Documents on the Duchy of LancasterContents
Duchy of Lancaster case (1561)1 Plowden 212 = Edmund Plowden: Commentaries (1792, Dublin; vol. 1., p. 533-557).]Note: the judges who made the following ruling were: Sir James Dyer (1510-82, chief justice of the common pleas from 1559 to 1582) Sir Edward Saunders (1506-76, Dyer's predecessor as Chief Justice and chief baron of the exchequer) Reynold Corbet (c1510-66, puisne justice of the Queen's bench from 1559 to 1566) William Rastell (1508-65, justice of the Queen's bench from 1558 to 1562, justice at the court of Lancaster) Sir Anthony Browne (1509/10-67, puisne justice of the common pleas from 1559 to 1567) George Freville (d. 1579, baron of the exchequer from 1559 to 1579) Richard Weston (d. 1572, justice of the common pleas from 1559 to 1572) Sir Robert Catlin (c1510-74, chief justice of the queen's bench from 1559 to 1574) Sir Gilbert Gerard (d. 1593, attorney general from 1558 to 1591) Thomas Carus (c1510-74, queen's serjeant from 1559 to 1567) Nicholas Powtrell (justice at the court of Lancaster) John Caryll, (c1501-66, attorney general of the duchy from 1544 to 1566) Edmund Plowden (c1518-85, counsel at the court of Lancaster, law reporter) Case of the Dutchy of Lancaster, at Serjeant's Inn.A report of the opinions of divers of the judges and others learned in the law hereunder named in a case depending in the court of the Dutchy of Lancaster, wherein many things appear concerning the estate and degree of the said court, and of the lands of the same Dutchy, as well as of the person of the present queen in relation to the Dutchy, and of the kings that have heretofore inherited the Dutchy.Mich. Term. 4 Eliz. A lease under the dutchy seal of land parcel of the dutchy made by king Edward 6. within age, to commence after the end of a former lease in esse, is good and not avoidable by reason of his nonage. S. C. Dy. 209. pl. 22, 4 Inst. 209, 210. Crompt. J. C. 134. b. Vin. Abr. tit. Prerogative M. b. 4. pl. 2. ON the morrow of the term of St. Michael, viz. on the eve of St. Andrew the apostle, in the 4th year of the reign of queen Elizabeth, Dyer chief justice of the common bench, Saunders chief baron of the exchequer, Rastal one of the justices of the king's bench, and also one of the justices of assize in the county palatine of Lancaster, Anthony Brown one of the justices of the common bench, Corbet one of the justices of the king's bench, Weston one of the justices of the common bench, Frevil one of the barons of the exchequer, Carus queen's serjeant, Puttrel serjeant who was the other justice of assize in the said county palatine of Lancaster, Gerard the queen's attorney, Ruswel the queen's sollicitor, Carell apprentice attorney of the Dutchy, and Plowden apprentice who was one of the counsel of the said court, by the queen's command assembled at Serjeant's-inn in Fleet-street, to confer together in order to understand the law in a certain case which was depending in the said court between the queen on the one part, and divers of her subjects severally on the other part, wherein the queen required their resolution upon the matter in law. And the case was delivered to them in writing in this manner. King Henry 8. being seized of certain lands in right of his dutchy of Lancaster, made a lease to W. C. by the advice of the counsel of the said dutchy, and under the dutchy seal, for the term of 21 years, and died, after whose death king Edward 6. by like advice made a lease to R. W. of the same lands for the term of 21 years, to commence immediately after the expiration, forfeiture, surrender, or other determination of the first term, the same king Edward 6. then being within the age of 21 years; The question was, if the present queen shall be bound by this lease made by king Edward 6. or if she shall avoid it by reason of the nonage of the said king Edward 6. And this case was argued in the dutchy chamber in the time of queen Mary, when sir Edward Walgrave knight was chancellor of the dutchy, on a demurrer upon the point between John Scudamore plaintiff and lady Mary Morgan, late wife of sir Richard Morgan knight deceased, late chief justice of the common bench, defendant, upon a lease of lands in the county of Monmouth parcel of the dutchy : But it was not adjudged in the time of queen Mary. And the judges and others abovenamed now considered first what the common law was in this case, and then what was the purport of the statutes made concerning the dutchy, all which they pursued. [213] And this the greatest part of them (as well as sir Robert Cotline chief justice of England who was now sick) had done twice before in Michaelmas term in the second and third years of the present queen, viz. once at the same Serjeant's-Inn, and the other time at Spooner's-Hall in Fleet-Street being there assembled for the same cause, at which places they had debated the matter at large, and by their several arguments at Spooner's Hall they had shewn their opinions. And the greatest part of them then, and all of them now assembled, except Ruswel (who had but little time to consider the matter) unanimously agreed that the queen should not avoid the lease made by king Edward her brother, by reason of his nonage. For first of all they agreed, [a: H. 1. Ed. 6. Bro Age 52, 78. Prerogative 132. B. N. C. s 373. Kelw. 138 pl. 2. 5 Co 27. 2. 7 Co. 12.2. Calvin's case. Co. Littl. 43. a. Pref. to 2 Inst. 1 Rol. Abr. 728. A. 1 Finch 57. 2 Finch 82. 3 Bac. Abr. 123, 305. V. n. Abr. tit. Enfant A pl. 2. Post 364 (m).] that by the common law no act which the king does as king shall be defeated by his nonage. [b: 7 Co. 10. a. Calvin's case. Post 234(a).] For the king has in him two bodies, viz. a body natural, and a body politic. His body natural (if it be considered in itself) is a body mortal, subject to all infirmities that come by nature or accident, to the imbecility of infancy or old age, and to the like defects that happen to the natural bodies of other people. But his body politic is a body that cannot be seen or handled, consisting of policy and government, and constituted for the direction of the people, and the management of the public-weal, and this body is utterly void [c: The king is always adjudged in law of full age, and infancy shall not be presumed in him, Crompt. J.C. 134. b. 1 Finch 57. Post 216 (c)] of infancy, and old age, and other natural defects and imbecilities which the body natural is subject to, and for this cause what the king does in his body politic cannot be invalidated or frustrated by any disability in his natural body. And therefore his letters-patent which give authority or jurisdiction, or which give lands or tenements that he has as king, shall not be avoided by reason of his nonage. [d: 26 Ass. pl. 54. Fitzl. Enfant 15. Bro. Age 34.] And hereupon was alledged what Thorp saith in 26 Ass. that " the king's gift shall not be defeated by his nonage, and so have many peers and sages of the realm said." [e: M. 6. Ed. 3. 50 pl. 49. Fitz. Droit 24. Age 89. Bro. 34.] And also it was said, it appears in 6 Ed. 3. that the same king Edward 3. brought a writ of right of a manor, as heir to king Richard, and there it was pleaded that the king was within age, judgment if during his nonage he should be received to this writ, and the exception was not allowed, for which reason the tenant demanded the view and had it. By which cases it appears that the nonage which the king has in his natural body shall not blemish or defeat the ads or suits which he docs or pursues in his body politic. Further as to the things which he has in his body natural, they took the law to be [f: S. P. Crompt. J. C. 134 b. 1 Finch 57. 