saye wheather his grauntee shall haue the same prerogatiue in the bodye of the chylde as his highnes mighte haue hadde M. 12. E. 3. in Fits ti Preroga p. 25. et M 14. H 4 in Fits ti Garde P. 86. in case the seignorie had styll continued in hym And it appearethe in the .12 E. 3. .14 H. 4. that if the kynge graunt the seignorye to an other in fee simple that the grauntee shall haue noe prerogatiue beecause there remaynethe nothynge in the kynge of that seignorie vngraunted But if the graunt weare made to a common persone for noe longer tyme then duryng his lyfe and the reuersion saued to the kinge then learn what the lawe will in that case H. 5. E. 3. in Fits ti prerogatiue P. 20. for wee haue in .5 Edwarde the third that wheare the graunt was made to the Queene for terme of her lyfe the reuersion in the kinge that her grace hadde prerogatyue euen as the kynge hymselfe shoulde haue hadde and for none other reason there made but onely beecause shee helde in ryghte of the kynge But a man may adde further to that reason and saye that her grace a common persone bee not lyke for thoughe shee bee a persone exempte from the kynge and maye sue and bee sued in her owne name yet that that shee hathe is the kynges and looke what shee losethe so muche departe the from the king and therefore all her tenauntes of parcell of her estate maye haue ayde immedyatlye of the kynge wytheoute makynge her partye or pryuye theruntoo and so shee holdethe merelye in the kynges ryghte but a common persone doothe not so For the kynge hathe nothynge soo doe wythe the thynge that hee holdethe durynge the lyfe of the lessee howebeeit yf the graunt bee made to the Queene for terme of her lyfe the remaynder ouer in ferâ—â— yt seemethe that her grace gettethe no prerogatyue M. 24. E. 3. f. 34. and so yt is sayde in .24 Edwarde the thirde Lyke lawe is it if the kynge graunt an honor to the Lorde prince and hys heires kynges of Englande M. 21. E. 3. f. 4â— it seemethe by the better oppinion in 21 Ed. 3. that the Lorde prynce shall haue there wythe the kynges prerogatiue beecause it is not seuered from the crowne after the fourme as it is geeuen for none shall bee inherytoure thereof but kynges of this realme And note well that notwythstandynge the lawe weare so that none in thys case but the Queene or prynce myghte haue the kinges prerogatiue yet if the kyng hauinge the seignorye in hys handes after that the warde dothe falle graunt the same warde ouer the grauntee shall haue and enioye the preferrement of the maryage agaynste the other Lordes euen as the kynge shoulde hymselfe beecause that notwythstandynge anye suche graunt yet the kynge is sayde styll gardeyne and the infaunt dryuen to sue for hys lyuerye at the kynges handes whenne hee commethe to hys full age and not at the handes of the grauntee A. 13. H. 4. in Fits ti prerogatiue P. 24 whyche in this case is but onelye as a commyttee And so is the booke in 13. H. 4. Lyke lawe is it in the case aboue remembred wheare the Queene hathe prerogatiue and the warde fallethe and shee grauntethe her wardeshyppe ouer her grauntee shall haue preferrement in the mariage before all other lords And the also appeareth in the sayd 5. E. 3 howebeit that case was enforced by that that the kynge confirmed the state of the grauntee H. 5. E. 3. in Fits ti Preroga p. 20. lyke lawe is it yf the kyng haue a warde of righte of his corone and graunteth it ouer with special wordes that is to say that the sayd grauntee shal allso haue warde by reason of wardeshippe yf it fall durynge the mynoritie of the firste warde in this case if there fall a warde whyche holdethe by posterioritye of the heyre that is in warde yet that notwythstandynge the said grauÌ„tee shall haue the preferment in the warde of the body and mariage eeuen as the kynge hymselfe shoulde haue hadde yf hee had made noe suche graunt beecause it is merely in the kynges righte whyche remaynethe styll lorde and the grauntee none other but as it weare hys comyttee H. 12. H. 4. in Fits ti Gard P. 81. and thys appearethe also in the. 12. yeare of kynge Henry the fowerthe The thyrde chapiter ITem Rex habebit seisinam post mortem eorum qui de eo tenent in capite de omnibus terris et tenementis de quibus ipsi fuerunt seisiti in dominico suo vt de feodo cuiuscunque etatis heredes eorum fuerint capiend ' exitus eorundem terrarum tenementorum donec facta fuerit inquisitio prout moris est et ceperit homagium huiusmodi hered ' In the .52 yeare of kynge Henry the thirde longe time beefore the wakynge hereof was there an other statute made at Marlebridge concerning this matter In the .16 chapiter whereof it is thus prouyded De hereditate autem que de dnÌ„o rege tenetur in capite sic obseruaÌ„d ' est vt dominus Rex primam habeat inde seisinam sicut prius inde habere consue uit nec heres nec alius in hereditatem illam se