can be taken to be of such Laws only as are in force in Ireland And in this Case the Offender may be tryed here in England altho his offence was committed in Ireland and that by force of 35. H 8 2. § 1. N. 2. notwithstanding the Statute of 1. and 2. Ph. and Mar. 10. § N. For it was resolved 1. Anderson 263. pl. 269. in Ororkes Case by all the Judges of England 33. Eliz. that Treason committed in Ireland may be tried in England and the like resolution was in Sr. John Perrots Case 34. Eliz. 7 Co. 23. Calvins Case 1. Inst 261.3 Inst 11. Dyer 298. Dr. Stories Case 13. Eliz. And if a Subject of England who is a Peer of Ireland be sent to any such Colledg or Seminary and offend as 27. Eliz. 2. § 5. N. 1. aforesaid he may be tryed in England by a common Jury notwithstanding the offence was in Ireland where he is a Peer contrary to 19 and 20 Eliz. Dyer 360. Where it is said that Wray Dyer and Gerard Attorny general were of opinion that a Peer in Ireland cannot be tryed in England for Treason done in Ireland because he cannot have his trial by his Peers But this is not Law and Sr. Christopher Wray protested he never gave any such opinion but held the contrary 1. Inst 261. LXXXIX◠Accessary Page 93. Upon 27 Eliz. 2. § 6. N. 1. Convey Deliver c. So that he that is barely a Messenger or Instrument to convey or deliver such mony or other releif is within the Danger of this Law as well as the Lender or Giver Page 93.94 This Clause 27 Eliz. 2. § 6. N. 4. Extends not to every person brought up in such Colledge or Seminary XC as Wingate Crown 54. mistakes For if such person afterwards quits his Colledg or Seminary and hath no longer any relation thereunto but abides elsewhere beyond the Seas he who gives or conveys releif or maintenance to him is not within this branch of the Statute because the person releived or maintained is not then of or in any Colledg or Seminary and yet perhaps this may be an offence within 3 Car. 1.2 § 1. N. 2. Page 97. Upon 27 Eliz 2. § 10 N. 1. The taking of the Oath by such Jesuit Priest or other Ecclesiastical person and his Acknowlidgment of his due obedience doth not exempt him from the danger of this Law as Wingate Crown 57. mistakes But he must continue his due obedience to the Laws made in Cases of Religion and this seems to be clearly the meaning of the Makers of this Law 27 Eliz. 2. § 10. N. 1. So that if afterwards he shew his disobedience to any of these Laws by forbearing to come to Church c. he may be Indicted as a Traytor for coming into the Realm as if he had never made any such submission and acknowledgment Page 95. Her Highness Laws 27 Eliz. 2. § 10. N. 1. That is the Laws of her and her Successors XCII Prerogatives and not only those which were made in her own time But such likewise as should be made afterwards For in Acts of Parliament King or Queen if a Soveraign Includes Successors unless there be express words of restraint to that individual person Com. 176. Hill and Grange 6 Co. 27. the Souldiers Case 12 Co. 109.1 Inst 9. and 2. Inst 742. and 3. Inst 6.4 Inst 352. And so it is of the Kings Grants if in his politick Capacity for there his Successor shall be charged tho the Grant mention neither Heir or Successor as it was adjudged in the Case of an Annuity granted to Sir Thomas Wroth during his Life Com. 457. Page 97. Being Subject of this Realm 27 Eliz. 2. § 13. N. 1. XCIII And not any person as Wingate Crown 59. mistakes Page 97. At the Queens pleasure 27. Eliz. 2. § 13. N. 1. In this Case the Offender must be proceeded against according to the course of Law XCIIII Prerogatives For he cannot be Fined or Imprisoned at the Kings pleasure by force of this Statute before he be Indicted Convicted and Judgment given against him and so were the Proceedings against Sir Thomas Figet Tit. Contempts Br. 6. do not say he was first Arraigned c. for going Armed contrary to 2 Ed. 3 § N. for 24. Ed. 3.33 saith that he was Arraigned And if in this Case on 27 Eliz. § 13. N. 1. the Offender be committed to Prison in order to his Trial and Conviction yet before Judgment or at least before Conviction he may be let to mainprize and the Fine shall be Imposed by the Justices before whom he is Convicted Justiciarii per corum Descretionem Assessent finem et non Dominus Rex per se in Camera sua neo aliter Coram se nisi per Justiciarios suos et haeo est voluntas Regis viz. per Justiciarios suos et legem suam unum est dicere 2 R. 3.11 see 4. Inst 71.179 29 Eliz. 6. Of PROCLAMATIONS XCV Courts PAge 100 101 Sir Edward Coke in Dr. Foster's Case 11 Coke 61. saith that by this Clause 29 Eliz. 6. § 2. N. 2. as hath been well observed 23 Eliz. 1. § 11. N. 1. is altered in a material point viz. that whereas by 23 Eliz. 1. § 11. N. 1. The Informer might sue the Recusant for the penalty in any Court of Record he is now by 29 Eliz. 6. § 2. N. 2. restrained from suing in the C. B. or Exchequer But this is utterly denyed to be Law as the constant practice and experience ever since 29 Eliz. 6 § 2. N. 2 sufficiently testifies and Hob. Ch. J. 204. in Pie and Lovel's Case saith that that Observation was made as he takes it by Sir Edward Coke himself But however Serjant Rol. in Dr. Fosters Case 1 Rol. 93. pl. 41. brings him in speaking in another Language and more consonant to Law viz. That the Conviction here mentioned 29 Eliz. 6. § 2. N. 2. is intended of Convictions upon Indictments only and that no other sort of Convictions or Proceedings upon 23 Eliz. 1. are mentioned or intended throughout this whole Act 29 Eliz. 6. And if so then the Informer is not concerned in this Act 29 Eliz. 6. § 2. N. 2. nor restrained thereby as to the Courts wherein he is to sue but that he may sue still in C. B. or Exchequer and so was it resolved in point in Hob. 204.205 Pie and Lovels Case where the opinion of Sir Edward Coke 1 Rol. 93. is confirmed and allowed for Law and 11 Co. 61. exploded 29 Eliz. 6. § 2. N. 2. being made only for the benefit of the Queen in her suits by Indictment Infra 118 165. 2. And the true reason is there Juices given Hob. 204.205 why those negative words and not elsewhere were added 29 Eliz. 6. § 2. N. 2. viz. not to exclude the Informer out of the C. B. or Exchequer but to restrain Justices of Peace from proceeding to
qui tam c. afterwards 23 Eliz. 1. § 11. N. 1. in a distinct branch by it self without any reference to this 4. So that by 23 Eliz. 1. § 9. N. 2. and before 35 Eliz. 1. § 10. N. 2. which gave the Queen an Action of debt c. the Queen had no other remedy to recover the intire forscitures given hereby but by Indictment only 11 Co. 60. and 1 Rol. 91. pl. 41. Dr. Fosters Case 5. See Jones 193 pl. for that and the suit by the common Informer are the only wayes appointed by 23 Eliz. 1. § 9. N. 2. and § 11. N. 1. and the subsequent Clause 23 Eliz. 1. § 10. N. 1. of submission which names the Justices before whom the party is to submit viz. the Justices before whom he is Indicted Arraigned or Tryed shews what proceedings are meant which are to be had before the Justices here named that is by Indictment Hob. 205. Pie and Lovel 6. Talbot and Shelden were Indicted for Recusancy Contra formam Statuti 23 Eliz. 1. in which Indictment the penalty was demanded and in a Writ of Error the Judgment was reverst for the offence is made by 1 Eliz. 2. § N. and the penalty is given by 23 Eli. 1. § N. and therefore it should have been Contra formam Statutorum Owen 135. pl. Wests Case infra 79 § 4. Far. Feme 7. If a Feme Covert be Indicted at the Kings Suit for an offence