2 Finch 82. Infra (n)] that if the king has land by descent on the part of his mother or other ancestor, or which he (when king) purchased in fee in the capacity of his body natural, or which he purchased before he was king, if he (being king) gives them to another during his nonage, such gift by the course of the common law shall never be defeated by reason of his nonage. For although he has or takes the land in his natural body, yet to this natural body is conjoined his body politic, which contains his royal estate and dignity, and the body politic includes the body natural, but the body natural is the lesser, and with this the body politic is consolidated. So that he has a body natural adorned and inverted with the estate and dignity royal, and he has not a body natural distinct and divided by itself from the office and dignity royal, but a body natural and a body politic together indivisible, and these two bodies are incorporated in one person, and make one body and not divers, that is [*: Moor 149] the body corporate in the body natural, et e contra the body natural in the body corporate. So that the body natural by the conjunction of the body politic to it (which body politic contains the office, government, and majesty royal) is magnified, and by the said consolidation hath in it the body politic, for which reason the acts which the king does touching the things that he possesses or inherits in the body natural require the same circumstance and order as the things which he possesses or inherits in the body politic do; for the thing possessed is not of such consideration as to change the nature of the king's person, but the person who possesses it changes the course of the thing possessed. [g: S. P. 1 Keb. 643. 2 Finch 239.] And therefore it was held, that if the king will part with land in fee which he has by descent on the part of his mother, or by some other ancestor who was not king, this shall pass by his letters-patent only without other matter, and without livery of seizin, for he cannot make livery of seizin in his body natural distinct from the body politic, because they are one same body and not divers. So that he cannot do it without doing it as king, and it would be inconvenient and beneath the dignity royal for the law to make the king give livery in proper person to a subject. [h: M. 38 H. 8. Bro. Patents 101] And besides livery of seizin is matter of fact, which the king cannot do, [j: The King cannot take nor part with anything but by matter of record. M. 37. H. 6. 10.b. Fer Choke Dy. 74. pl. 17. 139. pl. 33. Poph. 26.2 Co. 53a. Dr&Stud lib. 1. cap. 8. so. 31.1. Finch 56, 161.2 Finch 82, 83. Post 484, 553, 562. Cowel's Inst. 116.] for his acts ought to pass by matter of record, which is suitable to his majesty, and therefore the land shall pass by the king's letters-patent only by the course of the common law. And so it has been the practice with regard to the lands which descended to the king from the duke of York, the earl of March, and others of the king's ancestors who never were kings. [k: Vide M. 37. H.6 10b. Per Choke. T. 7. Ed. 4. 17. Fitz. Feoffments 21. H.29 H. 8. Bro. Faits enrolle 16. Feoffments 69. B.N.C. s110.2 Rol. Abr. 204. Z. pl. 1. 2 Finch 232. Vin. Abr. tit. Prerogative. Z c. pl. 1. in margine. Post 242 (c).] And also if a man would give land to the king and to his heirs, which he would vest in his body natural, and not in his body politic, the king cannot take this by livery, but it ought to pass to him by deed enrolled or matter of record, causa qua supra. [l: S.P. Post 243(s), and see the books there cited.] And if the mother or other ancestor of the king makes a lease for life, rendering rent, with re-entry for default of payment, and dies, so that the reversion descends to the king, if the rent be in arrear, he shall re-enter without demand, for he is not bound by law to make demand in his proper person, causa qua supra: [m: 5 Co. 52.b. 9 Co. 95.b. Moor 293. 2 Leon 124, 135. 1 Finch 162, 2 Finch 232. Post 229(k).] But the breach of a condition ought to be found by office before the entry of the king. [n: see supra (f)] And so if the king aliens land which he had by descent from his mother, he shall not defeat it by reason that he was within age at the time of the alienation ; [o: Co. Litt. 43.b. Moor 149, 150. T. Raym. 90. Post 238 (b)] for his body politic which is annexed to his body natural takes away [214] the imbecility of his body natural, and draws the body natural, which is the lesser, and all the effects thereof to itself which is the greater, quia magis dignum trahit ad se minus dignum. And yet if land descends to the king from his common ancestor, he shall have it by reason of his body natural, for this body is privy to the descent, but the body politic is not privy to this descent. And if the second son of the king purchases land, and aliens it within age, and afterwards the king and his eldest son die, so that the second son becomes king, he may enter for the nonage which was in him before, viz. at the time of the alienation when he was not king, but yet he ought to have an office before his entry to find his title, because his person which had a right of entry before has now the estate royal united to it, which can do nothing without record. But if he had been king at the time of the alienation, he should never have avoided it by reason of his nonage, [a: 3 Bar Abr. ] for it would be repugnant to say that he is disabled to make a feoffment or lease, who is admitted and received to govern the realm and the people and all the business of the realm. Then in the principal case here king Henry 4. was son and heir to John a Gaunt who was one of the sons of king Edward 3. and also son and heir to Blanch wife of the said John a Gaunt, who was daughter and heir to Henry duke of Lancaster. So that the dutchy of Lancaster came to the said king Henry 4. by descent on the part of his mother, [b:Crompt. J.C. 134.b, 135.a. ] and in this case if he had not afterwards been king, his possessions should have passed by livery and seizin, and attornment, &c. in the same manner as the possessions of other subjects ought to pass. [c: Crompt. J.C. 135.a.b.] But after he had deposed king Richard 2. and had assumed upon him the royal estate, and so had conjoined to his natural body the body politic of king of this realm, and was become king, then the possessions of the dutchy of Lancaster were in him as king, and not as duke, [d: Litt. R. 201.Crompt. J.C. 135a. Post. 217.] for the name of duke being lower than the name of king, was drowned by the name of king, and by the accession of the estate royal to him who was duke, for the king could not be duke in his own realm, though he might out of it. And in like manner the name of the dutchy, and all the franchises, liberties, and jurisdictions thereof, whilst they were in the hands of him that had the crown and jurisdiction royal, were extinguished by the common law. [e: Crompt. J.C. 135.b.] And after that the possession of the dutchy of Lancaster could not pass from king Henry 4. by livery of seizin, but by his letters-patent under the great seal of England, without any livery of seizin or attornment, as the possessions of the dukedom of York, or the earldom of March, or such other possessions, which have descended to the kings of this realm from other ancestors than kings, have used to pass heretofore from the kings of this realm, [f: Moor 149 arguendo] and so they should have passed until this day by the common law, if no statute had been made to the contrary. And therefore this grant or alienation of the lands parcel of the dutchy made during his nonage should not be avoided by the common law. And so they took the common law to be in this case. But in order to take away the common law, and to have the dutchy to be a dutchy with liberties to it, as it was before, and to alter the order and degree of the lands of the dutchy, the said king Henry 4. made a charter by authority of parliament, which is entitled Carta Regis Henrici quarti de separatione Ducatus Lancastriae a Corona Auctoritate Parliamenti, anno Regni sui prime, part whereof here follows. [Charter of H.4. of separation of the lands and possessions of the dutchy of Lancaster from the crown. Vide 1 Keb. 643. T. Raym. 90. Lutw. 1235, 1236.] Henricus Dei gratia rex Anglia et Franciae, dominus Hiberniae, omnibus ad quos praesentes litterae perverint salutem. Sciatis quod cum ducatus Lancastriae, ac quam plura