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
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
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
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
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
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
corone le roy voet que mes ne soit home encheson pur nul tiel purchase By this statut it appereth that if a man hold of the king as of any honor which is come to his highnes by disceÌ„t from any of his auncestoures that by reason thereof hee shoulde not hold in Capite For that was contrarie to the lawe as if maye appeare by the woordes of the Statute whiche saithe that the people complayned them selues to be greaued hereby Whiche is to be vnderstanded vniustlye greeued for by the wordes in the first chapter of Prerogatiua Regis it appeareth that if it shal be saide a tenure in Capite it must bee holden of the crowne of a long time s. ab antiquo de Corona And that is it not when it is but newelye come and the statute of Magna Carta ca. 31. did helpe this matter by expresse woordes If suche an honour came to the crowne by waye of eschete but not if it came by waye of discent or anye other waye And that statute doth set forth certeine honours by name whiche bee not of the auncientnes of the Crowne that is to say the honour of Wallingforde Notingham Bolingbroke and Lancaster Therefore he that holdeth of the King as of these honoures holdeth not of the king in chiefe But other honours there be which of so long tyme haue beene annexed to the Crowne that to holde of them is to hold in chiefe as it appeareth in the new Natura breuiuÌ„ fo 2â—â— f. 289. Where one helde of the kinge as of a certeine honour to yeld a certeine rent to the keepinge of the castell of Douer this was there taken to be a tenure in chiefe And so it was where one helde of his highnes as of the honour of the Abbey of Marle Therefore learne what honours be of the auncientnes of the Crowne and what not Also there is another Statut made in the .34 yeare of the saide kinge the .15 chapiter which saieth in this wyse Item accorde est et establie que alienacion de les terres te nements faits per gents que teignont du roye Henrie besayl au roy que ore est ou des auters roys deuant luy a tener de eux mesmes que les alienacions estoieÌ„t en lour force SaluaÌ„t touts foits a nostre seignour le roy sa prerogatiue de temps son aiel son piere et son temps demesne M. 20. E. 3. in Fitz. ti Ass P. 122. P. 124. 26. li. ass eodem ti P. 146. This latter statute doth argue that the king ought to haue prerogatiue since the tyme of king Edwarde the .1 none before And surelye so was the lawe taken as it appeareth .20 .26 E. 3. therfore to thintent these alienacions made in king H. the .3 daies before should not now be brought in question this statute was made so that his grace shoulde haue fyne for all alyenacions without lycence made since kinge Edwarde the first tyme but not for any made before And this shoulde be the meaning of this statute which vnder correction is mistaken by master Fitzherbert in his Natura breuium fo 226 Howbeit for myne owne opinion I doe not see by al these statutes but that the king hath his Prerogatiue by thorder of the common law at lest wise as the comen law hath ben taken since the tyme of king Edwarde the firste or else hee could not haue it nowe for any thinge that I see prouyded for him by these statutes For this statute of Prerogatiue goeth but to that where his tenaunt in chiefe alieneth the greatest parte without lycence Ergo He may alien the lesser parte without lycence and so doth the statute expressely set it forth except you will saye there bee twoe licences vnderstanded here that is to saye a generall lycence by the order of the commen law and a special licence by this statute th one to be requisite where any parcell is sold thother wheÌ„ the more parcel is solde Therfore enquire and learne what other mens oppinions are vpon this statute For I fynd no booke to proue it common lawe before Britons tyme for Glanuill ne Bracton speaketh any thinge of it And where this statute of Prerogatiue speaketh onely but of knyghtes seruice the lawe is otherwise taken For if one do holde of the kinges highnes in Socage in chief he can alien no pece without lycence Then let vs see what thinges maye bee graunted or done without lycence and at what tyme And howe the tenaunts that hath lycence shall pursue the same The Kinges tenaunt that holdeth of hym in chiefe maye graunt a rent charge out of the same without licence as it appeareth .40 li. ass et 7. H. 6. 40. lib. Ass in Fitz. ti Licence P. 4. M. 7. H. 6. f â–ª For the kinge by that shall sustaine no detriment For his highnes nede not to hold it charged except he wil. But if one holde an aduouson of the king or a rent granteth ouer the same without lycence the graunter shal paie a fyne 21. E 3.22 And that appeareth 21. E. 3. For there the case was that vppon licence with a particioÌ„ an aduowson was allotted solye to one of the coparceners after by composition betwene her her fellowes she was agreede to leaue thaduouson againe in common amongest them all to present by tourne adiudged that this was an alienacion for the whiche she must make a fyne For before she was tenant solye and now shee is become tenaunt iointly againe with her felowes The like lawe is it if there be lorde mesne and tenaunt the kinge is the lorde and the mesnaltie is holden of him in chiefe if the mesne release to the tenaunt without lycence 38. lib. Ass in Fitz. ti Fines p. 109 he shal pay a fine as it appeareth 33. li. Ass and yet the release goeth there by waye of extinguishment but what then he holdes now by the seruice the mesne did that is to saie in chiefe and so thereby the tenancy is altered The selfe same lawe is it if twoe iointenauntes be and th one release to thother wythout lycence the king shall seise for a fyne 40. lib. Ass in Fitz. tit LiceÌ„ce P. 4. et P. 8. H. 4. tit codem P. 1. as it appeareth 40. li. ass et 8. H. 4. For the like reason that is made in the case of the coparceners before But where there is nothinge but a bare right released whiche goeth by waye of Extinguishement otherwise it is For they of thexcheker vppon a fyne sur release onelye vse to make out no proces to aunswer the king of an alienacion The kinges tenaunt in chiefe may make a lease for terme of yeares without lycence but not a lease for terme of lyfe nor no higher interest P. 45. E. 3. f. 6. as it appeareth 45. E. 3. and in the new Natura breuium fo
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
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
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
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
