare, ad tuitionem regni, & servitium dominorum suorum, etc. Lambard Archaionom. 135.  
This Law was after confirmed by William the conqueror, vid. Coke Instit. sect. 103.  
As these tenors were common in those times, so were all the fruits of them, homage, fealty, Escuage, Reliefs, wardships.  
For Reliefs, we have full testimony in the Reliefs of their Earls, and Thanes, for which, See the Laws of King Canutus, cap. 68 & 69. the Laws of Edward the Confessor, cap. de Heterochijs, And what out of the book of Doomsday, Coke hath in his Instit. sect. 103. Camden in Berkshire, 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 persuade, vid. Seldens' Notes on Fortescue. 51.  
Among the privileges granted by Edward the Confessor to the Cinque-Ports, we meet with this, that their heirs shall not be in ward, Lambards' Perambulation of Kent. 101.  
And in the Customs of Kent, which are in the Magna charta of Tottells' Edition, and in Lambards' perambulac. There is a rule for the wardship of the heir in Gavell-kind, and that he shall not be married by the Lord. And those Customs 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 Laws 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 Laws of both nations did not much differ, As for the times after, it appears 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 Laws, vid. Spelman. Glossar. verbo Feudum.  
Upon all this they did Conclude, That upon consideration of the Authority given, and grant thereupon made, the reservation of the tenure cannot be said to be 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 be not ipsa concessio, the grant itself, 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 void.   

5. And so it was Resolved, for these reasons, and upon these Authorities.  
1. The Main and principal reason, why they did Resolve that the Letters patents were void in the whole, was, because that here the Commissioners had but an Authority, and that Authority 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 la; Now there is a tenure by common Knights service reserved, so they have executed their Authority in another manner, than the Commission warrants, they have done Idem alio modo, And therefore by the rule of the books before cited, the whole grant is void.  
It was agreed by all, that if the Commissioners here had granted the land, Reserving a tenure in Capite, the Patent would have been good, and effectual, or if they had granted the land, and reserved no tenure, there because the Law in that Case would raise a tenure in Capite, such a grant would have been good, and well warranted by the Commission:  
2. This Commission is a Nude Authority, for the interest is in the King, and the Commissioners have only 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 Answeres all the Cases that have been put on the other side, where an Authority in some sort may be executed alio modo, and yet good, as the Case of Stanton and Barnes, where by Custom the Lord might grant Copy-holds in fee, and he grants a Lesser estate simply, or a lesser estate with a remainder over, And the other Report, that hath been cited between Downs and Hopkins, where the Custom 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 Hat and Arrowsmyth, where a Copyholder for life was licenced to make a lease for years, si tam diu vixerit, and he 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 distress; And yet for that Case, see the Case of Suttons' Hospital. 10. Coke.  
The Case of Priddle and Napper, and all the other Cases, that have been put upon this ground.  
For in all those Cases there is an interest coupled with the Authority, and therefore they are not to be compared to this Case, in which there is only a mere and a bare Authority.  
3. This Commission is a public authority of Record, to which the subjects may resort, and of which they ought to take Notice, to pass according the Commission at their peril. And therefore if either through ignorance, or Carelessness, or otherwise they neglect to have their patents drawn pursuant to the Commission, the fault is their own, they cannot transfer 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 recital of a lease for years of Record, is void, for the subject may resort to the public Record; The King intends Ardua Regni,  
This answers the objection, touching even that honour of the King, that hath been spoken of, and clears his performance of his part in this Case.  
For the King in favour of his Subjects of this Realm, hath granted a good, and gracious, and effectual Commission, upon which many legal, and good, and effectual Letters Patents have been made, that have been allowed, and approved for good.  
But if upon this Commission, so good, and gracious for the subject, the subject shall contrary to the authority given by the Commission obtain Letters patents, in fraud, and deceit of the Crown, to defeat the King of his tenors in Capite, a principal flower of his Crown, if these Letters patents be void, where's the fault? certainly in the subject, that contrary to the Authority of the Commission, obtains this grant in deceit of the King, to defeat him of his tenure, which was but an ill return for so great and gracious a bounty; And that Objection of the operation of law, Answers not the intention of the party in this case, for plainly, and apparently, the meaning of the Patentee was, to suppress the King's tenure in Capite, and to hold by a mean, and inferior tenure, which was contrary to the authority of the Commission, and in deceit, and prejudice of the King.  
