Pasch. 4. Jacobi Regis . Ford and Sheldon's Case , upon Information in the Exchequer for the King .

THomas Ford , a known Recusant b●fore the 23 of Eliz. for money lent to Sheldon ; some before , and some after the said 23 Eliz. took Recognizance in the Names of others , and also a Rent-charge to them in Fee , with a Clause of Redemption by Deed ; the Condition of the Recognizance , being for performance of the Covenanss in the Deeds ; and afterward was made the Statute of the 28 Eliz. which was , That as often as any Failer was made , in the payment of 20 l. a Month , that so often the Queen , by Process out of the Exchequer , might take and enjoy all the Goods , and two Parts &c. And after the said Act , Ford lent the several Sums of Money , and took the Securities as aforesaid , amounting in all to 21000 l. which being to Ford's use , were all forfeited . Afterwards , 41 Eliz. was Convict of Recusancy , and did not pay the 20 l. a Month : If the King should have the B●nefit of these Recognizances and Securities , was the Q●estion .

1. Upon Debate , it was objected by Ford's Councel , That the Recognizances had not been Forfeited , though they had been made in Ford's Name ; the Statute speaking onely of Goods , which doth not include Debts . As if the King grant all the Goods of J. S. coming to him by Attainder , the Patentee shall not have Debts : And a Penal Law shall not be extended by Equity .

Obj. 2. That three Recognizances are not within the Intention of the Act , being Savers of the Realty , and acknowledged to perform Covenants , as to the Rent-charge .

Ob. 3. No Fraud was in the Case : And then no Statute being in this Case , the Common-Law gives no benefit to the King . As if Cestuy que use had been Attaint of Treason , the Use being but a Trust could not be forfeited to the King : And it not a Use , A multo fortiori , a meer Trust .

Ob. 4. What Forfeiture accrues to the King in this Case , must be by force of the words ( Goods ) in the Statute , which cannot be , Ford having no Goods but a meer Trust . Also , one Recognizance was taken in the Names of others before the Stature , and therefore cannot be thought to defeat the King of a Forfeiture which was not then in use .

Resolved 1. By all the Barons , and Popham Chief Justice of England , and divers other Justices , that Personal Actions are as well included within this Word ( Goods ) in an Act of Parliament , as Goods in Possession : But because by Law , things in Action cannot be granted over ; therefore by General Grant , without special words , can never pass . And where the Statute saith , Shall take , seize , and enjoy all the Goods , and two parts , &c. the King may well enjoy a Debt due to a Recusant , and by Process out of the Exchequer Levy it : and so take and seize , refers to Goods , and two Parts of Lands in Possession .

Resolved 2. That it was Originally for the Loan of Money , and both the Recognizance and Annuity were to secure the said Money . And Recognizances fotfeited , are but Chattels Personal .

Resolved 3. There was Covin apparent ; for he being a Recusant always as aforesaid , and so chargeable to the King , his taking the Recognizances in the Name of others , shall be Construed with an Intent to prevent the King of his Forfeiture : And so shall all Recognizances taken in others Names , after the said Act , be presumed to be taken . As to Ce●●uy que use , who neither hath Jus in Re , nor Jus ad Rem , true it is , he cannot Forfeit ; but an Act done , to defraud the King of his lawful Duty , the King shall not be barred thereof per obliquum , if the Act was made , de directo . And for this , If a man outlawed buy Goods in the Names of others , the King shall have them notwithstanding . So if an Accountant to the King purchase Lands in others Names , yet the King shall s●ze those Lands for Money due to him . And this appears by Walter Cherton's Case , Trin. 24. Ed. 3. Rot. 4. in Scaccario ; for Re● fallere non vult , falli autem non potest . See another President , Trin. 24. Ed. 3. Pot. 11.

Resolved 4. No●resert , Whether the Duty do acc●ue to the King , by the Common-Law , or by the Statute : And though one of the Recognizances was taken before the Statute of the 28 of Eliz. yet that was to his use : And though Ford was not Convict till the 41 of Eliz. that is not material ; for he was subject to a Forfeiture before .

Pasch. 4 Jac. In Chancery , 27 Junii , 29 Eliz. The Case between the Lord St. John of Bletso , and the Dean of Gloucester .

The Lord St. John brought a Quare Impedit in the Common-Pleas against the Defendant , for the Church of Penmark , in the County of Glamorgan , which Suit was staid by Aid prayer , and the Record removed into the Chancery : The Plaintiff moved for a Procedendo and upon Oyer of Cause , before Sir Thomas Bromley Lord Chancellor , in the presence of Sir Gilbert Gerrard , Master of he Rolls , and Shute and Windham Justices ; and Popham Attorney , and Egerton Sollicitor of the Queen ; the Plaintif● shewed a Gift in Tail of the said Advowson made to his Anc stor in 18 R. 2. and a Verdict for the same in 12 H. 8. and a presentation by his Grandfather to the said Church , of a Clerk that was admitted , instituted , inducted , and had possession divers years , with other matters to prove the Plaintiffs T●tle , yet for that the Defendant , and those from whom he claimes , had time out of mind possessed the said Parsonage as Impropriate ; And for that it will be a dangerous President to all Owners of Impropriations . It was Resolved by the Court of Chancery , by the advice of the Justices and Councel Learned by the Queen aforesaid , That no Procedendo in loquela be granted . Vide Ridley , fol. 153 , 154. the beginning of Appropriations and Annuities to be discharged of Tythes , Vide ibid. 155. That the Saxon Kings appropriated eight Churches to the Monastery of Croyland .

