272 LOW S CASE OF TENURES. 



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 favours of law, tend to the advancement of 

 military virtue and service. 



But now farther, amongst the tenures by knight s service, 

 that of the king in capite is the most high and worthy ; and 

 the reason is double ; partly because it is held of the king s 

 crown and person, and partly because the law createth 

 such a privity between the line of the crown and the inhe 

 ritors 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 has been unworthily termed by the 

 vulgar, not capite, captivity and thraldom ; yet that which 

 they count bondage, the law counteth honour, like to the 

 case of tenants in tail of the king s advancement, which is 

 a great restraint by the statute of 34 H. VIII. but yet by 

 that statute it is imputed for an honour. This favour of law 

 to the tenure by knight s service in capite produceth this 

 effect, that wheresoever there is no express service effectually 

 limited, or wheresoever that, which was once limited, fail- 

 eth, the law evermore supplieth a tenure by knight s ser 

 vice in capite ; if it be a blank once that the law must 

 fill it up, the law ever with her own hand writes, tenure by 

 knight s service in capite. And therefore the resolution 

 44 E. 3. f. 45. was notable by the judges of both benches, that where the 

 king confirmed to his farmers tenants for life, temncT 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 



