away all his purchased landes But of the lands of his inheritaunce he might giue away no more but a reasonable porcion And if the landes were departible amongest the heires males then might the father in his life time geeue euerye childe what porcion hee woulde so it exceded not the porcion that shoulde descend vnto him And in that case whether the gifte were of landes purthased or of inheritaunce it made no matter Howbeit neyther Abbot nor Bishop might iÌ„ any of these cases geue any porcion of their landes away without the kinges assent or his confirmacion because theire baronies bee of the almes of the king or of his progenitours Hitherto haue ye hearde what Glanuill hath saide After this was the Statute of Magna carta made where in the .31 chapter therof it is writen Nullus liber homo det de cetero ampliê° de terra sua vel vendat de cetero quam vt de residuo terre sue possit sufficienter fieri dnÌ„o feodi seruiciuÌ„ ei debituÌ„ quod pertinet ad feoduÌ„ illud Which statute is but a confirmacion of the comon law as it doth appere by that that is written in Glanuil for so one that had helde by knight seruice if he might haue beene suffred to alien the greatest part of his land he would haue aliened the same peraduenture to hold of him but in Socage or by some smal rent than hauing so little a liuelyhod left to himselfe how had he bene then able to haue done the seruice of a knight or a man of warre or what should his lord haue had in ward to haue founde one to haue done that seruice surely little or nothing Wherby the strength of the Realme might haue much decayed therfore it was a reasonable law to restrain him as me semeth Howbeit Bracton in his first booke vnder the title Si ille cui datuÌ„ est rem datam vlterius alteri dare possit disputes this matter after a sorte that is to say whether the tenant may enfeffe an other agaist the lords will or not he there affirmes he may yea that to hold of him by what seruice he will calleth it DamnuÌ„ absque iniuria seing that though the wardship be not so good after alienacion to the chief lord as it was before yet the relief is as good in euery point then if the lord be serued either of the wardship or reliefe he hath all that knightes seruice requireth Howbeit saith he when the tenant is so disposed to sell his land the lorde shal bee preferred to the sale therof before a stranger geuing as muche as an other will It semeth by Bracton that it was verie doubtfull notwithstanding the statut of Magna carta whither the kings tenaÌ„t might alien his whole tenancy or not And therefore was the statute of Quia emptores terr' made where it is prouyded that from thenceforth which is in the .18 yere of kinge E. the first after Bractons tyme it should be lawful for euery fre man to sell his landes or tenementes or any parte therof at his pleasure to holde of the chiefe lorde by the same seruice that the feffour helde Prouided alwaies that by anye suche sales there comes no landes to Mortmaine This statut remedies the mischief that was founde in the wardship but not the other mischiefe that is to saie touching the defence of the realme For when one mans lyuinge is so dismembred neuer a one of them is able to doe the seruice of a man for want of lyuehoâ—e Yea and much more vnabler since this Statute then before For before where he gaue it to hold of himself he reserued somewhat in place of the lande that went from him where as now he can reserue nothing of comen right Howbeit notwithstanding that this statute of Quia emptores terraruÌ„ made it lawfull for all other mens tenauntes Yet was it not lawfull by the said statute for the kings tenants so to doe that is to saye neither to alien the whole nor any parcel therof without the kinges licence And that appereth by Bracton fo 88. Which speakes generally that the kings tenantes in chief cannot dismember his fees wtout his licence And because that before the time of king Edw. the firste they might haue aliened without licence to holde of themselfes as other mens tenauntes might haue done in the like case thinking it more lawful for them so to doe after the making of the said statut of Quia emptores thaÌ„ before it was thought good to prouide some stay for the same by this statut of Prerogatiue And yet by the woordes of the other chapter folowing it appereth that the kings tenant by grand serieantie could neuer haue aliened any lands holden by grand seriantie wtout the kings lyceÌ„ce For that was so high a seruice as Bracton in his first booke in the title de magnis seriaÌ„ciis names it Regale seruicium saith it was first inuented wtin this realme in the time of the Conquest that they coulde not dismember any parte therof without the kinges lycence For he saith in another place in the said booke amongest his writes of particion Quod seriantia diuidi non debet ne cogatur Rex accipere seruiciuÌ„ suuÌ„ per particulas Howbeit since the makinge of this statut of Prerogatiue sundry opinions haue risen in these matters as may appere by the statut made in the firste yere of king E. 3. ca. 12. Which saith in this maner Item pur ceo que plusours gents du Realme soy pleinont deste greues de ceo que terres et tenemÌ„ts que sont tenus en chiefe du roy et aliens sans son conge ount este pris auaunt ceux heures en mains le roy et tenus come forfets le roy ne les teigne my coÌ„e forfets en tiel case mes voet et graunt que desormes de tiels terres et tenementes aliens soit reasonable fyne pris en le chaÌ„cerie per due proces So that by this statute it appereth they toke the landes to be forfeted that were holden of the kinge in chiefe and aliened without his licence And so it appereth by a booke in .14 E. 3. wher Wilby saith that at this day landes holden by graund seriantie and aliened without lycence be forfeted 14. E. 3. in Fitz ti Quare imp p. 54. For the seruice of one mans body cannot be chaÌ„ged into another mans body without the kinges assent Also in the said first yere of king E. 3. the. 13. chap. It is prouided in this wise Et auxi come plusors gents du people soye plenont deste greues per purchase de terres et tenÌ„ts que ont este tenus des auncestors le roy que ore est come des honours et mesmÌ„s tiels tenements on t este prises en le maine le roy auxi si come ils eussent este tenus du roi en chief come de sa
them before hee bee attainted the sale is goode Forfeture 30. 30. H. 6. f. 5 38 E. 3. fo 37. Corone 290. et 285. but for landes it hathe relacion to that daie of the felonic committed be it that the attainder bee by verdite or vtlarie as it appereth .38 E. 3. et 30. H. 6. or be it that he bee attainted without proces of law as in the cases aboue remeÌ„bred where he is killed in the fleing as appereth 3. E. 3. And note that if thattainder and the office found of his landes be both wtin the yere of the felonie first coÌ„mitted that it shal haue no relacion for that yeres profites otherwise it is if it be after the yere as it appereth 3. E. 3. This boke must be vnderstaÌ„de as I take it where the attainder the office be before any daye of paymeÌ„t within that yere The words of this chapiter be further Et si ipsi habeant liberuÌ„ tenÌ„tuÌ„ tunc illud statiÌ„ capietur in manum domini regis et rex habebit omnes exitus eiusdem per vnum annuÌ„ et vnum diem et tenementuÌ„ illud vastabitur et destruetur de domibus boscis et gardinis et aliis quibuscunque ad predictum tenementum spectaÌ„tibus It should appere by Glanuile in the beginning of this chapiter that the common law was as much before the making herof in all cases of feloni sauiÌ„g for theft in which in the king had no yere and daye Howbeit after Glanuiles time the statut of Magna carta was made which sayd in the 22 chapter therof Nos non tenebimê° terras illorum qui conuicti fuerint de felonia nisi per vnum annum et vnum diem et tunc red dantur terre ille dominis feodorum By this it should seme this statute doth remitte the wast because it speaketh nothing of it or ells perauenture you will saye that this word Nisi argues and proues that the kinge before the statut of Magna carta might haue holdeÌ„ it as longe as he would but to the coÌ„trarie of that exposition is Glanuile as it appereth before And also Bracton which wrote somwhat after this tyme For by Bracton in his second boke it appereth that before the making of the sayd statut of Magna carta the king had nothinge els but the wast and to th entent he should remitte the wast the yere and day was afterward geuen to the kinge For these be his words in the title of Vtlarie Si vero terraÌ„ liberam habuerint vtlagati statim capienda est in manum do mini regis et tenenda per vnum annum et vnum diem ad capitales dominos post terminuÌ„ illuÌ„ reuersura si de alio tenuerit quaÌ„ de rege si auteÌ„ de rege tunc erit Eschaeta ipsius regis et hoc veruÌ„ est quod per taleÌ„ terminuÌ„ remanebit in manu do mini regis nisi ipse capitalis dominus vel alius fineÌ„ fecerit protermino regi habendo fed quesit causa quare terra remane bit in manu domini regis videtur quod talis est quia reuera cuÌ„ quis fuerit coÌ„uictus de aliqua felonia in potestate domini regis erit prosternandi edificia extirpandi gardina et arandi prata et quoniaÌ„ huiusmodi vrge bantur in graue daÌ„num dominoruÌ„ pro coÌ„muni vtilitate prouisuÌ„ fuit quod huiusmodi dura et grauia remanerent et quod dominê° rex propter hoc haberet coÌ„moditateÌ„ totius terre illius per vnuÌ„ annuÌ„ et vnuÌ„ dieÌ„ et sic omnia cuÌ„ integritate reuertereÌ„tur in manus capitaliuÌ„ dominoruÌ„ nunc auteÌ„ petitur vtruÌ„ .6 finis pro termino et similiter pro vasto Et noÌ„ video rationeÌ„ quare nisi quod terminus bene poterit esse per se sine vasto eo quod fugitiuus et vtlagatus non soluÌ„ delinquit erga euÌ„ qui sequitur et appel lat sed erga regeÌ„ cuius paceÌ„ infriÌ„git contra fideÌ„ suaÌ„ cui tene tur quia quilibet cuÌ„ faciat sacrameÌ„tuÌ„ iurat salua fide domini regis Thus our autors agre not vpoÌ„ this yere day for Bracton is contrarie to Glanuille that wrote before him Howbeit BrittoÌ„ which was likewise before the makiÌ„g of this statut of Prerogatiua agreeth with Bracton as it appereth in his boke fo 14. adding further that the kinge shal not haue the yere and day of land that is holden only for terme of life or yeres or by freshe disseisin or in fee ferme or in mortgag And so is Bracton also therw t agreing in his secoÌ„d boke but now sins the time this statut of prerogatiua was made which geues the kinge as you may perceiue bothe the yeare day the wast And first he saieth quod rex habebit omnes exitus eiusdeÌ„ per vnuÌ„ annuÌ„ et vnuÌ„ dieÌ„ By this it should appere that the kynge should not haue the issues of the land but by a yere a day but yet it is clere that he shal haue the issues also from the time of the felonie done vntil the time his highnes hath had the yere day wast not the lord allowing that that is to be alowed for the finding of the prisoner for it can not be inteÌ„ded that the lord shoulde haue the meane profits because the laÌ„d shal be deliuered vnto him wtout profit that is to saye wasted destroyed 3. E. 3. in Fitz ti Corone 290. 49. E. 3. fo 1â— And therw t agreeth the boke in 3. 49. E. 3. And there it appereth that if an office be fouÌ„d 20. yeres after the attainder the kinge shal haue the profites from the time of the felonie coÌ„mitted vntill the yeare and daye next after the office founde For though the lord be entitled to haue theschete yet the kinges title for the yeare daye and waste goeth beefore the lordes For the wordes bee Postquam dominus rex habuerit annum diem et vastum tunc reddatur tenÌ„tum illud capitali domino Also by this woorde Reddatur it semes the lord can not enter intoo his escâ—ete after office found but is driuen too sue an ousterle main for the same out of the kinges handes as it appereth 8. 8. E. 2. in Fitz ti Trauers Pl. 48. E. 2. but if a stranger abate before office the lord shal haue a writ of eschete against him and recouer and yet that notwithstanding when an office shal be founde afterwarde the kinge may seise for the yere daye and wast and shal be aunswered of the mesne profytes like as it is when the kinges tenant in chief dyeth his heir of full age an estraÌ„ger abateth the heier maye haue assise of mort dauncestore if he will and recouer against the abator and yet vpon an office found afterward the kinge shall seise for primer season and be answered of all the meane profites and the heir
againste al men but it extendes to suche landes as are holden of these persones exempted by this statut Put case then that anie of these persones pourchace a seignorie since the tyme of the makynge of this statute shall the kynge haue hys prerogatiue in the landes holden of that seignorie or not And it is clere he shal notwithstandynge the aforesayde woordes of exception for theye doe not extende but to suche fees as we are theyrs at the time of the makynge of this statut Then further for asmuche as there bee diuers statutes concernynge wardeshyppe made aswell beefore as since the time of kynge Edwarde the seconde let vs see whether this prerogatiue wyl extende to those statutes or not and it seemethe it dothe for asmuche as this prerogatiue hathe beene euer from the beginninge as I haue sayde before And therefore if the kynges tenaunte beeinge seased of landes holden of a common parson makethe a feffement therof by collusion contrarie is the statute of Marlebridge to defraude the lord of the wardshippe and diethe the king hauing his heire in warde this matter founde by office shall sease vpon a Scire facias if the collusion be auerrable or wtout a Scire facias if the collusioÌ„ be apparaunt hold the same in warde by force of this prerogatiue that appeareth in 9. H. 4. So likewise wher the statute made in 4. H. 7. T. 9. H. 4. f. 5 prouidethe that the heire cesty que vse shall bee in warde Put case that the kynges tenaunte in capite before the statute in Anno. 27. H. 8. had made a ferfement of lands which he holdethe of a common perâ—one to the vse of hymselfe his heires and died before that statute in this case the kinge shoulde haue hadde his prerogatiue in the Landes so beynge put in feoffament to an vse euen as if his tenaunt had died seased thereof T. 12. H. 7. fo 17. as it appearethe 12. H 7. Than last of all let vs learne howe the lordes whose fees the kynge hathe in warde by his prerogatiue shal be demeaned and ordered for the rentes to be dewe for their seignories duringe the wardshippe whether they shall leese them as they do the landes 29. lib. ass in fits ti Petic p. 5. P. 24. E. 3 f. â—â— and the new natura breuium fo 179. And it appeareth in the booke of assises in 29. E. 3. that they had them by peticion at the Kynges hands therwith agreeth thoppinion of Hill ' in the .24 yere of kyng E. 3. Learne the reason of these bokes for it should seme to me the lawe to be otherwise because that al mesne seignories are suspended duringe the time the kyng hathe the tenauncye in warde if it bee not per case for the surplusage of a rent seruice whiche the mesne maye sue for to the kynge by waye of peticion and to saye that the heire shal be charged at his full age withe the sayde rentes it weare noe reason for then bothe his lande shoulde bee in warde and yet he charged to pay rent for the same wherefore it semeth that these bokes are against the law And with me agreeth Bracton in his first boke in the chapiter de custodia where he saieth Et cum tali ratione sint aliorum feoda in manu do mini regis pred' ratione alij capitales domini feod ' illorum ni hil poterint exigere de terris et tenÌ„tis illis nec in seruic ' nomi nat ' nec in auxiliis ad filiam maritandam vel filium primoge nit ' militem facieÌ„duÌ„ vel in sectis quaÌ„diu terre fuerunt in manu domini regis sed precipiet ' vic' qd ' hmÌ„odi distringere non permittat Howebeit Bracton in his said booke in the chapiter De releuijs saieth that the heire at his full age shall pay his reliefe to euerie of his lordes notwithstanding he hathe ben in warde quod nota for in al other cases he neuer paiethe reliefe that is to saye where he hathe bene in ward and hee makethe no other reason for it butte this s. quod hoc est speciale in rege propter suum priuilegium and so is the booke in the .24 M. 39. E. 3. in Fits ti Relief P. 1. Britton f. 163. yeare of kynge Edwarde the thyrde and the .39 yeare of the same kynge howebeit Brittons oppinion is that the heire shall paye noe reliefe to the other lordes after hee hathe beene in the kynges warde and commethe to his full age and I cannot fynde that the heire in anye suche case shoulde or doothe paye anye reliefe to the kynge that is to saye where hee hathe beene in warde therefore learn what experience teacheth vs in these cases The seconde chapiter ITem Rex habebit maritagium hered ' infra etateÌ„ in custodia sua existenÌ„ siue terre hered ' eorundem sint ab antiquo de corona siue de eschaetis quae sunt in manu domini Regis siue habuerit maritagium ratione custod ' terrarum dnÌ„orum eorundem hered ' nullo habito respectu ad prior ' feoffamenti licet de alijs tenuerunt Bracton li. 1. ti de herede sockman in cuius custodia esse debe at BrittoÌ„ f. 163 M. 24. E. 3. f. 24. H. 12. H. 4. in fits ti Gard. P. 81. All that is contayned in this Chapiter was the kynges prerogatiue by the order of the common lawe as it maye appeare in the bokes of Bracton and Britton in the places before noted and in a boke in the 24. yeare of kyng Edward the thyrde where it is sayde that no lorde can be more auncienter than the kynge for all was in hym and came from hym at the begynninge And therefore his highnesse muste haue prerogatiue in the bodye of whosoeuer the infaunte holdeth besides bee it that the landes are holden of the kynges highnes as of the auncientnes of his Corone or of hys newe escheates or come vnto hym as warde by reason of wardshippe or that his highnesse doe pourchace the seignorie of hym that is lorde by posterioritie or pourchaseth a manor holden of one of his honors whiche are of his newe eschetes of whiche maner thauncester of thinfaunt helde by posterioritie in all these cases the kynge shall bee preferred to the wardeshippe of the bodye and mariage beefore anye other lorde of whom the auncester also helde them daye of his death by priority of feffement that is to saye more auncient feoffement howe be it in these cases hys highenesse shall not haue wardeshippe in the landes holden of thother lordes beecause his tenaunte helde not of hym in châ—efe but onelye shall haue preferrement in the body and mariage beefore all other Then since the common lawe and statute dothe geue the kinge this prerogatiue let vs see whether his highnesse maye by grauntinge away his seignorie to an other graunt also with the same his prerogatiue to the grauntee that is to
time the woman may aske her dower in the chauncerie and when she is endowed and loses her dower vpon a recouerie had against her by an eigne title how she shal be recompenced If the husband haue land in diuerse counties wherbie after his death there be awarde seueral writz of Diem clausit extremum in to euerie of those counties she shal not be ēdowed vntil such tyme as all the said writs be returnd again in to the chancerie as it maie apere in .16 E. 3. H. 16. E. 3. in Fitz ti Liuere P. 29 And note that when she is endowed in the chancerie and afterwardes loses by a recouerie vpon an eigne title then she hath none other remedie but to cause the record of the same recouerie to be remoued in to the chauncerie and vpō the first record wherby yt apered she had dower and this other record of the recouerie she shal haue a Scire facias recitīg both the recordes against the tenāt of the ii partes to resese the said ii partes in to the kinges handes and to be newlie endowed of the same but not to recouer anye damages not withstanding damages were recouered against her this apereth 43. in the boke of assises 43. lib. ass in Fitz ti Dovver P. 79. Now to the last braunce of this statute which is that wemen that hold of the kinge in cheefe any inheritāce of what age so euer thei be shal likewise swere not to marie c. By the order of the comon lawe before the making of this statute al women that were wtin age in ward should whē they came of ful age be maried by their lords euerie one of them with their porcions and if they were of full age at the deth of their ancestours yet should they neuertheles be in the lords keping vntill their were maried by the aduise dispositiō of their lordes For as Glāuille in his .7 boke that he wrote in the time of kinge H. 2. sayethe Nulla mulier heres terrae sine dn̄orum disposicione vel assensu maritare potest de iure vel consuetudine regni and therefore saieth he yf a man haue issue one or moe doughters which be his heires aparente marieth ani of them wtout the assent of his lord that be therbye forfets his in heritance by the lawe and custome of the relme so that he shall neuer recouer yt again but onlie through his lordes mercie and that for this cause For when the husband of such a woman shal do his homage for the tenemēts so holden by knightes seruice it is requisite to haue the lords will assēt lest he be compelled to receue homage of his mortall enemie or some other vnable personage neuertheles yf the tenant sue to his lorde for license to marie his daughter the lord is bound to consēt or els to showe cause whie he should not and if he will not the woman may marie wher she listes without his assent And the said Glanuill further saieth that Tenant in dower can not in likewise marie without the assent of him that is her warrant that is to saie the heier And if she doe she shal lose her dower and yet there the husbād shal doe no homage but what then he shall do fealtie and for that cause also she shal haue license And further saieth if she holde of diuerse lords it is sufficiēt for her to haue the assēt of the cheefe lorde Also he saieth that wemen being in ward Si de corporibus suis foris fecerint which wordes as I vnderstand them bee if thei comit fornicacion and that be proued then they that offend shal be disherited so that her porcion then goes to the other sisters that haue not in the like offended And if they all offend then the lord shall haue the inheritance by waye of eschete Howbeit saieth he wher they be ons maried by the lordes assent and after becōe widowes thei shal be no more in ward but yet if thei marie again they must haue his assēt for the reson before made But then after thei haue bene once maried thei shall not forfet their inheritance for their incōtinencie so that it aperes plainly here by Glanuill that this hole statute of prerog should be but a confirmacion of the comō law And that the law was so as Glanuill toke yt it may partly apere by the said statute of Magna carta cap. 7. For the wordes are not onlie quod vidua securitatem faciet quod se non maritabit sine assensu nostro si de nobis tenuerit Bracton libro 1 de custodia sockmanorum but are also vel sine assensu domini sui si de alio tenuerit And Bracton agrees also with Glanuille Howbeit he saieth where a woman in the life of her auncestors maries without the assēt of the lord or wher the widow maries without the asseēt of her warrant that the inheritance or the dower shall not now be forfeted although in olde time yet was And farther saieth that the heier in socage being a woman shal be maried by the lord like as she should be if she weare heier of lands holden by knights seruise And farther saieth that the heier male shal be maried by the lord more thē once that is to saie as oftē as he shall come vnmaried in the time that he is vnder the age of xxi yeres But now by the statut of w. 2. cap. 22. the lords are abreged of their power in these mariages of the heires females for yf thei now be within the age of xiiii yeres at the death of their auncestor and the lord doth not marie them before thei come to xvi yeres then shall thei recouer their heritage without ani thinge geuen either for the ward or for the mariage And if their maliciously or thorough euel counsell refuse to marie where their lords doe apoint them without disparagement then shall their lord hold their land vntill thei come to the age of xxi yeres longer vntill they haue takē the value of the mariage Out of this statute if it be wel cōsidered a man may gather that the comon lawe was no lesse then is here recited And this statute was made about the .3 yere of king E. the 1. a litl◠before that Britton began to writ his boke for Britton f. 169. saies that the mariages should be offred to the heires females before they accōplishe the age of xiiii yeares and yf not the lorde shall lose his right in the saide mariages I suppose that the printer mistoke the nomber of the yeres and should haue printed sixteene wher it is but forteene and therfore it is good too see other copiees for this matter And Britton also sayeth that if he or she haue beene once marryed by the lorde or in the lyefe of they re father or once agreed with their lord for their mariage they shall neuer again be maried by him but maye marie