Trin. 37 Eliz. In the Exchequer Chamber ; Crimes and Smith .

The Abbot of Sulby held the Parsonage of Iubbenh●m in Leicestershire to his proper use , which as impropriate came to H. 8. by the dissolution of Monasteries , 31 H. 8. who in the 37th . year of his Reign granted it in Fee-Farm ; under which Grant the Plaintiff claimed : The Defendant obtained a Presentation of the Queen , and to destroy the said Impropriation , shewed the Original Instrument of it , 22 Ed. 4. with Condition in it , That a Vicaridge should be competently endowed , which was alledged never to be done .

But for that the Rectory was reputed and taken to be appropriate , and a Vicar presented , admitted , instituted and inducted as a Vicar , lawfully endowed , and paid his first Fruits and Tenths .

Resolved by all the Court , that it shall be presumed that the Vicaridge was lawfully endowed . And that it is a dangerous President to examine Originalls of Impropriations and Endowments of Vicaridges : for that they may perish . And so it was decreed for the Plaintiff .

Hill. 4. Jac. Regis . Bedle and Beard .

Anno 31. Ed. 1. The King being seized of the Mannor of K●mbolton , to which the Advowson of the said Church was appendant by Letters Patents , granted the said Mannor , wish the App●●tenances , to Humphry de Bohun , Earl of Hereford , in tayl generall . Humphry de Bohun the Issue in tayl by his Deed. 4 Ed. 3. granted the said Advowson , then full of an Incumbent , to the Prior of Stonely , and his Successors . And at next avoydance they held In proprios usus : Upon this Appropriation , Concurrentibus his quae in jure requiruntur , the Prior and his Successors held the same till the dissolution of the Monastery . 27. H. 8. The said Mannor descended to Edward Duke of Buckingham , as Issue to the Estate Tayl. And the Reversion descended to H. 8. The Duke 13 H. 8. was attaint of High Treason . 14 H. 8. The King granted the said Mannor , &c. with all Advousons appendant &c. to Richard Wingfield , and his Heirs Males . 16 H. 8. It was Enacted , that the said Duke forfeit all Mannors , &c. Advousons , &c. which he had , &c. in 4 H. 8. The King 37 H. 8. granted and sold the said Rectory of Kimbolton , as impropriate in Fee , which by mean conveyance came to the Plaintiff for 1200 li. 37 Eliz. Beard the Defendant got a Presentation of the Queen by Lapse , pretending the said Church was not lawfully impropriate to the Prior.

1. For that Humphry , who granted to the Prior , had nothing in it , nothing passing to his Ancestor by these words , Man●rium cum pertinentiis .

2. Or for that having no more but an Estate Tayl by his death , his Grant was void .

But Resolved by the Lord Chancellor Ellesmere , with the principal Judges , and upon consideration of Presidents , that the Plaintiff shall enjoy the Rectory : for though by any thing which can now be shewn , the Impropriation is defective , yet it shall be now intended , in regard of the antient and continual possession , that there was a lawfull grant of the King to the said Humphry who granted in Fee , so that he might lawfully grant it to the said Priory : Omnia p●●sumitur Sol●mniter esse acta . And all shall be presumed to be done , which might make the antient Impropriation good ; And antient Grants and Acts shall not be drawn in question , though they cannot be shewn : for Tempus ed●x rerum . Letters Patents and Writings may consume , be lost or imbezilled . And therefore the Church was allowed to be rightfully impropriate , and the rather , in regard of the antient and long possession of the Owners of the said Rectory .

Mich. 4. Jac. Regis . Case of Forfeiture by Treason .

Hill 43 Eliz. A Case was moved to all the Justices : Tenant in Tayl before the Statute of 27 H. 8. made a Feoffment in Fee to the use of himself , and his Wife in Tayl. And after the said Statute , the Husband was attaint of High Treason , 31 H. 8. and dyed . The Wife continued in possession and dyed , their Issue enter and die , and this descends to his Issue , and all this found by Office .

The Question was , if the Issue in Tayl or the King shall have the Land .

1. And it was objected , that the antient Estate Tayl cannot be forfeited , because it was discontinued , and such right of Action cannot be forfeited . As was agreed in the Marquess of Winchesters Case .

2. The Feoffor himself in this Case had not any right to the antient Estate Tayl , ( it being extinguished by his Feoffment ) and therefore by his Attaint , could not forfeit what he had not .

3. The Issue in Tayl in remitted to that antient right which cannot be forfeited ; And the new Estate Tayl derived under the discontinuance , which may be forfeited by the Statute 26 H. 8. cap. 13. is continued , and by Act in Law , viz. the discent and remitter avoided . And the Kings Estate may be divested out of the King by remitter . As if Tenant in Tail grant Land to the King , &c. and the King grant the Land to the Tenant in Tail for life , the remainder to his Son and Heirs for life : Tenant for life dies , the Issue by and in Law is remitted , and the Kings Estate is divested out of him . This accords with Plow . Com. 489. Nicols Case .