Now that Patents obtained in deceit, and prejudice of the King, are clearly, and wholly, and utterly void, to all intents, and purposes, is a ground so obvious, so positive, and infallibly true; that they would not cite any book, or authority to prove it, for it is marvellous clear, and granted of all sides, that patents obtained in deceit, and prejudice of the King, are altogether void,  
If any desire an Authority, he may have a Cloud of Authorities, in the Case of Alton Woods. Coke. 1. Report.  
4. This is an Authority 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, etc.  
Now the tenure in Capite being as strongly implied in the Commission, as if it had been expressed; (as it hath been confessed of the other part) for it is upon this implication, that they say the Patent is void 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 appears within the body of the Record of the letters patents themselves) the patent is void in the whole, for Construction is to be 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 been always the constant Resolution of all the judges of Ireland, our Predecessors, That if upon Letters of warrant, or Commission, Letters Patents be made varying in any point material, from the warrant, or Commission, (and all this appears within the body of the Letters patents themselves) that the Letters patents are all utterly void, And this hath been ever agreed upon by reason of the difference between the manner of passing of Letters patents in England, and Ireland.  
But where the warrant, or Commission, and the variance do not appear within the Letters patents, how it shall be aided for the King, by Averment, or otherwise hath been some doubt, and Question.  
5. Although that it be true, that this commission is of a vast, and large extent, yet it is not boundless, for the law always bounds, and circumscribes these ample Authorities with reasonable, and equal constructions, without prejudice to others, as it was resolved upon the Commission of Sewers, upon which we have the Reported Cases in 5. Coke 99 Rooks Case, & 10. Coke 138.  
This Commission of Sewers gives power, and Authority to the Commissioners, To proceed according to their wisdoms, and discretions, which is a most ample power, yet the law does bound, and circumscribe it with an equal Construction. S. that their proceed ought to be bounded with the rules of Reason, Law, and justice, and that their taxes be equal, and that all persons that be subject to the danger, or receive benefit by the Reparation, be contributory to a ratable, and equal contribution of the charge, And if they do otherwise, their ordinances are void, and they cannot make new inventions, as Artificial Mills for casting out of water, etc.  
For these general Commissions are all accompanied in law with an equal 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 be so executed, according to la, reason, and justice, that they do not prejudice the King in his tenors, contrary to their warrant.  
6. Because that this Reservation of a mean tenure, is in other manner than the Authority warrants, and to the damage and prejudice of the King.  
If the Commission were, to grant an estate for life, and they grant an estate tail, or if the Commission were to grant in tail, and they grant in Fee, All the patent is void, because they do it in other manner than the authority warrants, for the Habendum is Modus Concessionis.  
If they reserve another Rent, then is warranted by the Commission, or parcel an entire rent, where the rent in charge ought to be reserved, although that it be several upon the survey, yet the whole patent is void, because that they do it in other manner than the Authority warrants, for the Reddendum is Modus Concessionis.  
Why then shall it not be the same reason, in this Case, for here they reserve another tenure, then that which is warranted by the Commission, and therefore they have executed their authority in other manner than their Authority warrants, for the Tenendum also is Modus Concessionis.  
It was granted by them that argued on the other side, that if it be prejudicial to the King, the whole Patent shall be void.  
Now it is most apparent, that this employed tenure (if it be admitted) will be greatly prejudicial to the King, for the King shall lose his tenure, and the fruit of his tenure, in most Cases for ever, and in all Cases for a long time; and neither the Master, nor the Attorney of the Court of Wards can help 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 mean tenure, the King's Council draw the Patent accordingly, and so it passes the signature of the Lord Deputy, the privy signet; and the great seal, than it is enroled in the Chancery, All this while it is taken according to the tenure expressed in the patent, when it is enroled, it is transcribed into the Exchequer, and the transcript delivered into the Exchequer by the master of the Rolls, the Lord Chief 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 inform themselves of the King's tenors there, where if they make enquiry, the patent is produced, in which an express tenure is reserved, they cannot judge the contrary, and so it passes according to the express tenure; And so have the Letters patents now 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 express reservation in the Letters patents excludes the reservation, and implication of Law, Although (as in the case in question) it tend to make void the whole grant, it is a sure rule in Law, expressum facit cessare tacitum. If the King upon his Letters patents reserve no tenure, it shall be a capite tenure, but if another tenure be expressed, that shall prevail; 33. H. 6. 7. per prisot.  