them selues where thei list so that they hold nothing of the king And fo 168. he saieth that the king shall haue the mariage of all the heires females where thei hold of the king of what age so euer they be as ofteÌ„ as thei shal be to marie so that they can not marrie wtout the kinges licence Thus is the last clause of this chapter expressely proued by Britton that the comon law did stil remain as it was for the mariage of the heires females in the kinges case and not altered or abreged by the said estatute of west primer therfore was the statut in the 39. yere of king H. 6. the last chapter made in this wise Item de auisameÌ„to assensu et aucthoritate pred ordinatuÌ„ est stabilituÌ„ qd mulieres existentes etatis 14. annoruÌ„ tempore mortis antecessoruÌ„ suoruÌ„ absque questione seu difficultate habeant liberacioneÌ„ terraruÌ„ et tenÌ„torum suorum sibi descensorum quia sic lex istius terrae vult quod tunc ipsi haberent How beit this statute prouides not wher thei be within the age of .14 yeres at the deth of their auncester ideo quere For as our late bokes go sins Brittons time the king hath lost his prerogatife vpon what occasion I know not but I woulde gladlie lerne 35. H. 6. 46. for Fortescue saies 35. H. 6. that when the heir female sues her liuerie she takes no oth that she shall not marie as the kinges widow doeth and therfore saieth he it should seme she should make no fyne yf she marie without liceÌ„se Howbeit Littelton saies that if the heir female be of the age of 15. yeres at the deth of her aÌ„cestor and marie her self without license that she shall make a fine for it amouÌ„teth to an alienacioÌ„ For after issue had the husband is become the kinges tenaÌ„t and he solie shall doe homage in his owne name And yet afterwardes in the 15. yere of E. 4. the same Littelton saies that the latter clause of the same statute is void for the doughter which is inward mariynge her self to an other wtout licence shal not make a fine to the king Thus by the argumeÌ„t of the said boke of .35 H. 6. it aperes that thei take the king to be bound by the said statut of w 1. and make him no better then a comon person wherat I haue no litle meruel sins he is not named in the said statute For in the said boke it is agreed by the court that if the kâ—ng after the age of 14. yeares and before 16. do marie the heir female she shal haue liuerie foorthwith vpoÌ„ the mariage H. 35. H. 6. in Fitz ti Gard. P. 71. althoughe she then bee not of the age of xvi yeares because that she was of full age before as it is there said that is to saie as sone as she was 14. And that ii yeres ouer is but only geuen for the mariage which when it is once had and the .14 yeres past the kinge or lord lese theire interest And so it was granted that if she were maried before the age of .14 and after her husbaÌ„d dies before the said age when she comes to the said age of .14 she shal haue liuery And there it was also said that these ii yeres were geuen to the lord to tender her mariage in for the tender before was void because it was wtin the age of 14. yeres But note that if the heire female being vnder the age of 14. yeres falleth in to the kinges handes as ward because of certen lands that her father held of the king in cheefe by reson therof the king hath also the lands inward which are holden of other in socage in this case when she comes to the age of 14. yeres and is vnmaried she shall not haue liuery of these landes holden in socage and yet by reson of them the king hath not the mariage of her But what then she cannot sue her liuerie by parcels and that is the cause that the hole land shal tary in the kings hands til a hole liuerie mai be sued of them all and this aperes in the newe Natura breuium fo 256. And last of all note that this latter clause extends not to women that clayme by purchase but onlie by disceÌ„t And therfore it aperes .15 E. 3. 15. E. 3. iÌ„ Fitz ti Liuere P. 31. that where it was found vpoÌ„ the Diem clausit that the wife was iointly infeffed with her husbaÌ„d she had an ouster le main without findinge any suertie of her mariage And note also that by the comon law yf one will mary the kings nief 33. li. ass in Fitz ti Trauers P. 36. that is to saie his bondwomaÌ„ wtout license he shal paie a fine vnto the king as aperes in 33. E. 3. li. Assisarum The fifth chapiter ET si vna hereditas quae de Rege tenetur in capite desceÌ„dat pluribus participibus tunc omnes illi heredes facient homagium Regi et illa hereditas quae de Rege tenetur participabitur inter heredes illos ita quod quil'z eorum extunc partem suam tenebit de Rege This statute is somwhat declared by a statute longe time made before that is to saye in the 14. yere of king H. the .3 called statutum Hibernie de coheredibus which for the better declaracion of this prerogatiue I haue also here noted HeÌ„ricus dei gratia rex Anglie dominê° Hiberniae et dux Aquitaniae et NormannÌ„ comes Andigauie dilecto et fideli suo Gerardo filio Maurisci Iusticiar ' Hibernie saluteÌ„ Cum milites de partibus Hiberniae nuper ad nos accedentes nobis ostenderunt quod cum hereditas deuoluta sit inter sorores in terra nostra Hibernie Iustic ' nostri in eisdem partibus itinerant ' incerti sunt vtrum post natae sorores tenere debeant de primogenita sorore et ei facere homagiuÌ„ an non Et quia predicti milites petieruÌ„t certiorari qualiter iÌ„ regno nostro ' Anglie iÌ„ casu consimili hactenus vsitatum fuit sic ad instantiam eorundeÌ„ vobis significamus quod in regno nostro Anglie talis est lex et consuetudo in hoc casu quod si quis tenuerit de nobis in capite et habuerit filias heredes ipso patre defuncto aÌ„tecessores nostri habueruÌ„t et nos semper habuimus et cepimus homagium de omnibus huiusmodi filiabus et singule earum tenerent de nobis in capite in hoc casu Et si infra etatem fuerint nos habebimus custodiam earum et maritagium singularum Si autem de alio domino tenuerint et ipsae sorores infra etatem fuerint earum dominus habeat custodiam et maritagium singularum et primogenita tamen faciet homagium domino pro se et omnibus sororibus suis et alie sorores cum ad etatem peruenerint
and strayfe and such like againste the kyng And allso it appearethe in the boke in 8. H. 5. that the kyng may surcesse his time as wher it is founde that tenant for terme of life hath forfaited hys estate to the king whereby the king ought to sease yf hys grace sease not but tarie till he be dead so that hee in the reuercion entreth he can not then sease so it may appere vnto you that though this be an auncien text quod nullum tempus occurrit regi yet in cases it dothe where this texte is onely apointed by this statut to serue wher the bishop taketh the benefice by laps yet by an equitie it is taken in some cases to extende to a plenartie that is to saye where a strauÌ„ger hath presented his clerk is in by six moneths As take the case to be where the king hath aduowson in ward a straunger vsurpes and his clerke is in by six monethes before the king bringe his Quare impedit yet shall this plenartie bee noe plea against his highnes but that he shal recouer and the reason of it is beecause els the kynge shoulde be witheout remedye For writ of right he cannot haue hauing but an estate in the thinge as gardeyn Wherefore in thys case nullum occurrit ei tempus for els it should appere that a straunger mighte holde a thinge merelye by wronge againste him withoute anye good grounde or beeginnynge that can bee intended of it whiche case is agreed .18 E. 3. et 43. P. 18. E. 3. fo 15. P 43. E. 3. fo 14. E. 3. But yet in this case the kynge maye not put oute thincumbent whiche is admitted instituted and inducted in the benefice without sute that is to saye Quare impedit beecause it is so prouided by the statute of .25 E 3. capitule .3 .3 R. 2. cap 1. Like lawe is it yf the kynges tenaunt be seased of a manner holden in chiefe to the whiche aduowson is appendaunt and alienethe the manner wythe the aduowson wytheout lycence after the churche beecommes voyde and a straunger vsurpes and so twentie vsurpacions one after an other and afterward these alienacions without lycence are founde by office and the churche becomes voyde the kynge shal present notwithstanding those vsurpacions and if the churche bee full H. 4. E. 3. in Fits ti quare impedit 33. hys highnesse maye haue a Quare impedit against thincumbent Causa qua supra And thys appeares in .4 Edwarde the thirde But yf the kynge bee seased of an aduowson in his demeane as of fee it seemes that plenartie shal bee a good plea againste hym for there his highnesse hathe remedye prouided hym that is to saye 18. E. 3. f. 15. 43. E. 3. 14. bye writ of ryghte and so is thoppinion of Sharde wylby 18. Edwarde the thirde Quere for in the bookes of .43 Edward the thirde the defendaunt durst not abide by the plea but trauersed the title that was made for the kyng And learne whether plenartie be a good plea against the quene whiche holdethe for terme of lyfe the reuercion to the kyng P. 18. E. 3. f. 13. for this case is also left at large in A. 18. Edward the thirde Now to the statut where the woordes be that no laps shal holde againste the kinge if he present within syx monethes These woordes yf he present within six monethes be voide for thoughe hee presente not yet title of laps shall not take place agaynste hym by this statute P. 18. E. 3. 21 and therefore the booke is .18 Edwarde the thirde that where the laps was incurred in the life of the kynges tenaunt and beefore the ordinaâ—â—â— presented the tenaunt dyed and yt was adiudged that the kynge coulde not presente wythein the syx monethes beecause his tenaunt was then aliue What say you then to this case yf the laps dyd incurre after the deathe of the kinges tenaunt and beefore office found the kynge not withstandinge shal haue the presentment after office found as it is greed 14. Henrye the seuenthe P. 14. H 7. 22 and yet ther the king might haue presented after the deathe of hys tenaunt before offyce founde and did not And in the saide booke of .14 H. 7. it is left for a question sins the ordynary caÌ„ not present by laps against the kinge howe in what manner the cure shall bee serued in the meane time that is to saye beetwene the laps and the kinges presentment somme thinke in that case that the ordinarye shoulde presente one for the meane time whiche shoulde bee remouable alwayes at the kynges pleasure and some other thinke he shoulde sequester the fruites to fynd the cure Ideo quere And Bracton li. 3. in the writte of Darrein presentment saiethe that this title of presentment by laps was geeuen to thordinarie by a constitution made in the councell of Lateranense The nynthe chapiter REx habebit custodiam terrarum fatuorum naturaliuÌ„ capiendo exitus eorundem sine vasto distruccione inueniet eis necessaria sua de cuiuscunque feodo terre ille fuerint post mortem eorum reddat eam rectis heredibus ita quod nullatenus per eosdem fatuos alieneÌ„tur nec quod eorum heredes exheredentur This prerogatiue beganne in the time of kynge E. 1. as yt shoulde seeme to mee beecause I fynde none that wrote of it before Britton for Bracton speakes but a lytle of Ideotts iâ— his fifthe boke in the title of exceptions againste the plaintife where he sayethe it is a good exeption to the parsone of hym that complainethe or bringeth anye accion to saye hee is a foole naturall quia tales non multum distaÌ„t a brutis qui ratione carent nec valere debet quod cum talibus agitur sed tamen discussio huiusmodi exceptionis discrecioni iudicis re linquitur and sayethe like lawe is it of hym that coulde neuer heere nor speake from the time of his natiuitie quod inuenienda sunt eis necessaria quoad vixerint per officium iudicis pro qualitate persone hereditatis quantitate si heres esse debeat si semel authoritate curatoris adquisierit si fuerit inde eiectus recuperabit per assisam sicut minor By this it appears that the kyng had no prerogatiue but the iudge Howbeit Britton f. 167 saiethe that the kinge oughte to haue his prerogatiue herein for these be his words Et pur ceo que ascun foites auient que ascun heire est sotte naste ê‘ quoy il nest my able a heritage demauÌ„der et garder volumê° qÌ„ tiels heires de qui que ils ne vnques teigoÌ„nt males females demurgent en nostre garde ouesque toutes lour heritages sauant a chescuÌ„ seignour touts auters seruices que a luy appendaunt de terre tenus de luy icy remainount en nostre gard tant come ils duront en lour sotie ceo
any suche accion against the kinge For Bracton which wrote in king H. 3. time or nere thereupon saith in his .iii. booke vnder the title Contra queÌ„ coÌ„petit assisa in this wise Inter cetera videndum est quis sit ille qui deiecit Princeps ex poteÌ„tia vel aliquis nomine suo vel iudex qui male iudicauerit an priuata persona si princeps vel rex vel alius qui superiorem non habuerit nisi deum contra ipsuÌ„ non habebitur remedium per assisam imo tantum erit locus supplicationi vt factum suum corriget et emendet quod si non fecerit sufficiat ei pro pena quod deum expectet vltorem qui dicit mihi vindictam et ego retribuam nisi sit qui dicat quod vniuersitas regni et Barronagium suum facere possit et debeat in Curia ipsius regis sed si alius ex facto et disseisina principis statim vel ex post facto in seisinam institerit quamuis talis incidat in assisam et in penam vel tantum ad restitutionem secundum quod seisina ad ipsuÌ„ peruenerit statim vel ex post facto sine principe tamen conueniri non poterit per assisam quia licet quodamodo disseisinam fecerit tamen non per se sed cum alio s. cum principe et ita quod sine eo respoÌ„dere non potuit et ita non procedit assisa Indirecte tamen et quasi ex incidenti et sine breui comprehendi poterit persona principis ad hoc quod factum suum emendet vel in ê‘sonam suam reduÌ„dabit iniuria manifeste vt ecce Esto quod impetretur assisa tantum super eum ad quem res translata est sine principe et qui tenetur ad restitutionem et ad penam vel ad minus ad restitutionem et ipse respondeat quôd sine principe qui fecit iniuriam per se vel per suos respondere non debeat quia ipse princeps per se fecit iniuriam vel ipsi duo insimul extunc erit factum et iniuria in manu domini regis qui dici debet in facto quasi warrantus et quod tunc poterit si warrantus voluerit factum suum emendare quasi a lege compulsus et quam in persona sua cum sit ei submissus debet firmiter obseruare So that by Bracton it appeareth that no accion lyeth against the kinge but the partye greeued is dryuen to sue to the king by peticion But the reason why that aduowsons shoulde passe in the kings case by the order of the common lawe thoughe it were not expressed in the graunt was this I suppose because that landes or tenementes were not then compted as thinges that touched the roiall estate or that made the kynges crowne lyke as Liberties or fraunchises did For the one a comon persone might haue as well as the kinge but the other none might haue but the king or suche as were able to shewe his grant therof and therefore saith Bracton in his first booke vnder the title que res dari possint that for landes currit tempus contra regem sicut contra quamlibet priuatam personam Which is as much to say that if the king had right to any such landes or tenementes and hadde surcessed his time so longe that it exceeded the time of limitation in a write of right his highnes hadde lost then his right for euer And herewith agreeth Briton fo 29. But that is saith Britton of landes parcell of the kinges eschetes or pourchased landes and not of the auncient demeasnes of his crowne for of those nullum currit ei tempus if hee haue anye righte to demaunde them So that by Britton this reason will not serue for landes parcel of the crowne Ideo quere veraÌ„ rationem Howbeit since this statute made what landes soeuer they be those thinges that are comprised in this statut passe not without making expresse mencion therof Hetherto we haue spoken of the reason why at the common lawe aduowsons shoulde passe by graunt of the manour without being named now let vs see how since the makinge of this statute it shal lykewise passe by graunt of the manour without being expressely named and how not And if the kinge render vp to him that was in warde at ful age his landes or to a bishopp his temporalties although he make no mencion of knights fees or auousons yet all passe therwith for like as the kinges seisine in suche case is by these woordes omnia terra et tenementa without speakinge of fees or auowsons euen so being sued out of his handes by these woordes omnia terre et tenementa Liuerie p. 7. T 16 E. 3. p. 30. fees and auâ—wsoÌ„z do passe without making any mencion thereof And this appeareth .5 E. 3. .16 of the same king Where after the death of an ydeot the king rendred againe the lands to the heire not making meÌ„tion of fees or auousons yet he had them And likewise 41. et 44. E. 3. the kinge graunted the temporalties to one that was elect bishop before he was coÌ„secrat H. 41. E. 3. f 44. E. 3. f. 22. aiudged that fees aduousons passed wtout making any meÌ„cion therof yet at the time of the graunt he was not bishop for he lacked consecracion And the reson in all these cases is for that the king was but seised in another bodies righte and by his liuerie he geueth nothinge vnto them but only restoreth theÌ„ to their right they had before Like law should it appere to be by Finchden .29 E. 3. H. 29. E. 3. in Fitz. ti Quare impedit p. 190. If auousoÌ„ of a church be appeÌ„daÌ„t to a Priorie which Priorie is seised into the kings haÌ„ds by resoÌ„ that an alieÌ„ is patron of it afterward the king dimiseth the saide Priorie cum pertinenÌ„ not makinge mention of thauouson vnto the saide Prior yelding a rent to haue to hold the same during the warre And his reason is this for that the right freehold in this case remaineth still in the Priour notwithstandinge any such seisin the kinge is but to haue an annuel profit therof no right but if anye bee to sue dower or liuerie with a particion out of the kinges haÌ„des they by that cannot haue thauouson if mencion be not ther of made no more than they can that claim by Graunt and yet the king rendreth them the thing in respect of a right be fore as he doth in the other cases But what then they claim not the whole lande that is in the kinges hands but only parcell therof then thauouson euermore abydeth with that that remaines if expresse mencion be not made therof and so not like the cases before where the king makes liuerie of the whole And this case appeareth also in the said booke of 5. E. 3. And note
driuen to sue liuerie Further then let vs see in what cases the kinge shall haue annum diem et vastum and in what not The kinge shall not haue annum diem et vastum of clerks coÌ„uict after verdit because hee forfetes no land Like lawe is it of lands in Gauelkinde where the father is hanged but otherwise it is if he be outlawed or abiured for felonie for there the kinge shal haue the yeare daie wast and this appereth 3. 3. E. 3. in Fitz ti corone P. 332. et Prescription P. 50. E. 3. et 8. E. 2. If the husband be atteinted of felonie the kinge shall haue the yeare daye and wast of the laÌ„ds of the wife and yet in the case the lordes shall not haue theyr eschetes But what then the husbaÌ„d might haue done wast and the wife had had no remedie for the same and by the same reason the kinge maye doe as much and this appeareth 3. 3. E. 3. in Fitz ti corone P. 327. E. 3. And also in Bracton in his second boke And also it shoulde there appeare that the wiefe is driuen to sue anouster le main after the death of her husbande If one be arested for felonie brekes the arest so that in the pursuyt of him he is killed because hee woulde not otherwise be taken 3. E. 3. in Fitz ti Corone P. 312. et 290 et 308. the king in this case shal haue the yere day and wast as it appereth 3. E. 3. If a man coÌ„mit felonie and hathe his charter of pardon yet the king shal haue the yeare day wast and the lordes theyr eschetes this appereth 3. E. 3. for the pardoÌ„ doth not restore him but to the lawe For though the kinge would pardon him with words of restitucion yet his grace could not therby restore him to the laÌ„ds holdeÌ„ of other And note that the king shal haue the yere 3. E. 3. in Fitz ti Corone P. 310. day wast of laÌ„ds in ancieÌ„t demesne if it so be that the tenaÌ„t myght haue sold the said lands against the will of the lord as it appereth 3. E. 3. and that notwtstanding that the sayd lands were alwayes vsed to be surrendred by the rodde to passe by surreÌ„der The words of the statute be further Exceptis hominibus quoruÌ„daÌ„ priuilegiatoruÌ„ indâ— ê‘regeÌ„ 46. E. 3. f. 14. 1. H. 6 fo 12. M. 8. H. 4. f. 1 Corone 31. That is as much to say except such as haue Bona et cattalla felonuÌ„ by the kynges graunte for a man can not prescribe to haue Bona et catalla felonuÌ„ as appereth 46. E. 3. 1. H. 7. 8. H. 4. nor none may haue this prerogatiue of yere day wast but only the kinge although hee would claime it by charter froÌ„ the kinge or otherwise as it appereth 3. E. 3. But when the king is seised of it he may coÌ„mit it ouer as appereth by Bracton in his sayd 2. boke But if the land wherof the kinge should haue the yere day and wast be vnder the yerely value of iii s .iiii. d it is vsed to bee remitted for the smallnesse and simplenesse of the thinge as appereth 3. E. 3. 3. E. 3. in Fitz ti Corone P. 327. for it shoulde cost more the suing of it out of the kinges handes than the thing is worth And note the custoÌ„e of Gloc ' comprised in this statut wherby it should appere that notwithstanding any such custome yet the king should haue annuÌ„ et dieÌ„ but not so of laÌ„ds in Gauelkinde as I haue sayd before ¶ Proces to bee sued after the deathe of the kinges tenaunt in chiefe By a statute made in the 33. yere of the late kinge of most famous memorie H. 8. the 22. chapter it is ordeined and prouided amoÌ„ge other things that no person or persons hauing lands or tenemeÌ„ts aboue the yerely value of fiue poundes shal haue or sue any liuerie before inquisitioÌ„ or office fouÌ„d before theschetour or other commissioner or commissioners by vertue of the kinges writ or commission too bee directed out of the kinges chauÌ„cerie or other courtes hauing authoritie to mak suche writes or commissions for suinge of liueries which writs or commissions shal not passe out of the chancerie nor any other courts but by a warrant or bill too bee assigned and subscribed with the handes and names of the master of the kinges wardes and liueries surueiour of his liueries or the attourne and resceiuor of the court of the wardes and liueries or three twoo or one of them to bee directed deliuered to the chanceller of England or to any other chanceler or officer hauiÌ„g power to awarde such writes And if the lands or tenements wherof any inquisition is to be had by vertue of any such writ or commission excede the yerely value of fiue poundes that then such as sue for such writes and commissions shal pay for the seale and writing therof such fees as hath ben accustomed And if the sayd laÌ„ds tenemeÌ„ts wherof any such inquisicions and offices ar to be found by vertue of any such writ or commission excede not the sayde yerely value of v pounde theÌ„ such as shal sue for such writs or commissions shall paye for the seale of euery of them vi d and for the writinge vi d and not aboue This statut doth not set fourth the name of the writ or coÌ„missioÌ„ that shal bee sued howbeit these words that follow that is to sayr for suinge of liueries do somwhat open the minde of the makers of this statute and declare that their meaninge was of the diem clausit and such other writs or coÌ„missions as serue for that purpose and not of euery writ or coÌ„missioÌ„ for so might an office be found by a wroÌ„g writ or coÌ„missioÌ„ which should want mater or be other wise insufficient to make liueries But learne and enquire if after a good writ or coÌ„missioÌ„ sued fourth the office that is found is not sufficient whether the partie shal haue his liueri or not without suing a melius inquirenduÌ„ or a new office because that some parauenture wil say that the words of the statut be performed that is to wite an office or inquisition is found But to that it may be answered and sayd that that it is no office when it is insufficient at least wise toward the partie that should sue liuerie therupon although it be a good office toward the kinge if any thing therin conteined be for his benefit And learne also if the kinges tenant dye seised of landes in diuerse counties whether by force of this statut he shal cause an iÌ„quisitioÌ„ or office to be fouÌ„d in eueri couÌ„tie where the lands lye for so is it vsed to be done vpoÌ„ al general liueries he that sueth his general liuerie otherwise missueth the same and is an intruder vpon the kiÌ„gs possessioÌ„ howbeit peraueÌ„ture you wil say that
¶ An exposicion of the kinges prerogatiue collected out of the great abridgement of Iustice Fitzherbert and other olde writers of the lawes of Englande by the right woorshipfull sir William Staunford Knight lately one of the Iustices of the Queenes maiesties court of comon pleas Whereunto is annexed the Proces to the same Prerogatiue appertaining 1567. To the right honorable sir Nicholas Bacon knight lord keeper of the great seale of Englande Richard Tottel wisheth health and long lyfe with encrease of honour NOt long sythens right honorable and my especiall good Lord there was deliuered to mee A collection of the kinges prerogatiue whiche Maister Staunforde had gathered and dedicated vnto your honour which woorke bycause it is thought well of by the Sages of the lawe and well worthy to be printed I am therefore the bolder to put it in print and publishe the same And although the saide Maister Staunforde verie shortlye after that hee hadd dedicated the same booke vnto your Lordship were for his wisedome grauitie learning integritie syncere dealinge aduaunced to be a Iudge in the chiefe Court of this Realme for common plees and for his good seruice therein was by iust desert made knight and albeit that your Lordship also sythens that tyme haue achieued the place title and degree of high honour by the iudgemeÌ„t calling of the Queenes most excellent maiesty Yet I haue printed the Epistle dedicatorie of the said woork in the same termes that the Authour thereof vsed and with the same stile that your honour and he both then had when he dedicated the said woorke vnto your Lordship as a Monument and token of the mutuall long continued amitie betwene you moste humbly praieng your Lordship to accept in good parte accordinge to your accustomed goodnes this my boldnes with your honour and to pardon the same This 20. day of Nouember Your honours most bounden Richard Tottell ¶ Guilielmus Staunfordus Nicholao Bacono Regie Maiestati a Tutelarum procuratione S. D. P. QVanquam Anglicanae leges amice singularis haud minorem merentur laudem quaÌ„ Iudex Fortescueus libro de earum laudibus conscripto eis tribuere videtur tamen quoniam earum cognitio tam procul nobis dissita sit profectio ad eam tam supra modum longa ac operosa tuÌ„ viae et semitae tam asperae taÌ„ salabrosae tam inamaenae sint vt ad sui aditum paucissimos inuitet quaÌ„ plurimos ab sterreat vel potius auertat Optarem in tanta iurisperitorum turba quam Anglia nunc habet aliquid excogitari posse leuandis legum Studiosis prolongo isto ac molesto itinere Vt propiore ac commodiore via ducti valerent et proficisceÌ„do absoluto itinere alias degustare literas quibus non solum legalem scientiam multum illustrarent sed et munia eis a Regia Maiestate mandata tum pulchriûs tum honorificentiús administrarent Id quod meo iudicio coÌ„modissimê fieri possit si tituli in magna quaÌ„ vocant Fitzherberti Epitome vel a Iudicibus nostris vel ab aliis legum peritis sedulo forent euoluti atque elaborati hoc est omni titulo in classes ac ordines distributo singulis eorum actis ac causis certae legum regulae ac Maximae presiderent Exempli gratia In Breuis tituluÌ„ cadere possunt hec videlicet Forma vitiosa Nomendatura seu ê‘sonae seu vici EadeÌ„ res bis petita Obitus vel actoris vel rei Nominis alterutrius partis peÌ„dente lite mutatio ceteraque huiusmodi quae nunc nimis longo titulo spersa tam tumultuarie reperiuntur vt multo maiorem tum eruditionem tum sudores tum vigilias exigat eoruÌ„ distributio quaÌ„ rectê distributa ediscere Et tamen non possum committere quin tantae epitomes scriptorem vel amplissimis laudibus veham qui súma sua doctrina exactissimo iudicio immensis ac pene dixerim exanclatis laboribus tam numerosam voluminum multitudinem quibus vel legendis vix vnius hominis aetas quantumlibet viuacis sufficeret in vnuÌ„ duÌ„taxat volumen atque adeo epitomen contraxit vt nunc nostratibus iurisperitis modo volentibus minima opera componere liceat quippiam tam facile tam vtile tam frugiferuÌ„ vnde studiosi dimidiato tempore quo antehac legibus obdormire sint visi cum maturioreÌ„ tum certiorem noticiam assequerentur Quo nomine rei mihi tam vehementer expetitae typum quendam pro posui ac quasi primas inde lineas duxi Recipiens ad me huiusmodi pÌ„dictorum titulos qui Regiam prerogatiuam spectant non quod sum aliqua ex parte dignus rem tam eximiam tamque sublimem tractare nec quod eruditione id prestare valeam Siquidem de meo nihilo plus hic est quaÌ„ collectio ac dispositio tantum earum rerum quae eisdem titulis includuntur Sed magis quod istud meum commentitium qualecunque sit tibi semper destinaueram id quod in nullum alium preter hunc titulum coÌ„modè experiri potui tum quod ad magistra tum tuum Regij procuratoris tutelarum maxime partinere videbatur tum quod coÌ„pertum habeo te iurisprudentiae incuÌ„bentem huÌ„c quem proposui morem hactenus obtinuisse quod fecit vt reliquos tuos contemporaneos eruditione multis stadijs precurras tum denique quod tuum iudicium super hisce rebus in quibus assiduè versaris ac exercitaris requiro Certus me hic rem habere cum homine tam amico vt si quid lectione dignum inuenerit id pergratè sit accepturus sin minus certè aequi bonique consulturus reliquum quod habet vitij emendaturus aut saltem ad id coniuere velle coÌ„fido Proinde istud quicquid est tibi nuncupo lege ac pro tua voluntate fruere Vale. To the right woorshipfull and his singuler frinde Nicholas Bacon the kinges Attourney of his court of wardes and Liuereys William Staunford wisheth helth long lyfe and prosperous successe ALbeit the lawes of Englande right singuler frinde are worthye no lesse honour praise and commendacion then Iustice Fortescue in his booke written of the praises thereof dooth attribute and geue vnto them yet forasmuch as the knowledge of the said lawes is placed so farre of the iourney thereunto so exceading long and painefull the waies and pathes so rugged and vnpleasant I would wish that amonges such plenty of learned men as be at this day some thing were deuised to help the studeÌ„ts of their loÌ„g iorney that they being led a more nere plesant way might both as they went and after they came to theire iorneis end gather some other knowledge not onely therewith to garnish theire owne science but also the better to serue in such honorable rome as they be called to serue the kinge and soueraigne lord in which thing might well come to passe after my poore mynde if such