1. Resolved that in this Case the Issue in Tail is barred : for though right of Action cannot be given to the King , by the 26 H. 8. yet when Tenant in Tail discontinues his Estate to the use of himself in Tail , and after is attaint of Treason , now by that Statute he doth not onely forfeit the new Estate in Tail , but by this , the right of the antient Estate is barred for ever . And so note , out of the said Statute , a diversity between a naked right of Action not forfeitable , and an Estate of Inheritance forfei●able , coupled with an antient right , for which the Forfeiture of the possession is barred by the said Act : And i● is not like the Case in Plow . Com. of Remitter , for this is no barre of an antient right .

Pasch. 4 Jac. Regis . Case at a Committee aoncerning Bishops .

At this Parliament held Pasch. 4 Jac. Regis , It was strongly urged at a Grand Committee of Lords and Commons in the Painted-Chamber , that such Bishops as were made after the first day of the Session , were not lawful Bishops .

1. Admitting them Bishops , yet the manner and form of their Seals , Stiles , Process , and Proceeding , in their Ecclesiastical Courts , were not consonant to Law : Because by the Statute , 1 Ed. 6. cap. 2. it is provided , That thenceforth Bishops should not be Elective , but Donative , by Letters-Patents of the King . And for that at this day all Bishops were made by Election , not Donation of the King ; therefore the sa●d Bishops are not lawful .

2. By the same Act it is provided , That all Summons &c. and Process in Ecclesiastical Courts , shall be made in the King's Name and Stile , and their Seals Engraven with the Kings Arms , and Certificates made in the Kings Name : It was therefore concluded , Th●t the said Statute being still in force , by Consequence all Bishops made after the Act , 1 Jac. were not lawful Bishops . And the Proceedings being in the Name of the Bishop , makes them unlawful . Quia non obser●ata forma infertur ad●ullatio actus . Upon Consideration had of these Objections by the Kings Commandment , it was Resolved by Popham , Chief Justice of England , ●nd Coke Attorney of the King ; and after affirmed b● the Chief Baron , and the other Justices Attendant to ●he Parliament , that the said Act of the 1 Ed. 6. cap. 2. is not now in force , being repealed , annulled , and annihlated , by three several Acts of Parliament : Any whereof being in force , it makes that Act of 1 Ed. 6. that it cannot stand , Quia Leges Posteriores , Priores contrarias abrogant . And by the Act of the 25 H. 8. cap. 20. Is set forth the manner of Election and Consecration of Archbishops and Bishops . And also for the making and execution of all things which belongs to their Authority : within which words , the Stile and Seal of their Courts , and the manner of their Proceedings , are included . Which Act of 25 H. 8. is revived by 1 El. cap. 1. and consequently , that of 1 Ed. 6. cap. 2. is repealed .

It appears by our Books , if a Deacon or Priest take a Wife , their Marriage is voidable not void , for they had not vowed Chastity . Otherwise , of a Monk or a Nun. And this appears 5 Ed 3. Title Nonability , 26. 19 H. ● . Title Bastardy , 33. 21 H. 7. 39. 6.

Mich. 4. Jac. Regis . Case of the Stannaries .

It was Resolved this Term in the Star-Chamber , That the King had not the Emption of Tin in Cornwal by his Prerogative ; for Stanni nec plumbi fodina , &c. or other safe Mineb , belong not to the King by his Prerogative , but to the Subject Owner of the Land . But the Emption of Tin in Cornwal belongs to the King , as an antient Right and Inheritance : for though now a Reason cannot easily be rendred of things done time out of mind ; yet it may well be , that all the Land in that County was the King Demesne ; and upon Grant of the Land , the King reserved the Mines to himself . These Tin Mines being of great Antiquity ; as appears , Ex Diodoro Siculo , Et certo certius est . That all the Land in England , is derived mediately or immediately from the Crown ; and therefore such a Profit may have a reasonable Commencement ; Usage also allowing it to the King : for all Cornwal was within the King's Forest , which by King John was disafforested ; as by Cambden appears . And it is evident , that before 33 Ed. 1. all the Tin in Cornwal , and Devon also , was the Kings , whoever owned the Land . And this is proved by divers Records , and by an antient Charter of King John , among the Bishop of Exeters Records , In haec verba . Johannes Dei Gratia Rex Angliae , &c. Omnibus B●llivis salutem . Sciatis quod intuitu Dei , & pro salute animae nostrae , &c. dedimus &c. Deo & Ecclesiae Beati Petri Exon , & venerabili Patri Simoni Exon. Episcopo & successoribus , &c. decimam de antiqua firma Stanni in Com. Devon . & Cornub. Habendum sibi & successoribus , &c. cum omnibus libertatibus & liberis consuetudinibus ad eam pertinentibus , per manus illius vel illorum qui stannaria habuerint in custod . &c.