alia comitatus, honores, castra, maneria, feoda, possessiones, et dominia, infra regnum nostrum Angliae et Walliae, et alibi, nobis tam per mortem celebris memoria Henrici nuper ducis Lancastriae, avi nostri, ac charissimi domini et Patris nostri Johannis nuper ducis Lancastriae, necnon charissimae dominae et matris nostra Blanciae uxoris ejus, filiae et haredis praedicti Henrici, nobis jure haereditario, antequam ad statum et dignitatem regalem rerum dominus omnium sua ineffabili clementia nos nuperrime evocavit, descenderunt et acciderunt, in quibus quidem ducatu, comitatibus, honoribus, castris, maneriis, possessionibus, et dominiis diversa libertates, jura regalia, consuetudines et franchesiae dictis progenitoribus et antecessoribus nostrist quaedam videlicet eis et haeredibus de corpore suo exeuntibus, et quaedam fibi et haeredibus masculis de corporibus suis exeuntibus, ac quaedam praefato domino et patri nostro ad terminum vitae suae per diversas chartas tam domini Edwardi nuper regis Angliae avi nostri, quam domini Richardi nuper regis Angliae secundi post conquestum, sunt et fuerunt concessa, prout in chartis praedictis apparet, quarum tenores sequuntur in haec verba. Edwardus Dei gratia, &c. Sciatis quod si nos debita consideratione pensantes gestus magnificos cunctorum qui nobis in guerris nostris laudabiliter et strenue servierunt, ipsos desideremus honoribus accollere, et pro veribus juxta merita praemiare, quanto magis filios nostros, quos tam sapientia quam in gestu nobili alios praecellere conspicimus, et qui nobis locum tenuerunt et trnere poterunt potiorem, nos convenit majoribus honoribus et gratiis praerogare ? Considerantes itaque probitatem strenuam et sapentiam praecellentem charissimi filii nostri Johannis regis Castallae et Legionis, ducis Lancasrtiae, qui laboribus et expensis semper se nobis obsequiosum exhibuit pro nobis pluries in necessitatibus intrepide se guerrarum discriminibus exponendo, et volentes eo praetexti ac considerantes eundem filium nostrum aliquali commodo et honore ad praesens (licet non ad plenum prout digna merita exposeunt) remunerare, ex certa scientia nostra et Iaeto corde, de assensu Praelatorum et Procerum in instanti Parliamento nostro apud Westmonasterium convocatorum existentium, concessimus pro nobis et haeredibus nostris praefato filio nostro, quod ipse ad totam vitam suam habeat infra comitatum Lancastriae Cancelleriam suam, ac brevia sua sub sigillo suo pro officio Cancellarii deputanda consignanda, justiciarios suos tam [215] ad placita coronae, quam ad quaecunque alia placita communem legem tangentia, tenenda, ac cognitiones eorundem. et quascunque executiones per brevia sua et ministros suos ibidem faciendas. Et quaecunque alia libertates et jura regalia ad comitatum Palantium pertinentia adeo libere et integre sicut comes Cestriae infra eundem comitatum Cestriae dignosciitur obtinere, &c. Nos nolentes dictam hereditatem nostram, aut libertates ejusdem, occasione instantis assumptionis regalis status et dignitatis nostrae, in aliquo mutari, transferri, diminui, seu derogari, sed eandem haereditatem nosrtam cum juribus et libertatibus suis praedictis eisdem modo et forma, conditione, et statu, quibus nobis descenderunt et revenerunt, ac etiam cum omnibus et singulis talibus libertatibus et franchesis, ac aliis privilegiis, commoditatibus, et proficuis quibuscunque, quibus praedictus dominus et pater nofter, dum vixit, eam ad terminum vitae suae ex concessione praedicti Richardi nuper regis habuit et tenuit, nobis et dictis haeredibus nostris in dictis chartis specificatis plenarie et integre conservari, continuari, et haberi volumus, ac tenore praesentium ex certa scientia nostra, de assensu praesntis parliamenti nostri concedimus, declaramus, discernimus, et ordinamus pro nobis et haeredibus nostris, quod tam ducatus noster Lancastriae quam universa et singula alia comitatus, honores, castra, maneria, feoda, advocationes, possessiones, annuitates, et dominia quaecunque, nobis ante adeptionem dignitati nostrae regia qualiterrcunque et ubicunque jure haereditario, in dominico, servicio, vel in reversione, seu alias qualitercunque discensa, nobis et dictis haeredibus nostris in chartis praedictis specificatis in forma praedicta remaneant in perpetuum. [*: See Moor 150 1 Keb 643.] Et quod taliter, et tali modo, et, per tales officiarios et ministros in omnibus remaneant, deducantur, gubernentur, et pertractentur, sicut remanere, deduci, gubernari et pertractari, si deberent ad culmen dignitatis regiae assumpti minime fuissemus. Ac insuper quod talia et hujusmodi libertates, jura regalia, consuetudines et franchesiae in ducatu, comitatu, honoribus, castris, maneris, feodis, et caeteris possessionibus, et in dominiis praedictis, in omnibus et per omnia in perpetuum habeantur, exerceantur, continuentur, fiant, et utentur, et per tales officiarios et ministros gubernentur et exequentur, quae et qualia et per quales officiarios et ministros tam tempore dicti domini et patris nostri, quam temporibus aliorum progenitorum et antecessorum nostrorum in dictis ducatu, comitatibus, honoribus, castris, maneriis, feodis, et aliis possessionibus, et dominiis praedictis, uti & haberi ac regi et gubernari consueverunt virtute chartarum praedictis. Volentes ulterius et concedcntes, ac pro nobis et haeredibus nostris praedictis ex certa scientia noftra, et assensu praedictis, plenarie declarantes, quod universi et singuli tenentes de ducatu, comitatu, honoribusy, maneriis, feodis, et aliis possessionibus et dominiis praedictis, et haeredes sui adeo liberi sint, et in omnibus tales adeo liberae et illesae conditiones, tam ingressibus suis in haereditates suas post mortem antecessorum suorum, quam in tenuris suis et aliis quibuscunque, sicut esse posserit et deberent de consuetudine vel de jure, si dicta dignitas nostra regia nobis nusquam accidisset, dicta assumptione nostra dignitatis regiae aut quod ducatus, comitatus, honores, castra, maneria, feoda, advocationes, possessiones, dominia, et libertates praedicta in manu nostra jam exiftunt, seu aliqua interruptione, cessatione, vel discontinuatione libertatum praedictarum, seu aliquibus aliis occasionibus, causis, coloribus, vel impedimentis quibuscunque (quae in contrarium praesentis voluntatis, concessionis, et declarationis nostra rigorem seu effectum aliquem habere nolumus) in aliquo non obstantibus. By which charter it is ordained that the dutchy of Lancaster and all the possessions thereof shall not be altered or changed by reason that king Henry 4. assumed the royal estate upon him, but that they shall be preserved and continued in the same form, condition, and estate in which they descended and came to him, and shall remain to the same heirs contained in the charters beforementioned, and that they shall so, in such manner, and by such officers and ministers in all points remain, be ordered, governed, and demeaned, as they should have been if he had never been king. So that by thee words the dutchy is a dutchy with the like franchises and liberties as it was before, meerly disjoined from the crown, and from the ministers and officers of the crown, and from the receipt of the revenues of the crown, and from such order of conveyance as the law requires in the passing of the possessions of crown ; for if the king would give any lands parcel of the dutchy to another in fee, or for life, he ought to make livery of seizin, and also upon his grants of the reversion there ought to be attornment, in the same manner as there should have been before he was king. And this is by reason of the words of the charter, [+: See Moor 150] quod taliter et tali modo remaneant, deducantur, gubernantur, et pertractentur, sicut remanere, deduci, gubernari, et pertractari deberent, si ad culmen dignitatis regiae assumpti minime fuissemus, and also by reason of the other words in the said charter. Which separation, division, and severance of the dutchy from the crown, and from the receipt and order of the possessions of the crown, seemed to the judges and other the counsellors