firste chapter Also Britton an other old wryter which wrote hys booke in king Edwarde the first name sayeth des heirs nequedent si ils y eyent ascuns qui auncestre morust seisie de ascun terre tenu de nous en chief des aunciens demeanes de nostre corone volons auer les gardes de touts les terres dōt appent que deiuent descend a ceux heirs come lour heritage ouesque touts les blees en teles terres troues maintefoits de qui fees que les terres sont Britton here not only agreeth with the other but also geueth the king the corne growing vpon the groundes which the kinges tenant holdeth at the tyme of his death A. 21. H. 3. in Fitz. ti Prerogat ' P. 26. P. 25. Also in the great Abridgement of Fitzherbert you shal find in the time of king Henry the thirde written in this manner Nota quod lex angliae et consuetudo eiusdē est quod a quibuscunque aliquis feoffatus fuerit dum tamen a domino Rege aliquo tempore fcoffatus fuerit per tenementum qd ' tenetur per seruic̄ militare quod dn̄s rex habebit custod ' omniū terrar ' et tenemētorū tā de feoffamēto aliorū quā de feoffamento proprio Which text if a man will any thing wrest he may make the kinges prerogatiue more lyberall then is made or declared by this statute or any other the writters before remembred for it extendes to any landes holden of the king by knightes seruice whether they be holden of the king in capite or not but forasmuche as the saide other writers haue written so plainlye in this matter we will stand to them and extende the prerogatiue no further howbeit as I saide all those writters being so longe before the making of this statute doe plainly argue proue that this statute dothe but confirme and declare that that was the commen law before M 15. E 4.12 vnles we woulde doubt of the time of the making thereof as Littleton doth in 15. E. 4. but without doubt it was made in king Edward the secondes time and that plainlye appeareth by the woordes contayned in the third chapter of this prerogatiue which be these Et illa voluntas tempore Regis H. patris Regis E. estimari consueuit c. Which woordes were not written in kinge Edward the first daies for then the woords had bene patris nostri so that as I thinke it is not to bee doubted but that it was written in the time aboue limitted and expressed Then go wee to thexposicion of this first chapiter of prerogatiue The woords be dominus rex habebit custodiam omnium terrarum eorum qui de ipso tenent in capite per seruicium militare These woordes go generally to all the kings tenauntes that is to saye aswell to his tenantes for terme of lyfe as to his tenauntes of estate of enheritaunce if it so be that he that is in the reuercion haue the saide reuercion by discent and be heir vnto the said tenant for terme of life not forcing whether he haue the reuercion by discent from the said tenaunt for terme of life or else from any other ancestour as take the case to be this a man holdeth no landes of the kinge but onely as tenaunt by the curtesie and those landes are holden in chiefe by knightes seruice the saide tenaunt by the curtesie is seased in his demesne as of fee of landes holden of other lordes and dieth the landes holden of other discend vnto him in the reuertion whiche is indede nexte heire vnto the said tenant by the curtesie in this case the king shall not onely haue the wardship of the landes that were holden by the curtesie if the saide heire be wythin age but also the landes holden of other by vertue of thys prerogatiue And if the saide heire were of full age at the tyme of the deathe of the saide tenaunt by the curtesie the king shall haue primer season both of the one lande and of the other as it appeareth in the newe Natura breuiū fo 298. Like lawe is it if a woman be indowed of lands holden in capite and is seased in fee simple of landes holden of other and dieth seased and they discende vnto the heire whiche is in the reuercion in this case the kinge shal haue bothe these landes by vertue of this prerogatiue like as hee shall haue in the other case before 26. li. ass p. 57 and that maye you see in 26. li. ass for in bothe these cases they bee the kinges tenauntes and hold of him by knightes seruice in capite for tenaunt en dower in the kinges cas holdeth not of the heire but onelye of the kinge as it shal appeare more fully hereafter But if he in the reuercion bee not heire of the landes holden of other in the cases aboue remēbred otherwise it is But what if he in the reuercion haue the same reuercion by purchace and not by discent whether shall the king then haue his prerogatiue or not and as to that it shoulde seeme by the newe Natura breuium fo 259. that the kinge shall haue his prerogatiue in that case also for there the remainder was to the heire and to his wife and to the heires of theire two bodyes lawfully begotten and the husbande in the remainder dyd sue liuere howbeit against the law as me semeth ideo quere but if the case in the saide newe Natura breuium had been that landes holden by knightes seruice in capite had beene geuen to one for terme of his lyfe the remainder ouer in fee which parson in the remainder hath issue and dyeth and tenaunt for terme of lyfe holdeth landes of other Lordes and dyeth whiche discende to the issue that is in the remainder there it might be saide that the king shoulde haue prerogatiue in the whole like as he had in the cases before remembred of tenaunt by the curtesie and tenant in dower for like reason will serue in the one case that serueth in the other The woordes of the Statut be further de quibus ips◠tenētes fuerunt seisiti in dominico suo vt de feodo die quo obierunt de quocunque tenuerint These woordes rather apperteigne vntoo the landes holden of other then too the Landes holden of the Kinge in Capite as it shoulde appeare by the cases beefore remembred and then by these woordes the kinges tenaunt in his life tyme must himselfe bee seased either in possession or reuercion of those landes that hee holdeth of a common person that shall dyscende vnto his heire For if hee were neuer seased thereof but they discende vnto his heire from some other auncestor the king shall not haue his prerogatiue in them as appeareth in 15. 15. E. 4. f. 10. E. 4. but whether the kinges tenaunt were seased of them in his owne right or in another bodyes right it maketh no difference
as take the case he were seased of them but in right of his wife and hath issue and dyeth his issue is in the kinges warde for the lande that his father helde in Capite and afterwarde the wife dyeth the issue beynge still in warde the Kynge shall haue Prerogatiue in these landes of the wyfe also because the husband was seased of them in his demeane as of fee the daye of his deathe and so wythin the compasse of this statute And this case may you see in M. 13. H. 4. 6. 13. H. 4. and note that notwithstandinge this statute speaketh but of landes yet seruice are to bee taken by the equitie of the same as it is plainlye proued by the woordes of Diem clausit extremum which saieth Quantum terre tenet de nobis aut de aliis tam in dominico quam in seruicio So that if one holde of the kinges tenaunt by certeine seruices the King shal haue the seruices in warde for they be in nature and place of the lande that is holden and so shall it bee supposed And therefore when the kinge hath those seruices in warde and the tenaunt that holdeth by those seruices diâ—th his heire within age if the saide seruices were knightes seruice the Kinge shall haue warde by reason of wardshippe But yet by that noe prerogatiue in the other landes of the second warde whiche are holden of the other Lordes M. 6. R. 2. in Fitz. ti Gard P. 105. as it may appeare in 6. R. 2. For the kinges tenant was neuer seased of those other landes ne yet of the seruice that they were holden by and so without the compasse of this prerogatiue Like lawe it is where the Kinge hath the temporaltie of a bishop in his custody duringe the tyme the Sea is vacant and one that holdeth of those temporalties by knightes seruice dieth his heir wtin age the king shal haue the wardship of him the reason of it is because the king hath the wardship of the teÌ„poralties by reasoÌ„ wherof this wardship cometh whiche temporalties the kinge hath in warde by the order of the common lawe in lure corone For they bee barronies which can be holden of none other then of the kinge in capite and then by the common lawe I take it he were no better then a common person yet his highnes must haue the wardshippe of them that holde of those temporalties by knightes seruice if they falle duringe the time the saied temporalties be in his hands with such landes as they holde of those temporalties but not with such lands as theye holde of other and than must the heire thereof when he coÌ„meth to his ful age sue a liuere as shalmore plainly appeare when we come to the thirde chapiter of this prerogatiue The wordes of the statute before resited are in dominico suo this woorde demeane is not here taken to bee the verie possession or takyng of the profits for if the kinges tenauÌ„t dye seased but of a reuercion or of a remaynder in landes holden of a common person and duringe the minoritye of his sonne the particuler tenaunte dyethe the kynge this notwithstanding shall haue this lande in warde as he hath the rest as it may appeare 22. H. 6.15 E. 4. 46. E. â— M. 22. H. 6. f 20 M. 15. E. 4. f. 10. P. 46. E. 3. fo 10. So it is if the kinges tenaunt dye seased of an aduowson appendaunt to landes holden of a common person The woordes be further die quo obierunt and therefore if the kinges tenaunt dye seased of Landes holden of a commen persone and a straunger abbatethe yet the heire shal bee in warde and the kyng maye entre and so is it if the heire recouer by assise of nâ—ortdauncestre as it appeareth in the newe Natura breuium fol. 2â—â— T. 12. R. 2. But take the case to bee that the kinges tenaunte dye not seased but is disseised and dyethe whether in this case the kynge maye haue prerogatyue or not and it semethe that hee may for in all suche cases where the heire hath a right of entre the kynge may entre in name of the heire and holde it afterwarde in warde but yf the heire haue but a title of entre or ryghte of accion it seemethe to be otherwise howebeit looke for those maâ—â—ers in the sayde booke of 15. E. 4. 12. H. 7. 18. Edwardi tertii lib. ass P. 18. T. 12. H. 7. fo 17. Where it is adiudged that of landes holden of the kynge in chiefe the kynge as in ryghte of hys warde myghte sease by a Scire facias vppon a tytle of entre And note also that there is somewhat more to bee vnderstanden beare thenne is wrytten or expressed that is to saye that the saide Landes muste discende too the kynges warde for notwythestandynge the kynges tenaunt weare seased in hys demeane as of fee daye of hys deathe in landes holden of a commen persone yet if the same after hys deathe doe not discende to the kynges warde but to an other heire M. 12. E. 4. f. 18. the kynge shall not haue prerogatiue in them as it appearethe in 12. Ed. 4. The woordes of the statut bee also De quocunque tenuerunt Put case the kinges tenaunte is seased of certayne thynges whyche neyther are holden of the kynge nor yet of anye other whether shall the kyng haue them in warde or not as Merket warrâ—n A. 3. H. 7. f. 4 21. H. 6. f. 12. 46. E. 3. f. 10. 15. E. 4. f. 12. Rente Secke or aduowson en grosse and as it should appeare in 46. E. 3. 21. H. 6. the kynge cannot haue them in warde and yet in 15. Ed. 4. soome holde oppinion to the contrarye therefore inquere and learne what the lawe wil in these cases The woordes of the statute bee Per huiusmodi seruicium that is to saye by lyke seruice Bye these woordes the landes that are holden of other muste bee holden allso by knyghtes seruice or els the statute extendes not to them and yet the lawe is taken to the contrarye for yf the lands holden of other bee holden but in socage or free burgage the kynge shal haue prerogatiue in them as it appearethe in P. 24. E. 3. f. 13. T. 9. H. 3. ti Prerogatiue in fits â— 25. 24. E. 3. for this statute is but a confirmacion of the common lawe and therefore shall bee taken by equities and namelye when the lawe was so taken in 9. H. 3 whiche was longe time beefore the makyng of this statut Howebeit Bracton and Britton dothe extende this prerogatiue no further then to landes holden of other by knightes seruice therefore enquire for the cause and reason thereof Bracton li. primo de custod et releuiis Britton f. The woordes bee further Exceptis feodis archiepi cantuar ' c. This exception extendes not to the bodie wherefore the kynge shall holde that in warde
saye wheather his grauntee shall haue the same prerogatiue in the bodye of the chylde as his highnes mighte haue hadde M. 12. E. 3. in Fits ti Preroga p. 25. et M 14. H 4 in Fits ti Garde P. 86. in case the seignorie had styll continued in hym And it appearethe in the .12 E. 3. .14 H. 4. that if the kynge graunt the seignorye to an other in fee simple that the grauntee shall haue noe prerogatiue beecause there remaynethe nothynge in the kynge of that seignorie vngraunted But if the graunt weare made to a common persone for noe longer tyme then duryng his lyfe and the reuersion saued to the kinge then learn what the lawe will in that case H. 5. E. 3. in Fits ti prerogatiue P. 20. for wee haue in .5 Edwarde the third that wheare the graunt was made to the Queene for terme of her lyfe the reuersion in the kinge that her grace hadde prerogatyue euen as the kynge hymselfe shoulde haue hadde and for none other reason there made but onely beecause shee helde in ryghte of the kynge But a man may adde further to that reason and saye that her grace a common persone bee not lyke for thoughe shee bee a persone exempte from the kynge and maye sue and bee sued in her owne name yet that that shee hathe is the kynges and looke what shee losethe so muche departe the from the king and therefore all her tenauntes of parcell of her estate maye haue ayde immedyatlye of the kynge wytheoute makynge her partye or pryuye theruntoo and so shee holdethe merelye in the kynges ryghte but a common persone doothe not so For the kynge hathe nothynge soo doe wythe the thynge that hee holdethe durynge the lyfe of the lessee howebeeit yf the graunt bee made to the Queene for terme of her lyfe the remaynder ouer in ferâ—â— yt seemethe that her grace gettethe no prerogatyue M. 24. E. 3. f. 34. and so yt is sayde in .24 Edwarde the thirde Lyke lawe is it if the kynge graunt an honor to the Lorde prince and hys heires kynges of Englande M. 21. E. 3. f. 4â— it seemethe by the better oppinion in 21 Ed. 3. that the Lorde prynce shall haue there wythe the kynges prerogatiue beecause it is not seuered from the crowne after the fourme as it is geeuen for none shall bee inherytoure thereof but kynges of this realme And note well that notwythstandynge the lawe weare so that none in thys case but the Queene or prynce myghte haue the kinges prerogatiue yet if the kyng hauinge the seignorye in hys handes after that the warde dothe falle graunt the same warde ouer the grauntee shall haue and enioye the preferrement of the maryage agaynste the other Lordes euen as the kynge shoulde hymselfe beecause that notwythstandynge anye suche graunt yet the kynge is sayde styll gardeyne and the infaunt dryuen to sue for hys lyuerye at the kynges handes whenne hee commethe to hys full age and not at the handes of the grauntee A. 13. H. 4. in Fits ti prerogatiue P. 24 whyche in this case is but onelye as a commyttee And so is the booke in 13. H. 4. Lyke lawe is it in the case aboue remembred wheare the Queene hathe prerogatiue and the warde fallethe and shee grauntethe her wardeshyppe ouer her grauntee shall haue preferrement in the mariage before all other lords And the also appeareth in the sayd 5. E. 3 howebeit that case was enforced by that that the kynge confirmed the state of the grauntee H. 5. E. 3. in Fits ti Preroga p. 20. lyke lawe is it yf the kyng haue a warde of righte of his corone and graunteth it ouer with special wordes that is to say that the sayd grauntee shal allso haue warde by reason of wardeshippe yf it fall durynge the mynoritie of the firste warde in this case if there fall a warde whyche holdethe by posterioritye of the heyre that is in warde yet that notwythstandynge the said grauÌ„tee shall haue the preferment in the warde of the body and mariage eeuen as the kynge hymselfe shoulde haue hadde yf hee had made noe suche graunt beecause it is merely in the kynges righte whyche remaynethe styll lorde and the grauntee none other but as it weare hys comyttee H. 12. H. 4. in Fits ti Gard P. 81. and thys appearethe also in the. 12. yeare of kynge Henry the fowerthe The thyrde chapiter ITem Rex habebit seisinam post mortem eorum qui de eo tenent in capite de omnibus terris et tenementis de quibus ipsi fuerunt seisiti in dominico suo vt de feodo cuiuscunque etatis heredes eorum fuerint capiend ' exitus eorundem terrarum tenementorum donec facta fuerit inquisitio prout moris est et ceperit homagium huiusmodi hered ' In the .52 yeare of kynge Henry the thirde longe time beefore the wakynge hereof was there an other statute made at Marlebridge concerning this matter In the .16 chapiter whereof it is thus prouyded De hereditate autem que de dnÌ„o rege tenetur in capite sic obseruaÌ„d ' est vt dominus Rex primam habeat inde seisinam sicut prius inde habere consue uit nec heres nec alius in hereditatem illam se intrudat priusquam illam de manibus domini regis recipiet prout huiusmodi hereditas de manibus ipsius et antecessorum suorum recipi consueuerit et hoc intelligatur de terris feodis que ratione seruicij militaris socagij vel seriantiae siue iure patronatus in manibus domini regis esse confueuerunt Both these statutes declare themselfes to bee of none other force then as a confirmation of that that was the kynges prerogatiue by the order of the comon lawe as it may appeare by these wordes prout moris est sicut prius habere consueuit recipi consueuerit esse consueuerunt And therewyth agreeth also Britton fo 167 The woordes of the statute bee Rex habebit primam seisinam what prima seisna is it is declared by the words that follow sÌ„ capiendo omnes exitus c. by whiche words it may appeare the kynge shal not onelye seise but also receaue the hole profites tyll lyuerye bee sued which suit moste commonlye hathe bene and is within the yeare and daye nexte after the deathe of his tenaunt and therefore the kynge vsethe to take no more then the firste fruites that is to saye one yeares profites if there bee not apparaunt defaulte in the heire that hee will not sue hys lyuerie in whiche case then the kynges highnesse shall bee aunswered of all the profytes taken tyll lyuerye be sued or at the least tended and after pursued withe effecte yea and if it bee a generall lyuerie and not ryghtefullye pursued accordinge to the order of the lawe the kynge shall reseise and bee aunswered of all the meane profites from tyme of suyng of the sayd lyuerye
for when the lyuerie is missued it is as it had beene neuer sued Howebeit thys reseisure shall not bee wytheoute a Scire facias as I shall thereof speake more at large hereafter But yf the heyre or he that should sue lyuerie doe make a rightfull suite for the same according to thorder of the lawe and asmuche as in hym lyethe to do to haue liuerye howebeeit the kynge will not but willbee aduised ere hee make hym lyuerie and so protracte the time in this case his highenesse of ryghte maye not haue the profites from the tyme the partye was thus delayed but ought to restore theÌ„ vnto the partye vppon his lyuerye as maye appeare in the firste yeare of Henrye the seuenthe H. 1. H. 7. in Fits ti Liuery P. 18. And thereuppon it is to be noted that there be two kynde of lyueries the one generall the other speciall The generall is the liuerye that this statut speketh of the especial may be more properly treated of when wee come to the 12. chapiter of this prerogatiue And this generall lyuerie is sometime made cum exitibus and sometimes sine exitibus but for the most parte sine exitibus for wheare it is made cum exitibus from the time of the seisure there it is properlye noe liuerye for it appearethe the kynge neuer seised rightfully or by anye title As for example if the kynge will seise the lande that is founde in thoffice to be holden of Tharchebyshoppe of Canterburye or Byshoppe of Durham or anye suche persones as are exempted in the first chapiter of this prerogatiue in this case they shal haue an Ouster le main vna cum exitibus H. 16. E. 3. in Fits ti Liuere P. 29 as it appearethe in 16. E. 3. The same lawe is it yf of landes holden in capite there be a lease made for terme of lyfe the remainder ouer to estraunger 14. H. 4. f. 34 18. E. 3. f. 21. 24. E. 3. f. 27. tenaunt for terme of lyfe dyâ—th and this matter founde by office nowe if the kynge seise hee in the remainder shall haue an Ouster le main vna cum exitibus as it appearethe in 14. H. 4. 18 E. 3. 24. Edwarde the thirde Like law it is where .ij. hold iointly of the king the one dyethe and this matter founde by office and yet that notwithstandynge the kynge seises hee that suruiues shall haue an Ouster le mayn vna cum exitibus as it appearethe in the boke of Assises 44. 44. li. ass in Fits ti Liuere P. 11. T. 45. E. 3. f. 18. E. 3. and in the newe Natura breuium fo 2â—â— f. 257. For in all these cases where the Ouster le maine is vna cum exitibus the king ought not to haue seiseised and so sayethe Thorp 45. E. 3. The words of the statute be further Post mortem eorum qui de eo tenent VpoÌ„ this it is to bee sene at what time after the kynges tenants deathe this lyuerie shall be sued If the possession of the free holde immediatlye after the deathe of the kynges tenaunte discende vnto his heire it is to bee sued fourthwithe and yf but onelye a reuercion discende then it is not to be sued tyl after the death of the particular tenaunt as it may appeare in the newe Natura breuium f. 291. where the heire sued not lyuerie tyll after the deathe of the tenaunt by the curtesye tenaunt in dower and tenaunt for terme of lyfe But learne what the lawe shoulde haue beene if the kynges tenant hadde dyed seised of a reuersion whereupon rent had beene reserued hys heire of full age whether hee should haue theÌ„ sued liuerie fourthwith or els to haue taried tyll the deathe of the particuler tenaunt for in the seuenthe yeare of kyng Henrye the sixte Iune thinks he should tary or els it might followe the kynge should haue double lyuerie that is to say one for the rent an other for the lande M. 7. H. 6. f. 3 but Paston is in contrarye opinion and resembles it to a reuersion dependyng vpon an estate tayle with a rent reserued howebeit at this daye there is election geuen vnto the heire that is to say eyther to sue his liuerie immediatly after the deathe of his auÌ„cester in the lyfe of these particuler tenaunts or els to tarye vntill they die and if he sue his lyuerie in theire lyfe he paiethe for primer seisin but the moytie of one yeares profyte yf after theire deathe then he payethe the hole yeares profit howebeit if there be a rent reserued he pursueth his liuery in the lyfe of the particular tenaunt it seemes besides the halfe yeres profit of the value of the land he shal also paye the hole yeares profit of the rent reserued therfore learn what common experience teacheth vs in that case The woordes of the statut be Qui de eo tenent in capite By these words he must holde of the kinge in chiefe for yf he holde not of hym in chiefe the kynge can haue noe primer seisin And yet you shal see in the newe Natura breuium folio 296. that of lands in the citie of LoÌ„don holden of the king in burgage the king had primer seisin the heire thereof sued his liuery but that president semes to bee against the lawe for Markham saiethe in 7. E. 4. that in Neuels case it was founde that ones father died seised of certain lande that hee helde of the kyng in Burgage T. 7. E. 4. f. 9 and thereupon thexchetor did seise whiche seiser by thaduise of all the Iustices was discharged by a Supersedeas awarded to thexchetor for the wordes of bothe the foresayde statutes be verye plaine therein that is to saye that hee must holde of the kynge in capite but whether he holde of the kyng by knights seruice or by Socage in capite it makethe noe matter so that he holde in capite for the kinge in bothe cases shall haue primer seisin althoughe not wyth so large a prerogatiue in th one case as in the other For in the firste case where the tenure is knyghtes seruyce in capite the kynge shall haue the same prerogatiue when the heire is of full age at the deathe of his auÌ„cester as he should haue hadde yf hee hadde beene wythin age that is to saye primer seisin aswell in the landes holden of others as of hym selfe bee it that the landes holden of other bee holden by knyghtes seruice or in Socage But otherwyse yt ys where the tenure is but a tenure by Socage in capite for there the kynge shall haue noe primer seisin in landes holden of other namelye if theye be holden of other by knyghtes seruice as it appearethe plainlye by the statute of Magna charta capit 27. and in the newe Natura breuium fo 2â—â— nor yet anye primier seisin of landes holden of hymselfe in Socage in capite â–ª If the heyre at