within 23 Eliz. 1. § 5. N. 1. she may be charged with the penalty after her Husbands death but the Husband is not chargable nor shall pay the penalty for that he is no party to the Judgment and this was one of the Causes of making 35 Eliz. 1. § 10. N. 1. by which Statute the King may have an Action of debt and recover the forfeiture against the Husband 1 Rol. 93.94 Roy versus Foster Savile 25 pl. 59. LXXIII Treason Page 68. This Exception 23 Eliz. 1. § 9. N. 2. of Treason and misprision of Treason extends not to the Justices of Oyer and Terminer or of Assize and Goal-delivery as Wingate Crown 46. hath mistaken but only to Justices of Peace who are not to medle in thâ—â—â— two Cases but the other Justices may LXXIV â—onformity Page 69. Upon 23 Eliz. 1. § 10. Before Iudgment submit and conform himself c. But now by 1 Jac. 4. § 17. N. 1. If the Recusant conforms after Judgment it seems it shall be time enough to have the forfeiture 2. A man is convicted of Recusancy according to 29 Eliz. 6. § 2. N. 5. upon Proclamation and default of appearance and afterwards submits and conforms he shall by force of 23 Eliz. 1. § 10. N. 1. be discharged of the forfeiture of twenty pounds per month for this is a submission and conformity before Judgment the Conviction upon Proclamation being no Judgment but only in nature of a conviction by verdict as was resolved by all the Judges Mich. 37. and 38 Eliz. see 1 Rol. 94. pl. 41. Dr. Fosters Case 3. Page 69. Certain Persons were Indicted upon 23 Eliz. 1. § 5. N. 1. for not coming to Church and were outlawed upon the Indictment the Court of B. R. would not in this Case receive their submission upon 23 Eliz. 1. § 10. N. 1. but advised them to purchase their pardon for the Outlawry which they did and the their submission was accepted of and they were discharged 4 Leonard 54. pl. 138. Note in the report the Statute 13 Eliz. 2. is mistaken for 23 Eliz 1. for no Indictment for not coming to Church lyeth on 13 Eliz. 2. LXXV Certisicate Page 69 Upon 23 Eliz. 1. § 10. N. 1. If a man be Indicted for Recusancy before Justices of Peace and he submits and conforms before the Bishop of the Diocess be may remove the Indictment by Certiorari into B. R. and there plead his Conformity by Certificate under the Bishops hand and Seal Styles 26. pl. 2. For the manner of a Recusants submission and Conformity before the Bishop after Conviction and the Bishops Certificat thereupon see Co. Entr. 569. LXXVI Forfeitures Page 70.71 All forfeitures of any sums of mony limited by this Act. 23 Eliz. 1. § 11. N. 1. Shall be divied c. So that the distribution here appointed extends not only to the forfeitures of Two hundered and One hundred Marks for saying or hearing of Mass and the ten pound a month for keeping a School-Master Contrary to this Act but likewise to the twenty pound per month for not repairing to Church 2. In which last Case the Informer Qui tam c. shall have the third part as well as in the other Cases for altho by 23 Eliz. 1. § 5. N. 1. the whole Twenty pound per month is given to the Queen which the other forfeitures are not in express words yet that will not alter the Case nor make void the express appointment made here in what manner and to whom all the forfeitures limited by 23 Eliz. shall be disposed of 3. And it is usual in Acts of Parliament to give the whole penalty for any Criminal matter to the King and afterwards in the same Act to make distribution thereof and give part to him that will sue as in 3 H. 6.3 § 1. N. 1.2 and 3 H. 7.7 § 1. N. 5.10 and the subsequent distribution shall alwaies stand good notwithstanding the precedent words of limitation of the whole to the King 4. For those words in penal Statutes To the King or to the Queen are upon the matter but void and superfluous and give the King or Queen no other or stricter interest than they would have had if they had been omitted and it had been said shall forfeit without apointing to whom 5. And the reason is for that the Law devolves the forfeiture upon the King where no other person is appointed and shall forfeit without more saying is as much as shall forfeit to the King But when afterwards in the same Statute a particular appointment is made how the penalty shall be that qualifies the former and general words and such distribution shall be made as the Statute appoints 11 Co. 60. and 1 Rol. 89.90 pl. 41. Dr. Fosters Case and 1 Anderson 139.140 pl. 190. Cuff and Vachell supra 46. Page 71. Upon 23 Eliz. 1. § 11. N. 1. Scot was Indicted for Recusancy LXXVII Poor Anno. 26. Eliz. 2 Leonard 167. pl. 204. By the name of William Scot of Southwark Gent. and Exception was taken to the Indictment for that within Southwark are several Parishes and the third part of the penalty is to be applyed to the relief of the Poor of the Parish where the offence was committed But in this Case the Recusant being named generally of Southwark non potest constare Curiae where the offence was nor to what Parish the third part of the penalty belongs But the whole Court of B. R. were there of opinion
and in such a case it is to be taken in divers other Cases Infra 173. XCVII Days Page 104. Upon 29 Eliz. 6. § 4 N. 1. That is the Term of Easter or Michaelmas which shall first happen and not the next Easter and Michaelmas Terms both for the Recusant ought to pay the whole penalty for the time conteined in the Indictment in the very first of thse Terms next after his Conviction 3 Jac. 4. § 8. N. 1. Infra 172. Page 104. Upon 29 Eliz. 6. § 4. N. 3. Take seiz and enjoy But as to Lands and tenements there must first be an office found for the King XCVIII Seizure for regularly before the finding of such office Lands or Tenements cannot be seized into the Kings hands 2 Inst 573. and 8 Co. 169. Stoughters Case Br. tit Off. 17.55 Com. 486. Nichols Case Page 105. by 29 Eliz. 6. § 4. N. 3. the Queen was to have and enjoy two parts of the Recusants lands and Hereditaments nomine poenae or districtionis XCIX until he had in some other manner satisfied her of the whole forfeiture of the twenty pound per month incuried for his Recusancy And the profits of those two parts should not have been accounted to go to the payment of any part of the said debt or forfeiture for the Statute 29 Eliz. 6. § 4. N. 3. Inflicted this forfeiture upon him meerly as a further penalty for his neglect of payment of the twenty pounds per month as was resolved by the two Chief Justices and Chief Baron Trin. 43 Eliz. in Gages Case 3 Cro. 845.846 and by all the Judges 3 Jac. at Russel house Jones 24 Standen versus Vniversity of Oxford and Whitton but now the law is altered in this point by 1 Jac. 4. § 5. N. 1. Infra 153. Page 105 106. A Recusant is Indicted and convicted and then failes of payment of the twenty pound per month C. Chattels yet his goods are not forfeit to the King by 29 Eliz. 6. § 4. N. 3. before seisure for the King hath his Election whither he will seize them or no by Coke Chief Justice B. R. 12 Jac. Cullom versus Sherman 1 Rol. 7. pl. 8. 