abovementioned to be a politic scheme of king Henry 4. who well knew that he had the dutchy of Lancaster upon a good and indefeasible title, and that his title to the crown was not so good, and therefore having some distrust that in time to come the crown might be taken from him or his heirs, and being desirous nevertheless that the dutchy should continue to him and his heirs, and knowing at the same time that if the possessions of the dutchy should be mixed with the possessions of the crown, and not be notoriously cut and dissevered from the possessions of the crown, it might be a means of causing the dutchy the sooner to be taken away from him or his heirs, or at least he or his heirs would receive no good by their being mixed with the possessions of the crown, if the crown should be taken from him or his heirs, for these reasons he made the said charter by the authority of parliament, whereby the said reparation is made as is shewn before. But notwithstanding [216] that the possessions of the dutchy ought to be demeaned and ordered and pass as they should before Henry 4. was king, by force of the words of the said charter, yet there is no clause in the charter which makes the person of the king that has the dutchy to he in any other degree than it was before ; but for things which concern his person he shall be in the same estate as he was before. So that if the law before the charter adjudged the person of the king to be of full age, having regard to his gifts as well of the land which he inherits in his body natural as of that which he inherits in right of his crown, so he shall be adjudged with regard to the lands of the dutchy ever since the charter, for the charter extends only to the estate, condition, and order of the lands of the dutchy, but does not reach to the person of the king who has the lands, in points touching his person, nor does it diminish or alter the preheminenccs which the law gives or attributes to the person of the king, but the same continue as well with regard to the possessions of the dutchy of Lancaster, as the lands which come to him from other ancestors. [a: H. 10. H.4. 7 pl. 5. Moor 150, S.C. cited but there misprinted (10H.7) Crompt. J.C. 135 a. Post 239.] And in proof hereof was cited the case in Hill. 10. H 4. 7. which is as follows, viz " King Henry 4.brought a scire facias
against the lord Strange, reciting that a judgment given against
Thomas of Lancaster his ancestor, by which he was to forfeit his
land, was reversed for certain errors at the suit of Henry of
Lancaster, brother and heir of the said Thomas, in a parliament holden
in the first year of the king his grandfather, and the said
Henry was admitted to inherit to the said Thomas; and he demanded to
know if he could say any thing why the manor of M. (whereof the said
Thomas was seized at the time of the judgment given, and whereof the
lord Strange is now seized) should not be delivered to the king, as
cousin and heir of the said Thomas, and the record of the reversal was
resident of ancient time in the king's bench. ¶ Horton. judgment
of the
writ, for the writ saith, quod non
omittas propter aliquam libertatem
in Balliva tua, which words are used in writs where the king
demands as king a thing belonging to his crown: But here he demands
execution by his writ, as duke of Lancaster, and not as king, so
that these words (non omittas)
shall not be put in the writ,
wherefore, &c. ¶ Tirwith, Although he demands the manor
as parcel
of the dutchy of Lancaster, he is the same person that is king, and
he cannot sue otherwise than as king. ¶ Huls, The king has
such a
prerogative, that no officer shall
[b: Post 243(q)] execute his writ but his own, and although there is a franchise in the county, yet the sheriff is the king's officer, and shall make execution for the king within the franchise and without, wherefore for the king the writ ought not to be otherwise. ¶ Gascoign, By advice we award the writ good." And this case was cited by Catline chief justice of the king's bench at the first assembly abovementioned at the said Serjeant's-Inn in the said term of St Michael in the 2d & 3d years of the reign of the present queen, and he had a copy of the said writ of scire facias written out of the said record remaining in the king's bench, which he then shewed to the other justices and counsellors, and it was according as it is recited in the case. Which case being adjudged in manner and form aforesaid, then and also now strongly moved them to be and continue of opinion according as it is said above, viz. that the prerogatives which the law attributes to the person of the king hold place as well in relation to the land of the dutchy, as other land which he has or holds in the capacity of his body natural ; and by the same reason the prerogative which the law attributes to the person of the king touching his age, viz. [c: ante 213(c)] that he shall always be judged of full age, and never underage, shall continue with relation to the lands of the dutchy since the said charter, as well as with relation to other lands which he holds in his body natural. [d: ] And to this purpose the lord Dyer now vouched a record in Easter term 3 H. 6. Rot. 112. which he said, he and the said Anthony Brown read in the treasury the same day, and the record is to this effect, viz. one Henry Kriveton brought a writ of trespass against Ralf Shirley and four others for breaking his close at Bradley in the county of Derby, and spoiling and consuming his grass and the germins of his wood with their cattle, &c. and declared of a trespass on Sunday next after the feast of St. John Baptist in the tenth year of the reign of king Henry 5. and alledged continuance until the second year of the reign of king. Henry 6. Ralf Shirley pleaded that the place where, &c was a great waste called Bradley-Hey, and that one Joan, who was wife of sir John Basset, knight, was late seized of the manor of Brailsford in her demesn as of fee, and that she and all her anceftors lords of the same manor, and all those whose estate she had in the said manor, had common of pasture in the said waste for all cattle at all times of the year, as appendant to the said manor from time beyond the memory of man, and for so long time used to crop and lay waste with the said cattle the germins of the underwood growing in the said waste. And he shewed that the said Joan died, and that the manor descended to one Ralf being within age, and because the manor was held of the said king as of his dutchy of Lancaster by knight's service, the same king seized the said manor during the nonage of the said heir, and committed it by his letters-patent to a husband and wife during the nonage of the heir, rendering 40 marks rent yearly, the estate of which husband and wife in one messuage and on: yard-land of the said manor the said Ralf Shirley (the defendant) at the time of the trespass had, and now hath, and he prayed in aid of the king, and had it by award before issue joined or plea over. And afterwards the plaintiff obtained [217] a procedendo with the following words in it, viz. dum tamen ad judicium inde reddendum nobis inconsultis nullatenus procedatis; and there was the like plea, and prayer, and procedendo by each of the other four defendants. Which case (it was said) shews us what were the opinions of the judges in the time of king Henry 6, touching the estate of the king's person in relation to the lands of the dutchy, for if they had looked upon him, with regard to those lands, as duke, and so as a common person, and no higher, then should not the defendant have had aid of him before issue joined, any more than he should have of another common person, nor should the plaintiff have had a procedendo with the said clause, viz. dum tamen ad judicium inde reddendum nobis inconsultis nullatenus procedatis. Wherefore notwithstanding the order limited by the charter for the lands of the dutchy, viz. quod taliter et tali mode remaneant, deducantur, gubernentur, et pertractentur, sicut remanere, deduci, gubernari, et pertractari deberent, si