the deathe of his auncester bee not of the age of 35. H. 6. f. 47. T. 45. E. 3. fo 1â— 14. yeares as appearethe 35 H. 6. 45. Edwarde the third and allso in the newe Natura breuium fol. 2â—6 fol. 2â—â— But in euerye of these cases theye to whom the bodye belongeth shall haue an Ouster le main of the landes vna cum exitibus that ys to saye the lordes of whom the land is so holdeÌ„ by knights seruice in th one case and the Prochein amy in the other case But wher the landes bee holden of the kynge in Socage in capite the heire of the age of 14. yeares at the deathe of his auncester there the kyng shal haue primier seisin and the heirÌ„ dryuen to sue lyuerie for there is no persone that can make anye title to the heire or his landes but onelye the kynge and therefore the king must haue his primier seisin the heire driueÌ„ to sue his liuerie by expresse woords of the foresaid statut of Marlebridge so it seemeth also in that case that his highnes shall haue primier seisin in landes holden of other so they be holden but in Socage for the reasoÌ„ aboue remembred Tamen quere The woordes of the statute bee farther de omnibus terris et tenementis de quibus ipsi seisiti fuerunt in dominico suo vt de feodo These wordes may bee conferred and coupled with the firste chapiter of this statute of prerogatiue whiche hath the verye selfe same wordes And therefore looke in what cases noted vppon the firste chapiter the king hath his prerogatiue by reason of wardship In al the same cases shall his highnes haue prerogatiue by reason of primer seisin if the heire weare of full age at the deathe of his auncester Wherfore to reherce theÌ„ here particularly it were but superfluous except it bee in the case onely of collusion geuen by the statute of Marlebridge where the heyre is within age beecause it speaketh nothinge of the heire that is of full age And therefore in that case it seemes the kyng cannot haue lyke benefyte of primier seisin as hee hathe of wardeshippe when the heire is wythein age Howebeeit there is a booke in that pointe lefte at large whiche is 17. E. 3. 7. E. 3. there the case was M. 17. E. 3. f. 63. M. 7. E. 3. in Fits ti Relief p. 11. The tenaunte enfeffed his sonne and heire dyeth before the feffee gaue notice thereof to the lorde Ideo quere The woords of the statut be farther Cuiuscunque etatis heredes ipsorum fuerint To these woordes also shall the firste chapiter of this estatute haue relacion for they plainly declare that if the heire were within age at the deathe of his auncester the kyng shal haue primer seisin and the heire driuen to sue his lyuerie notwithstandinge also the kynge haue had the wardshippe of hym For the wordes be generally spoken and maye be extended aswell where hee was within age at the deathe of his auncester as where hee was of full age And so hathe it beene euer vsed sauinge that where hee hath been in ward hee payethe but one halfe yeares profite for primer seisin and in the other case hee payethe the hole The woordes of the statute bee farther capiendo omnes exitus eorundem terrarum tenementorum donec facta fuerit inquisitio pro ut moris est et ceperit homagium hered ' By these woordes it maye appeare that the kynge after the deathe of hys tenaunte and beefore anye office founde mighte seise the landes and take the profites whiche thinge surelye is true as plainelye is proued by the writte of Diem clausit extremum whiche hath these woords Cape in manum nostram omnia terras tenementa c. donec aliud inde perceperimus per sacrum proborum hominum diligenter inquiras c. So the seiser goethe before the inquisition howebeit since the statut made at Lincolne Anno. 29. E. 1 called statutuÌ„ de Escaetoribus it is not vsed to seise tyll office bee founde and then the kyng to bee aunswered of all the profites since hys tenaunts decease whiche commethe all to one effecte And that statute dothe not restrayne the seiser but that thercheator maye seise at this daye withoute office By the aforesaid statute of Marlebridge cap. 16. it is expounded and playnelye set foorthe of what lands and fees the kynge shall haue primer seisin for these bee the woordes Et hoc intelligatur de terris feodis que ratione seruicij militaris socagij vel seriaÌ„ciae sine iure patronatus in manibus domini regis esse coÌ„sueuerunt By these woordes it maye appeare that he that is warde beecause of wardeshyppe shall sue lyuerye or where one holdethe of the kynges warde by knyghtes seruice or in Socage and dyethe hys heire of full age the king shall haue primer seisin of the landes that are so holden of hys warde and the sayde seconde heire dryuen to doe hys homage or fealtye as the case shall require to the kynge and allso to paye hys reliefe vnto hym and to sue lyuerye of the sayde landes as it appearethe hee dyd in the newe Natura breuium fol. 294. 295. For it is withein the compas of these woordes que ratione seruitij militaris So ys it yf the kynge haue a Byshoppes temporalties in his hands duryng the time that See is vacant and one that holdeth of that temporalties by knyghtes seruice or in Socage dyethe hys heire wythein age in this case after that the kynge hathe hadde the wardeshippe the heire at his full age shal paye primer seisin and sue hys liuerye And so shall he doe yf hee bee of full age at the tyme of the death of hys auncester for the woordes of the statute bee De feodis quae iure patronatus in manibus domini regis esse consueuer ' and therwithe agreethe the newe Natura breuium folio 286. Butte learne yf the kings tenant in chiefe dye hys heire of full age and one that holdethe of the heire beefore hee hathe sued his lyuerie dyethe his heire allso beeynge of full age whether in thys case the kynge shall haue primer seisin of the landes of the seconde heire or noe as hee shoulde haue hadde yf the heire of his tenaunte hadde beene wythein age and in the kynges warde at the time when this seconde heire dyd falle and it seemethe to mee hee shall for the reason made afore Thanne laste of all whether this prerogatiue extende to anye statute made since the tyme of kynge Ed. 2. and it seemes it dothe and that for the reason noted in the first chapiter as the feffees of Cestuy que vse before the statut made in the .27 yere of kyng H. 8. vsed to sue an Ouster le mayn sine exitibus whiche was in nature of a lyuere for the heire of cestuy que vse which had bene inward Item for
asmuche as there be exceptions in the firste chapiter and none in this whether theye also bee comprised within this chapiter or not and me seemes theye bee beecause these .ii. chapiters muste concurre together and agree in euerye thynge And yf the heire bee within age at the deathe of his auncester the Archebyshoppe of Caunterburye shall haue an Ouster le mayn vna cum exitibus so that the heyre shall not sue lyuere of that then by the same reason yf hee be of full age at time of the deathe of his auncester for the lyuere in th one case and thother is geuen by this chapiter as me semethe Tamen quere The fowerth chapiter ITem assignabit viduis post mortem virorum suorum qui de eo tenuerint in capite dotem suam quae eas contingit c. licet heredes fuerint plenae etatis si viduae ille voluerint viduae illae ante assignationem dotis suae predictae siue heredes plenae etatis fuerint siue infra etatem iurabunt qd ' se non maritabunt sine licencia regis Et si se maritauerint sine licentia regis tunc rex capiet in manum suam nomine districtionis omnes terras et tenementa quae de eo tenentur in dotem donec satisfecerint ad voluntatem suam ita qd ' ipsa mulier nihil capiet de exit ' c. quia per huiusmodi districtiones huiusmodi mulieres seu viri eorum finem faciant regi ad voluntatem suam et illa voluntas tempore regis H. patris regis E. estimari consueuit ad valenc predictae dotis per vnum annuÌ„ ad plus nisi vberiorem gratiam habuerint Mulieres quae de rege tenent in capite aliquaÌ„ hereditateÌ„ iurabunt similiter cuiuscunque fuerint etatis quod se non maritabunt sine licentia regis et si fecerint terre et tenementa ipsarâ—m eodem modo capiaÌ„tur in manuÌ„ domini regis quousque satisfecerint ad voluntatem regis This statute lykewise doth but confirme the comoÌ„ lawe before as it appereth by the statut of Magna carta ca. 7. which was first made in the tyme of kynge H. the third which is qd ' nulla vidua distriÌ„gatur ad se maritaÌ„duÌ„ ita tameÌ„ qd ' securitateÌ„ faciet qd ' se noÌ„ maritabit sine asseÌ„su nostro si de nobis tenuerint And also in the 24. yere of the sayd kynge henry the third it is sayd that wheÌ„ the kynges tenaÌ„t dieth his wyfe endowed shee cannot marie without the kynges licence yf shee doe she her husband shall make fine ThexposicioÌ„ It should apere by the wordes that the wiefes of al them that hold in Capite can not haue dower at ani mans hands but onelie the kinges if his grace will for in that his grace hath a prerogatiue aboue al comoÌ„ ê‘soÌ„s aswell for that she shall the râ—bie hold of his highnes in chief as for that she shall not marie with out license for so she might be maried vnto the kinges enemie and there bie the streÌ„gth of the crowne enfebled Therfore it is prouided that his highnes may assigne the dower whether the heir be of full age or within age to th entent that she before the receuing therof shall take a corporall othe not to marie without the kings liceÌ„se The maner of the assignement whether the heyre be of full age or within age is verie wel sette foorth in the new Natura breuiuÌ„ fo 2â—â— in the writ de dote assignanda Howbeit for that soÌ„e things are there noted which seme to repunge with our booke cases I purpose to confer the one with thother and se how thei can agre In the said Natura breuiuÌ„ it apereth that not withstanding the king had comitted the land ouer to an other yet the womaÌ„ sued in the ChaÌ„cere to the king for her dower and not to the coÌ„mittee in our bookes you shall se many writs brought against the comittee yea in some of them that she recouered her dower and the king not made partie to the same as the boke is in 4. H. 7. where the writ of Dower was brought against the kings coÌ„mittee H. 4. h. 7. fitz ti Eyde de Roy. P. 33. who pleded in barre without praiyng in eid of the king the barre was found against him and notwithstanding that it did apere vnto the Iustices that the king might be touched therby yet would they not surcesse but awarded that the demandant should recouer â–ª toke for their cause the statute of Bigamis the third chapter which saieth in this maner De dotibus mulierum vbi aliqui custodes hereditatis maritorum suorum custodias habent ex dono vel concessione regis Siue custodes rem petitam teneant Siue heredes dictorum tenementoruÌ„ vocentur ad vvarrantuÌ„ si excipiant quod sine rege respondere non possint noÌ„ ideo Suê‘sedeatur quin in loquela predicta prout iustum fuerit procedatur This Natura breuium and this boke of .4 H. 7. seme not to agre For where takes she anie oth wher she recouers by a writ of dower in the comon place which othe she must nedes haue taken if she had sued in the chauncerie or howe maie the committee endowe her when percase he will endowe her of more then she ought to haue or endowe her wher she is not dowable by the law wherunto one maie aunswer in this wise that his wrongful endowment shall not conclude the king but the his grace maie refourme the thing when he wil and sins he hath coÌ„mitted all his interest ouer Durante minore etate his grace maie permitte thendowment made by the comittee yf it be rightfullie made to stand and speciallie because of the statute of Bigamis which alowes it so to be And notwithstanding she take no othe yet can she not marie without the kinges license for this endowmeÌ„t by the comittee is the kings endowment vpon the matter for the that she holdeth in right of the king which continues still garden notwtstanding any such comissioÌ„ or graÌ„t made of the wardship Therfore yt shoulde seme the after the ward comitted ouer as is aforsaid it is at the eleccioÌ„ of the woman whether she will sue to the king in the chaunceri or at the comon law against the comittee But if the king do but comit the ward ouer Durante bene placito otherwise it is for there she must sue onely to the kinge as apereth 8. E. 2. Fitz Tit. Dovver P 169. And note well that this statute of Bigamis before recited will also that if the heir of the husband be vouched to warrantie beinge in the custodie of those committees that the Iustices shall not surcesse nomore then when the writ of dower is brought against the comittee CoÌ„trarie to this braunche of the said statut are there diuers bokes as 18. E. 3. 8. E. 3.
19. E. 3. wher the said comittee came in 18. E. 3. fo 38. H. 8. E. 3. in Fitz ti Voucher P. 154. H. 19. E. 3. in Fitz Tit. Aid de Roy. 64. the heir being vouched in their ward showed how they held of the kinges lease praid in aid of the king had it wherat I do not a litle meruel because of this statute of Bigamis which was neuer spokeÌ„ of ne yet remembred in these bokes their iudgemeÌ„ts as it should seme beinge directlie against this statute Howbeit the maner of the lease doth not there certenlye apere that is to saie whether the wardship were granted Durante bene placito or Durante minore etate for that would make a differeÌ„ce as I haue said before Also the boke is 39. 39. E. 3. fo 10 E 3. where in a writ of Dovver brought against the comittee ther was aid graÌ„ted of the king but that semes to be out of the compas of the statute of Bigamis which spekes onelie of theÌ„ the haue it of the kinges graÌ„t so hath not the secoÌ„d Comittee therfore lerne what the law will in these cases But if the wardship be comitted to the wife wtout anie exception or forprise of her dower she by that is coÌ„cluded to claime ani dower during the said wardship as it may apere M. 2. H. 4 â–ª in the said new Natura breuium fo 2â—â— It is also said that where liuerie is made to the heier before the womaÌ„ sue for her dower in the chaÌ„cerie in the said liuerie there is no sauing made for her dower that theÌ„ she must pursue her writ of Dovver against the heir the reson that there made is beecause the king hath made liuerie generally wtout ani reseruacion of Dower to be assigned by his highnes whereunto I aunswer that wheÌ„ liuerie is sued before assignemeÌ„t of dower there is moste comoÌ„lie in the writs of liuerie a sauinge made for her dower if it so be that she were found the kings tenantes wife in thoffice and she beinge so founde if the heyr sue a general liuerye leuing out these wordes Salua dote or retenta dote c. it is a good cause for the kinge to resese the hole for the liuerie is missued in that case and that I learned of iustice Spilman which noted it so in .11 of H. 8. but if she be not found wife in the office the heire may sue his liuerie without anie such sauinge and to saie the the kinge by making such a liuerie should waiue the aduantage of his prerogatife in the dower that semes not to bee trew vnles the said waiuer were by expres wordes wherfore it semes the heir in that case after liuerie is not bound to yeld vnto her dower but her onlie remedie is to sue for the same to the king and that must be fyrst vpon an office as I think finding that she was his tenantes wife Ideo quere and learne whether she may haue dower in any case either in the chancerie or by writ of Dower at the comen lawe against the coÌ„mittee or the heire vnles she be found wife first by office as is aforesaid except it be in cases where the king will refuse this prerogatife And note that like as the kinge hath a prerogatife by this statute to yeld dower to the wife of his tenant so hath his highnes a prerogatife by the comoÌ„ law to withold dower from the wife of his tenant which no comon person hath As put case in a write of Dower the heir be vouched in the kinges warde and the tenaÌ„t showes for his lien the feffement with warranty of the husbande which is father to him that is vouched yet that notwithstaÌ„ding she shall recouer her dower against the tenant and not against the heir because that els the king should lose the wardship of the lands wher the womaÌ„ maie without her losse as well recouer her demaund against the tenaunt as she should against the kinge and yet if the king were a comon person in that case he should lose the wardship of so much as she demaundethe 26. E. 3. fol. 58 â–ª H. 8. E. 3. iÌ„ Fits ti Voucher P. 154. And this boke is .26 E. 3. wher it is said that the kinges comittee of the wardship shall not haue the prerogatife therew t agrees 8. E. 3. And note that like as the king hath prerogatife against the wife that bringeth the writ of Dovver so shall he haue prerogatife against the tenaunt in the saide writt of Dovver for notwithstanding that the tenant in the self saÌ„e case haue iudgemeÌ„ to recouer ouer in value against the heire which is in the kinges ward yet he shal haue no execucion of that recouerie til the land be sued out of the kinges handes Howbeit 27. E. 3. 27. E. 3. fo 87 is contrarie to the said boke of 26. E. 3. ideo quere And learne and enquire whether a womaÌ„ being thus endowed at the haÌ„ds of the feffee of her husband of such lands as he died not sesed of and wherof the king at that time can haue no wardship whether she maye marie or not without the kings license it semes she can not for anie wordes comprised within this statute And it apereth in the boke of Assises 26. E. 3. 26. li. Ass P. 57 that wher a woman was endowed by gardein in chiualrye and afterwards the garden committed treson wherbie the seignorie was forfet to the kinge that after this forfeiture she should hold of the kinge and not of the heir which was in the reuersion in which case then she can not mary without licence as me thinketh TheÌ„ further it is to be sene to what lands the statute dothe extend vnto and to what not It extendes to landes holden in capite wherof any woman claymeth dower as maie apere by the wordes of the saÌ„e statute and not to anie other lands for if the king haue in his custodie byshops temporalties during the tyme the Sea is vacant and one that holdeth of those temporalties by knightes seruice dieth his heir being within age whereby the kinge hath the wardship of his heir and eÌ„doweth his wife in this case she shall make no othe but maie marie without liceÌ„se Like lawe is it wher she is endowed of lands that are holdeÌ„ of him that is the kings highnes ward by reason of a tenure in Capite for in both these cases the land wherof dower is demaunded are not holdeÌ„ of the kinge in cheefe and this doth apere in the newe Natura breuium fo 264. and yet in both those cases she is endowed in the chauncerie but what is that to the purpose for so shall the heire in those cases sue liuerie of those lands and yet thei be neuer the more for the holden in chief but onely vsed for a solempnity becaus thei were in the kings hands once by office which is matter of
quod consentire poterit Et tunc elegat ipsa vtrum maluerit habere virum illum cui premaritat ' fuerit vel alium quem Rex ei obtulerit nullus qui de Rege tenet in Capite per seruicium militare potest alienare maiorem partem terrarum suarum ita quod residuum non sufficiat ad facienduÌ„ seruicium suum fine licencia Regis sed hoc non consueuit intelligi de membris et particulis earundem terrarum This Chapter containeth twoe matters beinge dyuers in nature and therfore I entend to seuer and deuyde the one from the other and the Chapter followinge to adioyne to the latter braunche hereof because they entrete both of one thinge The seuenth chapiter DE Serieantiis alienatis sine licentia regis consueuit rex arentare huiusmodi Seriâ—antias per rationabileÌ„ extentam inde faciendam 13. H. 3. in Fitz. ti Gard p. 147. This statute is but a confirmacion of the common law For it is writen in the .13 yere of king H. 3. in this wise Thomas summonitus est ad respondendum regi quare abduxit Helenam filiam et heredem E. c. T. dicit quod ipse ê‘ assensum E. in vita ipsius E. desponsauit predictam Helenam in facie ecclesie c. et quia predicta Helena est infra etatem et cuÌ„ ad etatem peruenerit potest coÌ„sentire matrimonio vel dissentire ideo remanet predicta Helena in custodia dnÌ„i Regis vsque ad etatem vt consentiat vel dissentiat c. Here it is not set furth nor expressed what is thage in a woman to coÌ„sent to matrimonie and that is all that is to be sought vpoÌ„ this statute for Bracton in his first booke in the latter ende of a chapter which hath this paragrafe s De minoribus qui debent esse sub tutela et Cura dnÌ„orum vel parentum saith quod femina septimo anno etatis sue potest consentire matrimonio et virum sustinere anno duodecimo for he saieth quod femina maius est capax doli quá masculus et quod maturiora sunt vota mulieris quam viri So that by him it appeareth that a Woman maye consent to matrimonie after she is .vii. yeres of age And so I iudge the lawe was at that tyme taken For it appeares in the tyme of kinge E. 1. that a man that helde by knightes seruice maried his heire apparant being vnder age died 13. E. 3. in Fitz. ti Gard p. 138 the lorde claimed the wardship of the bodye an issue was tended against him that at the time of the saide mariage the infant was of thage of seauen yeres and this issue was receiued by the Courte for a good issue to barre the lord of the wardship of the body qd ' nota Howbeit it apperes not by the said booke whether the heire were male or female Wangford saies An. 35. H. 6. fol. 37. that when a woman is .vii. yeares of age her auncestour may then gather aid to marie her which saieng argueth as mee seemeth that shee is then mariageable And also this seemes to make with Bracton Howbeit the lawe is not so taken in these daies For she cannot now consent to matrimonie before thage of .12 yeres This statut spekes onely of the heire female and yet Cheiny saieth in .7 H. 6. M. 7. H. 6. â—â— 30. E. 3. in Fitz. ti Gard p. 156. 128 that the heir male shal be taken wtin the compas of this statute by an equitie because the statute is beneficiall And so it should appere .30 E. 1. where the sonne was maried in the life of his ancestour then being no more then of chage of .v. yeres wheÌ„ the childe came to â—hage of xii yeares thancestour died the court adiudged in this case that the lord should haue the wardship of the body to th entent that if the enfant hereafter ere he passe thage of .14 yeres disagree to the firste mariage the lord may haue the mariage of him And so it may appere by this booke that this statut is but a confirmacion of the common law for euery lorde shal haue like aduauntage in this case as the king shal haue therewith agrees Paston 7. H. M. 7. H. 6. 11 6. adding farther to this that by the order of the comon law before this statut of Prerogatiue if the heire would haue staÌ„d to the first mariage when he or she came to the yeres of conset they should haue paied the double value by this statut they pay nothing therefore the case was there The kings tenant in chief hauing a sonne heir of â—hage of .14 yeres doth mary hym dyeth the king offers the child mariage at the age of .14 yeres whiche he refuseth holdes him selfe to the first mariage adiudged that then fant might so doe that for the same he should neuer pay the double value ne single of his mariage there Babthorp saieth that if the woman had died the heire beinge within the age of consent the kinge shoulde haue hadde the mariage of the childe notwithstandinge that hee was once maried in the life of his auncestour for yt was no mariage but at pleasure and therewith agrees Britton fo 169. Yea although the wife had died after the yeares of consent and before the childe had come to thage of xxi yeres quere of this matter for I am enformed that the lawe is not taken at this daie as the saide booke is in .7 H. 6. ¶ Now to thother branch of the Statute and the chapter next folowing the same It appeareth by Glanuill in the beginning of his seuenth booke that euery freeman hauing land whether he had an heire apparant then lyuing or not or whether the said heire apparant would coÌ„sent to it or not yet might he geue some reasonable porcion of his landes with his daughter or any other woman in mariage or to any man that had don him seruyce or in almes to any religious house or to any other whome he would so the said gifte were made in his health for in extremitie of sicknes hee might not bee suffered so to doe lest it should be thought to be done rather of a rage and furie of the mynde whiche through sicknes for the moste parte commeth to men then of any good discrecion and so might he in his gift excede measure Howbeit suche a gyfte in sicknes was euer good with the consent of the heire or with his confirmacion Againe if he had manye sonnes he could not without the consent of his heire apparant geue any porcion of his enheritance to any of the yonger sonnes for so might he disherit theldest thorough affeccioÌ„ that the fathers lightly beare towardes theire yonger sonne more then towardes thelder But of his purchased lande he might giue the yonger a porcion whether theldest woulde or not And if he had none issue he might geeue