2. A Recusant lends mony and for security hath a rent charge granted him in fee by deed indented with condition of Redemption and takes likewise a Recognizance for performance of Covenants in the said Indenture the Recognizance is forfeited and afterwards he is Indicted and convicted of Recusancy and failes of payment of the twenty pound per month in this Case the King shall have the recognizance by force of 29 Eliz. 6. § 4. N. 3. for when forfeited to the Recusant it is but a Chattel personal and shall pass to the King by this word Goods for in an act of Parliament where the offendors goods are given to the King all debts and personal Chattels and actions are thereby given him as well as goods in possession and here in 29 Eliz. 6. § 4. N. 3. as take and seize referre to two parts of the Recusants Lands and Tenements so enjoy referrs to goods and the King shall enjoy the debt due by the Recognizance Nor doth it alter the Case for that the Recognizance was acknowledged for performance of Covenants in an Indenture concerning a rent charge in fee which seems to savor of the realty for it was originally for the loan and forbearance of mony which is personal 12 Co. 1.2 Ford and Sheldon 3. If a man who is a Recusant take such a Recognizance in the name of another the King upon his Conviction shall have the Recognizance for when the Recusant was such at the time of the Recognizance taking it shall be intended that it was done by Covin and that he took it in the name of another with an intent to prevent the King of levying of the forfeiture And such Covin shall not Bar the King 12 Co. 2.3 4. If a Recognizance or obligation be forfeited to the King by force of 29 Eliz. 6. § 4. N. 3. he may grant it over as he may any other Chattel in Action under his private Seal 1 Rol. 7. pl. 8. Cullom versus Sherman Page 106. A Rent of Inheritance CI. Forfeiture and an Advowson in gross are comprehended under this word Hereditaments 29 Eliz. 6. § 4. N. 3. but whither the King may seize such an Advowson as part of his two parts and present by vertue thereof since 3 Jac. 5. § N. which gives the presentation to the Universities see Infra Page 106 107. CII Copy-hold It hath been much disputed whither Copyhold Lands are within this branch of the Statute 29 Eliz. 6. § 4. N. 3. of all other the Lands Tenements and Hereditaments lyable to such seizure or to the penalties aforesaid For regularly in Acts of Parliment which are enacted for forfeiture of Lands Tenements and Hereditaments Copyholds shall not be forfeited but only Lands Tenements and Hereditaments which are such as the C. Law and not those which are such by custome only as Copyholds are And it was agreed in Heydons Case 3 Co. 8 Savil 66 pl. 138. that where an Act of Parliament alters the service or tenure or other thing in prejudice of the Lord there general words in the act of Parliament shall not extend to Copyholds And if the King should seize them by force of the general words 29 Eliz. 6. § 4. N. 3. Lands Tenements and Hereditaments the Lord would during the time they are in the Kings hands lose his Seigniory customes and services But yet it was held by Manwood Chief Baron and Baron Clerk 1 Leonard 97. pl. 126. in the Case of Sulherd and Everet Mich. 30. Eliz. that Copyholders are within 29 Eliz. 6. § 4. N. 3. and altho Manwood seemed to grant that they are not within it directly by express words yet they both conceived they were within the intent of the Act by reason as Manwood said of these words all other the Lands c. liable to such seizure or to the penalties aforesaid 2. But it was granted on all hands that by these general words here 29 Eliz. 6. § 4 N. 3. the King hath not any estate given him in the Recusants Copyhold Lands but only a right and title to two thirds of the profits By the Kings receiving of which the Lord cannot be impeached of his customes and services as he would be if the King should seize the land it self And a difference was there taken 1 Leonard 98. pl. 126. between an Act of Parliament which transsers an Estate to the King and an Act of Parliament which gives him only the profits of the Estate for in the first Case the Rule 3 Co. 8. that Copy-hold Lands shall not pass by general words shall stand good for the prejudice that may otherwise accrew to the Lord But where the Lords Seigniory Custome and services are not to be impeached or taken away as here they will not by the Kings bare
the arrears CLII. Seizure Page 150. 151. Where any seizure shall be had 1 Jac. 4 § 5. N. 1. That is a seizure upon either a Judgment against the Recusant by Indictment on 23 Eliz. 1. § 5. N. 1. or an Indictment and Conviction by Proclamation and default of appearance according to 29 Eliz. 6. § 5 N. 5. for the seizure of two parts of the Recusants lands was given the King by 29 Eliz. 6. § 4. N. 3. upon default of payment of the twenty pound per month in either of those Cases Page 151. Go towards the satisfaction and payment of the twenty pound 1 Jac. 4. § 5 N. 1. CLIII Hereby a Principal Branch of 29 Eliz. 6. is altered for whereas by 29 Eliz 6. § 4. N. 3. supra 99. The Queen might for non-payment of the Forfeiture have seized two parts of a Convicted Recusants Lands Nomine poenae and as a gage or penalties until the 20 l. per month had been paid and yet the profits should not have gone towards the satisfaction of the said 20 l. per month 1 Jac. 4. § 5. N. 1. was made for ease and benefit of the Recusant in that point so that now if two parts of his Lands be seized for default of payment of the forfeiture the profits received to the Kings use shall go towards satisfaction thereof and when the forfeiture is paid out of the profits the Recusant shall have his Land again unless in such Case where the King by 3 Jac. 4. § 11. N. 4. make his Election and seizeth two parts in lieu of the twenty pound per month And therefore the Resolution or Judgment said to be 1 or 2 Jac. Grayes Case cited in Beckets Case Lane 93. and by Bridgman 16 Jac. in his argument of Parker and Webbs Case 2 Rol. 25. and applied thereunto viz. that if a Recusant Convicted failes of payment of the 20 l. per month the King shall have his Lands as a gage or penalty and the profits shall not go in satisfaction thereof However it were true as the Law stood upon 29 Eliz. 6. § 4. N. 3. and before the making of 1 Jac. 4. § 5. N. 1. yet 't is not Law at this day nor could be applicable to either of chose Cases Lane 93. of Becket or 2 Rol. 25. of Parker which came to be debated long after this Act was made and the Law altered in that point Page 151. CLIV. Where any such seizure shall be had c. 1 Jac. 4. § 5. N. 3. this relative such takes in both the Seizures before mentioned viz. A Seizure upon Indictment and Judgment thereupon by 23 Eliz. 1. § 5. N. 1. and a Seizure upon Conviction on Proclamation and default according to 29 Eliz. 6. § 4. N. 3. and as in both these Cases the Recusant who failes of the payment of the 20 l. per month shall have the benefit to discount the profits received by the King so the King shall in the like Cases of Seizure retain the two parts in his hands after the Recusants death until the residue of the debt or duty due and payable to the King be satisfied CLV Dayes Page 152 153. Two parts of the Lands c. Of any such Recusant This Clause 1 Jac. 4. § 5. N. 3. extends not to Intailed Lands unless where there is a Judgment for the King against the Ancestor for his Recusancy And therefore if the Recusant Convicted upon Proclamation and default be Tenant in Tail and two parts of his Lands be seized in his life time for non-payment of the 20 l. per month and he die the Arrears not being satisfied to the King yet the Heir in Tail shall have the Land out of the Kings hands without payment of the Arrears For that such Conviction is in nature of a Verdict only and not of a Judgement as was hold in 1 Rol. 94. Dr. Fosters Case 2. And where a Statute gives to the King a seizure or forfeiture of Lands it shall not be intended of Lands in Tail unless it be expresly so appointed by the Statute or by force of some other Statute Cooperating therewith In which Case the Intailed Lands may be changed by general words in the Statute which gives the forfeiture or seizure an instance whereof we have in the Case of a Recusant Tenant in Tail Indicted Convicted and Adjudged upon 23 Eliz. 1. § 5. N. 1. for his intailed Lands shall remain after his death in the Kings possession until the Arrears be satisfied and that by force of 29 Eliz. 6. § 4. N. 3. and this Statute 1 Jac. 4. § 5. N. 3. Cooperating with the Statute 33 H. 8.39 § 66. 