In Wheelers Case. 6. Coke. 6. Where in a patent the words of the Tenendum were, Tenendum de nobis per servitium unius Rosae, pro omnibus servitijs.  
It was objected, that the tenure as it is expressed cannot stand, for that no tenure can be without fealty, and the words are per servitium unius Rosae, pro omnibus servitijs.  
2. It was objected, that in Case where no tenure is Reserved, or in Case where it is expressed to be absque aliquo inde Reddendo, the tenure shall be Knight's service in Capite.  
And therefore it was urged, that the tenure in the principal Case, must needs be a Capite tenure by Knight's service, and that the tenure expressed, should be void, 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 express Reservations, that in the said Case, fealty (that is an incident to all services) shall be admitted to stand with the words, and then the tenure expressly reserved was so complete that it might well exclude the Knight's service tenure, which otherwise the Law would have employed.  
Hereby may appear the favour that is given to express Reservations, and tenors, that thereby a tenure in Capite by Knight's service shall be excluded, a tenure which shall arise where nothing is Reserved, which shall arise though the words be, absque aliquo inde reddendo. vid. Sr john Molins case. 6. Coke 5.  
It is agreed on the other side, that where the express tenure is good, there it controls the employed tenure, but in our Case it is void.  
And where a tenure expressed is void, a tenure by implication of Law may arise.  
But it was Resolved; that although the express tenure be void, yet no tenure by Implication of Law, shall arise against the express Reservation, And so in the Case of a void Habendum, which stands upon the same reason, It was adjudged in B. R. Between one Hag and Cross, 33 et 34. Eliz. which you may see in Bucklers case, 2. Coke. 55. Where the Case was.  
Tenant for life makes a lease for years, and after grants the reversion to A. Habendum from a day to come for life, after the day the lessee for year's attorns, in that Case the Habendum is void, yet that void Habendum makes void the whole grant, and excludes the implication of Law in the premises, and no estate shall pass by implication of Law in the premises, against the express limitation of the party in the Habendum: see the Cases cited before p. 26.  
So our Tenendum although it be void, yet the express reservation in the Tenendum shall exclude the implication of Law.  
For that opinion of Martin. in 4. H. 6. 22. that was Cited on the other part, that if land be given in frankmarriage, reserving a rent, the reservation of the rent is void, by reason of the employed tenure in frankmarriage; that opinion (as was said) may well be doubted of, for we find as good Authority against it, in the old Tenors fol. 211; That the Reservation of the rent is good, and destroys the frankmariage, and makes it a Common Estate tail: But the best opinion is, that both of them shall stand together, S. the gift in frankmarriage, and also the Reservation of the rent, S. that the donce in frankmarriage shall hold quit of the rent, until the fourth degree be past, and then the rent shall take effect, and so was the opinion of the judges, in Webb and Potter's Case in 24. Eliz. and so are the books to be understood; 13. E. 1. formedon. 63. 31. E. 1. tail 31. 26. E. 3. grants. 75. et 26. Ass. 66.  
For the Case of Littleton 140. A man seized of certain tenements, which he held of his Lord by Knight's service, at this day grants by licence the same tenements to an Abbot, in frankalmoigne, the Abbot shall hold immediately by Knight's service, of the same Lord, of whom his grantor held, and shall not hold of his grantor in frankalmoigne.  
In that Case (they say) the express tenure being void, a tenure by implication of Law does arise.  
It was Answered, there is a difference between the King's Case, which 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 we have another rule, that the grant of the King shall not be extended to pass 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 void.  
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 sense and to such intent that they shall be good, etc.  