intrudat priusquam illam de manibus domini regis recipiet prout huiusmodi hereditas de manibus ipsius et antecessorum suorum recipi consueuerit et hoc intelligatur de terris feodis que ratione seruicij militaris socagij vel seriantiae siue iure patronatus in manibus domini regis esse confueuerunt Both these statutes declare themselfes to bee of none other force then as a confirmation of that that was the kynges prerogatiue by the order of the comon lawe as it may appeare by these wordes prout moris est sicut prius habere consueuit recipi consueuerit esse consueuerunt And therewyth agreeth also Britton fo 167 The woordes of the statute bee Rex habebit primam seisinam what prima seisna is it is declared by the words that follow sÌ„ capiendo omnes exitus c. by whiche words it may appeare the kynge shal not onelye seise but also receaue the hole profites tyll lyuerye bee sued which suit moste commonlye hathe bene and is within the yeare and daye nexte after the deathe of his tenaunt and therefore the kynge vsethe to take no more then the firste fruites that is to saye one yeares profites if there bee not apparaunt defaulte in the heire that hee will not sue hys lyuerie in whiche case then the kynges highnesse shall bee aunswered of all the profytes taken tyll lyuerye be sued or at the least tended and after pursued withe effecte yea and if it bee a generall lyuerie and not ryghtefullye pursued accordinge to the order of the lawe the kynge shall reseise and bee aunswered of all the meane profites from tyme of suyng of the sayd lyuerye
¶ 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
titles as be in the great abrigement of Iustice Fitzherbert were by the Iudges or some other learned men labored studied that is to say euery title by it selfe by speciall diuisions digested orderd and disposed in suche sort as that all the iudiciall actes and cases in the same might be brought appere vnder certeine principles rules and groundes of the saide lawes As for example vnder the title of Briefe might come these titles Fourm Misnaming of the persō Mysnaming of the town One thing twise demaunded death of the plaintifes side death of the defendauntes syde chaunginge of the name of the pleintife or defendaunt hanginge the sute with manye suche other lyke which nowe as thinges scatered abroade and out of orderlye hidden wythin the saide longe tytle that it requires muche more learninge paynes and Studye well to order and dispose the matter in the same then after order made to learne and beare it awaye And yet surelye there cannot bee to muche praise and commendacion geuen vnto that greate learned man the Auctour of the saide great abbridgement which by his greate learninge exact iudgement and intollerable paynes brought suche an infinite nomber of volumes to the readynge whereof A mans lyfe woulde scant haue suffised to a muche more lesse and narower cōpasse whereupon nowe these learned men wyth lesse paynes might compile the thing that should be so easy so profitable and fruitfull to the studentes thereof that in halfe those yeares they now lye sleping in they might come to a ryper and more certeine knowledge and better iudgement For which cause I haue drawen as it were a patern of the thinge I so muche desire takinge vppon mee such tytles as appertaine vnto the kinges prerogatiue not as one in anye parte woorthy to treat of a thynge so high preciouse as that is or in learnynge sufficient or hable therunto for of myne owne here is nothinge more then onelye a colleccion and disposition of that that is alreadye contayned in the saide tytles but rather because I haue alwayes meant this my deuyse vnto you which I coulde not doe or practise so well vppon anye tytle as vppon this that appertayneth vnto your office of Attourneyshippe of the wardes and liueries partly for that I knowe your selfe to haue obserued the like order in your owne Study whiche in fewe yeres hath gotten you aboue other the greate learnynge you haue partlye also for that I couet your Iudgement in these matters wherewith you be daylye in vre and exersised knowinge that I haue to doe herein with one so muche my frynde that if there be any thinge worthie the readinge he will take it thankfullye and if not so well yet will hee take it in good part the rest that is amisse he wil beare it with me This therefore what soeuer it bee I dedicate vnto you read it peruse it and make of it what you will Fare you well from Greis Inne the sixt of Nouember Anno. 1548. ¶ Prerogatiua regis edita Anno. 17. E. 2. Cha. 1. DOminus Rex habebit custodiam omnium terrarum eorum qui de ipso tenent in capite per seruiciū militare de quibus ipsi tenentes fuerunt seisiti in dominico suo vt de feodo die quo obierunt de quocunque tenuerint per huiusmodi seruitium dum tamen ipsi tenuerunt de rege aliquod tenementum ab antiquo de corona vsque