26. N. 1. which chargeth the Lands of the Heir in Tail with debts due to the King upon a Judgment had against the Ancestor But otherwise 't is in the Case of a Praemunire upon 16 Rich. 2.5 § 2. N. 6. which saith the Lands and Tenements of the offendor shall be forfeit to the King for there his entailed Lands shall be forfeit during his life only And the reason is for that general words in an Act of Parliament unless aided by some other Act of Parliament shall never take away the force of 13 Ed. 1. Cap. 1. § N. de donis Conditionalibus 1 Inst 130.391 and 11 Co. 63. Godbolt 308. pl. Sheffield and Ratelifs Case And therefore in 26 H. 8.13 § N and 5 and 6 Ed. 6.11 § N. which makes Intailed Lands forfeitable for Treason the word Inheritance was added any Estate of Inheritance which expresly denotes Lands in Fee Tail as well as Fee simple Now there being neither in this Act 1 Jac. 4. § 5. N. 3. or that of 29 Eliz. 6. § 4. N. 3. any express appointment that the two parts of all Lands seized in the Recusants life time wherein he had any Estate of Inheritance shall after his death continue in the Kings possession nor no other Statute which chargeth the Heir in Tail with the forfeiture due to the King upon Conviction by Proclamation and default the general words here 1 Jac. 4. § 5. N. 3. that his Lands Tenements c. shall continue in the Kings possession shall not inforce a construction in prejudice of the Heir in Tail who claimes by 13 Ed. 1.1 de donis conditionalibus 3. But where there is no Judgment the Recusants Fee simple Lands shall after his death satisfie the intent of these Statutes and so was the Law in reference to entailed Lands upon 29 Eliz. 6. § 6. N. 1. which speaks of the full satisfaction of Arrears in Case of the death of the Recusant And the Arrearages were to be paid by the Heir in Tail only in such Case where there was a Judgment obtained by the King against the Ancestor for his Recusancy but not where the Ancestor Tenant in Tail was Convicted only upon Proclamation and default for here in this last Case the Heir in Tail was not bound by the Statute
pleasure 1 Inst 129 130. Rast Entr. 466. Tit. Judgment 3. Inst 218. 2. But his intalled Lands he shall forfeit only during his life for this forfeiture must be understood of such an Estate as he may lawfully forfeit and the general words of the Statute of Praemunire 16 Rich. 2. § 2. N. 7. scil Lands and Tenements shall not take away the force of the Statute de donis conditionalibus 13 Ed. 1. W. 2. cap. 1. § N. 1 Inst 130 131. Godbolt 308. pl. Lord Sheffeild and Ratcliffe 11 Cook 63. 3. And the person Attainted in a Praemunire is disabled to be a witness in any Cause 1 Inst 6. or to sue for Attainder in a Praemunire is a good Plea in disability of the Plaintiff according to Littleton 41. 4. By the Statute of 25 Ed. 3. St. 5. cap. 22. § 1. N. 2. which saith that a man attainted in a Praemunire shall be out of the Kings Protection and 25 Ed. 3. St. 5. § 1. N. 3. It may be done with him as with the Kings Enemy It seemeth that any man might have lawfully slain such a person as was held 24 H. 8. Coron Br. 196 2 Bulstrode 299. Sir Anthony Mildmayes Case and this Sir Edw. Cook 7 Cook 14 in Calvine's Case and 12 Cook 38. seemeth to allow for Law before this Statute of 5 Eliz. 1. § 21. N. 1. and positively affirms it to have been the Law in 1 Inst 130. and yet in the same Case of Calvin 7 Co. he saith that 25 Ed. 3. St. 5. cap. 22. § 1. N. 2. is intended only a legal Protection according to Littleton 41 and so likewise he expounds it in 3 3 Inst 126. But yet that the Party attainted was still under that Protection which the Law of Nature giveth to the King which he explains to be such a Protection as a Person attainted of Felony or Treason is under notwithstanding his Attainder so that if any man had kill'd him without warrant he should have been punished by Law as a man slayer and this sort of Protection by the Law of Nature saith he is indelibilis immutabilis which the person could not take away but yet under favour if a man attainted in a Praemunire were before 5 Eliz. 1. § 21. N. 1. under that indelible and immutable protection of the King given by the Law of nature then the opinion Coron Brook 196. and allowed by himself was not Law but if that opinion Coron Brook 196. were Law and any man might before 5 Eliz. 1. § 21. N. 1. have killed a man attainted in a Praemunire and that by force of 25 Ed. 3. Sta. 5. cap. 22. § 1. N. 3. It followeth that the Protection which the Law of Nature giveth is not Indelebilis or Immutabilis but that an Act of Parliament might in a particular Case take it away but there is now no further need of this question in the Case of a Praemunire for if this protection by the Law of Nature were taken away by 25 Ed. 3. Stat. 5. cap. 22. § 1. N. 3. It is now restored by this Statute 5 Eliz. 1. § 21. N. 1. And no man can lawfully slay a person attainted in a Praemunire no more than he can without Warrant a man attainted of Felony or of Treason 13 Eliz. 2. Of BVLLS PAge 50. LI. Upon 13 Eliz 2. § 2. N. 1. a man absolves or reconciles or is absolved or reconciled to the Pope or See of Rome without any Bull writing or Instrument to that purpose This Case seemeth not to be within the meaning of this Statute for there must be some Bull Writing or Instrument to Authorize such Absolution or Reconciliation or the person who gives or receives it is not punishable by this act altho he may be by 23 Eliz. 1. § 2. N. 1. and 3 Jac. 4. § 22. N. 1. LII Accessary Page 51. Note all concealers of this offence are not within the danger of this Law 13 Eliz. 2. § 5. N. 1. as Wingate Crown 35. misrecites and therefore if a man be present at such offer motion or perswasion and conceal it he shall not incur Misprision of Treason unless he be the party to whom any such Bull c. or Absolution c. was ofered LIII Ouster le mere Page 52. Upon 13 Eliz. 2. § 7. N. 1. A man brings into the Kings Dominions such Agnus Dei or other like superstitious things and another offers and delivers them It seemeth that neither he that brings them in nor he that offers or delivers them is within this Act or lyable to the penalty for 13 Eliz. 2. § 7. N. 2. By the express words it must be the same person So that neither the bringer in unless he offer and deliver them or Cause them to be delivered nor he who delivers them or offereth them to be delivered unless he be the person who brought them in is an offender within this Act. LIV. Alien Page 52. Vpon 13 Eliz. 2. § 7. N. 2. The offer or delivery of such Agnus Dei or other superstitious things to any sort of person is not an offence within this act as Wingate Crown 37. supposeth it to be but to make it an offence it must be delivered or offered to a subject of this Realm or of the Dominions of the same LV. Intendment Page 52.53 Upon 13 Eliz. 2. § 7. N. 3. The intent is material in this Case and therefore if a man be