¶ 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
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
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
and entitle hym by the seconde office and trauerse the firste as hee nedes muste for thenterpleder muste nedes reste vppon the firste office and not vpon the second then as thissue is founde P. 36. E. 3. in Fits titulo Trauers P. 44. so shall hee or theye for whome it is founde haue lyuerye And this appearethe in the newe Natura breuium fo 294. 36. E. 3. 16. E. 4. folio 4. Howebeit a great doubt ryseth in our bookes vppon thys mater whether thenterpleder shal be fourthwithe after the seconde office founde or not vntill suche time as the heyre that is founde wythin age commethe to his age and as it appeareth by the sayde boke of 36. Ed. 3. in this case where one was first found of full age after the other within age thenterpleader was fourthwithe for it weare noe reason that hee that was ryghte heire and of full age shoulde bee delayed by the nonage of the other that is noe heire And a straunger shal bee receaued to trauerse the office not withstandinge the heire that is founde by the office that is trauersed bee withein age And then it is noe reason that the heire in this case be in worse condicion then a strauÌ„ger But take it by the first office one is found heire and wythin age and by the seconde office an other is found heire and of full age whether in this case they shal enterplede or not or whether thenterpleader shal be before thage of the other And surely it shoulde seeme by the groundes and rules declared before vpon the writ of Diem clausit extremum that the seconde office in this last case is voide because there ys noe better title founde for the king than was by the first then if it be voide there can be no enterpleder Howebeâ—yt in the newe Natura breuium fo 2â—0 it appeareth to the contrary hereof that they shal enterplede in this case and that the seconde office is not voyde for there the heyres founde by bothe offices weare of full age And yet that notwythstandynge theye enterpleaded And so is .5 T. 5. E. 4. f. â— Edwarde the fowerthe where it is sayde that if by one office the heire is founde within age and by an other office an other is founde heire and of ful age that in this case theye shall enterpleade but not before the childe come to his full age And Townesende iustice sayeth in .1 H. 7. that if by diuerse offices ij Liuery P. 17 be seuerally founde heires and within age nowe the kynge shall kepe the landes tyll theire full age and thenne theye shall enterpleade and yf theye dye before enterpleder their heires within age seueral Deuenerunt shal be awarded that is to say for euerie heire one by the same beyng fouÌ„d seuerally heyres to the auncester theye shall enterpleade at they re full age like as the auncester shoulde haue doone if they hadde lyued and yf the dyinge of anye of them weare wytheout issue and the other founde to bee his heire then is thenterpleder determined Thus may ye see how bokes vary in this matter and yet by the waye note this difference that is to saye where by the firste office the heire is founde within age and were of full age for by these bokes it shoulde seeme that if hee bee firste founde withein age notwithstandyng that by an other office an other is found heire and of full age yet hee shall not enterplede with the other tyll he bee of age contrarie it is yf the fyrst be found of full age and the nexte wythin age and the reason may be for that the kynge is first seysed of hym that is wythyn age with whom the lawe weyes more in presumption to bee heire than the other and thys tytle ys the beste tytle that the kynge hathe for it entytlethe hys highenesse to a greater benefite than dothe the seconde office and thys second was found vpon a coÌ„mission graunted more for the kings benefit thaÌ„ for the heries that should be fouÌ„d by the same and therefore it weare reason that hee that is first founde heire haue more fauoure if anye fauoure bee to bee shewed thanne hee that was last founde heire or at the least for the kynges benefit that the matter be respited til the childe bee of age Also the sayde Iustice Townesend sayde further that if one bee founde heire in one countie an other found heire in an other countie yet they shall enterplede whyche can not bee as me seemethe for once wee haue a generall grounde that a man can not sue a generall lyuerie by parcelles but firste he muste cause an office to be founde in euerye shere where he haue landes and when all the offices be returned then to haue his lyuerie and not beefore then this case where one is founde heire in one sheere and an other in an other sheere heare none of them bothe canne haue lyuerye beecause hee hathe noe office founde butte in one sheere and not in the other and thenne if there canne be noe liuerie there can be noe enterpleder wherfore it should seme in that case they caÌ„ not eÌ„terplede 2. â— 7. f. 2. Trauers 49. And here with agreeth the boke in .2 .8 Henry the seuenth So no enterpleder can bee but where there is an office thorough the whole found for euerye heire in euerye countie wheare the landes lye but it is not allwaye requisite that theare bee seuerall offices founde for sometimes vppon one office founde by it self alone there maye bee an enterpleder and that is wheare ij bee founde heires by one enqueste as two twynnes that is to say two children borne at a burden And it is to be noted that euerye enterpleder is to trye the priuitie of bloude onely that is to say which of these the enterplede is next heyre to hym that last dyed seysed and not to trye theire rightes in the landes And therfore if by one office one bee fouÌ„d heire of a general taile and by an other office an other is founde heire to the same lande as of estate in specyall taile theye shall not enterpleade as it appearethe in 21. H. 7. fo 3â— Allso they must be both found heires to him that last dyed and by whose death the king dyd seise for if one bee founde heire to hym that dyed seised and another is founde heire to the auÌ„cester that dyed seised nexte before the last dyinge seised in this case they shall not enterplede as it appearethe in H. 2. H. 6. f. 5. Also theye shall not enterplede but wher both heirs claime by one selfe title of landes holden of the kinge for yf the kings tenant dye seised of lands holden of other as well as of the kynge and one is founde heire to al the landes and by an other office an other is founde heire onely to the landes holden of other in this case theye shall not enterpleade as it appeareth in .12 E. 4.
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
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
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