The King against The Earl of Nottingham and Others

JurisdictionEngland & Wales
CourtExchequer
Judgment Date01 January 1611
Date01 January 1611

English Reports Citation: 145 E.R. 284

IN THE COURT OF EXCHEQUER

The King against The Earl of Nottingham and Others

the king ayainst the earl of nottingham and othkrs. Between the King by English bill, and the Earl of Nottingham and others defendants, but concerned Sir Eobert Dudley in interest, and was as followeth, viz, Sir Robert Dudley intending to travel beyond the seas, did by indenture itirolled the 10th of June, for a valuable consideration expressed, but none paid, convey the mantior of Killingworth amongst other lands to the Earl of Nottingham, &c. in fee, but the barganees were not privy unto the deed not till afterwards, and in the deed there was, a proviso, that upon the tender of an angel of gold all should be void, and covenants on the part of the barganees, that they should make all such estates as Sir Robert Dudley appointed, and after Sir Robert Dudley by licence from the King travelled beyond the seas to Venice, and after the barganees made a lease to Sir Robert Lee, to the intent, that the Lady Dudley should take the profits of part thereof, for ton years, if tha estate of the barganees should continue so long unrevoked, and after the King having notice of divers abuses made by the said Sir Robert Dudley in the parts beyond the seas, commanded the said Sir Robert Dudley by privy seal delivered unto him the 10th of April in the 5th year upon pain of forfeiture of all his lands and fortunes to return again immediately, &c. and after a commission issued forth to inquire what lands and tenements, &c. Sir Robert Dudley had, or others for him in use, or upon confidence, and the jury found this special mat-[43]-ter, but found not any fraud expresly : and thereupon the King exhibited his bill here, against the barganees, and aiso against Sir Robert Lee thei^ lessee, who truly discovered all this special matter, and that they were not knowing of the deed until long time after making of it, and that no consideration was given by them in this case, for the lands so bargained : and it was argued by Sir Henry Mountague recorder of London for the King, if these lands should be seised or not, fie conceived that there are three things considerable in the case. First, the con-tempi of Sir Robert Dudley in his not returning upon the sight of the privy seal, and of what quality this offence is. Secondly, what interest the King had by this offence in the land of Sir Robert Dudley being the offender. Thirdly, if notwithstanding these ioffences, these lands ought to be seised for the King; touching the first point he said, that it is requisite to examine, if a subject at the common law may go beyond the seas without licence, and in what cases the law allows a man to go out of the realm without licence, and as to that he said, that it appears by the reason in the 12th of Eliz. Dyer, that at the common law every man may go out of the realm ; but the statute of the 5 Richard 2 reatraineth all but merchants, noble men, and souldiers, and as he conceived this wias but an affirmance of the common law, notwithstanding the book befor4 cited : and to prove that, he said that the opinion of Dyer in the first Eliz. fo, 1G{ , seemeth \o agree : also it is proved by divers licences granted before this statute ; see F.; N. B. fo. 85, in the writ de securitate invenienda, quod se non divertat ad partes exteras sine licentia Regis, according to the 12 Eliz. in Dyer : and he further said, that there are two reasons to prove, that no man may go beyond the sea without licence at the cqmmon law, for by 2 E 3 and the 16 E. :i, and G-laiivil, in his chap, of Essoynes, by snek means the subjects may be deprived of their suits for debt, and also the King may l(e deprived of the attendance of his subject about the business of state, and it appears by the Register, fo. 193 & 194, that religious persons purchased licences to go LANE, 4i. THE KING V. THE EARL OF NOTTINGHAM 285 beyond the seas, and it appears by Littleton in the chap, of Confirmation, that a dissent takes not away an entry of him who is beyond the sea, except it be by the Kings commandment, see the case intended by Littleton in the chap, of Continual Claim, there it seems to be a doubt to Littleton ; then he argued further, if the common law alloweth not a. subject to go beyond the sea without licence, but reputes it a groat contempt, this js a great contempt in him, who will not return by the Kings command, and the law hath ahvayes punished such contempt, as it appears by Dyer, fo. 28 & 177, & 19 K. 2, John de Brittmis case: also there is a president for seisure of all his lands for such contempt, and he vouched the book what the King had done, where he cited, that the prior of Oswaldshire forfeited all his lands and possessions for such contempts, and so concluded the tirst point of the quality of the oft'ence, and spoke nothing of the licence which Sir Robert Dudley had of the King at the time, the which as it seemefch was not expired, nor the power which the King had to countermand it within the time, to which the attorney general in his argument did speak : to the second point it seemeth, that the contempt giveth such an interest to the King, that he shall retain the land until conformity, for he who dwelleth in contempt, ought not to have any possessions here, and he cited the 22 H. 6, and the 21 H. 7, and divers other books which are cited in Calvin* case, Cook, lib. 7, also he said, that there is a ditt'erence, where the King is oft'ended as King of England, and where as head of the kingdome, as this case is, which is a greater offence in qualitie ; then for any offence for which men should lose their livos, as if they should...

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