ad legittimam aetatem heredis Exceptis feodis Archiepiscopi Cantuariensis Episcopi dunolm̄ inter Tine et Tese feodis Com̄ et Baronum de marchia de terris in marchia vbi breuia domini regis non currunt Et vnde predict ' archiepiscopus ep̄us Com̄ et Baron̄ habeant huiusmodi custodiā licet alibi tenuerunt de Rege Prerogatiua is as muche to saye as a priuilege or preeminence that any person hath before another whiche as it is tollerable in some so it is most to be permitied and allowed in a prince or soueraine gouernor of a realme For besydes that that he is the most excellentest worthiest parte or mēber of the comon body of the welth so is he also through his good gouernaunce the preseruer nourisher and defender of all the people beeing the rest of the same bodye And by his great trauailes studie and labours they enioy not onlye their lifes landes and goodes but all that euer they haue besides in rest peace and quietnes as Seneca sayethe Seneca de consolat ad Polibium Omnium domos illius vigilia defendit omnium ocium illius labor omnium delicias illius industria omnium vacationem illius occupatio For which cause the lawes do attribute vnto him all honour dignitie prerogatiue and preeminence which prerogatiue doth not onely extend to his own persō but also to all other his possessions goods and cattals As that his person shal be subiect to no mans suite his possessions cannot be taken from him by anye violence or wrongfull disseisin his goods cattals are vnder no tribute tolle nor custome nor otherwise distreinable with an infinite nomber of prerogatifes more whiche were to tedious here to recite Howbeit forsomuch as in euery realme the kinges prerogatifes are no small parte and portion of the profites and commodities of the Corone of the same namelye within this realme of Englande it hath bene thought good heretofore to declare and setfurth in writing certeine of the most highest and weightiest matters and articles touching the said prerogatifes And hereupon was there a declaracion made in writing by auctoritie of parliament holden in the .17 yere of the raigne of kinge Edw. the .2 the beginning wherof is in maner and fourme as is aboue written Howbeit this parlament maketh no part of the kinges prerogatife but long time before it had his being by thorder of the commen law as plainlye may appeare by them that haue written before the making of the saide statute of prerogatife Glanu li. 70 For Glanuill who was chiefe Iustice in kynge Henry the .2 daies writing of this matter saith in thys wise Notandum quod si quis in Capite de dn̄o rege tenere debet tunc eius custodia ad dominum regem plene pertinet siue alios dn̄os habere debet heres fiue non quia dominus rex nul lum habere potest parem multo minus superiorem Bracton li. 1 de custod ' et marit ' dominorum Also Bracton whiche wrote in the time of the latter raigne of king Henry the .3 saieth Si aliquis heres terram aliquam tenuerit de domino rege in capite siue alios dominos habuerit siue non dominus rex aliis prefertur in custodia heredis siue ipse ab aliis prius feoffatus fuerit vel posterius cum rex parem non habet in regno suo Both these wryters doe not onely agree in euery point but also geue a reason why the kinge shoulde haue the prerogatiue conteined in this
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
driuen to sue liuerie Further then let vs see in what cases the kinge shall haue annum diem et vastum and in what not The kinge shall not haue annum diem et vastum of clerks coÌ„uict after verdit because hee forfetes no land Like lawe is it of lands in Gauelkinde where the father is hanged but otherwise it is if he be outlawed or abiured for felonie for there the kinge shal haue the yeare daie wast and this appereth 3. 3. E. 3. in Fitz ti corone P. 332. et Prescription P. 50. E. 3. et 8. E. 2. If the husband be atteinted of felonie the kinge shall haue the yeare daye and wast of the laÌ„ds of the wife and yet in the case the lordes shall not haue theyr eschetes But what then the husbaÌ„d might haue done wast and the wife had had no remedie for the same and by the same reason the kinge maye doe as much and this appeareth 3. 3. E. 3. in Fitz ti corone P. 327. E. 3. And also in Bracton in his second boke And also it shoulde there appeare that the wiefe is driuen to sue anouster le main after the death of her husbande If one be arested for felonie brekes the arest so that in the pursuyt of him he is killed because hee woulde not otherwise be taken 3. E. 3. in Fitz ti Corone P. 312. et 290 et 308. the king in this case shal haue the yere day and wast as it appereth 3. E. 3. If a man coÌ„mit felonie and hathe his charter of pardon yet the king shal haue the yeare day wast and the lordes theyr eschetes this appereth 3. E. 3. for the pardoÌ„ doth not restore him but to the lawe For though the kinge would pardon him with words of restitucion yet his grace could not therby restore him to the laÌ„ds holdeÌ„ of other And note that the king shal haue the yere 3. E. 3. in Fitz ti Corone P. 310. day wast of laÌ„ds in ancieÌ„t demesne if it so be that the tenaÌ„t myght haue sold the said lands against the will of the lord as it appereth 3. E. 3. and that notwtstanding that the sayd lands were alwayes vsed to be surrendred by the rodde to passe by surreÌ„der The words of the statute be further Exceptis hominibus quoruÌ„daÌ„ priuilegiatoruÌ„ indâ— ê‘regeÌ„ 46. E. 3. f. 14. 