XXXV. of the father, and the grandmother on the part of the CHAP. mother, which should be guardian in soccage. On account of the two estates, one in tail and one in fee, which de- ELIZAB. scended, the court of ward saw some doubt in the question; and so took the advice of Lord Dyer, and Saunders, chief baron, who were of opinion, that the ward of the body belonged to the grandfather, on the part of the father, who was likewise entitled to the guardianship of the soccage land. (Carrell v. Cuddington, 7 & 8 Eliz. Plowd. 295.) The interest of a guardian in soccage was esteemed to be for the benefit of the infant, and not of the guardian; so it did not go to executors, nor could it be forfeited to the king. It was upon this reasoning determined in the King's Bench, that when the husband of a guardian in soccage intermeddled so far as to join in making a lease, the widow, after his death, might enter, and avoid it. (Ostern v. Carden, 7 & 8 Eliz. Plowd. 293.) Henry the Eighth and then Edward the entail to the crown. It seems strange, that so many years after the stat. de Grant of donis, it should be agitated, as a matter of doubt, whether land could be entailed in the king and his issue under that act. But so it is, that this point was contested in the fourth of the queen, in the famous case of Willion v. Berkeley. A Lord Berkeley had granted lands, with remainder to Henry the Seventh, and the heirs male of his body, with remainder to his own right heirs. made a grant of the land for life; Sixth granted the reversion in fee: death of Edward the Sixth, without issue, it was apprehended the estate-tail was extinct, and that the remainder should take effect in possession; and, after much argument, it was held by the court of Common Pleas (that is, by Lord Dyer and Anthony Brown, the other judge not being present), with the dissent of Weston, that it was an entail in the king, and not a fee-simple conditional at common law, as had been contended. and now, upon the But Weston argued, that the rule respecting grants to the king was exactly the reverse of that which applied to CHAP. those of common persons; for all grants to the king were XXXV. to be construed most strongly in his favour, and against ELIZAB. the grantor. Thus, if part of a thing entire came to the king, the law gave him the whole; as if one of two obligees is outlawed, the king has the whole duty. If one grants to the king all the presentments that shall happen within twenty years; if a stranger presents to all that happen within that time, the king, after the twenty years, should have all the presentments. And many other instances were stated, which showed that the king enjoyed, by his prerogative, a power to take things in a different way than the common course of the law disposed them. He also showed many instances where the king should not be bound by a custom by which others were bound: thus a sale of his goods in market overt could not bind the king. And as neither the common law nor custom could restrain the king's prerogative, so should not a statute which did not mention the king in express terms. Though he might take advantage of statutes in which he was not named, as of the Statute of Waste, and many others; but statutes that restrain shall not affect him, as the Statute of Magna Charta, c.11. ordains that Common Pleas shall not follow the court, but be held in a certain place: yet in 31 Ed. 1., where he brought a quare impedit in the King's Bench, and the above provision was objected, the actions were held to lie by the king's prerogative. So the Statute of Limitations, 32 Hen. 8., does not bind the king. And many other instances he quoted, where the king was exempt from the restraint of statutes, because he was not mentioned in them. From this he inferred, that the statute de donis was not to bind the king, for that was restrictive in three points : it restrains alienation; it prevents the second husband from being tenant by the curtesy; and it diminishes the estate of the donee; and all this without any mention of the king. Again, in this case, the entail is by the equity of the act, and not by the express words of the statute; and no statute shall be taken by equity against the king, XXXV. though it may against the subject. Further, the statute CHA P. only restrains the donee, and not the issue; and it is only by equity of the act that the issue are restrained; and such ELIZAB equity shall not operate against the king. And as no præcipe lies against the king, no recovery could be suffered by him, so that he would be worse circumstanced than other tenants in tail. These were the considerations which weighed with the learned judge for dissenting from the judgment given by his brethren. It was held by the same judge, that in the present limitation, the estate was in the king in his body natural; for no heirs, but such as are begotten by the body natural could inherit under this limitation; but notwithstanding that, yet his body politic was so united to the body natural, that there could not be properly a distinction; but the king, as to this estate, should enjoy all the prerogatives, to which he was entitled in his politic capacity. This had been laid down as the groundwork of the above argument. This was agreed by the other side; but they insisted, that in gifts of land to the king, the