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
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
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
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
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
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
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
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