Rex , Roberto de Courtney salutem , Mand●mus vobis quod sine dilatione & difficultate aliqua , habere facietis Dominae Johannae Reginae matri nostrae stannaria Com. Devon . &c. Paten . 1 H. 3. H. 4.

Rex concessit Johanni filio Richardi stannaria in Cornubia reddendo 1000 marks . 4 H. 3. Fines . 5 H. 3.

Rex , &c. Sciatis quod concessimus Richardo dilecto fratri n●stro stannariam nostram Cornubiae cum pertinen . Prohibiting Tin to be transported without the said Richards Licence , 10 H. 3 M. 9.

See also 10 Ed. 2. Inqui. 2. Nu. 29.

There are two several Charters , both dated 10 April 33 Ed. 1. One , ad emendationem stannariarum nostrarum in Cornub. The other , Ad emendationem stannariarum nostrarum in Devon . That of Cornwall hath these word , Concessimus eisdem stannatoribus quod fodere possint stannum , et turbus ad stannum fundendum ubisque in terris nostris et vastis nostris , et aliorum quorumcunque in Com. praedict. et Aquas , et aquarum cursus divertere , ubi et quoties opus fuerit , &c. ad sundaturam stanni sicut Antiquitus co●su●vit , sine impedimento nostro seu aliorum quorumcunque Ac quod omnes stannatores nostri praed. totum stannum suum ponderatum , &c. licitè vendere possint cuicunque voluerint , faciendo nobis et haeredibus nostris Cunageum , et alias Consuetudines debitas , nisi nos vel haerede nostri stannum illum emere volumus .

This was confirmed 4 Ed. 2. And also 1 & 17 Ed. 3. De Advisamento consilii nostri ordinavimus , quod stannum in Com. Cornub. et Devon . ad opus nostrum capiatur pro defensione regni nostri , &c. Et ad partes marinas celeriter mittatur , &c. Ita quod hominibus quibus stannum illum capi contigerit de pretio ejusdem stami ad certos terminos solvend . sufficiens securitas per nos fiat , Assignavimus vos , &c. ad capiend . ad opus nostrum totum stannum in Com. praed. Cunitum et etiam Cuniend . cum cunitum fuerit : with Authority to take Carriages and Commandment to the Sheriff to pay for the same . Rot. Aml●yne An. 12. R. 2. part 1.

Edward the black Prince grant , and the King , ( 21 E. 3. ) confirmed to Tydman of Lymberge , Cunageum Stannariae , &c. nec non emptionem totius Stanni , &c. infra , &c. pro fine mille marcarum , et reddendo 3500 marcas . The like done to one Brockhouse , 7 Ed. 6. The Charter of 33 Ed. 1. was confirmed , 8 R. 2. 1 Ed. 4. 3 H. 7. The 11 H. 7. a certain weight and measure was ordained to be used through England ; yet the weights belonging to the Carriage of Tin , were excepted in that Statute .

The Stile of the Court of Stannaries is , Magna Curia Domini Regis Ducatus sui Cornub. apud Cockerenton in Com. Devon . Johanne Comite Bedford Custode stannar . dicti Domini Regis aut Reginae in dicto Com. Devon . By which it appears , that all the Tin belonged to the King .

For the Antiquity of Tin Mines in Cornwall , see Camd●n in Cornwell 121. And Diodorus Siculus , L. 5. c. 8. fo. 142. 6.

Upon which it was res●lved , 1. That the King hath all the Tin , as well in the Subjects Lands as his own .

2. It is absurd for the King to reserve Emption of his own Tin .

3. The King grants Stannatoribus divers liberties which are enjoyed by the Tinners , as well in the Subjects Lands , as the Kings own .

In the Session of Parliament h●ld in Decemb , An. 4. Jac. Regis . Case of the Kings Prerogative in Saltpeter .

All the Justices , viz. Popham Chief Justice of England , Coke , Chief Justice of the Common Pleas. Fleming , Chief Baron . Fenner , Searle , Yelverton , Williams and Tanfield . Justices met at Sergeants Inne , to consult what Prerogative the King had in digging and taking of Saltpeter to make , Gunpowder by the Law . And upon conference between them , these points were resolved by them all , 〈◊〉 voce .

1. That in as much as Gunpowder concerns the defence of the Realm , and insomuch as Saltpeter ( whereof Gunpowder is made ) is within the Realm : the King shall not be driven to buy it , but may take it according to the Limitations following .

2. That , though the King cannot take the Trees of his Subject growing upon his Freehold ; nor Gravel in the Inheritance of his Subject for reparation of his houses : as 11 H. 4. 28. Yet 't is resolved , that he may dig for Saltpeter , because the Kings Ministers who dig for the same , are bound to leave the Inheritance of the Subject , in as good plight as they found it , which they could not do , if they should cut the Timber growing , which would be to the Subjects disinherison .

The Case of Gravel for reparation of the Kings Houses , may not be compared to this : for Saltpeter extends to the defence of the whole Realm , not so the reparation on of the Kings Houses , 13 H. 4. The King may charge for Murage of a Town : And so for Portage ; but not for making a Wall about his own House : When Enemies invade the Realm , it is lawful to come upon any Land adjoyning to the invaded Coast , to make Trenches or Bulworks , 8 Ed. 4. 23. And in such Cases they may dig for Gravel . 3 H. 8. fo. 15. And in this Case the Rule is true : Princeps et republica ex justa causa possunt rem mean auferre .