ad culmen dignitatis regiae assumpti minime fuissemus, and notwithstanding that these words have been so taken as to make the dutchy lands of the king pass by other order and circumstance than other lands which he inherits in his body natural, yet these cases argue and prove that the person of the king, with regard to the dutchy lands, shall be used, demeaned, have his prerogatives, and be in like estate, as he should have had or been if the charter aforesaid had not been made, altho' the estate and nature of the land is in another degree. And the prerogative which the common law gives to the person of the king to be always of full age, and never within age, is as firmly annexed to him with regard to the dutchy lands, as the prerogative of non omittas, or of not proceeding to issue without aid of him in the case before recited, and nonage is a thing which touches the person more than the land, but the land of the dutchy, and the things which concern it more than the person, shall be demeaned and used as if a common person had held them. And so is the diversity between the estate and degree of the land of the dutchy, and the estate and degree of the person who inherits the land of the dutchy. And altho' the charter and the act make the king to have the dutchy and all the liberties, privileges, and jurisdictions thereof, as they were before in the hands of the duke, yet they don't make the king to be duke of Lancaster, for there is not a word in them to any such purpose, nor can it be reasonably supposed to be the intent of the charter or of the makers of the act to make him so, for the king cannot be duke in his own realm, tho' he may out of it, a it is said before, [*: Litt. R. 201 Crompt. J.C. 135.a. Ante 214(d)] for his name and dignity of king merges and drowns the inferior name and dignity of duke within his own realm. And after the charter if a lease had been made of parcel of the dutchy by the name of Henry duke of Lancaster, without other name, it had been void, lor it should have been in the name of Henry 4. king of England And for this reason it is that in leases which the kings haw made of the possessions of the dutchy they have used to call themselves kings, and not dukes. And in offices it is usual to find that the tenant held of the king as of the dutchy of I.ancaster, and it is not well found that he held of the king as duke of Lancaster, for he is not duke, but king. So that the condition of his person and his prerogatives are not to be comprehended or measured by the estate or name of duke, but according to the estate and name of king. And infancy which is a great disability is repugnant to the estate of a king, and altho' the natural body of the king is subject to infancy, [+: Ante 213(e)] yet when the body politic is conjoined with it, and one body is made of them both, the whole body shall have all the properties, qualities, and degrees of the body politic which is the greater and more worthy, and in which there is not nor can be any infancy. So that neither the common law, nor the charter (altho' it be by authority of parliament) gives authority to the king or his heirs to avoid by reason of nonage such leases as he makes during his nonage. Wherefore it seemed to them that the whole intent of king Henry 4. and of the charter and act was only to sever the lands, possessions, privileges, jurisdictions, and hereditaments of the dutchy from the hereditaments of the crown, viz, in survey, order, government, and process, but not in person, so long as by the grace of God the crown and the dutchy should continue and abide together in the blood of the duke of Lancaster, and of the said Blanch mother of the said Henry 4. and that if the crown should afterwards by any means be taken out of the blood of the duke of Lancaster, that yet the said dutchy should continue in the blood of the said duke. So that the intent of the charter may be satisfied without derogating from the person of the king, or destroying the dignity or preheminence which the law attributes to it. Further they considered the following part of the statute entitled, A Statute touching the Seal of the Dutchy of Lancaster, made in the parliament holden the sixteenth day of March in the third year of the reign of king Henry 5. viz. the commons of England assembled in that parliament delivered a petition in the same parliament in the form following, " May it please our sovereign lord
the king by the assent of the lords spiritual and temporal and of the
commons in this present parliament assembled, by authority of the same
parliament, to accept, approve, ratify, and grant your letters patent,
by you made and granted in your parliament holden at Westminster in
the second year of your reign, touching the liberties, customs, and
franchises to be used and to continue within your inheritances of your
dutchy of Lancaster, and of the counties of Hereford, Essex, and
Northampton, and other things comprised in the said letters, [218]
according to the effect, tenor, and purport of the same letters, in
due form adding and inserting, by your letters, amongst other affairs
granted by you and your heirs, with the assent of the said lords
and commons of this same parliament, and by authority of this
parliament, for your great profit touching your inheritances
aforesaid, and for the better government thereof, and in preservation
and sustentation of the aforesaid liberties, customs, and
franchises, the clauses and words here following, &c." Moreover
we are willing by the assent of the lords spiritual and temporal, and
of the commons of this realm of England in our present parliament
assembled, and by authority of the same parliament do grant and declare
for us and our heirs, that no gifts, grants, pardaons, remissions, or
releases which concern or in any case arise, or by any sort of colour
may concern or for the future happen or arise touching our
inheritances, or any parcel thereof, or the honours, castles, manors,
lands, tenements, rents, fees, advowsons, liberties, and franchises to
our same inheritances or any parcel thereof in anywise belonging, or
touching the wards, wardships, marriages, reliefs, issues, fines,
amercements, profits, and commodities, or the officers, and ministers
of us our heirs and assigns, of the inheritances aforesaid, whether the
said honours, castles, manors, lands, tenements, rents, fees,
advowsons, liberties and franchises be in the hands of us, or our said
heirs or assigns, or in the hands of others whomsoever by grant or
feoffment of us, or of our same heirs or assign thereof made or to be
made for term of life, or years, or in fee, or in any otherwise
whatsoever, to the use of us or our heirs or assigns, shall for the
future be made under any other seal of us our heirs or assigns
aforesaid great or small, ordained or to be ordained but only under our
seal for the dutchy aforesaid, as is aforesaid and if any shall happen
in any wise to come under any other seal for the future, they shall not
be valid or effectual by any means, but shall he judged and deemed
vain, nul, and void for ever.
Which petition being read openly in the
said parliament, and well understood, was answered in the manner
following, "The king, by the assent of the lords
spiritual and temporal being in this parliament, and at the request
of the commons
aforesaid, wills that the same he done in all points."
Which act
making all charters of any of the possessions of the dutchy sealed with
any other than the dutchy seal to be void, declares the intent of the
said king Henry 5. to be, that the said dutchy and all the possessions
thereof should be distinct, separate, and so openly known and used,
from the possessions of the crown. Which seemed to be done by the said
king Henry 5. being lineal heir to the duchy of Lancaster, with the
same politic design before mentioned. But yet there is nothing in it
that touches the person of the king, so that the prerogatives
concerning his nonage and other points of his person remain as they
were before the making of that statute; and. the said case in 3 H. 6.