indicted upon the Statute for bringing in and offering or delivering such Agnus Dei c. or receiving the same the intent must be mentioned in the Indictment as it must be in Indictments upon all Statutes where the intent as here is made part of the offence so in an Indictment upon 5 6 Ed 6.4 § 3. N. 1. It is not enough to say the party drew his Dagger in the Church against I. S. but it must be averred that he did it with an intent to strike him as was resolved by the Court of B. R. 33 Eliz. in Penhalls Case 4 Leonard 49. pl. 127. It seemeth by the words of 13 Eliz. 2. § 7. N. 3. That to make the Receiver of such superstitious things an offendor within it there must be a Concurrence of intentions for the using or wearing them both in the giver and receiver and that therefore if a person coming from beyond the Seas brings into this Realm any such superstitious things but with no intent they should be worn or used and gives them to his friend at his request who receives them with an intent to wear or use them this is penal to neither Not to the giver for he had no superstitious intent and the intent is material nor to the receiver for that the offering or delivering them to be worn or used is expresly made in the Statute 13 Eliz. 2. § 7. N. 2. a condition precedent to the obliquity of the fact in receiving them for the Statute 13 Eliz. 2. §
that the Indictment was good enough notwithstanding it is not said of what Parish the Recusant was for the whole penalty of twenty pound per month is at first 23 Eliz. 1. § 5. N. 1. given to the Queen and the Inhabitants of the Parish where the offence was are by 23 Eliz. 1. § 11. N. 1. to sue in the Exchequer for their third part and surmile in their Bill that the offence was in their Parish and if it were so it shall be delivered to them as the Act directs LXXVIII Exchequer Page 71. Upon 23 Eliz. 1. § 11. N. 1. the principal Officers of the Court of Exchequer are the Treasurer and Barons but the principal Officers of the receit of the Exchequer are the Treasurer and Chamberlains Savile 38. pl. 87. LXXXIX Information Page 71. c. 82. on 23 Eliz. 1. § 11. N. 1. upon a penal Statute where part of the forfeiture is given to the King and part to him that will sue the Informer or Plantiff qui tam c. sequitur tam pro Domino Rege quam pro seipso and so it must be said in the Information or declaration and not only there but in the Joyning of Issue and the Venire facias it must be entred qui tam pro Domino Rege c. or the omission of it is Error 1 Cro. 336. pl. Mich. 9. Car. 1. 2. In an Information upon 23 Eliz. 1. § 11. N. 1. the usual way is that the Informer for himself petit inde tertiam partem juxta formam Statut ' 11 Co. 56. Dr. Fosters Case but then the Statute must be named for in an Information 2 Cro. 142. Mich. 4. Jac. by Broughton Qui tam c. against Moâ—re for the forbearing to come to Church Contra formam Statuti without naming which Statute in which Case the Informer demanded the third part for himself it was adjudged by the Court of B. R. to be ill for there are several Statutes against Recusancy and it did not appear which of them was meant 3. But if this Statute of 23 Eliz. 1. § 11. N. 1. be named in Certain and the party who sueth demands the whole forfeiture for the King and himself and Judgment be given that the King shall recover one moity and the Informer or Plantiff Qui tam c. the other moity in that Case the Judgment is well enough for the Information or declaration being Quod actio accrevit Domino Regi praefat A. ad habend ' exigend ' the full forfeiture the Judgment doth not vary there from when it saith that a moiety shall be to the King and a moiety to the Plantiff or Informer and altho the Statute 23 Eliz. 1. § 11. N. saith that he which will sue shall have but a third part yet thâ—t is by way of distribution only and such distribution if the penalty is an act subsequent to the Judgment and is to be made as well out of the moity given by the Judgment to the Informer or Plantiff Qui tam c. as out of the mony thereby given to the King and this I conceive to be the reason of the resolution in Chambers Case 2 Roll. 437. pl. where such a Judgment in Case of Recusancy upon this Statute was allowed to be good But if the whole forfeiture be not demanded in certain there altho the party who sues demands his own share 't is ill and so it was adjudged in an Information upon a poenal Statute 5 Eliz. 5. § 16. N. 1. which concluded Vnde petit advisamentum Curiae quod forisfaciat 5 l. pro qualibet offensunde ipse petit medietatem For the Informer doth not make his demand certain but leaves it to the Court or Jury to cast up the sum it Amounts to Hobart 245. Pie and Westly 4. If there be several Statutes Information and each of them prohibit one and the same thing and Inflict a penalty and give an Information for recovery of it the Information may conclude contra formam Statuti and good because the best shall be taken for the King 5 H. 7.17 So if one Statute make the offence and another Inflicts the penalty or forfeiture and the Information be for the offence only it may conclude contra formam Statuti which is to be understood of that Statute which makes the offence But if the Information both lay down the offence and demand the penalty there both Statutes must be recited or at least the Information must conclude contra formam Statutorum Owen 135. Wests Case supra 72. § 6. 5. In the late additions to Dalt 547. cap. 191. § 6. N. 3. it s said that Informations and saiâ—s on penal Statutes are stricti juris and excepted out of all the Statutes of Jeofailes which is a mistake for they are not excepted out of 32 H. 8.30 It s true they are out of 18 Eliz. 14. § N. and 21 Jac. 13. § N. and that as it seemeth in all Cases within those two Statutes see Styles 307. Theoballs against Newton And in the Case of Scot and Lawes Hob. 328. It seems to be intimated that they are excluded out of all three Where the Case was debt by an Informer Qui tam c. upon a penal Statute 21 H. 8.13 § 2. N. 4. the defendent pleads non debet praefato J. meaning the Informer and not the King and the Issue was found against the defendent in that Case it was resolved that this was a good Cause to stay Judgment and there it s said that it being upon a penal Statute the Statute of Jeofailes 32 H. 8.30 would not help it but that reason was Ex abundanti for 32 H. 8 30. seems to extend to all popular suits whatsover and in Wallers Case Dyer 346.347 in an Information brought against him 18 Eliz. by Topcliffe Qui tam c. upon 37 H. 8.9 of Usury it was adjudged that the mis-conveying of Process and mis-joyning of Issue in the said Information Dayes were aided by 32 H. 8.30 6. By 31 Eliz. 5. § 5. N. 2. an Informer Qui tam c. must begin his suit within one year after the offence committed otherwise he shall not have any part of the penalty 2 Co. 366. Hill 12 Jac. Godbolt 158. pl. 216. Sivedale versus Sir Edward Lenthal But popular suits upon the Statute 39 Eliz. 2. § N. of Tillage are excepted and not upon the Statute of Tallage as is mistaken in the the late additions to Dalt 546. cap. 191. § 3. In Dr. Fosters Case 11 Co. 65. it s said that the Informer hath no Remedy for recovery of the forfeitures for Recusancy after the year and day is expired for that time is limited in certain by 23 Eliz. 1. § 8. N. 1. but yet with submission it seems that 23 Eliz. 1. § 8. N. 1. relates to Indictments only and so it was held in this very Case of Dr. Foster 11 Co. 60. and 1 Rol. 93.