3. Resolved , That the taking of Saltpeter is a purveyance of it , for the making of Gunpowder , for the necessary defence of the Realm . And therefore is an incident inseparable from the Crown , and ought to be taken onely by the Kings Ministers , and not converted to any other use then the defence of the Realm : And 't is not like Silver or Gold Mines ; for there the King hath Interest in the Mettall , and may dig , Quia quando lex alicui concedit aliquid , Concedere videtur id sine quo res ipsa esse non potest : Vide : Plow . Com. in le Case de Mynes : so the King may dig for Treasure Trove eadem ratione .

4. The Ministers of the King cannot undermine , weaken , or impair any the Walls of Foundations of any Houses or Buildings whatsoever . Nor dig in the Flore of a Mansion-house , which serves for the Habitation of a man : because it is his place of refuge and defence .

There are two notable Presidents : that the King by his Prerogative , had power to prohibit Depopulation , and provide for Habitation .

The one in the 43 Ed. 3. Rot. claus. in turri : num. 23. provillade Southampton .

The other An. 21. R. 2. in dorso claus. par. 1. N. 15.

Neither may the Kings Ministers dig in any Barn-floore used for Corn , Hay , &c. but they may dig in the floores of Stables and Oxehouses , so that they leave room for the Horses and other Cattel of the Owner , and put it in convenient time into as good plight as they found it . Also they may dig in Cellars and Vaults : and and Mud-walls , being not Walls of a Mansion-house , and in the ruines and decayes of any Houses or Buildings .

5. They ought to make the places where they dig , as commodious to the Owner as before .

6. They may work in the possession of the Subject , but betwixt Sun-rising , and Sun setting .

7. They may not place any Furnace or other Vessels in any Subjects House , without consent , nor so near it , as to prejudice the same .

8. They are not to stay over long in a place , nor to return thither again in a long time .

9. Resolved , That the owner of the Land cannot be restrained from digging , and making Saltpeter , for the King hath no Interest in it , the property is in the owner of the Land . Before the 31 Eliz. no King or Queen of this Realm granted any Licence for taking Saltpeter ; but in that 31 year , there were two , the one to George Constable Esque and the other generall to George Evelin , Richard Hills , and John Evelin : And after Scilicet 18 Octob. 2. Jacob. Commission was granted to Evelin , and others , to take Saltpeter , &c. So that there were but three Licences ever made .

Case of Treason .

In this very Term , one George Leake , a Chancery Clark , had upon an ordinary piece of Parchment , by great deceit fixed with a kind of Glew , another Parchment so thin , that it appear but one piece . And upon the thin piece he writ by good Warrant a Li ense , which brought to the Chancellor , was sealed with the Great Seal . After the George took the thin piece upon which the writing was , from the other to which the Seal was fixed , and then all was blank , with the Great Seal annext ; upon which blank , the said George writ a Grant of the King of certain Lands ; and what Offence this was , was the Question . And after a long debate upon the 25 Ed. 3. 2 H. 4. 25. Stamford l. 1. fol. 3. 40 Ass. pla . 33. 37 H. 8. Title Treason , 2 H. 4. Claus. 42 Ed. 3. memb. 8. in dorso , where the Case was , That King Richard the First by his Charter , granted divers Lands and Liberties , Abbati de Bruera , in which the Abbot rased out this word Fittetrida , and instead of it writ est leigh , and upon shewing it , obtained a confirmation of it from King Ed. 3. And an allowance of it in Banco R. And for this Offence , the Abbot was called before the King and Council in the Star-Chamber , where the Abbot being Convict , it was part of the Sentence , That the Charter , confirmation , and allowance of it , should be brought in to be cancelled ; where note ,

1. The Antiquity of the Star-Chamber being then a Court.

2. That the rasure was not any Counterfeit of the Great Seal ; for if the Offence had been High Treason , it should not have been determined before the King and Council .

3. That Spiritual Persons were then punishable before Temporal Judges .

4. That if there be a rasure of a Deed between Subject and Subject in a place material , all the Deed becomes naught ; so if a Patentee rase his Heirs Patents in a place material .

Thence concluded , That if the rasing of a word in the Kings Patent be not Treason , then the rasing of two or three , or all the words of the Patent , and writing a new Grant is not Treason .

By the Statute of the 25 Ed. 3. it is provided , That because many other Cases of like Treason might happen in time to come , which men cannot think or declare at present . That if another Case suffered Treason , and not specified in the Act , shall come before any of the Justices , they shall stay without going to Judgment of Treason , untill the Case be shewen before the King in Parliament .

1. That though a Case happen like to the Cases of Treason mentioned in the said Act ; yet that the Judges ought not to judge it Treason , but it ought to be declared in Parliament .

2. That when a particular Case was adjudged High Treason , ( as the Case of murdring an Embassador of a King ) Et Legatos violare contra jus Gentium est .