198. Then at what tyme or howe he shoulde pursue his lycence yf the lycence bee graunted by one king he cannot by vertue thereof alien in the tyme of an other kynge as it appeareth 2. E. 3. Lyke lawe yf the landes be in the kinges handes for Primer seisin or alienacioÌ„ wtout lyceÌ„ce P. 2. E. 3. in Fitz. ti Offië de court P. 29. at whych time the king doth licence his tenaunt to make a feffement he cannot make this feffement till the landes bee out of the kings handes as appeareth 21. H. 7. H. 21. H. 7. 7 Also he that hath lycence may not varie from it in anye point As if the king lycence the Abbot and Couent to make a feffement and thabbot sole will make it thys is void as appeareth 21. H. 7. H. 21. H. 7. 8. And there Frowike saide that if the kinge licence mee to make a feoffement by deede I can not make it without deede Nec econtrario H. 3. E. 3. in Fitz. ti Fines p. 164. And herewyth agreeth the booke of 3. E. 3. Where the lycence was to leuie a fyne of the maner of Dale to fynde twoe chapleynes and he woulde haue leuyed the fyne leauynge out the chapleynes coulde not be suffred And. 30. E. 3. 18. E. 2. in Fitz. ti Fines P. 124 M. 30. E. 3. 22 the lycence was to leuye a fyne of the manour of Dale yeldynge a rent and he woulde haue leuied the fyne of the manour with a Forprise that is to saye exceptinge certeine acres parcell of the manour yeldinge the rent and coulde not bee receiued so to doe for that should not agree with the licence which would the whole manour to be charged with the rent But if there had bene no rent reserued it semes he mought haue alyened any part of the manour by a lyceÌ„ce of alienacion of the whole manour tamen quere For it shoulde seeme to be within the woordes of this statute which woulde you shoulde not dysmember the kings fees and learne if the king licence his tenaunt to make a feffement whether hee may make it vpon condicion or not for they vse when a condicionell feffement is to be made to expresse the condicion within the lycence if the condicion be to make an estate againe to the feffour al this goeth vnder one fyne in one lycence And note that if the Iustices before whome the fyne shal bee leuyed be enformed that the landes are holden of the kinge and that so appeare to them by any record they will not take the fyne tyll they haue seen the licence nor yet engrosse it till they haue receiued a write out of the Chauncerie called Quod permittat finem illum leuari by which they may be fullye certified of the kinges pleasure which writ apereth in the new Na. bre f. 147 and that they haue thus vsed it appeareth 4. E. 2. 33. H. 6. But they neuer vsed so to doe vpon a recouerie in these commen writs of entre in the post 4. E. 2. in Fit ti Fynes p. 1â—5 M. 33. H. 6. â— because the recouerer in such case should paye no fyne for it was no alienacion since the recouerer claimed not in by the tenaunt But nowe by the statute made in the .32 yeare of kinge Henrye the 8. it is ordeined that the recouerer in such case should pay a fyne for alienacion And note that if an alienacion bee made wythout lycence the pardon is moste commonlye made vnto the Feffee and not to the Feoffour And so I suppose it ought to be because the wrong groweth by the entre of the Feffee whiche hath entred the kinges fee wythout hys lycence And therefore the case is 14. H. 6. that where the kyngs tenaunt aliened without lycence 14. H. 6. 27 and tooke estate againe to him to his wyfe in taile the remainder ouer to his right heires and dyeth without issue and the kynge pardoneth the wyfe all maner of alienacions this was thought good to exclude the kyng of his fyne that he shoulde haue hadde for the saide alienacion And it is further to bee noted that the lycence must bee purchased vppon a true suggestion or else it is voide For if the kinges tenaunt in taile pretendinge to be tenaunt in fee simple will pourchase lycence to make a Feoffement this is a voide lycence as it appeareth 40. li. ass 40. lib. Ass in Fitz. ti Gard p. 1. And in all cases where the kings tenaunt in chief will dismember his tenaunt that is to saie alien any parcel hereof without lycence the Kinge may distraine for hys whole rent in the parcell so aliened but if he haue the kinges lycence to make such alienacion the alience shall haue a writ in the Chauncerye called de deonerando pro rata porcione that he shall no further bee charged then after the quantitie of the porcion that he holdeth This writt you maye see in the new Natura breuium fo 2â—4 The eygthe chapiter DE ecclesiis vacantibus quarum aduocaciones spectaÌ„t ad regem alij presentauerint ad easdem Ita qd ' contentio inter dominum regem alios oriatur si Rex per consideracionem curiae presentationem suam recuperauerit licet post lapsum sex mensium a tempore vacationis nullum currit ei tempus dum tamen rex presentauerit infra tempus sex mensium Of this chapiter I fynde nothyng neither in Glanuile Bracton nor Britton ne in anye other olde writer before the makynge hereof sauinge that I fynd this texte bothe in Bracton Britton s. quod nullum tempus occurrit regi whyche Bracton in the beginninge of his firste boke vnder this tytle que res dari possit appliethe vnto liberties apperteyninge vnto the crowne saynge in this wise quod illi qui huiusmodi libertatem sibi vendicat doceat huiusmodi ad se pertinere quia si warrantum non habuerit speciale in hac libertate defendere non poterit quamuis pro se pretendit seisinam longi temporis diuturnitas enim longi temporis in hoc casu non minuit iniuriam sed auget nec in isto casu currit tempus contra regem nec incumbit ei probatio qd ' ad ipsum pertinet cum constare debeat singulis quod huiusmodi de iure gentium pertineant ad coronam sed sunt alie res que pertinent ad coronam que non sunt ita sacre quin transferri possunt sicut sunt fundi terre tenementa huiusmodi per que corona Regis roboratur et in quibus currit tempus coÌ„tra regem sicut contra quamlibet priuatam personam This it appeareth by Bracton that this texte dothe not serue the kynge in all cases for prescription shal holde sometime againste the kynge in suche thinges as a manne maye prescribe in 8. H. 5. ti trauerse P. 47. as it is commen in oure bookes that one shall prescribe for wayfe
ne voilomus nous my de ceux qui deueignount sotes per ascun maladye Vpon these words of Britton I note .iij. things one is that the king shal not haue the custodie during theire liefes but duringe theire Ideocy the second notwithstanding the lande is in the kings handes yet the other lorde shall haue theire seignories which is by way of peticion as I take it and the thirde is that the other lorde shall not haue the wardshippe of the heire nor of his landes but onely the kynge whiche thiâ—de thingê by this statute of prerogatiue are not so plainelye set fourthe and also by this statute it appeares that the kynge shall haue the custodye of suche Ideottes durynge they re lyues for the woordes bee Et post mortem eorum reddat eam rectis heredibus and not beefore The manner howe the kynge shall come to his prerogatiue appeares by a booke case .16 Edwarde the thyrde 16. E. 3. in Fits ti Liuery P. 30. where Sharde sayes that when the kyng is enfourmed that there is suche an Ideotte hys highnes shall sende for hym and cause hym to bee broughte beefore hys chauncelloure or some other whom hee shall appoynte and yf by examinacion hee bee founde an Ideot yet his hyghenesse oughte not to sease his landes vntill suche tyme as hee bee founde an Ideot by office And in the newe Natura breuium folio 232. it appeares that the kinge appointes all this matter to theschetour or sherife bothe to examine and enquire in whiche sayde Natura breuium folio 229. it appears that this office when it is founde shal haue relacion a natiuitate to auoide al meane actes donne by the Ideot that is to saye his feffements or release but learne and enquire whether suche feffees shall bee put out by thoffice without anye Scire facias to bee awarded againste them M. 18. E 3. in Fits ti 30. Scire facias P. 10. et 106. In 18 .32 E. 3. a Scire facias was awarded in that case and learne allso whether the office shall haue relacion for the profites from the tyme of hys natiuitie or onelye from the findinge of thoffice Then to the exposicion the woordes bee Rex habebit custodiam terrarum fatuorum naturalium By these woordes it apperethe that he must bee a fole natural that is to saye a foole a natiuitate â–ª for yf he were once wyse and beecame a fole by chaÌ„ce or misfortun M. 18. E. 3. Fits ti Scire facias P. 10. the king shal not haue the custody of him and so it is agreed in .18 E. 3. And also in the newe Natura breuium fol. 2â—3 and the manner of the tryall of hym to bee a foole naturall appeares in the sayde Natura breuium folio 233. that is is to saye yf hee cannot tell to tweÌ„tye pence or tel his age or who was his father and mother or such like thinges whereby yt may appeare hee hathe no kynd of vnderstandinge in that that is eyther for hys profyte or dammage But if hee bee learned or apte to learne thenne is hee no Ideot as maister Fitsherbert there thinks M. 31. E. 3. ti sauer de defaulte P. 37. and Grene sayethe in .31 Edwarde the thirde That yf hee bee able to begette eyther sonne or doughter he is no foole naturall The woordes of the statute bee further Capiendo omnes exitus eorundem sine vasto et destruccione et inueniet eis necessaria sua By these woordes it appeareth that the kynge maye take the profetes to hys owne vse fyndynge them theire necessaries And therefore in the booke beefore of Tricesimo primo of Edwarde the thyrde the kynge dyd not lette the lande vnto one of the cosyns of the Ideot yeeldynge a rente butte these woordes findynge them necessaryes is not onelye mente to the Ideottes themselues but allso to all them that hange vpon them as they re wyfe chyldren and familye And allso by these woordes sine vasto destruccione M. 3. E. 2. in Fits ti Gard. P. 5. it appearethe the kynge is bounde to reparacions of theire landes and tenementes The woordes bee allso De cuiuscunque feodo terre ille fuerint By those woordes it shoulde seeme the kynge shoulde be preferred in thys tytle of Ideocye beefore anye other lords whyche myghte clayme the Ideot as hys warde howebeit learne what other menne thynke therein Et post mortem eorum reddat eam rectis heredibus Bye these woordes it shoulde appeare that the kynge shoulde saue the custodye durynge the lyfe of the Ideof and that than an Ouster le mayne in nature of a lyuerye shall bee suyd of the same oute of the kynges handes butte whether yt shall bee made wythe the yssues and profytes from the tyme of the Ideottes deathe or onelye butte from the time of the tender of the Oustere le mayne learne butte yf the landes that the kynge hadde so in custodye bee holden of hym in capite thenne notwythestandyng these wordes of the statute yet the kynge shall haue wardeshyppe prymer seisin and all other prerogatiues as yf hys tenaunte in chiefe hadde dyed seased thereof beynge noe Ideot as it maye appeere in the newe Natura breuium fol. 2â—6 And there it appeares folio 2â—2 allso that allthoughe the Ideot helde noe landes of the kyng yet a Diem clausit extremum shall bee awarded after hys deathe to enquire what landes hee dyed seased of of whom they are holden c. And it is to be noted that yf one be fouÌ„d Ideot by office before the king seaseth the lands the Ideot dies yet the kynge shall sease beecause of these woordes in the statute â— post mortem eorum reddat eam rectis heredibus whych his grace cannot do but vpon a seisure and thys appeares 18. M. 18. E. 3. in Fits ti Scire facias P. 10. Edwarde the thirde And note allso that if ther descende to an Ideot no possession in landes butte onelye a ryghte bee it righte of entre or title of entre or ryghte of accion the kynge shall not enter and haue the custodie of the same 1. H. 7. 15. as appeares in 1. Henrye the seuenth and yet if hys tenaunt of landes holden of hym by knyghtes seruice bee disseised and dyethe his heire within age the kynge shall enter and holde the same in warde and therfore learn what is the reason that shoulde make a difference in these cases The woordes be further Ita quod nullatenus per eosdem fatuos alienentur nec quod eorum heredes exheredentur Bye these woordes it appeareth the landes cannot bee aliened by the Ideot nor the heires disheryted and therefore if the Ideot make a feffement or release of his landes and that founde by office the kynge shall auoyde it as I haue beefore noted and so likewyse his heires after his deathe by force of these woordes of the statute And yet it appeares .31 E. 3. that a recouerie by
lande within this realm holden by NormaÌ„s which after they begaÌ„ to adhere to the FreÌ„ch king the kings enemy became traytors vnto his highnes they forfaited al their lands by order of the coÌ„moÌ„ law to the king of whoÌ„soeuer they were holdeÌ„ Howbeit in such cases after the forfaiture if the king had geueÌ„ these laÌ„ds to any other he might not haue geuen them to holde of him selfe but onelye of them of whom they weare before holden as this statute plainelye declareth that king Henry the third so did M. 20. â— 3. ti Assi in Fits P. 124. et ê‘ 46. E. 3. ti Peticion P. 19. And likewise in 20. .46 E. 3. it appeareth that if the king do otherwise his patent shall be repelled and made to holde of the lordes of whom the landes weare holden before the treason and that by a peticion of ryghte to be sued vnto the king for the redresse of the same for other remedie haue they none distrayne they may not as appeareth in the newe Natura breuium f. 180. And further it should appeare by the sayde boke of .20 E. 3. that the king ought not to reteyne such land in his owne handes no while but must dispose theÌ„ ouer to holde of them that were lordes thereof at the time of the treason committed Hereby may you gather that this statute in his first braunch is but a confirmacion of the common law and that long time before the makinge hereof kinge H. 3. had this prerogatiue as it dothe manifestlye appeare in the later braunche thereof And also by Bracton in his first boke in the title De custod ' maritagijs dnÌ„orum and likewise in Britton folio 28. The woordes of the statut be further Hoc similiter intelligendum est si aliqua hereditas discendat alicui nato in partibus transmarinis et cuius antecessores fuerunt ad fid eÌ„regis Franciae de tempore regis Iohannis Angliae sicut de baronia Monumete post mortem Iohannis de Monumeta cuius heredes fuerunt de Brittannia vel alibi By this braunch it shoulde appeare that at this time men of Normandy Gascoign Guion Angeo Brittain were inheritable wtin this realm as wel as English men because that they were somtime subiect vnto the king of England and vnder their dominion vntil king Ihons time as is aforesaide and yet after his time those meÌ„ sauynge suche whose landes weare taken awaye for treason weare still inheritable within this realme till the makynge of this statute And in the time of peace beetweene the twooe kinges of Englande and Fraunce theye weare aunswerable within this realme if they had broughte anye action for theire landes and tenementes as it doth plainly appere by Bracton in his fifth boke in the title De exceptione quia alienigenÌ„ for these be his words Est auteÌ„ alia exceptio qÌ„ competit tenenti ex persona petentis propter defectuÌ„ nationis qÌ„ dilatoria est et noÌ„ perimit actioneÌ„ Vt si quis alienigena qui fuer ' ad fideÌ„ regis FraÌ„cie actioneÌ„ instituit versê° aliqueÌ„ qui fuerit ad fidem regis Angliae talis noÌ„ respondeatur saltem donec terre sint communes nec etiam si rex ei coÌ„ces serit specialiter placitare quia sicut Anglicus non auditur in placitando aliquem de terris tenementis in Francia ita non debet alienigena Francigena qui fuerit ad fidem regis Franciae audiri placitando in Anglia Note here that he sayethe that this exception is but dilatorie and not peremptorie whiche proueth that hee shall haue his accion at an other time that is to say in the time of peace And also he sayeth after Donec terre sunt communes which is as much to say vntill suche time as there is peace beetwene Fraunce Inglande Also Bracton in his thirde booke vnder the title quod mulier ostendat warrantum per quem petit dotem sayethe si warrantus fuerit ad fidem regis Franciae excipiatur de warranto remanebit dotis exactio in suspenso imê‘petuum vel ad tempus saltem donec terre fuerint comunes This warrant of dower is the heire of the husbands for by thauÌ„cient law if a woman had brought her writ of dower against any other but the heire he was not bounde to aunswere her dower vntill such time as she had brought foorth her warraunt that is to say the heire In like case after shee is endowed she is not bounde to aunswere to anye other without the heire and if it might appeare that the heir had no righte in the second part then shoulde shee be barred of her accion of dower as it appeareth in the case beefore that hys right is suspended when he is a FrenchmaÌ„ and the .ij. realmes at warre Howebeit it appearethe as I haue sayde before that this exception is not peremptorie but that after the twoe realmes be agayne at peace she shall haue her dower The woordes of this braunche be also in the Copulatyue that is to say that the auncester must be of the allegeaunce of the Frenche king that the heire of the sayd auÌ„cester is born in the part of beyond sea I put case than that the auncestour were of the allegeaunce bothe of th one kynge and the other that is to say the Frenche king and the kyng of Englande whether is this within the compas of this statute For Bracton in his saide v. book vnder the title De exceptione quia alienigena saith Quod suÌ„t aliqui qui sunt ad fidem vtriusque sicut fuit W. comes Marescallus manens in Anglia et Michaell de Seins manens in Francia et alii plures et ita tamen quod si contingat guerra moueri inter Reges remaneat personaliter quilibet eorum cum eo cui fecerit ligeantiaÌ„ Whereby it shoulde appeare that of suche as were in allegeaunce to bothe kinges the kinge shoulde haue no eschetes of their landes For the woords of the statute bee not onlye ad fidem regis Franciae but also et non ad fidem regis Ang. ideo quere And whoe shal bee inheritable at this daie that bee borne in the parties beyonde the sea and who not See the statute thereof made in the .25 yeare of king Edwarde .3 de natis in partibus transmarinis The thirtenth chapiter QVando aliquis qui de rege tenet in Capite in fata decedat et heres eius ingrediatur tenÌ„tum qd ' antecessor suus tenuit de rege die quo obiit antequam fecerit homagium regi et seisinam suam ceperit per regem tunc nullum accrescit ei liberum tenemeÌ„tum Et si obierit seisitus per idem tempus vxor eius noÌ„ habebit dotem de tenemento illo sicut contingit de Matilda filia comitis Hereford vxoris Manusel marescalli qui post mortem wilhelmi Marescalli Anglie fratris sui cepit seisinam
castri et manerii de Scrogoill et obiit in eodem castro antequaÌ„ intrasset per regem et fecisset ei homagium et vnde concordatum fuit quód vxor non haberet dotem eo quôd vir suus non intrauit per Regem immo per intrusionem sed hoc non intelligatur de Socagio et paruis tenuris This Statute is but an affirmacion of the common lawe as it maye appeare by the case coÌ„prised in the same which was ruled before the makynge of thys statute and iudged accordinge to theffecte hereof And this statute seemeth too putte a paine vppon the heires that will entrude before they haue sued theire lyuere and taketh awaye from them the free holde that the lawe had else vested in them And yet it is not taken so generallye as the woordes bee but specially and onelye of intrusions after office founde and not before And therefore if the heire enter after the deathe of hys auncestour and before office founde and the kynge pardoneth him all entries with the profites this is good and amounteth to a speciall liuere so that the heir needeth to sue no moe liueries and yet if thentrusion were after office and then the kinge woulde pardone him it were void bycause that at the tyme of the pardone he had no freeholde whereuppon the pardon might enure Like lawe is if the heire before office enter and make a feffement and the kynge pardone the feoffee it is good A. 3. H. 7. 2. and yet suche a feffement after office with a pardone were voide for the reason I haue made before Like lawe is if thentrie beefore office and the pardone after office this is voide beecause that by offyce the kinge taketh the possession from the heire or feffee and then is there no possession whereuppon the pardon maye enure And so voide For the office when it is founde hathe relacion from the death of the kynges tenaunt if it bee so that the kinge doe not release his right beefore thâ—ffice founde P. 16. E 4. 1. and that appeareth 16. E. 4. where it is also sayde that the pardone must bee as well of the profites as of the entrie or elles after office founde the kynge shal bee aunswered of the profites and .13 Henrye .4 M. 13 H. 4. there is a difference put beetwene the pardone that is made to the heyre and the pardone that is made to the feoffee For in the case of the feoffee the pardone must bee speciall rehersinge all the matters Then let vs see further for the endowement if after the death of the kynges tenaunt the heire dothe not enter but dye before office founde hys wife shall bee endowed because of a possession in lawe that was in hym Like lawe is it if hee dye after office founde and beefore anye entrie Like lawe is it if hee entre before office and dye But if the kynge bee once seised by offyce and the heire dye before licence and the nexte heire will enter beefore a Deuenerunt sued and dyeth hys wife shall not bee endowed for in that case it is an intrusion after office For when the kynge is ones seised by office this seisine remains till liuerie or ouster le maine be sued 1. H. 7. 3. 4. H. 7. 1. et 2 M. 38. E. 3. 35. And these cases are 1. et 4. H. 7. The woordes of the Statute bee further sed hoc non intelligatur de Socagio et paruis tenuris These woordes are to bee intended of common Socage for if hee holde of the kynge in Socage in chiefe and wyll intrude after office nullum accrescit ei liberum tenementum no more than if the landes were holden by knyghtes seruice in chiefe 24. E. 3. f. 34 H. 21. E. 3. 2â— And it is a generall grounde that in all cases â–ª where hee that sueth hys generall lyuerie or ouster le mayne missueth the same and entreth thereby thys entrye is an intrusion vppon the kynges possession and hys wyfe of that possession shall not bee endowed as appearethe 21. et 24. Edward 3. The fourtenth chapiter ITem Rex habebit escaetas de terris libere tenentium Archiepiscoporum et Episcoporum quando ipsi tenentes damnati sunt pro felonia facta tempore vacationis dum temporalia eorundem fuerunt in manu domini regis conferend ' cui voluerit imperpetuum saluo seruicio quod ad dictos prelatos inde pertinet et fieri consueuit Of this statute I fynde no bookecase Howbeit the letter of it is verie plaine and needs no maner of exposicion For it goeth not to anye other eschetes than suche as growe vppon offences And if the crime or offence were done whyle the lande was in the kinges handes notwithstandinge the partie were not attainted thereof vntill suche time as the landes bee out of the kinges handes yet the king shal haue the eschete by force of this statute And heare it appearethe howe the kinge shall not hold the landes forfaited still in his handes but must geue them ouer to hold of them that they were holden of before The fiftenthe chapiter QVando dominus Rex dat vel concedit alicui manerium vel terram cum pertinÌ„ nisi faciat in charta sua vel scripto expressam mentionem de feodis mill ' aduocationibus ecclesiarum et dotibus cuÌ„ accidunt ad predictum manerium vel terram pertinenÌ„ tunc his diebus rex reseruat sibi eadem feoda aduocationes cum dotibus licet inter alias personas non fuerint obseruata It is agreed in .43 E. 3. M 43 E. 3. 19 that by the order of the comon lawe before this statut if the king had ben seised of a maner to the which aduousoÌ„ had bene appeÌ„daÌ„t had geuen it to me notwithstanding that in the kinges grant there hadde bene no mencion made of the auowson nor of these woordes cuÌ„ ê‘tinÌ„ yet thauouson hadde passed from his highnes by the sayde grant for in those daies the king was but a comon parson a write of Enter sur disseisin A. 20. H. 3. ti assise in Fitz p. 431 M. 24. E. 3. f. 23 H. 22. E. 3. f 3 all other accions did lye against him as against any other comon ê‘son And therefore in 20. H. 3. A write of entrie was brought againste one supposing that he had no entrie but by disseisin which the king did to the demaundant when he was wtin age also Wilby 24. E. 3. reporteth that he hath sene a write which was Precipe H. regi Angliae in place wherof is now geuen Peticion by hys Prerogatiue And so it is said .22 E. 3. that in tyme of king H. 3. and before the king should be empleded as any other comeÌ„ ê‘son But king E. his sonne ordeined that none should sue him but be driuen to their peticion Howbeit sauing reformacion of these bookes I think the law was neuer so that a man should haue
goodes to the kinge without anye exception And hereuppon it is to be seene firste what is comprised in thys woorde catalla Catalla is a generall woorde whiche comprehendes as well Chatels mouable as not moueable For leases for terme of yeares are within this woord catalla as appeareth by Bracton in his seconde booke in the tytle of Forfaiture of Felons sayeng quod terminum annorum erit domini regis vt catalla Quia accipit terminum ad similitudinē catallorum And therewith agreeth the booke in 39 H. 6. 39. H. 6. 34 Also vnder this woorde catalla is taken the issues and profites of landes and tenementes of them that flye for felony vntill suche time as they bee attainted or acquited And like wise of the Landes and tenementes of clerkes conuicte vntill suche tyme as hee hath made hys purgacion I meane lands tenements as wel of their wines right as of their own right P. 4. E. 2. in Fitz. Forfaiture p. 16. 16. E. 3. Corone p. 356 296. et 344. so is the booke 4. E. 2. et 31. E. 3. Also vnder this word contra are takē the emblements that were growing vpō the ground at the time that the forfaifure of the goods first began to take place as appereth 3. E. 3. Also vnder this word Catalla is cōprised a right of acciō to goodes as wher goods be taken away wrongfully frō the felon or wher one is endetted to the felon by obligacion P. 6. H. 7. in Fitz ti Forfaiture p. 12. M. 19. H. 6. fo 47. et H. 30 H. 6. fo 5. P. 28. E. 3. 92 et t. Trauers 32. lib. Ass p. 33. or is accomptable to the felon for any receites or otherwise this appeareth 6. H. 7. et 19. H. 6. Also vnder this word Catalla is takē sometims goodes wherin the felon hath no propertie as if a man deliuer money out of a bagg or corne out of a sacke to one to kepe which is afterwardes attainted of felonye the money or corne in this case is forfaited Like law it is if a thief that steales goodes seuerally from sundry persons afterwarde is attainted for one of the said felonies by this one attainder the goodes that are stolen from the other bee also forfaited to the king Like lawe is it if one steale goods and before he be attainted therof he killeth him selfe or dyeth in prison or abiures the realme confessinge an other felonie then that for the which he fled to the churche in these cases he forfaiteth the gooddes that hee did steale So it is if the wife kill her husbande shee forfaites the goodes of her husbande 44. E. 3. f. 39. 26. li. ass p. 32 And these cases ye maye see in the title of Corone in Fitz. p. 317. 323. 334. 318. 162. 319. 380. 379. 423. And in the title of Auowrie p. 151. And in the title of Forfaiture p. 15. Then let vs see further what may be saide vppon this word Felonum If th offence that is committed be felony then is it properlye within the compas of this woorde Felonum he that committes th offence shal be saide Felo Notwithstanding that he therefore shal not suffer death as in a case where one killeth another se defendendo or by misaduenture this offence is felony and hee that committes it shal forfait his goodes notwithstanding that hee obtayne pardon of life Coron̄ 116. Felonie 599. Dower 183. For it was at the kings pleasure to graunt pardon or not And this appereth 15. E. 3. But so shal not he that killeth one that woulde robbe him in his house Or the officer that killeth one that will not be rested nor hee that killeth any thing not yet borne as a childe in his mothers bellye nor the parsone that is straught that killeth another in his madnesse For in all these cases it is not felonye The woordes bee further Damna torū fugitiuorum Sometimes the king shall haue his chatell although he be not condemned of the felony as if a man be arrested for felony and afterwardes breakes the arrest and the other ere hee can take him againe killes him in this case hee that is killed shall forfaite his goodes and yet hee was neuer attainted of th offence Corō p. 312. et p. 290. Like lawe is it if bee were killed in the first arrest where he woulde not bee arrested And this appeareth 3. E. 3. Howbeit since that tyme there was a statute made anno 34. E. 3. cap. 12. Whiche seemes to alter the lawe in these cases if it bee not that you will say peraduenture that he shall forfait them quia fugam fecit Ideo quere Hee that is felo de se shall forfaite his gooddes and yet hee was neuer attainted Like lawe is before H 34 E. 3. in Fitz. Eschet p. 10. of the clerk conuict And so is it of suche as stande mute or challenge aboue the nomber of 2 enquestes as appeareth 34. Ed. 3. Then further this woorde fugitiuorum is taken suche as flee or withdraw themselues for the felonye that they bee endyted appealed or accused of for that makes a great presumpcion against them as Bracton saieth in his seconde booke vnder the title Ad quae restituaturvtlagatus and for that presumption sake shall the vtlawrie proceade whether hee bee giltye of the felonye or not And also saieth hee in the saide booke quód vtlagati de felonia gerunt caput lupinum secum suum portant iudicium ita quod sine iudiciali inquisitione pereunt quia merito sine lege pereūt qui secundum legem viuere recusauerunt et hoc ita si in capiendo fugiant vel se defendant Si autem viui capti fuerint vel se reddiderint vita illorum et mors est in manu domini Regis et qui taliter captum interfecerit respondebit pro eo sicut pro alio nisi sit in locis vbi consuetudo se habeat in contrarium videlicet in com̄ Hereford et Glouc̄ And in an other place hee saieth Quod nullum crimen maius inobedientia quia pro contemptu et inobedientia porerit quis excommunicari sicut pro quolibet peccato mortale cum omnes subditi debeant esse Regi tanquam precellenti maxime in honestis et ducibus eius tanquam ab eo missis et sic concordat lex diuina aliquantulum cum humana And also saieth quod vtlagatus de felonia foriffacit patriam et amicos forisfacit quae pacis sunt forisfacit quae legis sunt forisfacit quae iuris sunt et possessionis et forisfacit actionem ante vtlagariam sibi datam Thus by the waye haue I noted vntoo you suche thinges out of Bracton as mee seemeth bee notable and make somewhat for this purpose Althoughe I needed not to haue gone so farre as to outlawrie for exposition of this woorde fugitiuorum but might haue rested at the flyenge For if one flee for the