3. is restrained in this Case to three years after the offence committed within which time he must persue the remedy here given him by 35 Eliz. 1. § 10. N. 2. for the recovery of the forfeiture But it seems that he is not restrained to two years for 31 Eliz. 5. § 5. N. 3. where the forfeiture is limited to the King and him that will sue there the Informer hath one year and the King the next two years if the Informer doth not sue within the first year of the three and the restraint 31 Eliz. 5. § 5. N. 1. of the King to the two next years after the offence committed extends not to this Case For altho the King is enabled by 35 Eliz. 1.10 N. 2. to sue for the intire forfeiture yet the intire forfeiture was not originally limited to the King only for the Informer may sue upon 23 Eliz. 1. § 11. N. 1. as well as the King may upon this Act 35 Eliz. 1. § 10. N. 2. and where the Informer may sue it was not the meaning of 31 Eliz. 5. § 5. N. 1. to limit the King to two years after the offence commited but he may stay if he please till the Informers years is expired and then 31 Eliz. 5. § 5. N. 3. gives him two years afterwards to sue for the penalty 2. Much less is the King limited to sue upon 35 Eliz. 1. § 10. N. 2. within a year and a day and what is said in Dr. Fosters Case 11 Co. 65. viz. that for any forfeiture before the year and day neither the King nor the Informer hath any remedy for that that time is limited in certain by 23 Eliz. 1. § 8. N. 1. is a clear mistake of the meaning of that Statute for the limitation there of a year and a day extends only to the Kings suit by Indictment and not to the popular suit given by 23 Eliz. 1. § 11. N. 1. much less to the Action of debt c. given to the King by this Statute 35 Eliz. 1. § 10. N. 2. suprà 79. N. 6. CXVII Process Page 122. If the King sue by any of these ways of debt bill plaint or Information 35 Eliz. 1. § 10. N. 2. no Proclamation can be made thereupon for the Proclamation given by 29 Eliz. 6. § 5. N. 5. and 3 Jac. 4. § 7. N. 2. in case of Recusancy at the Kings suit is upon Indictment only 11 Co. 62. Dr. Fosters Case CXVIII Courts Page 122. This Statute 35 Eliz. 1. § 10. N. 2. adds to other Courts where the King may sue for Recusancy or for saying or hearing of Mass for by 29 Eliz. 6. § 2. N. 2. the Queen was limited to the Kings bench the Assizes or general Goal-delivery and that only by way of Indictment but 10. v by 35 Eliz. 1. § 10. N. 2. she might sue not only in those Courts by Indictment but in B. R. C. B. or Exchequer by Action of debt Bil plaint or Information 11 Co. 61. Dr. Fosters Case But whereas t is there said that 35 Eliz. 1. § 10. N. 2. takes not off the restriction of the Informer Qui tam c. by 29 Eliz. 6. § 2. N. 2. to the Courts there mentioned this passage was occasioned by an opinion there held 11 Co. 6◠in the said Dr. Fosters Case that the Informer Qui tam c. was restrained by 29 Eliz. 6. § 2. N. 2. to those Courts but the opinion is not Law nor was there ever any such restriction of the Informer for 29 Eliz. 6. § 2. N. 2. intends only suits by Indictment but toucheth not the popular Action or Information supra 95. CXIX Bar. Feme Page 122 123 As c. any other debt c. should or may be recovered 35 Eliz. 1. § 10. N. 2. before this Statute the Queen had no way to recover of the Husband the intire forfeiture for the Recusancy of his Wife Infra 270. For if the Wife had been Indicted of Recusancy at the Queens suit and Convicted thereupon this had not affected the Husband who shall never be charged for the act or default of his Wife but where he may be made party to the Action or suit as in an Action of debt Trespas Action upon the Case for words by the Wife c. but not upon an Indictment 2. And in this respect the Queen having before this Statute 35 Eliz. 1. § 10. N. 2. no remedy for recovery of the forfeiture but by Indictment where the Husband could not be charged for his Wife the Informer was then in better Case than the Queen for he may charge the Husband and Wife both for the Recusancy of the Wife and shall recover the forfeiture of him by 23 Eliz. 1. § 11. N. 1. supra 79. N. 10. But upon the Conviction of the Wife upon Indictment the Queen must have staid till the death of the Husband before she could have Levied the Forfeiture and if the Wife had died before her Husband it was utterly lost in most Cases But by 35 Eliz. 1. § 10. N. 2. the Queen might and the King may at this day charge the Husband and wife joyntly by action of debt bill plaint or Information for the Recusancy of the Wife in such sort as he may be charged in any other action at Common-Law for the debt or Trespass of his Wife and the forfeiture for her Recusancy shall be recovered of him And this was the Principal end and scope of making this branch of the Statute and to this purpose were these words added 35 Eliz. 1. § 10. N. 2. in such sort and in all respects as by the ordinary course of the Common Laws of this Realm any other debt due by any such person in any other Case should or may be recovered 11 Co. 61.62 Dr. Fosters Case and 1 Rol. 233.234 Roy versus Law Vxor Savil 25. pl. 59. Page 123. CXX The Statute here 35 Eliz. 1. § 11. N. 1. mentioned and called 28 Eliz. 6. is the same with 29 Eliz. 6. before It being in some Books called 28 Eliz. in others 29 Eliz but as it seems more properly 29 Eliz 6. for the Session wherein it was made was by Prorogation held 15 Feb. 29 Eliz. 1 Anders 294. pl. 303. and 4 Inst 7. Page 123. CXXI Here 35 Eliz 1. § 12. N. 1. Wingate Crown 77. mentions only a Feme Covert leaving out the Popish Recusant Page 124. CXXII The late Additions to Dalton Cap. 81. Sect. 7. 'T is said that no married Woman is punishable by this Statute 35 Elizabeth but are thereout excepted whereas in truth they are no where excepted throughout this Statute save only that they shall not be compelled or bound to abjure 35 Eliz. 1. § 12. N. 1. For if a married Woman comes not to Church but forbears for a month and goes to Conventicles or any other Meetings or Assemblies under colour or pretence of the Exercise of Religion