Afterwards George Leake , upon Examination before the chief Justice of England , made a clear Confession of of all the manner and circumstances of the Fact as aforesaid ; whereupon Two Questions were moved ,

1. Whether this Offence were High Treason or no : And in this the Justices were divided ; my self and divers others holding , That this Act was not Treason ; but the chief Justice and divers others were against us .

2. If it be High Treason , then whether he may be indicted generally for the Counterfeiting of the Great Seal , or else the special Fact must be expressed .

By reason of diversity of Opinions , R●spectuatur , vid. Fleta lib. 1. cap. 22. Item crimen falsi dicitur , cum quis illicitus cui non fuerit ad haec data authoritas de sigillo Regis rapto vel invento et brevia Carteria : vide le Attainder de Elizabeth Barton , Edw. Bocking . by Parliament , &c. 25. H. 8. c. 12.

Hill. 24 Eliz. In the Exchequer .

A Merchant brought eighty weigh of Bay-Salt by Sea to a Haven in England , and out of the Ship sold 20 weighs , and discharged them to another Ship , wherein they were transported , being never actually put on shore : and for the residue , viz. 60 weigh , he agreed for the Custome , and put them upon Land ; and now the d●nbt was , 1 Eliz. cap. 12. for the words of the Statute concerning Exportation , sent from the Wharfe , Key , or other place on the Land , and concerning Importation taken up , discharge , and lay on Land . If in this Case the said 20 weighs , which alwayes were waterborn , and never touched the Land , ought to pay Custome as well inwards as outwards : And it was Resolved ,

That in both the Cases Custome ought to be paid ; and forasmuch as no Custome was paid , It was Resolved , That the Goods were forfeited .

Note , No Act of Parliament can bind the King from any Prerogative which is sole and inseperable to his person , but that he may dispence with it by a non obstante , ( as his Soveraign Power of Commandines ) his Subjects to serve him for the publick Weal . See 23 H. 6. cap. 8. 2 H. 7. 66. 13 R. 2. Parl. 2. cap. 1. See also 4 H. 4. cap. 31. Coke l. 2. fol. 69.

But in things which are not incident solely and inseparably to the person of the King , but belongs to every Subject , and may be severed there an Act of Parliament , may absolutely bind the King . As if an Act of Parliament do disable any Subjects of the King to take any Land of his Grant , or any of his Subjects ( as Bishops ) as it is done by the Statute , 1 Jac. cap. 3. to Grant to the King , this is good ; for to grant or take Lands or Tenements , is common to every Subject .

Hill. 4. Jac. Regis , Care of High Commissioners , If they have Power to Imprison .

Mich. 4 Jac. post prand . There was moved a Question amongst the Judges and Sergeants at Sergeants Inn ; If the High Commissioners in Ecclesiastical Causes , may by force of their Commission imprison any man or not ?

First , Resolved by all , That before the Statute of the first of Eliz. the King might have granted a Commission to hear and determine Ecclesiastical Causes ; yet the Commissioners ought to proceed according to the Ecclesiastical Law allowed within the Realm . Vide Caudrye's Case . 5 Report . Then all the Question rests upon the Act , 1 Eliz. which hath three Branches ;

1. Such Commissioners have power to exercise Jurisdiction Spiritual and Ecclesiastical .

2. By force of Letters-Patents , they have power to visit , reform , &c. all Heresies , &c. which by any manner of Spiritual or Ecclesiastical Power , &c. can or lawfully may be Reformed , &c. So that these Branches limit the Jurisdiction .

3. That after such Commission delivered to them , shall have power by vertue of this Act , and the said Letters-Patents , to exercise , &c. all the Premisses , &c. according to the Tenor , &c. This Branch gives them Power to execute their Commission .

But it was Objected , That this Branch gave no power to the Queen , to alter the Proceedings of the Ecclesiastical Law ; or to prescribe what manner of proceedings or punishment , concerning the Lands , Goods , or Bodies of the Subject . And this appears by the Title of the Act ( Restoring ) the intent being to make Restitution , not any Innovation .

Vide , a notable Case adjudged in this Point , Hill. 42. El. ●o. 389. as to Imprisonment , Smith's Case : for at the last Consultation was granted : And at last , by the better Opinion , as to things committed to them by Commission , they may put Fine and Imprisonment .

By the 3 H. 7. cap. 14. 't is Ordained , where Women , as well Maids , as Widows and Wives , having substance , &c. for the lucre of such substance , be taken by Misdoers , contrary to their Wills , and after marryed , &c. or defiled .

That what person henceforth so taketh , &c. against her will , &c. such taking , &c. to be Felony : And the Misd●ers , &c. to be reputed as Felons . Upon this , great question was moved , 4 & 5 Phil. & Mar. in the Star-Chamber , If the Eloyment against her without Mariage , or Carnal Copulation , be Felony or no : And the Opinion of Brook , and some other of the Justices was , that It was Felony . But Sanders , Lord Chief Justice , was against it ; and afterwards , as Peryam chief Baron did Report , It was Resolved by all the Justices , That such Eloynment onely , is not Felony , by the intent of the Statute , without Marriage , or Carnal Copulation .

Note , By the express purview of the Act , the Accessary both before and after is made Principal .