if the laÌ„ds excede the yerely value of .xx. marks he must sue a specyal liuerie not a general therfore it makes no mater for the inquisitioÌ„ or office that the words of the statute wil beare it wel enough if there be but one office fouÌ„d But as to that it may be sayd that the meaning of the statute was not so for the kinge can neuer be fulli eÌ„formed of his title vnlesse ther be an office fouÌ„d in euery shere also by finding of seueral offices one record may be better for the kinge then an other whereof his grace may take auaÌ„tage for the best shal be takeÌ„ for the kinge Thus it appereth by statut how that of landes aboue the yereli value of vli inquisicioÌ„ must be made and an office found after the death of the kinges tenant be fore liuerie can be had and that must be by a writ of dieÌ„ clau sit extremum for that is the proper writ that is to be sued for that purpose if any sute be made within the yeare after the kinges tenants death or a special commission in the nature of the writ of diem clausit For vpon a general coÌ„missioÌ„ to enquire generally of all wards no perticular person can haue liuere And if he tarry till after the yere then he caÌ„not pursue any of these but for his remedie must sue a writ called Mandamus or a commission in nature of that writ and therupon to cause an office to be fouÌ„d and so to haue liuerie But if an office be once found by diem clausit and the heier dieth in the kinges ward his heir must sue Deuenerunt no Mandamus although it be after the yere of the death of him that dyed in ward and so is the rule in the register Sumetymes it happeneth that after deliuerie of the writ or commission and before office found theschetor dyeth or is remoued froÌ„ his office in which case then the proces that is awarded to his successor is a writ called Datur nobis intelligi but if office be fouÌ„d before his death or remouing which office is not returned then shall therbe a certiorari awarded to his executors to returne the same For it is a mater of record as sone as the iurrors haue put their seales vnto it notwtstanding it be not returned And note the thawardig of this writ of diem clausit or special coÌ„missioÌ„ is peremptorie to him the sueth for it For if he lese it or be taken froÌ„ him with force he gettes no moe writs or coÌ„missioÌ„s for the lands in that couÌ„tie and this appereth in the new Natura breuiuÌ„ fo 2â—â— Howbeit in 14. E. 4 it is touched by the waye that in such cases he should haue a new writ H. 14. E. 4. so 5. ideo quere But after office ones fouÌ„d by a dieÌ„ clausit or specyal commissioÌ„ as well the kinge partie therby are bouÌ„d as euery other straÌ„ger for somuch laÌ„des as are comprised within the office and neither the kinge ne that partie nor any other shal haue any moe writs or coÌ„missioÌ„s to enquire any further of these lands except it be in such cases as I shal hereafter recite for so the lawe shoulde neuer haue end but newe heires might be founde euery daye by office which were incoÌ„uenient and the king should not knowe to wheÌ„e to make liuerie this appereth .14 E. 4. and 2. et 4. 14. E. 4. f. 5 2. H. 7. f. 2. 4. 4. H. 7. f. 13. H. 7. But where after office found it is surmised for the kinge that his highnes hath a better title than was found for him by the first office whether the mater surmised may stand with the mater fouÌ„d by the first office or not yea although it be mere coÌ„trariaÌ„t or repugnaÌ„t it is not material But in such cases a new writ or coÌ„missioÌ„ shal be awarded As take the case to bee this By the first office it is found the kinges tenaunt in chiefe dyed seised his heir wtin age where in dede hee dyed without heir so that therby the lands ought to haue escheted to the kinge or that he was tenaÌ„t in taile dyed without issue of his body wherby the lands ought to haue reuerted vntoo the kinge in these cases the court shal awarde a new writ or coÌ„missioÌ„ for the kinge Like law is it where the daughter is fouÌ„d heir by office afterward the sonne is borne or where ther is but one daughter found heire by office where there ought to haue ben two fouÌ„d heires or if by the first office one is fouÌ„d heire of ful age which is not heir in dede but an other is heir which is within age In all these cases ther shal be a new writ or coÌ„missioÌ„ awarded Causa qua supra 14. E. 4. f. 5 4. H. 7. f. 13. as it may appere .14 E 4. et 4. H. 7. 12. R. 2 et 30. li. ass yea and a more stroÌ„ger case as it should appere in the new Natura breuium fo 2â—â— fo 2â—2 et f 295. that is to say where the kinge was to haue no benefit at all more then he had by the first office and yet a newe commission was awarded and therfore the case was there the second brother was founde heir by the first office of ful age now the eldest had a commission being also of full age to finde him heir and thervpon had his liuery So is it where 2. be fouÌ„d daughters and heirs to one maÌ„ of certain laÌ„ds where in dede parcel of the said land was geuen to one of the said 2. daughters in fraÌ„k mariage now she that claimed the frank mariage had a specyall coÌ„mission to enquire of the saÌ„e and yet by that second office the king had no benefit ideo quere For this Natura breuiuÌ„ semeth to impugne the bokes before rehersed And like as he may pray a newe writ or coÌ„mission in the cases aboue rehersed before liuerie had euen so may he do in the like cases after liuere had if the liuerie be a general liuerie therupoÌ„ as sone as the title is found the king shal rescise but not wtout a Scire facias because the statut made at Lincoln hath so prouided as I shall open more fully when I come too that place and that in all these aforesayd cases a new diem clausit may be as wel awarded as a new coÌ„mission as it appereth titulo Trauser in Fitz. pl ' 28. anno 29. li. Asss ¶ What thing shal be in the king without office or seasure what not and where by an office only without any seasure or other proces the kinge shal be in possessioÌ„ and where not and where he shal be in possession without an office but not before a seasure and how the kinge may be eÌ„titled by any other recorde as well as by an office and where a man may enter as well vpon the kynges
possession as any other By a statute made the .33 yere of the late kinge of famous memorie H. 8. the 20. chapter it is among other things prouided that if any person or persons shal be attainted of hye treson by the course of the comon lawes or statutes of this realme that in euery such case euery suche attainder by the cōmon law shal be of as good strength value force and effect as if it had ben done by authorite of parliament that the kinges maiestye his heires and successors shall haue as much benefit auātage by such attainder as well of vses rights entres cōdicions as possessions reuercions remainders and all other things as if it had ben done and declared by autoritie of parliamēt and shal be demed and a iudged in actuall and reall possessiō of the lands tenemēts hereditamēts vses goods cattals all other things of the offēdors so attaīted which his highnes ought lawfulli to haue and which they so being attainted ought or might lawfulli lose and forfait if the attainder had ben done by authorite of parliamēt without any office or inquisicion to be founde of the same any law statut or vse of the realme to the cōtrarye therof mani wise notwtstādīg This statut maks it clere without questiō that in cases of hye treson the lāds of him that is attainted are in the kinge biand by without any office But for other attainder it remaines as it was at the comō Law and therfore lerne if one which holdeth of the king be attainted of petit treson or felonie whether in this case by thatainder his lands be in the king without office and me semeth by attaīder and death together they should be in the kinge in law howbeit not in dede vntill suche time his highnes seise themby his officer or that an office bee therof foūd for by thattainder the lands are forfaited to the kinge by mater of record and then when the partie dyeth either the frehold must be in suspence or els aiudged in the king in lawe for he that was seised hath corrupted his blood and is dead without heir and therfore his highnes is beecome owner thereof in lawe and a possession in lawe vested in him of the same landes which his highnes at his will and pleasure may make a possessiō in dede as sōe as he wil take vpon him knowledge of the sayd landes and sease them by his officer And therfore the booke is agred 20. E. 4. 20. E. 4. so 10 that if he that is attaynted be seised of auowsōs appendaūt as sōe as the church becometh voide the king may presēt wtout any office which proues that the kinge by thattainder was patron before any office found or els how could his highnes present and I see no differēce betwene lāds auousōs in this case for auouson is not so transitorie toward the kinge but that he mai take the presentment therof at all times whē he will quia nullum tēpus ei occurrit Howbeit lerne what the law will in this case for many mē are of the contrarie opinion And see the boke .4 E. 4. cōcernīg this mater And so note what is sayd of a possession in law 4. E. 4. 21. for as I take it there may be a possession in law in the kinge as well as a possessiō in dede which possession in law is euer without office or any other mater of record as whē the possessiō is cast vpō his highnes by a discēt reuerter remaīder or escheit or in title of his seignorie or prerogatiue as for wardship primer seisī or for the custodie of the tēporalties of a bishop during the time that the see is vacant in all these cases without any office or other mater of record here is a possession in law vested in the kings highnes that is to say for that that doth descēd reuert remain or eschet the freholde is cast vpon him in lawe as it should be vpon a comon person in the like case or els the frehold should be in suspence which may not be of the rest the possession in law of a cattell is in his highnes in right of his seignorie which his highnes at his will and pleasure may make a possession in dede by entre or seasure but not to make it a possession in dede by his graunt because there is a statute made in the 18. yeare of H. 6. ca. 6. to the let therof which prouideth that all letters patents made of lāds tenements before office foūd and returned or within one month after but onely too him that tendethe his trauerse shal bee voyde This statute extdes onely to landes and tenementes therfore of the bodie of his warde his highnes may make a graunt notwithstandinge this statute as me semeth for that is neither lād ne tenemēt also notwithstādinge that this statute doth restraine the graunting of the lāds tenemēts yet the seisin therof remaines and is in the kinge as it was by order of the comon lawe which is as I sayd before in his highnes in lawe although not in dede vntil such time as he hath made a seasyn or an entree by his eschetour or a graunt therof which wayethe both to a seasure and a graunt in such cases where the graunte maye bee goode and not restrained by statute or vntill such time an office therof be found For an office that entitleth the kinge to the possession is sufficient by it selfe without any seiser or entre of the eschetour to make a possession in deede in the kinge if it be so that the possession were vacant when the office was founde But if the possession were not vacāt but an other thā he in whose right the kinge seiseth was tenant therof at the time of the findinge of the office then must the kinge entre or sese by his officer before the possession in deede shal bee iudged in him yea and if his highnes seise not by the space of a yeare and a daye after the findinge of the office then maye be not seise without a Scire facias to bee pursued agaīst him that is tenāt therof 9. H. 7. f. 2. 7 49. E. 3. f. 22. 20. E. 4. f. 10. Estopel 255. Trauers 50. 32. Ass P. 32. 29. Ass P. 30. 21. H. 7 f. 7. P. 21. E. 4 f. 1 Gard. P. 105 And of those maters you may see bokes 9 H. 7. 49. E. 3. 20. et 21. E. 4. 4. E. 2. 10. H. 4. 21. H. 7. 29. et 32. li. ass But heruppon is there a distinction to be made whether that that the king is ētitled vnto by office be a thinge manuell and wherof profit maye bee taken forthwith after the findinge of the office or not For if it bee such a thinge as is not manuel and wherof there is no profite too bee taken forthwith vntill such time it falleth in that case althoughe the king be in possession of the right of
the thing yet is he not in possession of the profit therof vntill such time as his highnes actually by his officer when it falleth taketh and perceiueth the said profit as for example The thing that king is entitled vnto by office is no land but auowson rent or a comon although that the kinge by this office be patron of thauouson or owner of the rent or comon and therby when the benefice becometh voide may present or when the rēt daye cometh may receue the rent or when the comō is to be takē may vse the said comō yet if the office that entitleth his highnes be false and he that was in possession at time of the office take the profite when it falleth before the kinges officer do take it in this case this takinge is no entrusyon vpon the kynges possessions for he was neuer seysed in deede wherefore being driuen to his accion if his highnes bringe his Quare impedit or accion of trespas the defendant maye trauerse the office with him in the said actions keping still his possession and neede not too sue in the chancerie for the trauersing of the same This maye you see a Difference beetwene a thinge that is manuel and a thinge not manuel and what the reason therof should bee learne for as I. suppose the reason of it is no other but as I sayde before that when a straunger is tenant at time of the office findynge the office maketh no possession in deede in the kinge beefore an entrie or a seiser And then when the kinges officer taketh not the profites when it falleth but suffreth him that was in possession to take it then was the kinge neuer seised but he still remaines in possession that was possessed at the time of the finding of the office vntill such time as seiser bee made for the kinge which can not bee done at all times as it maye bee of land but onely at such times as the profit therof is too bee takē that is to saye when it fallethe and that is nowe past for this time seynge it is allredy taken and therfore the kynge in that case is driuen too his action But quere whether his highnes may bee brought in possession in those cases by a clayme or not And these cases maye you seee in the bokes of .17 E. 3. f 10. 21. E. 4. f. 1. 5. E. 4. f. 3. et 4. E. 3. 15. H. 7. f. 24. Quare Impedit P. 33 Like law is it where an office is found which doth not entitle the kinge to the possession by entrie but onely by action as where it is found that the kinges tenant for terme of life or yeres hath done wast or being his tenant in fee simple hath cessed by ii yeres or made a feffemēt by collusiō contrarie to the statut of marlebrige or such like For it is a general rule that in al cases wher a comō person cannot ēter but is driuen to his action there the kinge can not haue the possession but by like action or ells by a Scire facias after office foūd in nature of the actiō for the office in the case entitleth the kinge to no other thinge but onlye to the action as appereth 21. H. 7. f. 1◠21. H. 7. fo 1◠But quere of a feffmēt that is foūd to be made by collusiō cōtrarie to the statute A. 34. et 35. H. 8. ca. 5. for in the case it semes his highnes may enter wtout Scire facias beecause the said statute apointes no action to be sued in the case And note that in al these cases before where the kinge is driuen to his Scire facias or other acciō if the office be false the partie maye trauerse the office with the king keping still his possessiō whether it be in the chancerie or in any other court nede not to sue any ouster le main if it be foūd for him because he was neuer out of possessiō Thē further let vs see in what cases the king can not be ētitled but only by office or other mater of record in what cases he may howbeit not to haue anye possessiō either in dede or in law vntil the time there be a seasure made And as to that note that in all cases where a comō persō can not haue a possessiō neither in dede nor in law wtout an entre there the kinge can not haue it wtout an office or such like mater of record as where the king hath title to enter for a mortmain or for a cōditiō brokē in this case the king can haue no title vntill such time as the sayd mortmain or cōdiciō broken be foūd by office or by some other record as it appereth 2. ◠9 H. 7. 2. H. 7. in Fitz ti proc P. 10. So it is in diuerse other cases concerning the kinges prerogatiue as in the case of Ideotes of lunatikes which haue lāds or tenemēts or when his highnes is to be ētitled for annū diē et vastū of persōs attaīted or for an alienaciō wtout licēce or to sese the tēporalties of a bishop for a contēpt in all those cases his title must be furst foūd by office or otherwise apere of record for these rights his highnes hath only as king But if his highnes haue cause to seise the lāds of his widow that hath maried her self wtout license his highnes maye seise notwtstandinge there be no office foūde of her mariage as it appereth in the new Natura breuiū f. 174 Learne what should be the reason therof more then in the case of alienaciō before Like law hath bene vsed where his highnes is to sese lands of priors aliens within this realme ratione guerre his highnes doth it without any office for in bothe these cases the kinges title is notorious enoughe althoughe it appere not of recorde But yet in those cases his highnes must seise eare he can haue anye interest in the lāds because they bee penal toward the partie and of these cases you shall finde bokes 49. E. 3. f. 17. 21. E. 3. fo 31. 21. H. 7 fo 7. 14. H. 4. fo 37. 22. E. 4. fo 4. 3. et 17. E. 3. fo 1. et 17. Other prerogatiues the kinge hath which extende onely to personal and transitorie thinges ad bona et catalla felonū wreke de mere tresour troue or the profites of landes of clerkes conuict of felonie or of persons outlawed in a personall action to these thinges it semes the kinge is ētitled although there be no office or other mater of record found of them as it should appere 11. H. 4. fo 39. 21. H. 7. fo 7. et 27. li. ass P. 50 And note that if the kinges title appere any way of record Gard. 1. 40. Ass P. 36 it is as good as if it weare found by office Therfore yf the kinges tenāt alien wtout licence which alienacion appereth by fine or other mater of recorde
in this case if ther bee an other record found that proueth the landes to be holden of the kinge in capite vppō these .ii. records together proces shal be made against the partie by Scire facias to come and shewe why he should not make a fine for the alienacion Like lawe it is where there is a record to proue that he that aliened is but tenant in taile of the kinges gift and he pretendinge to be tenant in fee simple doth purchace a licence of alienaciō and a lienethe and after dyethe without issue which deathe is founde by office but nothinge of his state taile or lycence appeareth in the sayde office yet vpon all these recordes laied together the king shal haue a Scire facias against the alienee to show why the land should not be seised in to his handes and his highnesse aunswered of the profites since the death of tenaunt in taile for when hee was but tenaunt in tayle it appearethe that the lycence was pourchased vpon false suggestyon and so voyde 40. li. assise in Fit ti Garde P. 1. and thenne the landes ought to reuerte to the kynge beecause hys reuercion coulde not bee discontinued And this maye yowe see 40. li. ass Then laste of all it is to bee seene whether the possession may bee taken from the kynge bye entrye or not And as to that yf the kynges possession bee by matter of recorde noe persone can dysseise hym or take the possession from hym for lyke as the kynge maye not take by gyfte from anye persone but by matter of recorde noe more maye the possession departe from hym but by matter of recorde and therefore his hyghnes cā not haue assise or Electione firme siue custodie lyke as a common persone maye yea and thoughe the entrie bee not immedyatlye vppon hym but vppon his committee or fermer yet it is noe disseisin to his hyghnesse as it appearethe 4. H 7. folio 2. M. 2. H. 4. M. 14. E. 4. folio 35. H. 6. in Fits titulo Suggestion P. 9. 2 M. 35. H. 6. folio 1 Bye the whiche sayde booke of 35. it also appearethe that if the kynge or hys commyttee bee cast oute of the wardeshyppe of the landes that the remedy is in thys manner that is to saye vppon suggestion thereof made in the Chauncerye there shal bee awarded a wrytte called Amoueas manum and that vppon a certaine payne whyche wrytte maye bee awarded onelye vppon this suggestion wythoute anye presentmente or enquirie and thys writte maye bee graunted to the committee as well beefore possession hadde of the warde as after for where the kynge was once possessed by office and grauntes it ouer yet this possession styll remaines for the kynge abydeth stil gardeyne notwythstandynge anye such graunt And therefore this writte of Amoueas sub pena lyethe for the grauntee or committee although the graunt be absque aliquo inde reddendo And if vppon this writte of Amoueas the defendant do not restore the thing then shall goe out againste him an attachement vpon which writ the defendant maye appeare and shewe his title which if it be founde agaynste him he shall then make restitucion by iugement and paye a fyne and aunswere the meane issues profites Thus dothe it appeare that the king cannot be disseised or eiected if his highnesse bee once seised by mater of recorde Otherwyse it is before his seisin bee by mater of recorde for if beefore office a straunger entre by title or without title this is no intrusion vpon the kinges possession but in this case the heire may haue Assise of mort dauncester againste the straunger if hee will whiche proues that by his entrie hee hath gottē bothe a freeholde and a fee simple But as sone as the office is founde and the eschetoure entreth this possession of the straunger whiche entred witheoute title is clerely vndone and the freeholde and the fee simple reuested in the heyre But if the entrie of the straunger weare by title and afterwarde office is founde and the kynge seisethe whether then it bee so or noe learne And it shoulde seeme to bee all one or els the kynges seisure is not good for howe can the kynge seise in an other bodyes ryghte if the ryghte weare taken awaye beefore by an entrie therefore it shoulde seeme eyther hys highnesse hathe noe title in that case to seise or els by his seisure the freeholde and the fee simple muste reuest in the heire But note that if the kynge wyll bye coloure of a recorde seyse an other mannes lande whiche recorde geeues him noe title in deede notwythestandynge anye suche seysure yet hee that hathe righte maye entre vppon the kynge and bye his entrie reuestes agayn in himselfe bothe the freeholde and fee simple as where it is foūd the kynges tenaunte dyed seysed but of an estate for terme of lyfe the reuersion to an other and thys notwythestandynge the kynge seisethe in this case if hee in the reuersion entre vppon the kynge this is a good entrie and therefore the case was hee made a feffement after his entrie and it was thoughte to be a good feffemēt Like law is it where the kynge is entitled but onelye to the profites as vppon an vtlagarie in a parsonall action or vpon the conuiction of a clerke in these cases if the partie entre and make a feffemēt or if a straunger that hathe title to entre do entre hee dyschargeth the kynge of hys interest and of these maters Trauers 12. Assise 156. you shal find bokes 8. H. 4. f. 16. 21. E. 3. f 1. 3 H. 7. 10. E. 3. 27. ass P 15. 9. H. 6. f. 20. 21. H. 7. f. 7. Enterpleder SOmetyme it happenethe that by two seuerall offices founde in one countie seuerall parsones be seuerallye founde heires to one man wherebye forasmuche as the kinge is brought in doubt to whiche of them his hyghnesse maye make liuerie they therefore muste firste enterplede and when by enterpleder the priuitie of the bloode is tried beetweene them then his highnesse oughte to make the liuerye to him that is tryed to bee the nexte heire of him that dyed As for an example by one Diem clausit or specyall commission in one countie one is founde heire to hym that dyed the kyngs tenant and of full age and by an other Diem clausit or speciall commissiō in the same countie one other is founde heire also to hym that dyed and within age in this case the heire that was firste founde shal haue a Scire facias in the chauncerie against hym or her that was last foūd heire to come shew why liuerie should not be made vnto hym that last dyed seised thereof vppon whiche writte yf a Scire feci be returned and the partye defendaunt cometh not or yf he come and confesse that he hymselfe is not heire then the plaintife in the Scire facias shal haue hys lyuerie but if hee come