contrary to Law Whether they be Popish or other or perswades others so to do or to forbear the Church or to impugne the Kings authority in Causes Ecclesiastical she shall be imprisoned by force of this Act 35 Eliz. 1. § 1. N. 5. until she conform and submits her self but she cannot be further proceeded against so as to require her to abjure A married Woman by this Act 35 Eliz. 1. § 10. N. 2. with her husband is likewise punishable for her Recusancy by action of of Debt c. brought against her and her Husband at the Kings Suit so that 't is a great mistake to say she is not punishable by this Statute CXXIII Exile Page 124 125. Upon 35 Eliz. 1. § 13. N. 1. Every abjuration as well as that for Felony is an Exile or Banishment and if perpetual and by authority of Parliament amounts to a Civil death and therefore the Wife of a man banished or abjured for ever might sue or be sued without her Husband as was ruled in the Case of the Lady Maltravers 10 Edw. 3. and of the Lady Belknap 1 H. 4.1 and 2 H. 4.7 2. And if a man be perpetually banished by Authority of Parliament unless it be for Felony or by force of this Act 35 Eliz. 1. § 13. N. 3. his Wife shall be endowed living the Husband 3. And if he had been perpetually banished or abjured for felony the Wife should have had her joynture presently altho not her dower as was resolved 19 Edw. 1. in Weylands Case and the reason is because tho the Husband be naturally living yet he is civilly and in the eye of the Law as a dead man 4. But yet these Cases are to be understood of a Banishment or abjuration for ever and not of a Relegation or Exile for a time for in such Case neither could the Wife sue or be sued without her Husband nor could she have her Dower or Joynture during the natural life of her Husband 1 Inst 132. 2 Inst 47. and 3 Bulst 188. Wilmotes Case 1 Rol. 400. pl. 27. Moor 851. pl. 1159. 5. But if a Man be abjured by force of this Act the Wife shall not have her Dower or Joynture during the natural life of her Husband altho he be abjured for ever but she is in a worse Case than the Wife of a person perpetually banisht was at the Common Law For this Act 35 Eliz. 1. § 13. N. 2. by express words gives his Lands Tenements and Hereditaments to the Queen during his life which is to be understood of his natural life and the saving here of the Wives Dower 35 Eliz. 1. § 13. N. 3. is not intended of the Dower which she might claim at Common Law presently upon the abjuration of her Husband nor shall make void the former words of the Act by which all his Lands are given to the Queen during his natural Life but his only the usual provision made in Acts of of Parliament which create any new felony for the saving of the Dower of the Wife after the death of the Husband so that the meaning of this branch 35 Eliz. 1. § 13. N. 3. is that if the Husband refuse to abjure or abjure and refuse to depart according to this Act or return without license yet the Wife shall be indowed and the Heir inherit his lands after he is naturally dead CXXIV Days Page 125 126. Note that this Act 35 Eliz. 1. § 13. N. 4. being at first but temporary was afterwards discontinued Hutt 61 62. But is since renewed by 3 Car. 1.4 5 § 21. N. 1. and declared to be in Esse 16 Car. 2.4 § 1. N. 1. and is in full force at this day 2. And in such Case it hath been questioned if a Statute be discontinued and afterwards revived Parliament how an Indictment thereupon shall conclude whither contra formam Statuti or Statutorum For if a Statute be temporary and afterwards continued for a longer time or made perpetual and never discontinued there without doubt it shall be contra formam Statuti But it hath been held by some that where it was once discontinued and then revived there it is as if there were two several and distinct Statutes and the Indictment shall conclude contra formam Statutorum 9 Eliz. Palmers Case But others have held the contrary and that there is not any difference in the Case of a Statute at first temporary and afterwards before any discontinuance continued for a longer time or made perpetual and a Statute discontinued and then revived but that it shall in both Cases be held but as one Statute and that the conclusion shall be contrà formam Statuti and not Statutorum unless where the Act of reviver makes any addition to the former Act or increaseth the penalty or forfeiture for then there is no doubt but they are two distinct Acts of Parliament and according to this latter opinion hath the practice been in Informations upon 5 Eliz. 9. of perjury which determined 14 Eliz. and was revived 29 Eliz. 5. § 2. N. 3. and yet all Informations thereupon conclude contra formam Statuti And so as it seems ought all Indictments upon this Statute of 35 Eliz. 1. § 13. N. 4. notwithstanding its discontinuance and reviver Owen 135. Wests Case 35 Eliz. 2. Of CONFINEMENT CXXV Alien PAge 128 129. Born within any her Majesties Realms or Dominions or made denizen 35 Eliz. 2. § 2. N. 1. So that all Popish Recusants are not within this branch as Wingate Crown 78. mistakes for it extends not to an Alien who is born out of the Kings Legelance unless he be made Denizen In the late Additions to Dalt cap. 81. Sect. 14. this Clause 35 Eliz. 2. § 2. N. 1. is restrained to such as are born in England but it is clear that is extends to all the Kings Natural Subjects if they live in England altho they were born in Ireland or any other of the late Queens dominions besides England By Denizen is here to be understood an Alien who owes to the King an acquired Subjection or Allegiance whether he be made Denizen by the Kings Letters Patents or be Naturalized by Act of Parliament for Naturalization includes all the priviledges of a Denizen and something more and every one who is naturalized is thereby made a Denizen altho he that is made a Denizen by the Kings Letters Patents is not thereby Naturalized CXXVI Recusant Page 129 130. Which being then a Popish Recusant this 3.5 Eliz. 1. § 3. N. 1. is the first Penal Statute which was made against Popish Recusants by that name and as distinguished from other Recusants In the late additions to Dalt cap. 81. Sect. 7. It s said that the matter of Recusancy stands in two particulars First absenting from the Church Secondly refusing the Oaths prescribed 1 Eliz. 1. § 19. N. 4. and 3 Jac. 4. § 15. N. 1. but this description of Recusancy is either too