person was not to be considered, but only the estate in the land, and that alone was to govern. Thus a fee-simple conditional might be given to the king before the statute, and he could not alien in fee before issue had; for it would be a wrong in any other person, which was not warranted by his prerogative. And though they admitted, that in some cases the quality of things was altered in respect to the person of the king, as the descent of land to the eldest of his daughters, and some others, yet on the contrary in some cases; if gavelkindland descended to him and his brother, each should have a moiety; but the king's eldest son should take the whole of his moiety. But in fees conditional, they said the estate was the same in the king as in another person. And, as to the act, supposing it to be law that the king is not to be bound by it, unless named, they said he was named; for it says, wherefore the lord the king perceiving how necessary and useful it is, &c., by which it appears, that the king CHAP. saw the mischief, and ordained the remedy; and it would XXXV. not be reasonable that he should wish to be at liberty to ELIZAB. Continue the mischief himself; but he certainly meant to be bound by an ordinance, so remedial as this; and if he was not, the whole intent of the donor, in this case, would be disappointed; and the will of the donor ought now to be as a law, as well against the king as any other person. They further argued, that the king by claiming to hold contrary to the statute would destroy his own estate; for if he said his estate tail was a fee-simple, so would the preceding tail be; and then his fee could not be limited on the former, but would be void; and to say the one was entail, but the other in fee; that is, to affirm the operation of the statute as to one, and not as to the other, would be a construction not to be endured; and he should be stopped by the rule, qui sentit commodum, sentire debet et onus : and it would also be partly destroying the fine, upon which his own estate depended, for it would make void the remainder in fee to the right heirs of the Lord Berkeley. And they took it to be implied by the decision in 4 Hen. 6. (4 Hen. 6. 19.) and 22 Ed. 4. that the king is bound by the statute, the same as a common person, and expressly by 7 Hen. 4. c. 2. where an estate tail is adjudged not to be forfeitable for treason. And Anthony Brown quoted the case of his own father, whose land being seised for the king's debt was discharged, because it was entailed; for the king was not at liberty to say, that as to him the estate should be construed a fee-simple conditional. And Lord Dyer thought it clear that the justices who took the fine, thought it a fee-tail, or it would have been idle to suffer it to pass; and those were men of great learning; and were, Brian, Townsend, Davers, and Vavisor. (4 Eliz., Plowd. 241.) The distinction between the natural and politic body of the king was made a subject of consideration in the case of the Duchy of Lancaster, which was considered this same year at Serjeants' Inn, by several justices, serjeants, and counsellors of that court. The question there was, whe ther a lease of Duchy lands made by Edward the Sixth, CHA P. was not void for his nonage. This led to an enquiry into XXXV. the nature of annexation of the Duchy to the crown; the ELIZAB. history of which it set forth with great precision and clearness. After considering the establishment and alteration of the connexion and separation of this great franchise from the crown, by Henry the Fourth, Edward the Fourth, and lastly, by Henry the Seventh; and though some did not agree to the exposition of the stat. Hen. 7., which supposes the Duchy not to be separated in inheritance and right from the crown, and not devested out of the body politic of the king, and vested in his body natural, as some of them held it to be; yet they all agreed, except Ruswell the solicitor to the queen, that the king's person shall not be invalidated by the Duchy being given to him and his heirs by that act; but he remains always of full age, as well in regard to gifts and grants of lands made by him, as in the administration of justice. At a subsequent argument upon this point, in the Duchy court, it was agreed by all present, that king Henry the Seventh had the Duchy in his body natural, as Henry the Fifth had it, disjoined from the crown, and not as Edward the Fourth had it and this was by reason of the statute of Henry the Seventh. (Plowd. 221.) crown as to In the famous case of Mines, an important article of Prerogative the royal prerogative, was settled after it had been passed of the over by the statute de prærogativa regis, and all the old mines. treatises upon the law. This case depending in the Exchequer, and was referred to the Exchequer chamber; where, in the tenth year of the queen, it was resolved by all the justices and barons, on the authority of old grants and of long usage, that, by law, all mines of gold and silver, within the realm, belonged to the crown by prerogative, with liberty to dig and carry away the ore, and all the mirdints necessary for getting the ore: again, it was agreed by Harper, Southcote, and Weston, that if gold or silver be in ores or mines of copper, tin, or other base metal, the whole of the precious and base metal belong to the |