that hath but a chatell shall not be receiued in anye case to falsifie the record that geueth any man interest in the freehold although he be a straunger to that record Contrarie lawe is it of him that hathe a freeholde or inheritaunce in the lande for they shall trauerse the recorde in suche case Lyke lawe is it where the kynge is entitled but to the wardeshyppe of the heire of his tenaūt hee that is fermer of the dimise of a straūger shal not trauerse hys office althoughe the king be not entitled thereby to anye freeholde for it was not the minde of the makers of these statutes to helpe them that clayme but chatels which are accompted in law as nothing because they perishe and abide not Et de minimis non curat lex Howbeit learne what the law wil in these cases for I haue seene noe bookes of them The lorde in title of wardshyppe shal trauerse the office and yet hee claymethe but a terme of yeares in the lande as where it is founde by office that such a one helde lands of the king in chief and dyed his heire within age where in deede he holdeth no suche lande of the kynge but onelye of mee by knightes seruice in this case I that am lorde shall trauerse this office that is to saye shewe howe they bee holden of mee by knightes seruyce without that they be holden of the king as appereth in 1. H 7. Trauers 20. For ther it toucheth the lords inheritance in the righte of his seignory because he by the false office is to lose the profit that is presently fallen by reason of his seignorie it is reason he be receaued to trauerse the office But if hee were but lorde in socage he shoulde not be receiued to his trauerse because he therby can make no title to the wardshippe of the body 37. lib. ass P 35. and landes of the childe for it is a good generall grounde if the kynge be once seised his highnes shall reteine against all other that haue noe title notwithstandinge it be found allso that the kynge had no title but that the other had possession before him as appeareth in .37 lib ass where it was found that neither the kinge nor the partie had title and yet adiudged that the kynge shoulde reteine for thoffice that fyndes the kyng to haue a right or title to entre makes euer the king a good title allthough it bee false and his highnes therby maye take possession against any other that is seised of the landes and reteyne vntill such time as thoffice be trauersed by him that hath title and tried to bee a false offyce And therfore no man shal trauerse thoffice vnlesse he make him selfe a title And if hee can not proue his title to be true allthoughe he be able to proue his trauerse to bee true yet this trauerse wil not serue him As for an exāple it is foūd the kyngs tenaunt died seised of certayn lands that he held of the kynge in chiefe his heire beeinge within age where in dede he had made a feffement in his life time to an other of those landes it is no trauerse for the feffee to say he dyed not seised but he must first make him selfe a title by the feffement and for asmuch as it is founde that the landes are holden in chiefe if he wyl make his title good againste the kyng he must shewe fourth a lycence of alienation or a dispensation therof or els hee muste trauerse the tenure in chiefe as well as he shall doe the rest of thoffice otherwise his tytle is not good Trauers P. 44. et 46. Liuerie p. 18 as it appearethe in .36 E. 3. 3. H. 4. 6. H. 5. .3 H 7. f. 14. Howbeit Hussey holdeth opiniō that not mā may trauerse the tenure but the lord or the heire vnlesse his title be found by office but whether the lawe be so or not learn for as I take it the lorde and euery straunger that hath a tytle againste the kynge makinge his title shall trauerse the office before his title be found by office for when the trauerse is found for the partie his title nowe appeareth of recorde and by the trauerse found the office which was the kings title is vtterly destroyed gone so that now the king is not to make any liuerie of the lands to any person but onely to a moue his hands from the same with the meane issues and profites as one that had no cause to seise them And therefore euery man may enter now that will if he haue right or title of entrie to the lands for the king deliuereth them to no person certaine but onely ryddes his own hands of them as he that had neuer seised thē but otherwise it is where the king is to make liuerie for there his highnes must bee enformed certainly by mater of recorde who shal be his tenāt whoe it is that ought to receiue the liuerie at his handes least his highnes be deceiued in thadmitting of his tenant which ys ought to be a great mater towarde the lord therfore the cases be not lyke wherfore I think a man may trauerse by force of these statutes without hauing their title first found by office so be our bokes .36 E 3. 2. E. 4. f. 10. 16. E. 4. f. 4. Trauers 44. 43. li. ass P. 20. Howbeit 5. E. 4. fo 5. semes to weye to the cōtrarie hereof 12. H. 6. also where it is sayde that if it bee found that the kings tenāt died seised wher in dede he was iointly enfeffed with me now can I not trauerse this office except an other office were founde for me But contrarie lawe should it be if it had ben foūd by the office iointenant with hym for term of life wher in dede I was iointenaunt with him in fee simple in this case I may traūse thoffice because mētiō is made of me in the sayd office this boke case admitted to be law yet it varieth frō the case before remēbred of the strāger that trauersed thoffice for here thoffice is true and when it is found by office that he died seised this maye be allthough the sayde dying seised were iointlye with an other for any thynge that is expresselye founde to the certaintie and then the king here is to admit an other tenant as in the case of the liuerie before of whome as yet he hath no credible informacion that is to saye by mater of recorde and then it is lyke to the cases of tenant by the curtesie tenant in dower and the deuisee which in no wise can be admitted to their estats vnlesse mention be made of them in the office or some other office or mater of recorde found for them 9. H. 7. fo 24 Brief 618. as appearethe in 46. E. 3. M. 11. H. 8. and for none other reasō as I gather it but onely for that thoffice is
But as to that a manne maye answere and saie that a Chaunceller hathe two powers the one absolute the other ordinarie and this trauerse is before him by an ordinarie power in whiche case all thinges touchinge the same must proceede as it shoulde before anye other ordinarie iudge of the common lawe and therefore it shoulde appeare by a booke in .4 H. 6. fo 12. et 22. Trauers 12. Edward 4. fo 9. that if the partie be nonsuit in this trauerse it is peremptorie vnto him for so might hee delaie the kinge infinitely tamen quere and learne whether one maye procede with a trauerse the heire beeinge within age or else shall tarrye till hee bee of full age for the booke is in 5. T. 5. E. 4. f. ◠Edwarde 4. that hee shall tarrie till the heire cometh to age But in this question one may make this distinction that is to saye Whether the trauers be tēded by a strāger or by the heir for sōtymes it happeneth that the heyr shal traūs as wel as a strāger For no more then a straunger can haue ouster le maine wtout trauersinge all the kinges titles no more may the heir haue liuerie wythout trauersinge all his tytles and then if the trauerse bee to bee taken by the heire hee shal not be thereunto admytted vntill hee bee of age because that beefore that time he hath no cause to haue his liuerie But that reason serues not where the trauerse is to bee taken by a straunger and therefore it should seeme that hee shoulde haue it by and by For hee hathe cause to haue an ouster le maine forthwith and that with the meane issues and profites and therefore it were no reason that the nonage of a thirde person shoulde hinder him with whome hee is not to plede or to trye anye right but onelye with the kynge For if the childe haue right hee may enter vpon the stranger after hee hath his ouster le maine and trye hys righte with him and so at no mischiefe And note as I saide before that the heire must trauerse all the kinges titles ere hee can haue liuerie and that whether the kinges tytle be in his owne right or in the right of an other in his owne right as if there bee a recorde that proues this lande to be aliened wythout the kings lycence or that thauncestour of thenfaunt that woulde sue his liuerie was but tenaunt for terme of lyfe the reuercion to the kynge and hathe made a feffement to the kinges disheritance or suche lyke in these cases notwithstandinge the kinge did not seise by vertue of these recordes but onelye by vertue of thoffice whyche founde thauncestour of thinfaunt dyed seised the kynges tenaunt in chiefe of estate in fee simple yet the heire geatteth no generall liuerie vppon that office vntill suche time as hee hath auoided these other recordes And if hee haue it before it is a cause of reseiser So it is where the kynges title is in righte of anye other as if one bee founde heire by office and after by another office an other is founde heire of the same landes to the selfe same auncestour in this case he that was first found heire cannot haue his generall lyuerie vntill suche time as hee hathe destroied the other title either by an enterpleder or a trauerse for if it so come to passe that he cannot enterplede then must hee trauerse or by some other meanes auoide the recorde ere hee can haue his saide generall liueries and if he sue his generall liuerie otherwise it is then missued and a good cause geeuen to the king to reseise And this enterpleder or trauerse beetwene them that claime as heirs is by the order of the common lawe and not by statute and can neuer be but where both theire titles bee founde first by office and the reason is because that as sone as the matter is discussed betweene them hee for whome it is founde shall forthwith haue hys general liuerie which he can neuer haue if his title bee not first founde by office and therefore not like the case where a straunger trauerseth with the kinge that is to haue but an ouster le maine for there the kinge hadde no right too seise and therefore his tytle nede not to bee found by offyce as I haue saide before But in the other case who so euer shall claime the lande as heire his highnes hath right to seise in the right of the saide heire and to haue his primer seisine or wardshippe as the case dothe require And therefore his title must bee first founde by office but where one heire is to trauerse with an other heire duringe the kinges possession this shall not bee vntill hee that is first founde heire by thoffice come of age because vntil that tyme the landes ought to remaine in the kinges handes and then hee to haue liuerie but whether hee that was firste founde heire shoulde tarrye for thage of him that was laste founde heire I haue said my mynde therin before in the tytle of Enterpleder But where a straunger is to trauerse hee shall not tarrye for thage of the heire for the causes before remēbred And so there appeareth to bee a great difference beetwene a trauerse taken by him that is a straunger and by him that is heire But at this daye moste liueries that bee sued are specyall liueries whiche conteine in them selues a pardone and therefore the myssuinge of them is dispensed withall by the woordes of the pardone conteined in the saide liuerie And so manye of these thinges that I haue spoken of before are not much to bee obserued if the liuerie or Ouster le maine bee not generall For I see no lett but that an ouster le maine maye be graunted specially as well as a liuerie And laste of all it is to bee noted that this trauerse extendes not to euerie recorde that entitleth the king but onelye to suche recordes as bee trauersable as an office or suche like as I shall shewe my mynde therein more fullye in the chapter of Peticion Other trauerses there bee whiche bee trauerses by order of the common lawe And not by any statute as trauerses vppon enditements or presentmentes whereof I entend not to entreat in this place amonge whiche trauerses there is also by order of the common lawe a trauerse concerninge goodes and cattalles of persons attainted for the whiche a manne shall trauerse with the kinge althoughe his title thereunto bee by double matter of recorde As take the case to bee a manne is attainted of treason or felonye or outlawed in a personel accion and after by office it is founde that hee was possessed of a horse or anye other gooddes as his owne proper cattell where in deede they bee the goodes of a straunger in thys case the saide straunger shall trauerse this office with the kinge So is it if it bee founde by office that a manne outlawed in a personall accion is seised
of certeine lāds which in deede are my landes and theschelour by force of that fals office takes the profites in this case I maye disturbe hym without trauersinge thoffice And those cases appeare .4 Edwarde .4 fo 24. 13. Edward .4 fo 8. T. 9. H. 6. fo 20. M. 47. E. 3. fo 26. Then further The woordes of the saide statutes of anno 36. bee that if anye came before the Chanceller and shewe his right whereby it may appere by good euidence that hee hathe an auncient righte and good tytle then the chaunceller shall let the saide landes to the partye that tendeth the trauerse yeldinge to the kinge the value if it bee aiudged for the king in maner as hee and the other Chaunceller haue done before him by theire good discretions so that hee to whome it shal be letten finde suretie to doe no waste or destruccion beefore the trauers bee discussed By the woordes of this statute it shoulde appeare that the Chauncellours before this time by theire discrecions hadde vsed to let the landes to the partie to ferme Quare impedit p. 34. and that is true for the kinge vsed so to doe vppon a peticion whiche was made to his highnes by the order of the common law in steede of a trauerse nowe vsed as appeareth 5. Edward 3. Trauers 12. and therefore I thinke his highnes may do so at this day bothe vpon a peticion and a Monstrance de droit although the statute make no mencion thereof for so it was vsed to doe by order of the common lawe as it appeareth by the booke before And of this matter see the booke .3 Henrye .7 Now is this statut amplified and made plainer in thys point by the statute made in the .8 yeare Henrie .8 the .26 chapter whiche will that no landes or tenementes seysed into the kinges handes vppon enquest taken before eschetours or commissioners bee in anye wise graunted or letten to ferme by the Chaunceller or Tresorer of Englande or anye other the kinges officers till the saide enquestes or verdites bee retourned fullye intoo the Chauncerie or theschequer but all that time shall abide in the kinges handes and by a moneth after the saide retourne if it bee not so that hee or they that feele themselues greeued by the saide enquest or that are put out of theire landes and tenementes come into the chauncerie and offer to trauerse the saide enquestes and to take the saide lande or tenementes to ferme whiche if they doe then the saide Chauncellour Tresorer or other officer shal let them haue them to ferme shewinge good euidence prouing theire trauerse to be true accordinge to the forme of the statute of an .36 E. 3. to holde till the issue vppon the saide trauerse taken bee founde and discussed for the kinge or elles for the partie and also fyndynge sufficient suertie too pursue the saide Trauers with effecte and to render to the kinge the yearely value of the tenementes whereof the trauerse shal bee so taken if it bee discussed for the kinge And if anye Letters patentes of anye landes or tenementes bee made to anye other parson to the contrarie then the same to be void after the moneth Hereuppon is to bee noted that the shewinge of the euydēce is onelye rehersed to the lettynge of the landes to ferme not to the trauerse For by this statute hee maye trauerse without shewinge anye euydence but not haue the landes to ferme Also by these Statutes hee is not bounde to noe certeine tyme for takinge of hys trauers but onelye for takinge of the landes to forme for hee maye tende hys trauerse when hee will so hee desire not the ferme of the lands But if hee will haue them to ferme hee must tend his trauers within the moneth as appeareth P. 13. E. 4. fo 8. and nowe by the statute of anno 1. H. 8. ca. 9. hee hath three monethes libertie to doe it Also note the thinges that he must fynde suertie for that is to say to sue with effecte to paye the rent after the trauers bee discussed and to doe no waste or destruccion In this woorde rent is emplyed all the arrerages of the rent that shall encurre meane betwene the takynge of the ferme and the discussinge of the trauerse and yet it is not so expressed Also the lease that is made to hym that tendes the trauerse is not of anye terme certeine but onelye by these woordes Donec discussum fuerit for the woordes of the statute bee so and therefore as soone as the trauerse is founde againste him that tendeth it by and by the lease hee hadde in the landes by force of the Statute is voide as apperethe in .4 Edwarde the .4 folio .29 wythout anye further proces Howbeit forasmuche as the woordes bee to holde till the issue vppon the saide trauers taken bee founde and discussed for the kinge or for the partie I woulde learne if the partye bee nonsute vppon hys trauerse or that the trauerse bee aiudged againste him vppon a demurrer in lawe whether the lese shoulde bee voide or not like as it shal bee vppon the issue founde And it seemes it shal bee by the woordes comprised in the saide statute of anno 36. Edwarde .3 But not by any words comprised in the saide statute of an .8 H. 6. For the wordes bee tanque il soit aiudge and therewih agreeth the booke in 4. H. 6. fo 12. Also note that before this statute of anno .8 H. 6. the kynge did vse to graunte the custodye bothe of the landes and body to anye other to whome hee woulde after office and beefore anye trauers tended and this graunt was good because it was not then restrained by any statute Howbeit vppon the trauers tended a Scire facias shoulde haue beene awarded against the patentee comprehendinge in the same all the trauerse And if he had beene retourned warned and came not his patent had ben voide eo facto as appeareth in the saide booke of .4 Henrye .6 at least wise for the landes and yet there was then no estatute that made them voide quod nota And then by and by they shoulde haue beene letten to ferme to him that hadde tended the trauerse But nowe whether since the makinge of the saide statute of an .8 Henry the .6 fo 17. a Scire facias shal bee awarded against the Patentee vppon a Trauers lerne for the saide statute makes suche letters patentes voide for the graunt of the landes but not so for the bodye and therefore it seemes a Scire facias shal bee still awarded and the graunt also of the saide landes is not voide till after the moneth H. 8 H 6. 17. 5. E. 4. .3 .5 M. 14. E. 4. 1 And nowe by the saide statute of anno .1 Henry .8 not till after three monethes and so it shoulde seeme by the booke of .5 and .14 Edwarde .4 and 8. Henry 6. that a Scire facias shal bee awarded at
trauerser loffice ou auterment mre son droit et illeoques maunde deuaunt le roye a faire final discussion sauns attender auter maundement This statute speakes bothe of trauerse and Monstrance de droit disiunctiuely whereby a man may gather that if Monstraunce de droit were not by thorder of the common law as it is saide 13. E. 4. f. 8. that it is yet were it geeuen by this estatute And no booke that beares date before this statut can I find that treates any thing of Monstraunce de droit Wherfore without preiudice to anye mans oppinion mine oppinion is that it is geuen onely by this statute but whether it bee so or not so I doe not greatly force Let vs see what it is in what cases it lieth If the kinge bee entitled by office or other matter of recorde that is trauersable Howbeit there is no cause of trauerse for that the office or recorde is true in this case anye manne that hath right to the possession of the freeholde of this lande whiche in shewinge of his right is able to confesse this office and auoid it shal bee receyued if hee bee putte out of hys possession or greeued thereby to come into the Chauncerie and shewe his saide right which beinge there proued to be true iudgement shal bee geeuen that the kinges handes be amoued from the possession of the saide landes with the meane issues and proftes to be restored vnto the party that sueth the said Monstraunce de droit As for an example it is founde by office that the kinges tenaunt by knightes seruice in chiefe dyed seised of certeine landes whiche are descended to his heir being within age where in dede in his life time I recouered this land against him and suing no execution suffred him to dye seised therof now vpon this office returned into the Chauncerie shall I come shewe my right that is to saye this recouere and auerre that this lande founde by office is the lande that I recouered or parcell thereof which being so proued and tried I shall haue an Ouster le maine Like law it is if the kings tenaunt disseised me of those landes and I made my continuall claime or that I had title to enter for condicion broken into the saide landes in the life of the kinges tenaunt and I entred and after was disseised by him But quere if I did not enter in his life whether now I may bee holpen by a Monstraunce de droit vppon the kinges possession And me thinkes not because I haue noe righte in that case till I enter for vntill that time the right continueth still in hym so that the kinge then hath a right ere I haue a right which ought too bee preferred and take place since it is but for a tyme before myne And for these cases see the booke in .3 H 7. fo 2. But if the king bee entitled by matter of worde not trauersable as if he be entytled by double matter of record in this case I can not haue my Monstraunce de droit no more than I can haue in the like case of Trauerse vnlesse my title be founde by one of the saide recordes As take the case to bee It is founde by office that one suche that holdeth of the kinge disseised mee and then committed a felonye vppon whome I entred after whiche entrie the saide tenaunt was attainted of the felonye in this case I shal haue the lande out of the kings hands by a Monstrance de droit causa qua supra And yet the kinges tytle is here by a record and not trauersable that is to saye thatteinder But what than My tytle is also founde by office and appeareth by matter of recorde M. 3. E. 4. 26 A. 4. H. 7. 6 whych beynge proued true doth clearelye auoide the kyngs possession and that is the reason I shall be receiued in thys case to a Monstraunce de droit as appeareth in .3 Edward 4. And therewith agreeth the booke 4. Henry 7. where kyng Richard the thirde was attainted of Treason by act of Parliament and found by office that he was seised of certeine land cometh one B. and saith that in the saide Parliament it was enacted that an atteinder of treason had against the father of the saide B. shoulde bee auoided and adnulled and hee restored to his landes and that these lands cōprised in the office were in the hands of the said king R. by attainder of his father aiudged that vpon this Monstraunce de droit the party should haue restituciō because his right appered by mater of record Like law is it wher it is found by office that such a one is attainted of felony is seised of such landes which are holden of the king nowe he that hath cause to sue his Monstraunce de droit can not be admitted therunto by reason of these two records Howbeeit if it bee so that there is noe suche attainder in deede then may the party that would sue a Monstraunce de droit saye that there is no suche recorde of attainder which beeinge founde true hee shal be receiued to his Monstraunce de droit as appeareth in the saide booke .4 H. 7. For nowe is there no recorde against him but onelye the office and notwithstandinge that by thoffice thattaindour is founde yet this fyndinge makes nothinge for the kinge if it bee vntrue For the iurie can neuer finde a matter of recorde and if they doe it is to little purpose for the recorde is euer triable by it selfe and if there bee suche a recorde it will appeare thoughe they fynde it not and if there bee none the finding of it is voide This may you see that a Monstrance de droit lyeth sometimes althoughe the kynge bee entytled by double matter of recorde if it so bee that the parties tytle appeare by matter of recorde or else it lyethe not M 14. E. 4. f. 1. 7 And yet Choke Littleton and Nedham helde oppinion in .14 E. 4. that if it bee founde before theschetour that one was tenant in taile of certeine landes holden of the kinge the remaynder to another in fee and that hee in the remainder is outlawed of felonye and that tenaunt in taile is dead without issue where in dede he beinge tenant in taile before the statute De donis condicionalibus after that hee hadde issue enfeffed one B. in this case the saide B. shall shewe this matter and that the vtlagarie was after the feffement made and so haue the landes out of the kinges handes by a Monstraunce de droit But it shoulde seeme their oppinion is againste the lawe and the bookes beefore rehersed vnlesse this feffement were founde by office Peticion .12 Trauers .7 because it appearethe that the kinge in this case is entytled by double matter of recorde And note that where the kinge is entitled but by office alone there the partye maye haue his Monstraunce de droit althoughe his title bee