being adjudged as it is before recited, and being after this statute,
declares that the prerogatives of his person continue in him with
regard to the dutchy lands after this statute.[Statute of 1 Ed. 4. of confiscation for ever of the dutchy of Lancaster to the Crown. Vide B.N.C. s. 373 Lutw. 1236.] Further they considered the following part of the statute made the fourth day of November in the first year of the reign of king Edward 4. entitled, An act of incorporating and also of confiscating, amongst other things, the dutchy of Lancaster of the crown of England for ever, that is to say, It is declared and adjudged by the
assent and advice of
the lords spiritual and temporal, and of the commons being in this
present parliament, and by the authority of the same, that the same
Henry late called king Henry the sixth, for the considerations of the
great, heinous, and detestable matters and offences before specified by
him committed against his faith and ligeance to our said liege lord
king Edward the fourth, his true, righteous, and natural liege lord,
offended and hurt unjustly and unlawfully the royal majesty of our said
sovereign lord, stand by the said advice and assent convicted and
attainted of high treason. And that it be ordained and established by
the same advice, assent, and authority, that he the same Henry
forfeit, unto the same our liege lord Edward the fourth, and to his
heirs, and to the said crown of England, all castles, manors,
lordships, towns, townships, honours, lands, tenements, rents,
services, fee-farms, knight's-fees, advowsons, hereditaments, and
possessions with their appurtenances, which he or any other to his use
had the third day of March last past, being of the dutchy of Lancaster,
or that were any parcel or member of the same dutchy, or thereunto
annexed or united in the first year of the reign of Henry late called
king Henry the fifth, or at any time since. And that it be ordained
and established by the same advice, assent, and authority, that the
same manors, castles,lordships, honours, towns, townships, lands,
tenements, rents, services, fee-farms, knight's-fees, advowsons,
hereditaments, and possessions with their appurtenances in England,
Wales, and Calais, and the Marches thereof, make, and from the said
third day of March be to the said dutchy of Lancaster corporate, and
be called the dutchy of Lancaster. And that our said sovereign lord
king Edward the fourth have, seize, take, hold, enjoy, and inherit all
the said manors and castles, and other the premisses with their
appurtenances, by the same name of dutchy from all other his
inheritances separate, from the said fourth day of March, to him and to
his heirs kings of England perpetually, and that the county of
Lancaster be a county palatine : And that our liege and sovereign lord
king Edward the fourth and his heirs have, as parcel of the said
dutchy, the same county of Lancaster and county palatine, and a seal,
chancellor, judges, and officers for the same; and all manner of
liberties, customs, laws royal, and franchises in the same county
palatine lawfully and rightfully used, and over that, another seal
called the seal of the dutchy of Lancaster, and a chancellor for the
keeping thereof officers and counsellors for the guiding and governance
[219] of the same dutchy, and of the particular officers, ministers,
tenants and inhabitants thereof, in as great, ample, and large form as
Henry, calling himself Henry the fifth, at any time therein had, used,
and enjoyed lawfully. And by the same authority the said officers and
ministers, and also the said tenants and inhabitants of the same dutchy
have, use, exercise and enjoy such and all liberties, privileges and
customs, as the officers, ministers, tenants, and inhabitants of the
same dutchy had, used exercised or enjoyed lawfully in the time of the
same Henry, calling himself king Henry the fifth ; and that also in the
same dutchy be used, had, and occupied all such freedoms, liberties,
privileges, customs and jurisdictions, as were used therein lawfully
before the said fourth day of March. And the officerst ministers,
tenants, and inhabitants of or in the said dutchy be entreated and
demeaned according to the same freedoms, liberties, franchises,
customs, privileges and jurisdictions, and not distrained, arcted, nor
compelled to the contrary in anywise.
From which acts the said justices and counsellors inferred, that if before the making of this act the nonage of the king had been any cause to avoid gifts or leases made by him within age of the lands of the dutchy, that yet by this statute it is made clear that his nonage is no cause after the act to avoid them, for by this act the dutchy is annexed to the crown. And it is to he observed that king Edward took himself to be lawful inheritor of the crown of England, and that the house of Lancaster had unlawfully usurped upon hid and his ancesters. And as the house of Lancaster, doubting their title to the crown, intended to preserve their inheritance of the dutchy of Lancaster, in which they had no manner of doubt whilst it was disjoined from the crown, so on the contrary king Edward 4. knowing his title to the crown to be undoubted, intended to extirpate the house of Lancaster, and to unite to the crown their inheritance, in which he had no title but in right of the crown, viz. for treason committed against it, and to vest the dutchy and all the possessions thereof in the body politic of the king. And to this purpose are the words of the said last act, viz. that king Edward 4. shall have, seize, take, hold, enjoy, and inherit all the said manors, &c. from the fourth day of March, to him and to his heirs kings of England perpetually. So that the said inheritance of the dutchy is placed and settled only in the body politic of the king, in which person there is no nonage or other imbecility to which the body natural .is subject. And by these words as well as by the other words in the act, by which it is ordained that the said king Henry 6 shall forfeit to king Edward 4. and to his heirs, and to the crown of England, the hereditaments of the dutchy, the county palatine of Lancaster, and the court of the dutchy, and the liberties and franchises thereof should have been utterly dissolved and extinguished in the crown, if there had been no other provision made in the act; [a: Dy. 44 pl. 32. Kelw. 147. b. per Aldenb. 9 Co. 25.b. Cro. E. 592. 1 Finch 126, 2 Finch 164.] for the crown which receives any hereditaments by escheat (as it did these here) merges all jurisdictions, franchises, and liberties had and tied in them, which were before derived from the crown, for the greater extinguishes the lesser. So that the act having relation to the fourth day of March last past, (on which day king Edward 4. begun his reign) would have extinguished the said county palatine, and the said court, and the liberties thereof from the said fourth day of March thenceforwards for ever, if it had stopped there without making any other provision ; but to raise it up again it was necessary to have a new erection or a saving by lords proper for it And therefore king Edward 4, being desirous that the dutchy and all that belonged to it should be as it was before, as to the order and direction of it, he made a new establishment thereupon by the act, whereby it is ordained and established, that the same manors, castles, &c. should make, and from the third day of March be the said dutchy of Lancaster incorporate, and be called the dutchy of Lancaster, and that the county of Lancaster should be a county palatine, and that the king should have, as parcel of the dutchy, the same county palatine, and a seal, chancellor, judges, and officers here, and the liberties and other things as in the said act is before recited. So that this last act has established or confiscated the county palatine from the third day of March last before the act, and that the same king Edward should have the hereditaments thereof, by the name of the dutchy, from the fourth day of March to him and to his heirs kings of England for ever. Yet it shews how he shall have them, viz. from all other his inheritances separate ; and how separate? not from the person of the king, as king, but from the order of the other possessions of the king, as to pass by another seal than a lease of the possessions of the crown is ??? to do, and by other means than possessions of the crown shall pass by, viz. by livery of seizin and by attornment, and by other officers than the officers of the possessions of the crown, and by such other rules and methods used before. And to prove that the dutchy is separated from the other possessions of the crown in the method of conveyance, since this act, as it was before the act, the case in M. 21 Ed. 4. was alledged at Spooners, which is, that in the exchequer chamber it was held by all the justices, [b: M. 21. Ed. 4. 60. pl. 17. Bro. Feoffments 51. Prerogative 72. Moor 153. 1 Keb. 643. 4 Inst. 206. Lutw. 1236. Crompt. J.C. 135.a. See 1 Lev. 28 , 29 Carpenter vs. Marshall.] that if the king makes a feoffment of the lands which he has in right of his dutchy of Lancaster in fee, or for term of life, it is necessary to have livery of seizin as well as if the feoffment be made by a common person, unless it be of lands within the county palatine, which shall pass by the letters-patent of the dutchy without livery ; and the said question was there demanded by the attorney of the dutchy. So that the word (separate) may and ought to be taken separate in respect of order, but not separate from the person of the king, as king. Wherefore the said statute [220] of king Edward 4. ordains three things, first, it establishes the county palatine of Lancaster secondly, it vests it in the body politic of the king of this realm and his heirs; thirdly, it divides it from the order of the other possessions of the crown. And in this form it said dutchy continued until the time of king Henry 7. [Statute of 1 H. 7. Vide B.N.C. s.373.] And further they considered the following part of the statute made in the first year of king Henry 7. entitled, A repeal of a feoffment made by king Edward 4. of certain lands or tenements of the dutchy of Lancaster by authority of parliament for the performance of bis last will in the 12th year of his reign which was as follows, Where in the parliament
begun and holden at Westminster the sixth day of October in the 12th
year of the reign of Edward late king of England the fourth and by
divers prorogations unto the 23d day of February the 14tb year of his
reign continued, and then there holden, for certain considerations by
the advice of the lords spiritual and temporal, and the commons in that
present parliament assembled, or by the authority of the same would,
ordained, and enacted, that Thomas Cardinal archbishop of Canterbury,
and divers others there named, from the said 23d day should, have,
hold, enjoy, and possess the honour, castle, lordship, and manor of
Tutbury, witb the members and appurtenances, and all manors,
lordships, &c. Be it enacted, ordained and established the advice
and assent of the lords spiritual and temporal, and commons in this
present parliament assembled, and by the authority of the same, that
the said act and every thing therein contained be from the 21st day of
August last past void, repealed, annulled, and of none effect. And over
that, by the same autbority, the king our sovereign lord sball have,
hold, enjoy and possess, from the said 21st day of August to him and to
his heirs for ever, all the honours, castles, lordships, manors, lands,
'tenements, rents, reversions, services, possessions, and other
hereditaments with their appurtenances in the said act contained, and
the county palatine of Lancaster, and all honours, castles, lordships,
manors, lands, tenements, rents, reversions, services, possessions, and
other hereditaments with their appurtenances that were parcel of the
said dutchy of Lancaster, in the hands or possession of the said Edward
late king of England the fourth day of March the first year of his
reign, or any time after, or in the hands or possession of Richard the
third, late in deed and not in right king of England, any time during
his reign, with all liberties, freedom, franchises, and other things
as well to the fold county palatine, as to any other the premisses
appertaining or belonging; and to be governed by like officers, and use
like seals, as for time past have been used and accustomed, in as ample
and large manner, and in like manner, form and condition separate from
the crown of England, and the possessions of the same, as Henry 4.,
Henry 5. Henry 6. the king's noble progenitors, late kings of this
realm, or the said Edward late king had and held, or any of the said
kings had and held, any act or statute before this made in any wise
notwithstanding, &c.