It may be Answered, that there is another ground in our Law, that when the King is deceived in his grant, so that it cannot take effect, according to his intent expressed in his grant, the grant is void, 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 with this limitation. S. Except the King be deceived, so that his grant cannot take such effect, as he intends by his express grant.  
In the Lord lovel's Case. 18. H. 8. B. Pat. 104. The King excerta scientia, et mero motu grants lands to one, and to his heirs males; if a Common person had made such a grant, the Law would say, that the word males were void, and the fee simple should pass; But will the Law make such a construction in the King's grant? No, there the grant shall be void, for he was 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 Earl of Kent's Case, If the King hath a ward of land, or a lease of land for years, and by his letters patents grants the land to another and his heirs, the grant is void, and it shall not amount by construction, to a grant of his estate, or interest. vid. 21. Ass. 15. And the other books Cited in the Case of Alton Woods upon this ground.  
29 Eliz. in the Exchequer, the Case was; King H. 7. was seized of two manors. S. de Ryton et condor, he grants ex certa scientia et mero motu totum illud manerium de Ryton et condor, adjudged that the grant was void.  
The like Case was resolved 39 Eliz. where the queen was seized of the Manors of Millborne and Saperton in the County of Lincoln, and the queen grants ex certa scientia, & mero motu, totum illud Manerium de Millborne, cum Saperton in Com: Linc: and it was held that neither of the Manors did pass; And yet if a Common person had made such grants; the grantee in both the said Cases should have had both the Manors.  
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 King's intention is to make a grant agreeable in all things, to the Authority given to the Commissioners, by the said Commission;  
And that appears plainly by the very words of the letters patents, for the words are, Sciatis quod nos etc. virtute ac secundum intentionem et effectum of the said Commission, Dedimus et Concessimus etc. as in the patent; and he conceived that the warrant made by the Commissioners, for passing the patent (which here we call the fiant) had been according to the intent, and effect of the said Commission: And upon that warrant which exceeded the Authority given to the Commissioners, this patent was past, yet still with a reference to the intention and effect of the Commission.  
Now this grant cannot by any possibility take effect according to the King's intention therein expressed, for the King's intention in the beginning of the grant is, that it shall be according to the intention, and effect of the Commission, which must be a tenure by Knight's service in capite, either by express Reservation, or by implication, and operation of Law. 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 expressly reserved can be according to the intention and effect of the Commission, or that the intent and effect of the Commission can any ways acoord with the tenure expressly reserved in the patent.  
So as it is very plain 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 which their Resolution was grounded.  
The principal Case was that of 12. Ass. 24. which (as it was said) was a judgement in effect in the point, A judgement in a time, when the Law was as flourishing, and the judges as learned, as in any time either before, or since, A judgement approved in all ages subsequent, 26. Ass. 39 11. H. 43. etc. And no Authority in all our books against it, for the material Cases that have been put on the other side, are of Authorities accoupled with an Interest, and by Consequence do not come to the point in question.  
And we see that the Authority of this judgement is so great, and clear, that it is confessed by them that argued on the other part; But the reason of the judgement given by the judge, that gives the judgement is denied. S. pur ceo que il fait ceo en altar manner, and a new reason is invented, S. because he does not pursue his Authority.  
Hear we find them put to a strait; S. to Confess the judgement, and deny the reason, for who better knew the reason of the judgement, than the judge that gave it, This new reason. S. That he hath not pursued his Authority if it be examined, will come to the first reason, for if it be demanded, why he hath not pursued his authority, it must be Answered-pur ceo que il ad fait ceo en altar manner que le authority soy garrant, which is the reason of 12. Ass.  
But we have other Authorities in the point, upon the same reason, that of 10. H. 7. 15. which hath been remembered, per Keble the most Learned Lawyer of that time, quant home ad authority de faire ascun fait a un altar, il doit pursuer son authority, en matter, et en form, there is Modus concessionis, and by the Case that he there puts, if he does it in other form, alio modo it is void.  
If I enfeoff a man, to enfeoff another, and he levies a fine, this is void, yet the matter in substance is the same, for a fyne is but a feoffment of Record, but because that he hath done it in other manner, all is void.  