Pasch. 4 Jac. Regis .

By the Commandement of the King , it was referred to Popham Chief Baron , and my self , what Right the Queen , which now is , hath ; and in what Cases to a Right claim'd by her , called Aurum Reginae : that is to say , Pro centum marcis argenti , una marca Auri solvendum per illum qui se sponte obligat . And upon consideration had thereof , and view of Records and Presidents , viz. Librum Rubrum in Scaccario , fol. 56. de Auro Reginae ; where it is said , that this is to be taken , De iis qui sponte se obligant Regi , &c. which is the Foundation of this Claim : And of a Record in the Tower , 52 H. 3. And a Record in the Exchequer , 4 Ed. 1. And a Record in the Exchequer , Hill . 12 Ed. 3. And in the Tower in the same year , in Rot. Claus . And of Acts of Parliament , 15 Ed. 3. cap. 6. and 31 Ed. 3. cap. 13. and 13 R. 2. in Turri : And divers other Presidents and Process out of the Exchequer , in the time of R. 2. H. 4. and other Kings , till H. 7.

It was Resolved , that the Queen hath Right to it , but with these Limitations .

1. It ought to be sponte , by the Subject , sine coactione : And for this , all Fines upon Judgments , or by Offer or Fine for Alienation , or any other Case , where the Subject doth it not sponte , sine aliqui coactione : That the King of Right ought to have it , there the Queen shall have nothing .

2. It ought to be sponte , sine consideration alicujus reventionis seu interesse : That the King hath in esse , in jure Coronae : As upon Sale or Demise of his Lands , Wards , &c. these are Contracts concerning the Kings Revenues ; and there it cannot be said , that the Subjects , sponte se obligant , as to purchase any the Revenues of the King .

3. It ought to be sponte super considerationem & non ex mera gratia & benevolentia subditi , Hil. 4. Ed. 1. in Scaccario , &c.

4. It ought to be sponte , super considerationem quae non lo●ge reventionem seu interesse Coronae , in any thing which the King hath . As if a Subject give the King a Summe of Money for Licence in Mortmain , or to create a Tenure of himself , to have a Fair , Market , Park , Chase , or Warren , in his Mannor , there the Queen shall have it ; for the Subject did this sponte : And this Resolution was reported to the King by Popham , in the Gallery at White-Hall .

Pasch. 5 Jac. Regis . The Case of Forests .

This Term it was informed to the King , that great wrongs were done in the Forest of Leicester , in the County of Leicester ; and in his Forest of Bowland , in the County of Warwick , parcel of his Dutchy of Lancaster . And upon this , by Warrant from the King under his Signet , all the Justices were assembled , to resolve certain Questions , to be moved concerning Forests , by the Attorney of the Dutchy , and the Councel of the other part ; which were Forests and Chases : Which being matter in Fact , the Judges could not give their Resolutions , but by way of Directions . And it was Resolved ,

1. That if these are Forests , it will appear by matter of Record , as by Eyres of Justices of Forests , Swannimotes , Regardors , &c. But the calling it a Forest in Grants , &c. proveth it not a Forest in Law .

2. Resolved by all the Justices , That if there be no Forests in Law , but Free-Chases ; then who hath any Free-hold in them , may cut his Wood growing upon it , without view or Licence ; leaving sufficient for Covert to maintain the Kings Games : so a common person having Chace in another Soil , the Owner may not destroy the Covert , nor Browse-wood .

3. Resolved , That in such a Chase , the Owner , by Prescription , may have Common for his Sheep , and Warren for his Coneys , by Grant or Prescription : but he must not surcharge or make Burrows in other places , than hath been used from the time of which : nor may he erect a new Warren without Charter .

4. Resolved , That who hath such a Warren , may lawfully build a Lodge upon his Inheritance , for preservation of his Game .

5. Popham , Chief Justice , said , That in the time of Chief Baron Bett , It was adjudged in the Exchequer , That a man may prescribe to cut his Wood upon his own Inheritance within a Forest , though it was against the Act , in the 43 Ed. 1. See the Abridgement , Title Forest 21. And this was the Case of Sellenger , vide 2 Ed. 2. Title Trespass , fol. 9. in the time of Ed. 1. Trespass , 239. ●low . Com. Dyer 72. 32. 2 Ed. 4. cap. 7. that the Subject may have a Forest . Consuetudo ex rationebili causa usitata privat communem Legem . And it was held by some , that this was but an Ordinance , not an Act of Parliament .

Pasch. 5 Jacobi Regis . Case of Conspiracy .

This Term , in the Case between Rice ap Evan ap Floyd , Plaintiff ; and Richard Barker , one of the Justices of the Grand Sessions , in the County of Anglesey , and others , Defendants .