And it was argued at Spooner's by some, that by this act the dutchy is devested out of the body politic of the king, in which capacity it was vested by the act of Edward 4. and that it is become vested in the naural body of king Henry 7. For the words are, that the king our sovereign lord shall have, hold, enjoy, and possess from the said 21st day of August to him and to his heirs for ever, all the honours, castles, &c. in the county palatine of Lancaster, &c. and also they referred to this clause the words alter, viz. in as ample and large manner, and in like manner, form, and condition separate from the crown of England, and from the possessions of the same, as H.4,. H. 5. H.6. or king Edward had and held, or any of them had and held, for the said words, in as ample and large manner, and in like manner, form, &c. cannot be referred to the clause before, viz. to be governed, &c. for that clause ends at the word accustomed, viz.. to be governed by like officers, and use like seals, as in time past have been used and accustomed; so that this clause ends here. And also they took it that the word separate would not suffer this clause to be referred to the clause, to be governed ; for then it shall be put adverbially, that is, separately. And if the words, in as ample and large manner, and in like manner, form, and condition, be referred to the words, the king shall have, hold, enjoy and possess, &c. as they said they ought to be, then king H. 7. shall receive the possessions in his body natural, and not in his body politic, as king. But if the words had been to him and to his heirs kings of England, as the words of the aft of king Edward 4. were, then H. 7. should have taken them in his body politic, as king Edward 4. took: them. And the words in like manner, form, and condition separate from the crown, as any of the kings H. 4. H. 5. H.6, or Edw. 4. held, being referred thereto, do enforce the construction that he received them in his body natural, for if king H. 7. shall have them in like manner, form, and condition as any of the said kings held them, then shall he have them in his body natural, for each of the three first kings so held them, tho' king Edward 4. held them in his body politic, but inasmuch as the county palatine is given to H. 7. in as large and ample manner, and in like manner, form and condition separate from the crown, as any of the four kings held it, and three of them held it more largely separated from the crown than the fourth did, (for they three held it in their body natural separate from the crown, and the fourth in his body politic in right of the crown, and separated in the order and government of the crown, and not otherwise) then king H. 7. shall take it according to the most ample and large reparation from the crown that might be, and that is, in his body natural. And this also seemed to them to be the intent of the aft, for king H. 7. was descended from the house of [221] Lancaster, and favoured that party, and therefore it is most probable that he intended to have the dutchy in the like form as the house of Lancaster held it, which was in the body natural, and this the rather, because his wife pretended an interest in the body politic along with him ; and this act repealed the other act of Edward 4, in this point, for it has in it these words, viz. any act before made notwithstanding. And for these causes it seemed to some that the dutchy was vested in the natural body of king Henry 7. and in like manner in the body of king Edward 6. and then with regard to the nonage, that it rests only upon the common law, without any enforcement by the statute of Edw. 4. or any other statute. On the contrary it was argued at Spooner's by others, that it is enforced by the said statute of Edw. 4. and that the dutchy was not vested in the natural body of king Henry 7. but in his body politic, for the dutchy was veiled in king Edward 4. in his body politic, and when king Henry 7. took upon him the government of the realm, whereby he had in him the body politic of king of this realm, in that body he received and held the dutchy before the said act in the first year of his reign was made; and although the said act fays that king Henry 7. shall have it to him and to his heirs from the 21st day of August, this may be intended his heirs that should have inherited it if the act had not been made, and that is, the heirs to the body politic ; so that the act is as a confirmation of it to that body which then held it. And if the words (in as ample and large manner, form and condition, &c) be referred to the clause (the king shall have, hold, enjoy, and possess, &c.) they will enforce this opinion ; for if king Henry 7. should have it in as large and ample manner, and in like manner as the four kings or any of them held it, and three of them held it in their body natural, which is not so ample and large as the other, and the fourth held it in his body politic, which is more ample and large than the body natural, then king Henry 7. should have it in his body politic, because that is the more ample and large manner; for both the sentences are joined together by a copulative, so that it ought to be in as ample and large manner, and also in like manner, form, and condition &c. and so the first part, viz. concerning the ampleness and largeness, ought to be satisfied as well as the second part, viz. the likeness of the manner, form, and condition. And the word (separate) may be fulfilled by such a separation from the possessions of the crown as relates only to the order, direction, and method of conveyance, as it is shewn before in the exposition of the act of Edw. 4. And the clause of (in as ample and large manner, and in like manner, &c. separate from the crown, &c.) may belong to the clause (to be governed, &c.) and so it agrees with the letter. And therefore the leases are good, the rather by reason of the said statute of Ed. 4. and H. 7. and are not avoidable for the nonage of the said king Edward 6. And some held that the opinion of the serjeants in [*: T. 15. H. 7. a. Bro. Aid de Roy 51.] 15 H. 7. is not law, where it is reported to be held by them, that if a man justifies in trespass as bailiff of the king by reason of his manor which he has as of his dutchy of Lancaster, the defendant shall not lave aid before issue joined. And they also held, that if it was the intent of the said act of Henry 7. to have the possessions of the dutchy separated from the possessions of the crown as well in the inheritance as in the order and government of the same inheritance, (as it seemed to them it was not) and the more so from the title of the same act, which is, a repeal of a feoffment, &c. ut supra) yet there is not any word in the same act that requires the dutchy to be separated from the person of the king, or the person of the king to be separated from the possessions of the dutchy, nor is there any word that tends to make the king duke of Lancaster, or to make him duke of Lancaster with regard to the possessions of the dutchy, or to alter the quality of the person of king Henry 7. but only that the king shall have to him and to his heirs the laid dutchy separate from the other possessions, in which case the dutchy is at least joined to the person of king Henry 7. and to his heirs, and the person of the king remains as it was before, for nothing is said as to the quality of the person of the king in this act, or in the other acts before made in the time of H. 4. or H. 5. nor as to the alteration of his name, but he continues as before. And the person of the king shall not be invalidated by the duchy being given to him and to his heirs by the said act, and his person remains always of full age as well with regard to gifts and grants of lands made by him, as the administration of justice. And to these last reasons the others agreed, although they did not agree to this exposition of the act of Henry 7. viz. that the dutchy remains not separated in inheritance and in right from the crown, and that it is not devested out of the body politic of the king, in which capacity only it was, and vested in the body natural of