11. H. 7. 13. A letter of Attorney to make livery to I.S. or I. N. and the Attorney makes livery to both, the livery is void in all, and it is not good as to the one, and void as to the other, but void in the whole, because that he hath done it in other manner, than the authority warrants.  
8. Cook. 85. In Sir Richard Pexhalls' Case, If the King licenses his Tenant, to alien two parts of his Manor of Dale, which is held in Capite, and he aliens all the manor, it is void in the whole, and it is not good for two parts, and void for the third, And the reason is, because he doth it in other manner than the licence warrants. vid. 10. H. 7. 13. 38. H. 8. Dyer. 62. 40. Ass. 38. 10. H. 7. 15.  
There was a Report cited by the Chief justice of the Common pleas, and the Chief Baron, the Case was in C.B. in England T.M. 2. Caroli. Between George Bishop of Chichester plaintiff, and john Freeman defendant. Intr. Pasch. 1. Caroli. Rot. 207. And the Case was this.  
The Bishop of Chichester was seized in fee, (in the right of his Bishopric,) of Allingburne park, in the County of Sussex, and he, and his predecessors have anciently granted the office of Keeper of this park for life, with the fee of five marks.  
Anthony Bishop of Chichester, 2. February. 44. Eliz. by his deed granted the Office of Keeper of the park to one Freeman for life, Et ulterius concessit pro executione officij predicti the ancient fee of five marks, una cum a livery Coat, or thirteen shillings four pence for it, Nec non pasturam pro duobus equis, una cum the windfalls, which grant was confirmed by the Dean, and Chapter.  
And whither this grant was good against the successor, or void, upon the statute of Anno 1. Eliz. Cap. 25. was the question.  
In which the doubt was, whither this Addition of a livery Coat, pasturage, and windfalls will make the whole grant utterly void; or if the Law shall make such a construction, that for this addition it shall be only void, and shall stand good for the other; which was the ancient fee, and well granted.  
And by justice Crook, and Harvy, against Yeluerton, the grant is void in the whole, because, that the Bishop hath not pursued the Authority given him by the statute, by reason of this express, and new addition, and yet they profess, that they had rather have given opinion for the defendant, for that he was a poor man, and an ancient servant to the Bishop; and yet in this Case, the Addition, and new Augmentation is a several, and distinct clause in the grant, and the things added de novo, are also several, and distinct in specie from the ancient Fee of five Marks.  
And in the argument of this Case, justice Crook cited a fare 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 park, and the whole grant was adjudged void, and yet here was a several grant, by a several, and distinct clause, and of another thing, several, and distinct in specie, Aliud et Aliud.  
And these Cases are fare stronger than the Case in question, for here there is not a bare Authority, but an interest accoupled with an authority.  
And in this Case justice Crook cited Scamblers Case, 41. Eliz. to be adjudged, that the whole grant was void, and not good as to the man of full age, and void as to the Infant, as it hath been cited by some that argued on the other side.  
And so upon the whole matter they did resolve.  
1. That the Commissioners by this Commission have a good, and legal, and sufficient power, and authority to grant.  
2. That all Letters Patents made upon this Commission, in which they have pursued their authority, are good and effectual in Law. S. where they have either reserved an express tenure by Knight's service in Capite, or no tenure, for there the Law implies a tenure in Capite.  
3. But where the Commissioners reserve a mean tenure, the whole patent is void.  
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 public Authority of Record, whereof the subjects ought to take notice, to pass according at their peril, otherwise the patent shall be in deceit of the King.  
4. Because, that the Authority appears 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 equal Construction. S. that nothing shall be done in other manner than the Authority warrants in prejudice of the King.  
6. Because that this reservation of a mean tenure, is in other manner than the authority warrants, and is in damage and prejudice of the King.  
7. And lastly because that this express reservation controls 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 express Reservation of a mean tenure tends to the destruction of the whole patent, and makes it void in Law both to the lands and to the tenure.     

The Order of the Council Board upon this Resolution of the judges.  By the Lord Deputy and Council. WENTWORTH. 
