case smith against wheeler easter term car roll a king counsel can plead  against the crown Bl Com a be possess of a term for eighty year assign part of  the premise and settle the residue in trust on himself for life with diverse  remainder over provide that if he have issue the trust shall cease and the  assignment be in trust for such issue with a power of revocation if a commit  treason the remainder of the original term be only forfeit during his life S C  ante S C Freem S C vent S C lev S C keb Inst   and lane hard raym roll Abr Ro  ab march side hawk p c Mod sergeant Maynard be about to argue in this case  that the residue of the term be not forfeit to the king Kelynge chief justice  brother Maynard you will do well to be advice whether or no you be of the king  counsel ought to argue in this case against the king Maynard answer that the  king counsel will have but little to do if they shall be exclude in such case  and that sergeant crew argue Havilands case in which there be the like  question modern er p Twisden justice in stone v Newman I know the king counsel  do argue against estate come to the crown but if my lord think it not proper  my brother Maynard may give his argument to some gentleman at the bar to  deliver for he afterward in easter term car the case come to be argue again  Jones argue for the plaintiff in the writ of error first whether this  settlement be fraudulent or no that fraud be not to be presume he cite the  chancellor of Oxford case   and the case of crisp v Pratt cro car but for the  second point he hold that here be a trust forfeitable to the king and he quote  sir John Dacombs case cro James that the trust in this case be forfeit he  prove from the nature of a trust which be a equitable interest or a right of  perception of the profit of a estate the beneficiary and trust have law to  have el law to place here and there and though he that have a trust have in  law neither law in re nor law ad remember yet in equity be have both in equity  whatever I have a right to dispose of I have a right to take the profit of for  if a man make a conveyance to the use of one and his heir in trust that he  shall convey over though it be not express that he shall take the profit yet  he shall take they now in the second proviso there be a double expression one  that amount to a revocation the other amount to a disposition or limitation  now he that have a power of disposition have a right that may be forfeit and  therefore the duke of Norfolk case come not to this for we be not in the power  of modern revocation I decline that but we be in a power of disposition now  this be good by way of trust in law indeed such a proviso be nought but in a  trust the intention of the party carry it I observe in forfeiture at the  commonlaw where a man have only law desponendi though he have no estate yet he  may forfeit it Plo Com a mail be possess of a term in the right of his wife  though he have no estate himself yet he may forfeit it and the reason be  because he have law to place here and there if a man may by such a disposition  as this protect his estate from be forfeit little land will come to the crown  upon attainder there be two badge of ownership the one be a perception of the  profit the other a power of dispose both which be in our case and a favourable  construction ought not to be put upon a deed for encouragement of traitor  winnington contra as for the first point the fraud ought to be find and this  lease be make long before the attainder or the treason commit for the second  point the question will be what our law call a trust then I shall examine  whether there be such a thing in main at the time of his decease a trust I  find to be a confidence repose in the person that another shall take the  profit and that the trustee shall convey accord to his direction this I gather  from these book videlicet Plowd Delameres case     light now if these two  quality or either shall fail in this case then Simon main have no trust to  forfeit for that the case will depend upon the true state the word of the deed  for the first proviso it do not cohere with any of these quality for by virtue  of that proviso he can not be say to have any right he have nojus to place  here and there but upon contingency if be have no child be have no such power  nay if be have child they must be live at his death further by these proviso  if the contingency do happen he have but a power to declare the use he have no  interest in he at all Litt sect it be one thing to have a power or possibility  of limit ail interest another to have a interest vest   and more be Rep about  the delivery of a ring where they hold that if it have be to have be do with  his own hand it have not be forfeit the case of sir Edward clear be different  from we for if a mail make a feoff to the use of his last will or to the use  of such person as shall be appoint by modern his last will in this case he  remain a perfect owner of the land but if a man make a conveyance reserve a  power to make lease or to make ail estate to pay debt he have here no interest  but a naked power the duke of Norfolks case a   a Poph and more Leon palm hale  hawk p c a be full in the point a conveyance to the use of himself for life  the remainder to his son in tail with power to revoke under band and seal be  adjudge not forfeit and yet he have a power to declare his mind as in our case  paget case more modern er p Kelynge chief justice if this way be take a man  may commit treason pretty cheap Twisden justice whoever have a power of  revocation have a power of limitation the reason be because else the feoff  will be seize to their own use sir William Shelleys case b latch b there be no  difference betwixt the duke of Norfolk case and this only here it be under his  handwriting and there under his proper handwriting afterward in easter term  car the court deliver their opinion hale be then chief justice Moreton justice  I conceive the judgement in the common plea be well give as for the first  point whether this conveyance make by sir Simon main be fraudulent or not the  counsel themselves have decline it and therefore I shall say nothing to it for  the second I conceive no large interest be forfeit than during the life of the  father if it be object that the father have by this proviso law to place here  and there I answer it be true he have a power if he have be mind so to do but  it be not his mind and will now animus man be ipse a human being but he must  not only be mind so to do but he must declare his pleasure Hobart say c in the  case of kibbet v lee hob c if a man will create a power to himself and impose  a condition or qualification for the execution of it it must be observe now  here be a personal and individual power seat in the heart of a man and it seem  to I a strong case than that of the duke of No folk   Poph more a put in  Englefields ease b   keb lev b where yet the condition be not give to the king  by the statute of Henry c S there be a late case adjudge of Warner v hind c  latch c a case that walk through all the court in westminsterhall there by  reason of the Self to disclose it can not be forfeit Rainsford justice I hold  it be not forfeit my reason be because the proviso be at a end and determine  for when be die and no will there be a end of the modern proviso the alter of  the old trust be to be do by sir Simon main and it be inseparable from his  person nothing can be more inseparable than a man will more Twisden justice I  be of the same opinion hale chief justice be of the same opinion that nothing  be forfeit but during sir Simon be life the proviso he say do not create a  trust but power to place here and there which be not a trust he say he do not  understand the difference between the duke of Norfolk case and this accord the  judgement be affirm d by Ann c and Geo c no attainder of high treason shall  extend to the disinherit of any heir nor to prejudice the right and title of  any person other than the right and title of the offender during his natural  life after the death of the pretender and his son James the second marry a  princess of the house of Modena and die at saint Germain September leave one  son James Francis who marry maria Clementina sobiesky granddaughter to the  king of Poland and die in the year leave two son videlicet Charles Edward  Lewis Casimir Stuart count of Albany and Henry Benedict Stuart cardinal of  York the count of Albany marry a princess of Stolberg in Germany and die at  Rome December leave only a natural daughter who he have create duchess of  Albany the cardinal of York be bear at Rome on the march and be still alive  and unmarried d