king Henry 7. But that wherein they all agreed proves that the leases are not voidable by reason of the nonage of Edward 6. And therefore all the justices, serjeants, and counsellors assembled on the eve of St. Andrew (as is shewn before) except Ruswel, agreed unanimously [+: see the books cited ante at the head of the case.] that the said leases made of the lands parcel of the dutchy (whether the lands lie out of the county palatine of Lancaster or within it) were not voidable for the nonage of the said king ; and that the law is all one where the lease is made of lands of the dutchy which are not in lease, to commence presently, and where to commence after the end of another lease before made, and that neither the one nor the other is voidable for the nonages the said king. And the proviso contained in the statute of 7 Edw. 6. cap. 5. hath not changed the law, wherein it is provided, that the act then made for confirmation of the letters patent of the said king Edward 6. (hall not extendi make good any lease made in reversion of any lands or tenements parcel of the dutchy of Lancaster; for (it was said at Spooner's) this proviso does nothing but only puts the matter at large as it was before. [222] And the next day, being the feast of St. Andrew the apostle, the justices went to Catline chief justice of England who was sick at his house, to have his opinion in the case, or so they had agreed to do at their said assembly) and he greed in opinion with them, that the leases of king Edward 6. were not voidable by reason of his nonage. And forwards on Monday, being the morrow of St. Andrew the apoftle, all the said justices, serjeants, and counsellors, viz. Dyer, Saunders, Rastal, Anthony Brown, Corbet, Weston, Frevil, Carus, Puttrel, Gerard, Ruswel, Carell, and Plowtin, at a time appointed for the same, went to York-place, to report their resolution to sir Nicholas Bacon knight, keeper of the great seal, (to whom they were referred to report it) and to sir Ambrose Cave knight, chancellor of the said dutchy, to the intent that the said sir Nicholas Bacon might report it over to the queen, according as her majesty had given orders. And there the lord Dyer, in the presence of all the rest:, shewed their said resolution, and briefly declared the cause thereof, and said that all the rest there present, except Ruswel, were unanimously of the same opinion, which they all affirmed, and upon this answer given they departed. [Nota bene by the reporter] And note, in the said case in the dutchy upon demurrer between Scudamore and lady Morgan, it was argued that the act of Edw. 6. cap. 8. for confirmation of letters-patent does not enforce the said leases, for that act makes all leases and grants good, notwithstanding the causes and matters mentioned in the act, or to which the aft has relation, and the nonage of the king is not any of them. And also it was then argued, that the said act of 7 Edw. 6. cap. 3. whereby it is enacted, that all letters-patent sealed with the great seal of the dutchy of Lancaster shall be good, perfect, and available in law to all intents and purposes, the nonage of the same king Edward 6. as duke of Lancaster (although as king he is always of full age) to the contrary notwithstanding, does not enforce the lease of king Edward 6. for, it was said, the preamble of the branch and the circumstance of the act shews that it extends to letters-patent of inheritances only; and, it was said, that for paitents of inheritance it was put in for the surety of the patentees, because of the doubtfulness of the law, and the words don't precisely affirm that he shall be accounted within age with regard to the dutchy land. And then the case in M. 2. H. 3. Fitz. Age 149. was cited, where a man vouched the king within age, and prayed that the parol might demur, and shewed that the king's progenitor had given him the land, and because he did not shew the charter, he was ousted of the warranty. So that there it did not go so far as to he adjudged whether the parol should demur, or not. And the said demurrer in the dutchy were argued by some of them beforementioned, viz, by Plowden, Gerard and Carus, in the hearing of same of the rest above named thereunto required by the chancellor of the said dutchy in the name of the queen. And note, there is a statute made in 1 H. 4. as follows, viz. Also our said lord the king, considering how that Almighty God of his grace hath placed him in the honourable estate of king, and forasmuch as he himself may not for a certain cause bear the name of duke of Lancaster in his stile, and also the same our lord the king considering how that this honourable name and estate of duke hath been very honourably born and demeaned in the honourable person of his father (whom God assoil) and of many of his honourable ancestors, and being willing thereupon that the said name of duke of Lancaster be continued in honour as it behoveth, by the advice and assent of all the lords spiritual and temporal, and of the commons aforesaid, hath ordained that Henry his eldest son have and bear the name of duke of Lancaster, and that he be named prince of Wales, duke of Aquitain, of Lancaster, and Cornwal, and earl of Chester. And over that the same lord the king considering how that divers liberties and franchises have been granted before this time as well to his said father, as to other his ancestors dukes and earls of Lancaster, willeth and granteth, by the advice and assent aforesaid, that the same liberties and franchises be and continue to his said eldest son and his heirs dukes of Lancaster, dissevered from the crown of England quitly and entirely according to the effect and purport of the grants aforesaid, &c. So that the said statute in the preamble recites, that the king for a certain cause might not bear the name of duke of Lancaster in his stile, which cause (though it is not there expressed) is, for that he was king, and the name of king and the dignity royal merges the name of duke, as it is said before. Wherefore the preamble of this act confirms the above opinion of the said judges, serjeants, and counsellors in the point before recited. And afterwards in Easter and Trinity terms in the fourth year of the reign of the same queen Elizabeth, and also in the term of St. Michael then next following, by virtue of a privy-seal directed to the said chancellor by the said queen Elizabeth, the said matter was argued again on several days in the dutchy court by many counsellors before the said chancellor, and before Saunders chief baron, and Anthony Brown one of the justices of the common-bench, and Pastrel and Walsh jutlices of assize in the county of Lancaster, Carus serjeant at law to the queen, and Sackford one of the masters of requests, and Carell attorney of the said court of the dutchy, and Plowden aforesaid, who was one of the counsel of the said court of the dutchy. And after all the arguments the said judges and counsellors of the court assembled themselves at divers times to make their resolution, and at last they all agreed as before was agreed. And also they all agreed, that king Henry 7. had the dutchy in his body natural, as king Henry 5. had it, disjoined from the crown, and not as king Edw. 4. had it. And this was by force of the act made in the time or the said king Henry 7. and for the reason before given to this purpose at Spooner's. [223] Note, at the said assemblies it was said by the said judges and counsellors of the dutchy court, [*: S.P. 2 Leon 151 Crompt. J.C. 134b. Vin. Abr. tit. Tenure L. 2. pl. 28.] that if the queen makes a feoffment of land of the dutchy out of the county palatine, to hold of her in capite, the feoffee shall hold of. the queen in capite as of her crown of England. And many. good cases were put by them. And upon their resolution] agreeing with the former resolution, as is shewn before, a report was afterwards made thereof to the queen. Charter of 1461Source: William Hardy: The Charters of the Duchy of Lancaster. London, 1845. pp. 285-325.Rot. Pat. 1 Edw. 4. p.7.m.35. fn Turr. Lond. (Orig. in arch. Duc. Lanc.)
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