1. Resolved by Popham and Coke , Chief Justices , the Chief Baron , and Egerton Lord Chancellor , and all the Court of Star-Chamber ; That when a Grand Inquest indicts one of Murder or Felony , though the Party be acquitted ; yet no Conspiracy lyes for him against the In●ictors : for they are returned by the Sheriff by Law , to make Inquiry of Offences upon their Oath , for service of the King and Country , and are compellable to serve the Law , 10 Eliz. 265. And their Indictment or Verdict is matter of Record , and called Verum dictum , and shall not be avoided by Surmise , and no Attaint lyes : And with this agrees the Books in 22 Assise 77. 27 Ass. 12. 21 Ed. 3. 17. 16 H. 6. 19. 47 Ed. 3. 17. 27 H. 8. 2. F. N. B. 115. a. But otherwise of a Witness ; for if he conspire out of the Court , and after swear in Court , his Oath shall not excuse his Conspiracy before , for he is a private person .

2. Resolved , That when the party indicted , is convictd of Felony by another Jury , upon Not Guilty pleaded , there he shall never have a Writ of Conspiracy : But when he is upon his Arraignment , L●gitimo modo acquietatus . But in the Case at Bar , the Grand Jury who Indicted one William Price , for the Murther of Hugh ap William ; the Jury , who , upon Not Guilty pleaded , convicted him , were Charged , Indicted , and Convict in the Star-Chamber , which was never seen before : For if the party shall not have a Conspiracy against the Indictors , when Acquitted , a multo fortiori , when he is lawful Convict , he shall neither charge the Grand Inquest nor Jury that convicted him . But when a Jury acquits a Felon or Traytor , against manifest Proof , there they may be charged in the Star-Chamber , ne maleficia remanerent impunita . But if such Supposals shall be admitted , after ordinary Judicial Proceedings , it will be a means , ad detrahendos Juratores & deterrendos a servitio Regis .

3. Resolved , That Barker who was Judge of Assize , and gave Judgement upon the Verdict of Death against the said W. P. and the Sheriff that executed him , nor the Justices of Peace that examined the offender , and the Witnesses for proof of the murther before the Indictment , were not to be drawn in question in the Star-Chamber for any conspiracy , nor ought to be charged there with any conspiracy , or elsewhere , when the party indicted is convicted , or Attaint of murther or Felony . And though such person were acquitted , yet the Judge , &c. being by Commission , and of Record , and sworn to do Justice , cannot be charged for conspiracy , for that he openly did in Court as Judge , Justice of Peace , &c. but if he hath conspired before out of Court , this is extrajudiciall , but subordinations of Witnesses , and false malicious prosecutions out of Court , &c. amounts to an unlawfull conspiracy . And if Judicial matters of Record ( which are of so high a nature , that for their sublimity , they import verity in themselves , ) should be drawn in question by partiall and sinister supposall and averments of offenders , there will never be ▪ an end of Causes , but Controversies will be infinite , Et infinitum in jure rep●obatur , 47 Ed. 3. 15. 25. Ed. 4 67. and 27 Ass. pl. 12. But in a Hundred Court , or other Court which is not of Record , there averment may be taken against their proceedings , 47 Ed. 3. 15.

Also one shall never assign for Error , that the Jury gave Verdict for the Defendant , and the Court entred it for the Plaintiff , &c. Vide , 1 H. 6 4. 39 H. 6. 52. 7 H. 7. 4. 11 H. 7. 28. 1 Mar. Dyer 89. But in a Writ of false Judgement , the Plaintiff shall have direct averment , against what the Judges in the inferior Court have done as Judges , Quia Recordum non habent , 21 H. 6. 34. Neither shall a Judge in the Cases aforesaid , be charged before any other Judge at the Suit of the King , 27 Ass. pl. 18. & 23. 2. R. 3. 9. 28 Ass. pl. 21. 9 H. 6. 60. Catlyn and Dyer , chief Justices , Resolved , That what a Judge doth as a Judge of Record , ought not to be drawn in Question in this Court .

Nota bene , that the said matters at the Bar were not examinable in the Star-Chamber ; and therefore it was Decreed by all the Court , That the said Bill , without any Answer to it by Barker , shall be taken off the File , and utterly cancelled : And it was agreed , That the Judges of the Realm ought not to be drawn into question for any supposed Corruption , which extends to the annihilating of a Record , or tending to the slander of the Justice of the King , except it be before the King himself ; for they are only to make an account to God and the King , otherwise this would tend to the subversion of all Justice , for which reason the Orator said well , Invigilandum est semper , multae invidiae sunt bonis ; And the reason hereof is , the King himself being de jure , to deliver Justice to all his Subjects ; and because himself cannot do it to all Persons , he delegates his Power to his Judges , who have the Custody and Guard of the Kings Oath . Thorpe being drawn into question for Corruption before Commissioners , was held against Law , and he pardoned : Vide the conclusion of the Oath of a Judge , Stowes ch●oi 18 Ed. 3. 312.

Weyland , chie● Justice of the Common Bench , and Hengham , Justice of the Kings Bench , and other Justices were accused of Bribery , and their Causes were determined in Parliament .

Vide 2 Ed. 3. fol. 27. The Justices of Trayl-Baston , their Authority was grounded upon the Statute of Ragman , which you may see in old Magna Charta . Vide the form of the Commission of Trayle-Baston . Hollingshead Chron. fol. 312. whereby it appears , That the Corruption of his Judges , the King himself examined in Parliament● and not by Commission . Absurdum est affirmare , recredendum esse non judici .