not founde by office as wel as hee shoulde in the like case if he were to take a trauerse But otherwise it is where the kinge is entitled by an other recorde beside the office whiche is not trauersable there hee shall not bee receiued vnlesse the parties title appeare by mater of recorde And note that if the kynge haue coÌ„mytted the lande ouer he that sueth his Monstrans de droit muste sue a Scire facias against the committe euen as hee shoulde vppon a trauerse and as for takynge the landes to ferme or for suynge the sayde Monstrans de droit durynge the tyme the heire in whose righte the kyng hathe seised is wythin age Like lawe is to be vsed as is beefore declared vppon the tytle of Trauerse Peticion PEticion is al the remedie the subiect hath wheÌ„ the kyng seiseth his land or taketh away his goods from him hauing no title by order of his lawes so to do in whyche case the subiect for his remedy is driuen to sue vnto his soueraine lorde by way of peticion onely for other remedye hathe hee not as it hath ben sufficiently declared before vpoÌ„ the 15. cha of the kings prerogatiue And therefore is his peticion called a peticioÌ„ of right because of the righte the subiect hath against the king by the order of his laws to the thiÌ„g he sueth for And this peticion may be sued as wel in the parlemÌ„t as out of the parlemeÌ„t if it be sued in the parlemeÌ„t then it may be enacted passe as an act of parlemÌ„t or els to be or dred in like maner as a peticioÌ„ that is sued out of the parlement which is in this maner first after the peticioÌ„ is endorsed it shal be deliuered to the ChauÌ„celer of EnglaÌ„d theÌ„ shal ther be a coÌ„missioÌ„ awarded out of the chauÌ„cerie to find the righte or title of him that sueth the peticioÌ„ which being found by enquest then he may enterplede withe the kynge and not before Trauers 51. as appeareth in 18. E. 3. fo 15. 4. E. 4. f. â— 11. H. 4. f. 5â— et 10. H. 4. And if vppon the sayde coÌ„mission no title be found for the partie but onely for the kinge yet the peticion shall not abate but the party shall haue a newe commission in that case for the peticion is butte as voide vntill the parties title be founde by office Peticion 11. and is not to be sayde depeÌ„dinge vntill that time as appearethe in .3 H. 7. Quere for he sued a newe peticion in that case And note that when the peticion is endorsed the partie muste followe and pursue the same according to the endorsement or otherwise his suite is void because the endorsemente is his warrant ther in PeticioÌ„ 1. 3. 18. as appearethe in 18. 22. et 46. E. 3. and therefore sometime billes of peticion be endorsed and sent into the kyngs benche or common place and not into the Chauncerie and that groweth vppon a special conclusion in his peticion and a speciall endorsement vpon the same for the generall conclusioÌ„ is que le roy luy face droit et reasoÌ„ which is as much as if he had prayed restitucion of that that he suethe for And there vpon such a generall conclusion the endorsemente is Soit droit fait as ê‘ties which euer is deliuered vnto the ChaÌ„celler as is declared But if the conclusion in the peticioÌ„ bee speciall and the endorsement special then they shal procede accordinge to the sayde speciall endorsement As for an exaÌ„ple the kinge recouereth in a Quare impedit by defaute against one that was neuer summoned in this case the partie that lost can not haue a writ of disceit vntill such time as he haue sued vnto the kinge by peticion for the sayde wrytt and if in his peticion he conclude and praye that the kynge do him right generally nowe the iustices before whom the recouerie was had can not examine the deceit without an originall writ directed vnto them for that purpose and yet before he obteined that writ his right shal be enquired of by commission but if he conclude specially in his peticion that it maye please his highenesse to commaunde the iustices to procede to the examinacioÌ„ which peticion is endorsed accordinglye theÌ„ may they do it wtout any such writ or coÌ„missioÌ„ to be sued as appeareth in .10 H. 4. Trauers 51. So euer the folowynge and pursuynge of the thinge muste bee accordinge to thendorsement for howsoeuer the conclusion in the petition be the endorsement may be alwayes as it shall please the king as me semeth and accordinge to that the party must pursue it And note that in euerye peticion where the kynge hathe graunted the lande ouer to an other a Scire facias muste bee awarded against the patentee like as it shall be wheare a trauerse or MoÌ„strans de droit is tended whiche patentee yf he haue not the whole fee simple but that ther is a reuersion in the kynge or that the kynge is bounde to warrauntie when he appeareth vppon the Scire facias he maye praye a write of Searche to bee awarded into the tresorie to search what theye can finde for the kynges title as appeareth in .9 E. 4. f. 5â— where Sottle sayethe that euerye peticion muste make mention of al the kyinges titles for if it be found by the write of searche that anye be omitted the peticion shall abate the reason of it is because that yf on this sute of peticion the kinge take an issue with the partie which is fouÌ„d against him his highnesse then shal be concluded for euer more to claime by any of the points conteyned in the sayd peticion And here with agreeth the boke T. 16 E. 4. 16. E. 4. f. 6. But quere if search shall bee graunted vppon a trauerse or Monstrans de droit because the statute of An 14. E. 3. cap. 13. that concerneth search doth speak only but of a peticioÌ„ but to that it maye bee sayde that at the time of making of the statut ther was noe trauerse geeuen And Skrene sayeth .7 Peticion .6 Henry the fifth that search shal not bee granted but where one suethe by peticion And note allso that in euerye peticion whether it bee sued in the parliament or elles where or whether the landes remaine in the kinges handes or not in the kins haÌ„ds but be granted ouer yet writs of search shall bee awarded to search the kinks title ere the party shal eÌ„terplede with the king Also 〈◊〉 appereth in the boke of .16 E. 4. beefore remeÌ„bred the inâ—â— a peticioÌ„ the kinges pateÌ„tee had ayd of the king there appereth also that if the king be not entitled by any mater of record but without any title do entre into my land wherebye I sue vnto his highnes by peticion that in thys case no search shal be grauÌ„ted because no title caÌ„ be entended for the kinge in suche case
in cancellarie noÌ„ obstante quadam ordinatione nuper per dominum regem facta de terris tenÌ„ in manum suam per ministros suos capt ' non liberand ' nisi per ipsum dominum regem prout continetur in quadam diuidenda inter ipsum regem cancellarium facta Cuius vna pars penes cancellarium remanet Statutum de escaetoribus editum .29 E .2 Also a yeare before the makinge of this statut was there an other statut made entitled articuli super cartas which in the 19. chapiter therof saith in this wise De rescheiue la ou lesche tour ou le vicont seisont en le main le roy terres la ou il nad reson de seiser et puis quant troue est la non reson les issues de mesne teÌ„ps ount este ceo en arrere retenê° et nad rendus quant le roy ad le main ouste voet le roy que desormes la ou terres sont issint seisies et puis le main ouste pur ceo que il ny ad raison de seiser ne tenir soient les issues pleinment reÌ„dus a celuy a qui la terre demurt et auoit le damÌ„ resceu By this statute it plainly appereth how that before the making therof therewas no ouster le main graunted vna cum exitibus although it might neuer so plainly appere that the kinge had no cause to seise Howbeit that mischief is now remedied by both these statutes Also by the one of these statutes Also by th one of these statutes it appeareth that the Ouster le maine in suche case might not be graunted without suinge to the kinge himselfe which is also remedied by this statut de escaetoribus which statute although it make no mencion of liueries but onely of ouster le maine yet lyueries are taken to bee within the compasse and prouision of the same And where the letter goeth onelye to the cases where the kinge seiseth before office 9. E. 4. 54. and after warde thoffice that is founde doth giue his highnes no title that there the party may haue his Ouster le maine makinge no mencion of an Ouster le maine to be graunted vppon anye peticion trauerse or Monstraunce de droit as in deede a trauerse was not in vre at that time yet men by an equitie extende this statute de Escaetoribus bothe to the one and too the other because the statute is beneficiall as it appeareth 9. E. 4. and in diuers other bookes And Yeluerton there saieth that if after liuerie or ouster le maine an office bee founde whiche entitleth the kinge of a title growen vntoo him since the liuerie or ouster la maine granted that in that case this statute notwithstanding the kinge may reseise wtout a Scire facias for the woordes are onelye where a record or an office is founde that maintaineth the title whereby the kinge first seised Howbeit manye holde oppinion againste him and saie that it was in the selfe same mischiefe the statute was made for tamen quere for this statut de escaetoribus shoulde seeme to be meant onely to remedy that the was a mischief at comoÌ„ law before the making of the said statut as where there was no record found at the time of the liuerie or ouster le maine sued to let or hinder the partie from suynge of theire saide liuerie or ouster le maine but afterwardes was there found such a record now this notwithstandinge would the king reseise putt the partie from his possession wtout answer or any proces sued against him wherupon he might answer so driue him to sue by peticion make him render all the mene profite which was a greate mischiefe hinderance to the partie for remedie whereof this statut was made but the like mischiefe or hinderance is not where the kinge is entitled by a title groweÌ„ since the liuerie or ouster le maine for here the partie shall not aunswere the profites but froÌ„ the time of this title growen And also the kyng doth him no wronge for it standes with and affirmes the liuery or ouster le maine the king thereby makes not that party an intrudor as he doth in the other case if the said Yeluertons opinion should not be lawe they woulde make that the kinge could not seise vpon an alienacion wtout licence made and found by office since the liuerie or ouster le maine sued which were no reson therefore I think the saide Yeluertons opinion should preuaile in this case And to the same intente effect be those bookes that I can fynd for I can finde no Scire facias sued but in cases of a title growen before the liueries or ouster le maine therefore in a Scire facias sued vpoÌ„ this statute against the party that had liuerie or ouster le maine beeing tenant of the land at the time of Scire facias sued he was denâ—ed in the selfe same plight course against the king as he was at time of the suing of his liuerie or ouster le main for where he had made a feffement by licence taken an estate againe iointly to him other yet this scire facias dyd lye against him soly did not abate for the iointenauntes So was it aiudged in a scire facias sued vpon this statute the the partie must maintaine the title whereby he hath liuery or ouster le maine must maintaine it so that it is was a good title sufficient to haue liuerie vpoÌ„ notwithstanding any recorde that is now found as take the case to bee this one hath liuerie as sole daughter heire after by office it is founde that she hath a sister which ought to haue had liueri with her wherupon a scire facias is sued against the partye that had liuerie to come shew why the land should not bee reseised if she come will saye that they be daughters by seueral ventres that this lande was geeuen to her father mother in speciall taile so ought shee to haue the liuere as she had the is to say soly this plea wil not serue her because it doth not mainteine the liuerie for how could she haue had liuerie soly vnlesse this matter had bene so found by office For if this second office had appeared before the liuerie she coulde not haue trauersed it vnlesse she had made title and then title can shee neuer make againste the kynge as heyre vnlesse the saide title bee firste founde by office Wherfore no more than she might trauerse the said office if it had bene found before liuerie Trauers 31. no more may she trauerse it now in this scire facias after liuerie as it appereth 30. li. Ass and so note that the recorde can not bee trauersed in this scire facias in no case vnlesse it were trauersable before liuery or ouster le maine Also in
the new Natura breuium fo 26â— and in .5 H. 5 H 5. H. 5. I finde a scire facias sued vpon this statute against him that had liuerie because an office hath found an other to be nerer heire to the auncestour that dyed than was hee that sued liuerie So alwaies as farre as I can finde it is sued vppon a recorde the disproues the liuerie or ouster le maine and not vpon any that affirmes it whereby I suppose that yeluertons opinion is lawe as is beefore declared And it semes that by this statute the king must sue a scire facias al though the recorde or title that is found for him bee founde within a yere after liueri or ouster le maine sued And lerne whether Assise lye against the eschetour that sesseth without a scire facias in cases where a scire facias should be sued For by the sta of W. 1. ca. 24. assise lieth against him in cases wher he seiseth anye landes by colour of his office wtout speciall warrant or commaundement or certeine authoritie that be longeth to his office so to doe And learne whether the king by that seisure hath any possession for if the king seise without a scire facias where he ought to sue a scire facias the partie hath no remedy but to sue vnto him by peticion euen as he should do if his highnes had seised any other lands of his without cause Howbeit the king by such a reseiser vndoeth not the parties possession so that he shal bee saide an entruder from the time of the liuerie or ouster le maine sued as it doth in case the reseiser had bene vpon a scire facias wherfore in such case although the partie cannot be suffred to recouer his possession againe by entrie vppon the king yet when the kinge graunts it ouer he may now enter or haue assise Trauers 26. as appeareth .24 E. 3 fo 34. et 43. li. Ass Also note that this statute that geeues the scire facias extendes but vntoo him or them haue liuerie or ouster le maine or anye other claiming by them For if after liuerie on ouster le maine sued a stranger by an eigne title in disaffirmyng the tenaÌ„ts interest enter as heire vpon him or recouer by assise of mor dauncester or any other accion auncestrell against him is entred into the land as heire nowe because the landes are holden of the king in chiefe his highnes may seise the saide land for primer seisine or title of Wardshippe as the case doth require without any scire facias 21. E. 3. fo 1. as appeareth .21 E. 3. For it is not to be said now a reseiser because against hym there was no seiser made of the saide landes before And lerne enquire if he that missueth the liuerie be within age whether the king shal reseise in that case as he shall doe if it were missued by one of ful age as take yâ— case to bee landes are holden of the kinge in Socage in Capite now the liuerie is sued within age that is to saye at the age of .14 yeres whether in this case the missuing of the same shall be a cause of reseiser or not T. 12. R. 2 see the booke thereof 12. R. 2. The wordes of the statute be further that if any record be found in the tresorie or elles where that vpon this record a scire facias shall be awarded But that is to bee vnderstande in this maner that first the transcript of the said record shal be by writ remoued into the Chauncerie and then out of the Chauncery shal there be a scire facias awarded not out of the tresory as it appeareth .21 â—â— li. ass lib. Ass Issues mesne NOte that if the king haue a title right or interest to any lands or tenements his highnes wheÌ„ he seiseth shal be aunswered of all the mesne issues and profites from the time of his sayd title right or interest growen and whether it be a right of entre or title of entre it maketh no diuersitie in the kinges case as for an example the king entreth for a condition broken his highnes shal be answered of all the issues and profites sins the condicion broken and yet in that case a common person shal not haue the issues and profites but from the time of his entrie Like law is it if the kinges tenaunt aâ—en in mortmain and the kinge entreth but otherwise it is if he entre for mortmain in lands not holden of him vpon a title deuolued vntoo his highnes in defaut of other lords And these cases appere H. 19. et 41. E. 3. fo 21. 19. E. 3. Entre coÌ„g P. 39. The same law is it where his highnes is entitled to seise for that the lands are of his foundatioÌ„ and aliened contrarie to the statut of west .2 ca. 41. which geues the writtof contra formaÌ„ collationis H. 46 E. 3. Forf P. 18. in this case his highnes shal be answered of all the mesne issues growen from the time of the alienatioÌ„ as appereth H. 46. E. 3. And note also that if the king make any graunt which is not sufficient in the law or is deceiued in the making of the same by reason it was made vpon a false suggestion in his case if this highnes doth resigne this graÌ„t adnull it iure regis as he may he shal be then be answered of all the mesne issues profits which were lost by reason of the sayde insufficient graunt as appereth .11 H 4. But if his highnes bee entitled to any lands nomine destriccionis there his highnes shall not bee answered of the profites but from the finding of that title 11. H. 4. f. â— as in case where the kinges tenant in chief alieneth without licence and an office is therof found in this case his highnes shal not be answered of the profites from the time of that alienation but onely from the tyme of the findinge of the office or from the tyme of a Scire facias returned wher the alienatioÌ„ is of record P. 8. e. 4. f. 4 and herof see the booke 8. E. 4. Like law is where his highnes is to seise the lands of his widow that hath maried her selfe without his licence 40. li. Ass Gard P. 36. And note that where the king is to be aÌ„swered of the mesne issues and profits perceued and taken of any landes which haue come to soÌ„dry hands sins the kings title first growen to the same there euery one of them that haue sondrely so perceiued and taken the profits shal answer for his owne time and not one for all as it appereth in the boke of 46. before remembred And note also that by the statut of w. 2. ca. 32. it is prouided that if any spiritual man bring any real action and recouer that the land recouered shall remayne in the kinges hands vntill such time as it be sued out of his hands by him that recouered or els by the chiefe lorde and in the meane time the shiriue shal auÌ„swer the kinge in the eschequer of the profites by which statut whether the collusion bee found or not found yet the king shal haue the meane issues as it is thought 20. H. 6. 20. H. 6. f. â— So it is in a writ iudicial of deceite brought against any the king shall haue the issues growen from the time of the first iugement vntill iugement be geueÌ„ in the sayd writ of disceit ¶ Some tymes the kynge recouâ—eth of the issue in the allowance of an estraunge tytle as yf the husband beynge the kynges tenant vpon a false suggestion purchaseth lycence to alieÌ„ to take estate to him to his wife so doth afterward dyeth the wife holdeth her in by title of Suruiuor occupieth nowe vpoÌ„ a Scire facias against the wife his highnes shal bee answered of all the meane issues since her occupiynge of the ii parts of the land and the thyrd part he recopeth and alloweth for her dower .40 li. Ass P. 36. ¶ Note that in a writ of disceit vpon a recouery in a Preeipe quod reddat of land where the proces was a graÌ„d Cape 40. Li. Ass Gard. P. 1. if the pleintyfe recouer he shall recouer the land and his damages but not the issues of the land synce the fyrst iudgement because the kinge shall haue them by the graunde Cape and the shirife accomptable of theÌ„ quod vide titulo disceit in Fitz P. 33. 46. 7. 32. Contrarie lawe is it if there lie no grand Cape in the action as if the recouerie be in a Scire facias as it appereth titulo Disceit in Fitz P. 36. 27. Finis Diuers other prerogatiues therbe which the kiÌ„g hath by the order of the comoÌ„ law that be not wtiÌ„ this statute coÌ„priÌ„sed a great part wherof vnder the title of Prerogatife master Fitz herbart hath most diligeÌ„tli noted in his great AbridgmeÌ„t so well ordred placed there that I doo of purpose omit to reherse them here The rest woulde require so longe a serche that oneles I had gathered and noted them al redie as I haue not doÌ„e in dede I should be faine to peruse the hole bodie of the comoÌ„ Lawes for the knowleg therof wheruntoo time seruethe mee not wherefore at this time myne intent is not to medle with them Imprynted at London in flete strete within temple Barre at the signe of the hand starre by Rychard Tottel An. 1567. Cum priuilegio
titles as be in the great abrigement of Iustice Fitzherbert were by the Iudges or some other learned men labored studied that is to say euery title by it selfe by speciall diuisions digested orderd and disposed in suche sort as that all the iudiciall actes and cases in the same might be brought appere vnder certeine principles rules and groundes of the saide lawes As for example vnder the title of Briefe might come these titles Fourm Misnaming of the persō Mysnaming of the town One thing twise demaunded death of the plaintifes side death of the defendauntes syde chaunginge of the name of the pleintife or defendaunt hanginge the sute with manye suche other lyke which nowe as thinges scatered abroade and out of orderlye hidden wythin the saide longe tytle that it requires muche more learninge paynes and Studye well to order and dispose the matter in the same then after order made to learne and beare it awaye And yet surelye there cannot bee to muche praise and commendacion geuen vnto that greate learned man the Auctour of the saide great abbridgement which by his greate learninge exact iudgement and intollerable paynes brought suche an infinite nomber of volumes to the readynge whereof A mans lyfe woulde scant haue suffised to a muche more lesse and narower cōpasse whereupon nowe these learned men wyth lesse paynes might compile the thing that should be so easy so profitable and fruitfull to the studentes thereof that in halfe those yeares they now lye sleping in they might come to a ryper and more certeine knowledge and better iudgement For which cause I haue drawen as it were a patern of the thinge I so muche desire takinge vppon mee such tytles as appertaine vnto the kinges prerogatiue not as one in anye parte woorthy to treat of a thynge so high preciouse as that is or in learnynge sufficient or hable therunto for of myne owne here is nothinge more then onelye a colleccion and disposition of that that is alreadye contayned in the saide tytles but rather because I haue alwayes meant this my deuyse vnto you which I coulde not doe or practise so well vppon anye tytle as vppon this that appertayneth vnto your office of Attourneyshippe of the wardes and liueries partly for that I knowe your selfe to haue obserued the like order in your owne Study whiche in fewe yeres hath gotten you aboue other the greate learnynge you haue partlye also for that I couet your Iudgement in these matters wherewith you be daylye in vre and exersised knowinge that I haue to doe herein with one so muche my frynde that if there be any thinge worthie the readinge he will take it thankfullye and if not so well yet will hee take it in good part the rest that is amisse he wil beare it with me This therefore what soeuer it bee I dedicate vnto you read it peruse it and make of it what you will Fare you well from Greis Inne the sixt of Nouember Anno. 1548. ¶ Prerogatiua regis edita Anno. 17. E. 2. Cha. 1. DOminus Rex habebit custodiam omnium terrarum eorum qui de ipso tenent in capite per seruiciū militare de quibus ipsi tenentes fuerunt seisiti in dominico suo vt de feodo die quo obierunt de quocunque tenuerint per huiusmodi seruitium dum tamen ipsi tenuerunt de rege aliquod tenementum ab antiquo de corona vsque ad legittimam aetatem heredis Exceptis feodis Archiepiscopi Cantuariensis Episcopi dunolm̄ inter Tine et Tese feodis Com̄ et Baronum de marchia de terris in marchia vbi breuia domini regis non currunt Et vnde predict ' archiepiscopus ep̄us Com̄ et Baron̄ habeant huiusmodi custodiā licet alibi tenuerunt de Rege Prerogatiua is as muche to saye as a priuilege or preeminence that any person hath before another whiche as it is tollerable in some so it is most to be permitied and allowed in a prince or soueraine gouernor of a realme For besydes that that he is the most excellentest worthiest parte or mēber of the comon body of the welth so is he also through his good gouernaunce the preseruer nourisher and defender of all the people beeing the rest of the same bodye And by his great trauailes studie and labours they enioy not onlye their lifes landes and goodes but all that euer they haue besides in rest peace and quietnes as Seneca sayethe Seneca de consolat ad Polibium Omnium domos illius vigilia defendit omnium ocium illius labor omnium delicias illius industria omnium vacationem illius occupatio For which cause the lawes do attribute vnto him all honour dignitie prerogatiue and preeminence which prerogatiue doth not onely extend to his own persō but also to all other his possessions goods and cattals As that his person shal be subiect to no mans suite his possessions cannot be taken from him by anye violence or wrongfull disseisin his goods cattals are vnder no tribute tolle nor custome nor otherwise distreinable with an infinite nomber of prerogatifes more whiche were to tedious here to recite Howbeit forsomuch as in euery realme the kinges prerogatifes are no small parte and portion of the profites and commodities of the Corone of the same namelye within this realme of Englande it hath bene thought good heretofore to declare and setfurth in writing certeine of the most highest and weightiest matters and articles touching the said prerogatifes And hereupon was there a declaracion made in writing by auctoritie of parliament holden in the .17 yere of the raigne of kinge Edw. the .2 the beginning wherof is in maner and fourme as is aboue written Howbeit this parlament maketh no part of the kinges prerogatife but long time before it had his being by thorder of the commen law as plainlye may appeare by them that haue written before the making of the saide statute of prerogatife Glanu li. 70 For Glanuill who was chiefe Iustice in kynge Henry the .2 daies writing of this matter saith in thys wise Notandum quod si quis in Capite de dn̄o rege tenere debet tunc eius custodia ad dominum regem plene pertinet siue alios dn̄os habere debet heres fiue non quia dominus rex nul lum habere potest parem multo minus superiorem Bracton li. 1 de custod ' et marit ' dominorum Also Bracton whiche wrote in the time of the latter raigne of king Henry the .3 saieth Si aliquis heres terram aliquam tenuerit de domino rege in capite siue alios dominos habuerit siue non dominus rex aliis prefertur in custodia heredis siue ipse ab aliis prius feoffatus fuerit vel posterius cum rex parem non habet in regno suo Both these wryters doe not onely agree in euery point but also geue a reason why the kinge shoulde haue the prerogatiue conteined in this