WHereas there was an Act of Council made at this Board, and dated at the Abbey of boil, the Eleaventh day of july 1635. ordaining, and establishing, that the Lords, Knights, Gentlemen, and Inhabitants, their heirs, and assigns holding any Castle, Manors, Lands, Tenements, or other haereditaments in the County of Roscoman, by or under any effectual letters patents from his Majesty, or any of his Royal predecessors Kings, or Queens of England, should have, hold, possess, and enjoy all the said Castles, Manors, Lands, Tenements, and hereditaments of what kind, or nature soever they be, to them, and to every of them, and to those, who hold any estates under them, against his Majesty, his heirs, and successors, in as full, large, ample, free, and beneficial manner to all intents, purposes, and constructions, as if the truth of their several Cases, and their several letters patents passed thereupon, had been specially found in the great office then to be taken, for finding his Majesty's title to the said County, and their letters patents accordingly entered, in haec verba, in the said office, so that they did produce their said several letters patents, or the enrolments thereof, before us the Lord Deputy, and Council, at this Board, before the first day of the then next Easter Term, and that no possession should be taken from any such patentees, or their assigns, or tenants, whose patents should be at this Board allowed to be good, and effectual in Law: And whereas the like Acts of Council were made at this Board, for the several Counties of Slygo, Mayo, and galway, and the County of the town of galway; And whereas several letters patents passed under his Majesty's great seal, of diverse lands, tenements, and hereditaments in the said several Counties, by colour of a Commission under the great Seal, dated the second day of March, in the fourth year of the Reign of his Majesty's Royal Father King james, of blessed memory, were presented unto us at this Board, which being taken into consideration by us, we thought fit for our better Information of the validity of the said letters patents, to call before us some of those who claimed by those letters patents, as namely, our very good Lord the Viscount Dillon of Costillogallen, whom we appointed to attend us with his learned Council therein, which he did accordingly; Whereupon his Majesty's learned Council, and the Council learned of the said Lord Dillon, agreed upon a Case drawn up by them, to be argued by them on both sides before us, which Case followeth in haec verba, King james by Commission under the great Seal, dated the second day of March, in the fourth year of his Reign, did authorise certain Commissioners, to grant the manor of Dale, by letters patents under the great Seal of this Kingdom, to A. and his heirs, and there is no direction given in the said Commission, touching the tenure to be reserved; There are letters patents by colour of the said Commission passed unto A. and his heirs, to hold by Knight's service, that is to say by the twentieth part of etc. as of his Majesty's Castle of Dublyn, the question is, whither the said letters patents be void in the whole, or only to the tenure, upon which case his Majesty's learned Council, and the learned Council on the part of the said Viscount Dillon argued before us, several days, and we (desirous to take such a Resolution in the matter as might be equal and just) held fit to advise therein withal his Majesty's judges, who not agreeing unanimously in opinion, we adjudged it fit, that every of them should argue it, and deliver his judgement, and opinion therein, before us, which they did accordingly. Wherein five of them, viz. the Lord Chief justice of his Majesty's Court of King's Bench, the Lord Chief justice of his Majesty's Court of common pleas, the Lo: Chief Baron of his Majesty's Court of Exchequer, Baron Barry, and justice Rives concurred in opinion clearly, that the letters patents were void in the whole, and two only, viz. justice Mayart, and justice Cressy differed from those five in opinion, holding that the letters patents were only void, as to the tenure; we thereupon taking the same into consideration at this Board, do hereby adjudge, order, and declare, that the said letters patents are wholly void in Law; and consequently that all such letters patents passed under colour of the said Commission, and that mention the parcels granted to be held by Knight's service, as of his Majesty's Castle of Dublyn, or by any tenure other then by Knight's service in Capite generally, are not good, effectual, or valid in Law, but void in the whole; And therefore we do at this Board disallow all such letters patents so granted; as aforesaid, of any lands, tenements, or hereditaments in any of the said Counties of Roscoman, Slygo, Mayo, galway, or the county of the town of galway.  
Given at his Majesty's Castle of Dublyn. 13. july. 1637. 

R. Dillon.  
Ad. Loftus.  
W. Parsons.  
Gerr. Lowther.  
R. Bolton.  
Chr. Wandesford.  
Ph. Mainwaring.  
Cham Coote.  
Geo. Radcliffe.    
THE END.