Part XIL. The Café of the King’s Prerogative in Salt-peter. . In the Seffion of Parliament held in December Ans 4 Fav» Regis. ALE She Juticn, vie, Popham, Chiet Juttice of Eng- land, Coke Chief Juttice of the Comtnon Pleas, Fle. ming Chief Beron, Fenner, Searl, Yelverton, Williams, and Tanfield, Jaices,’ were affembled at Serjeants Inn, to con- Tate what Prerogitive the King had in digging and taking of Salt-peter to makeGunpowder by the Law of the Realm 5 and upon Conference between ther, thefé Points were re~ folved by them all, ua voce. ‘That although the Invention of Gunpowder was devi-1 Polat fed within Time of Memory, viz. in the Time of R. 2, $e Cartons jet inafimuch ax this concerns the neceffary Defence of the Thar Forder alm, he fhall not be driven to buy it in foreign Parte 5 or Gunpowder ‘and foreign Princes may reftrain it at their Pleafure, in yz then theie own Dorninions : And fo the Realm shall not have *"™ 4 fufficient for the Defence of it, to the Peril end Hazard of it: And therefore infomuch ‘as Selepeter is within the Realm, the King may take it accordiog to the Limitations following for the neceffary Defence of the Kingdom. ‘Although the King cannot take the Trees of the Sub- Teint, je growing upon his Freehold and Inheritance, as it was now lately refolved by us the Juftices of England : And although he cannot take Gravel in the Inheritance of the Subjetl, for Reparation of his Houfes, as the Book is in x1 H. 4.28. Yer it was refolved, that he may dig for Salt-peter, for this that the Minifters of the King who dig for Salt-peter, are bound to leave the Inheritance of the Subjett in fo good Plight as they found it, which they can- at do if they might cr the ‘Timber growing, which would tend to’ the Difinheritance of the Subjed, which the See King by Prerogative cannot dos for the King (as it is faid #47- in our Books) cannot do any Wrong. cory AndPage (13) Point Cafe of the Prerogative. Pant XIL. And as to the Cafe of Gravel, for Reparation of the Hou- fes of the King, it is not to be compared to this Cae 5 for the Cafe of Salpeter extends to the Defence of the whole Realm, in which every Subjeé&t hath Benefits bat fo it is pot in the Cafe of the Reparation of the King’s Houless Ane therefore i is agreed in 1a ie andother Toots tat the King may charge the Subje for Murage of a fo whick the Subjeds were begged in the Time of Tnurt reftion or War, for Safety: And fo for Pontage, for this that he which is charged hath Benefit by it, but the King cannot charge the Subjett for the’ making of a Wall about bis own Houle, or for to meke a Bridge to come to his Houle 5 for that doth not extend to publick Benefit : Bue when Enemies come againft the Realm to the Sea-Coat i is lawful to come upon my Land adjoining to the fame ‘Coaft, to make Trenches or Bulwarks for oe Defence of the Realm, for every Subjeét hath Benefit by it, And there- fore by the Common Law, erery Man may come ‘a my Lend for the Defence of the Realm, as on 23. And in {ich Cafe on fach Extremity they may dig for Gravel, far the making of Bulwarks ; for this ie for the Publick, and every one hath Benefit by it 5 bat afier the Danger is over, the Trenches and Bulwarks ought to be removed, fo that the Owner fhail not have Prejudice in his Inheritance: And for the Commonwealth, a Man thal fuffer Damage 5 as, for faving of a City ‘or Town, a Houfe fhall be plucked down if the next be on Fite: And the Suburbs of a City in Time of War for the com- amon Salty Mhall be plucked down 5 and a Thing forthe Commonwealth every Man may do without being liable to an Aion, as itis faid in 5 H.8. foxy. And in thie Cafe the Rule is true, Princeps & Refpublica exjuftacew fa point rem means auferre. Te was refalved, that this Taking of Salt-peter is a Pur epzee fit forthe mating of Gunpowder for the Nex celfury Defence and Safety of she Realm. And for this Caufe, as in other Purveyances, is is an Incident inte [Dogg gs rel gp ponte! hype orate a! transferred to any other, but ought ta. be taken only by the Miniflers of the King (as other Purveyances ought, and cannot be converted to any other Ufe than for the Defence of the Realm, for which Purpole only. che Law gave to the King this Prerogetive. And it is not like to the Mines of Gald and Silver, for there ‘he King hath Intereft inthe Metal and therefore thereParrXIL of the King in Salt-pet he may dig for it, Quia quando lew aliquid alicui couce- dit, concedere viderur id, fine quo res iff effe non poreft. vlow.314,325 Vide Plow. in le Cafe de Mines. So the King may dig in 336. the Land of the Sabjedt for Trealure trove, for he hath Property: And if the Powder which fs fo made by the Mi- nifters of the King, begin to decay (as it will in two Years) then it ought to be changed for other, or the Money co- ming of it ought to be employed for Powder for the De- fence of the Realm 3 or the Minitters of the King ought to make Provifion of Salt-peter which will endure a long Time, and when need is, to make it into Gunpowder, which may be made before the Navy can be put in Rea dinels. ‘The Miniftere of the King cannot undermine, weaken, Poin, cor impair any of the Walls or Foundation of any Houfes, be they Masfion-houles, or Out-houfes,or Barns, Stables, Dove- boufes, Mills, or any-other Buildings : And they cannot dig in the Floor of my Manfion-houfe which ferves for the Ha- bbitatfon of Man; for this, that my Houle isthe fafeft Place for my Refuge, Safety, and Comfort, and of all my Fami- ys a8 well in Sicknets as im Health, and it is my-Defence in the Night and in the