1. H. 6 fo 12. M. 8. H. 4. f. 1 Corone 31. That is as much to say except such as haue Bona et cattalla felonuÌ„ by the kynges graunte for a man can not prescribe to haue Bona et catalla felonuÌ„ as appereth 46. E. 3. 1. H. 7. 8. H. 4. nor none may haue this prerogatiue of yere day wast but only the kinge although hee would claime it by charter froÌ„ the kinge or otherwise as it appereth 3. E. 3. But when the king is seised of it he may coÌ„mit it ouer as appereth by Bracton in his sayd 2. boke But if the land wherof the kinge should haue the yere day and wast be vnder the yerely value of iii s .iiii. d it is vsed to bee remitted for the smallnesse and simplenesse of the thinge as appereth 3. E. 3. 3. E. 3. in Fitz ti Corone P. 327. for it shoulde cost more the suing of it out of the kinges handes than the thing is worth And note the custoÌ„e of Gloc ' comprised in this statut wherby it should appere that notwithstanding any such custome yet the king should haue annuÌ„ et dieÌ„ but not so of laÌ„ds in Gauelkinde as I haue sayd before ¶ Proces to bee sued after the deathe of the kinges tenaunt in chiefe By a statute made in the 33. yere of the late kinge of most famous memorie H. 8. the 22. chapter it is ordeined and prouided amoÌ„ge other things that no person or persons hauing lands or tenemeÌ„ts aboue the yerely value of fiue poundes shal haue or sue any liuerie before inquisitioÌ„ or office fouÌ„d before theschetour or other commissioner or commissioners by vertue of the kinges writ or commission too bee directed out of the kinges chauÌ„cerie or other courtes hauing authoritie to mak suche writes or commissions for suinge of liueries which writs or commissions shal not passe out of the chancerie nor any other courts but by a warrant or bill too bee assigned and subscribed with the handes and names of the master of the kinges wardes and liueries surueiour of his liueries or the attourne and resceiuor of the court of the wardes and liueries or three twoo or one of them to bee directed deliuered to the chanceller of England or to any other chanceler or officer hauiÌ„g power to awarde such writes And if the lands or tenements wherof any inquisition is to be had by vertue of any such writ or commission excede the yerely value of fiue poundes that then such as sue for such writes and commissions shal pay for the seale and writing therof such fees as hath ben accustomed And if the sayd laÌ„ds tenemeÌ„ts wherof any such inquisicions and offices ar to be found by vertue of any such writ or commission excede not the sayde yerely value of v pounde theÌ„ such as shal sue for such writs or commissions shall paye for the seale of euery of them vi d and for the writinge vi d and not aboue This statut doth not set fourth the name of the writ or coÌ„missioÌ„ that shal bee sued howbeit these words that follow that is to sayr for suinge of liueries do somwhat open the minde of the makers of this statute and declare that their meaninge was of the diem clausit and such other writs or coÌ„missions as serue for that purpose and not of euery writ or coÌ„missioÌ„ for so might an office be found by a wroÌ„g writ or coÌ„missioÌ„ which should want mater or be other wise insufficient to make liueries But learne and enquire if after a good writ or coÌ„missioÌ„ sued fourth the office that is found is not sufficient whether the partie shal haue his liueri or not without suing a melius inquirenduÌ„ or a new office because that some parauenture wil say that the words of the statut be performed that is to wite an office or inquisition is found But to that it may be answered and sayd that that it is no office when it is insufficient at least wise toward the partie that should sue liuerie therupon although it be a good office toward the kinge if any thing therin conteined be for his benefit And learne also if the kinges tenant dye seised of landes in diuerse counties whether by force of this statut he shal cause an iÌ„quisitioÌ„ or office to be fouÌ„d in eueri couÌ„tie where the lands lye for so is it vsed to be done vpoÌ„ al general liueries he that sueth his general liuerie otherwise missueth the same and is an intruder vpon the kiÌ„gs possessioÌ„ howbeit peraueÌ„ture you wil say that
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