Day, agaif Felons, Moers, and harmful Animals; and it is very neceffaty for the Weal public shat che Habhation of Sbjels be preferred and snaineaine ‘And there are two notable Precedents, by which it ap- Feu fst the ing by his Prerogative ad Power co po- bit Depopulation, and provide for Habitation, ‘The one in, the 9g Ed 3, a villa de Sout! oF Sie other, din st Rn by which the King prohibits that Inco!’ villarum predic- tarum non profiernans donus fuss in vilis prediGfis in a Fas migratiri regiones, 8e, ‘Alfo the. Mini@ers’ of the King eannot dig the Floor of any Barn employed for the fafe Cuftody of any Com, Hay, &. of the Owner, for that the Floor of a Barn cannot be made dry and ferviceable again in a long Time = But they may dig in the Floors of Stables and Ox- houfes, fo that there * be fafficient Room left for the Page (14) Horfes ad_other Cattle of the Quner: And (0 that they repair it in convenient Time, in fo good Plight as Q ie was before 5 alfo they may dig in the Floors: of Cel- lars and Vaults, fo chat there be fufficient Room for the Neceffaries of the Owner; and fo that the Wine, Beer, and other necefliry Provifion of the Owner be C3 not - Ror. clauf. in turri, numero in dovfe claufe, par. 1. N. 15.§ Point. 6 Point, 7 Peine 2 Point, 5 Point. Cofe of the Prerogative Pant XIL * not removed, or in any Sort impeired, And they may dig sny Mud-walls which are not the Walls of any Man- fion-houfe, fo that Order be taken that the Manfion-houfe be well defended, as ic wis before; and fo they may dig in the Ruins and Decays of any Houle or Buildings, which are not preférved for che necellary Habitation of Mes, ‘They ought to. make the Places, in which they dig, fo well and commodious to the Owner as they were be- fore, ‘They ought to, work in the Poffefion of the Subjeé, but betwixe Suncrifiog and fetting 5 fo chat the Owner may make falt the Doors of his Houfe, and pur ic in Defence again Mifdoers, ‘They ought not to place ot fix any Furnace, Veftels, or other Neceffaries in any Houle or Building of the SubjeGt without his Confent, or fo near any Manfion-houfe, as by it it may receive Prejudice or Difquiet. ‘They cught not to continue in one Place over a gonvenient ‘Time, nor to return again into the fume Place before convenient Time (which is long Time) bo patted, Te was refolved, that the Owner of the Land cannot he reftrained from digging and making Salt-yeter, for the King hath not Intereft in it as he hath in Gold and Silver in the Land of the Subjed, for the King in the Cale of Saltepeter bath tut Purveyance; {0 that the Properry of its ip the Owner, and for hat he gamot be ‘excluded of the Commodity in is own ‘And it is to be obfevved, that before 3x Eliz. which was the next Year after the Spamjh Invafion, there was not any Licence or Commifion of any King of Queen of this Realm, for. the taking of Saltpeter + But in the faid sr Year there were two Licences granted. ” The one particular to Geos Conflable Efgiire, and the other general ro George Foelin, Rickerd Hills, end elm Loclin: ‘The felt” gives Coftable Power and wuthority for eleven Years to dig, open, and work for Sale-peter within the Counties of ark, Nottingla saftcr, Nor:bumberland, Cumberland, and the BiParr XIE of the King in Salt-peter. rick of Durefne, as well within our Lands, Grounds s-4 Pofleffions, as alfo within the Lands, Grounds and Pof- feffions of any of our loving Subjeéts within the Counties aforefaid : And the Confderation of the Patent was for a great Quantiy of Salpeter yearly, by the fhid George inftable, to be made and provided for the Store of the Queen, at a lower Rate than before was paid. “And further, Our Will and Pleafure is, That the faid George Conflabie, 8c. Shall at his own proper Cos and Charges, ereét, make up, and raife all Mud-walls, Stables, and Grounds whatloever fo digged up, &e. In which Li cence it was obferved, that no Power is given to dig in any Manfion-houfe, Barns, Dove-houfes, &¢. but, as appears in the laft Claufe, in Mud-walls, Stables, and Grounds 5 for the Cleufe of Reparation ouzht without Queltion to extend to all the Places to which the Power to dig ex- tends, Ee. ‘The other Commiffion to Evelin, &c. extends to ail the Realm of England * and Ireland, and all _other Dominions of the King, as weil within our own Lands, Grounds and Poffeffions, as alfo wichin the Lands, Grounds and Poffeffions of any of our Subjeéts, icence begins with Lands, &c. fo that are not named in ix. For the learned Counfel of the Queen, as it fhould fem, who drew the Licence, thought not that the Licence ought to extend to the Manfion-houfe, or other necelfiry Houfes; for other- wife ir would have been expreffed in the Licencé. And afier, feilicet 18 Offober » Jee ‘Commitfion was granted to Bvilin and others, t0 take Salt pererin the Lands, Pol- feffions, and other convenient Places, and in convenient ‘Times, fo that there were but three Licences or Com- miffions ever made. And in ‘none of them any Power by exprefs Words is given to dig in any Manfion-houle, &c. And in none of them is any Prohibition to the Subjeét ro ig in his own Land: And it is obferved, that in the fuid Jaf Commiffion is a Claufe, thar for Carriage none ought to gp above nine Miles ftom his own Houfe, and that he Shall have 4 d. for every Mile laden and empty, vis. Endo & Redeundo. And the Reafon was, That the Owner may return again to his own Houle in the fame Day : And note Reader, here Je a good Refolation of the Jace for the true Prerogative of the King in taking Purveyance of Sale-peter, C4 Gronar Page (13)