non patrem patriae 7 Co. 9. Calvins Case Page 139. The Offender is 35 Eliz. 2. § 8. N. 1. Strictly tied to depart from the same Haven assigned him CXXXVI and within the time appointed him by the Justices of the Peace or Coroner so that if he depart the Realm from any other Haven or Port or over-stay his time and depart afterwards yet he is a Felon within this Act. CXXXVII Ireland Page 139 140. Or returns or come again into any her Majesties Realms or Dominions 35 Eliz. 2. § 10. N. 1. An Offender within this act abjures in form aforesaid and departs this Realm and afterwards goeth into Ireland without licence and then returns into England with licence which going into Ireland seems to be Felony by this Act. But Quare how the offence shall be tried not in Ireland for this Statute binds not that Kingdom nor can he taken notice of there nor yet can it be tried in England for that the Offence was done elsewhere so that this is Casus omissus and cannot be punisht for that no way of trial is appointed Crompt 53.54 Page 140. CXXXVIII Suspected 35 Eliz. 2. § 11. N. 1. Altho the party be no Jesuit Seminary or Massing Priest yet if there be cause to suspect him and he refuse to answer whether he be so or no such suspition and refusal is ground enough for his Commitment Page 140. 141. Having lawful Authority in that behalf 35. Eliz. 2. § 11. N. 1. This Clause seems to refer to 27. Eliz. 2. § 13. N. 1. Which appoints that the discovery of a Popish CXXXIX Priest or Jesuit shall be made to some Justice of Peace or higher Officer who is to give Information thereof to some of the Privy Council c. under the penalty of two hundred Marks Which Statute of 27 Eliz. 2. § 13. N. 1. tho it do not in express terms say that the Justices of Peace or other higher Officer shall examine the Priest or Jesuit so discovered yet in as much as it gives power to take Cognizance of the matter it seems Implicitely to impower him to inform himself of the truth whether the party be a Priest or Jesuit or not as well by examination of the party as otherwise that he may be the better enabled to give Information thereof to some of the Privy Council c. and one Justice of Peace having by 27 Eliz. 2. § 13. N. 1. lawful Authority to examine him he hath authority likewise by this Statute 35 Eliz. 2. § 11. N. 1. to Commit him if he be suspected to be a Priest or Jesuit and refuseth to answer whether he be so or no. As for Master Shepherd's opinion in his sure Guide Cap. 14. § 5. That there must be two Justices to commit a man by force of 35. Eliz. 2. § 12. N. 1. who is suspected to be a Jesuit or Priest CXL till he answers directly I see no ground at all for it Page 141. Answer to the said Questions 35 Eliz. 2. § 11. N. 1. That is whether he be a Jesuit Seminary or Massing Priest for he is not bound to answer to any other Question nor can be Committed by force of this Act for his refusal Page 141 142. CLXI Vrged by Process 35 Eliz. 2. § 13. N. 1. If a Popish Recusant restrained by this act be summoned by Warrant of a Justice of Peace to appear before him the Recusant ought not to travil to such Justice out of his compass of five miles For altho a Justice of Peace's warrant be the Kings Process yet it is not intended here for these words Vrged by Process are restrained by the subsequent words 35 Eliz. 2. § 13. N. 1. as requires the Recusants appearance in some one of the Kings Courts and extend not to all Cases of summons and Process as Wingate Crown 83. mistakes But if in the Case aforesaid the Warrant be to arrest the Recusant and by force thereof he be carried by the Constable c. out of the compass of five miles there he is excused and forfeits nothing for that it was done by Compulsion and yet if there be any Covin between the Recusant and the Justice of Peace or Officer it may be otherwise CXLII Courts Page 142. In any her Majesties Courts 35 Eliz. 2. § 13. N. 1. All Courts wherein the Proceedings are directed by the Kings Laws are the Kings Courts and therefore a Court Leet tho of an Inferior nature and kept in the Lords name yet is the Kings Court 5 Co. 39. Cawdries Case Hetley 18. 2. If a Popish Recusant restrained by this Act be cited into the Ecclesiastical Court he may be force of this Proviso travel out of the compass of five miles to appear there 35 Eliz. 2. § 13. N. 1. For all Ecclesiastical Courts are the Kings Courts and the Laws by which they proceed there are the Kings Laws Page 142 143. This 35 Eliz. 2. § 14. CXLIII N. 1. Extends to all Cases in general where the Popish Recusant ought to render his body to the Sheriff upon Proclamation and is not restrained to a Proclamation upon an Indictment for Recusancy And therefore if a Popish Recusant confined by 35 Eliz. 2. had been proclaimed upon the Statute of Marlebridge 52. H. 3.7 § 1. N. 1. in a Plea de Custodia as a Deforceor he might lawfully have gone out of the compass of five miles the like he may do at this day upon any other Proclamation commanding him to render his body to the Sheriff Page 143. CXLIV Before he or they shall be thereof Convicted 35 Eliz. 2. § 15. N. 1. A Popish Recusant confined by this Act whose Estate is under value is apprehended for offending against this Act 35 Eliz. 2. § 8. N. 1. and before the expiration of three months next after his apprehension is Convicted of such Offence and then before the three months expire conforms and makes such Submission and Declaration as 35 Eliz. 2. § 8. N 3. and § 16. N. 1. is appointed this Case altho he come too late after Conviction to save the forfeiture of his lands and goods yet he shall not be compelled to abjâ—re for the affirmative words here 35 Eliz. 2. § 15. N. 1. That upon such Conformity Submission and Declaration before Conviction he shall be Discharged of all Pains and Forfeitures do not carry in them the force of a Negative viz. that if it be after Conviction he shall not be discharged of any of them and by 35 Eliz. 2. § 8 N. 3. he is not compellable to abjure I at any time within three months next after his apprehension he conforms confesseth and submits as is there appointed CXLV Church Page 143 144. It seems clear that no Submission Confession or Declaration can discharge the Popish Recusant who is an Offender within this Act from any Pain or Forfeiture thereby inflicted unless it be performed in some Parish Church for
for the King and himself before any of those Justices but must sue in one of the Courts of Record at Westminster Page 161. CLXIV Of all and all manner of Popish Accusants 3 Jac. 4. § 4. N. 1. As this Act is penned it seemeth that the Church-wardens and Constables are not bound thereby to present the monthly absence from Church of any of the Children or Servants of a Popish Recusant altho such Children or Servants be Recusants unless they are Popish Recusants and that 't is sufficient to satisfie 3 Jac. 4. § 4. N. 2. to present their names without taking any notice of their absence from Church But if they be Popish Recusants they fall within the general words of the Act and their monthly absence ought to be presented as well as that of their Parents or Masters and in this Wingate Crown 100. hath clearly mistaken for he tells us that the monthly absence of all the Children and Servants of a Popish Recusant ought to be presented Page 162 163. CLXV To enquire hear and determine 3 Jac. 4. § 7. N. 1. This is intended of Indictments only and revives the power of the Justices of Peace given them by 23 Eliz. 1. § 9. N. 2. suprà 72. and taken from them by the negative words of 29 Eliz. 6. § 2. N. 2. suprà 95. N. 2. so that now the Justices of Peace may proceed to Judgment against the Recusant upon 23 Eliz. 1. § 5. N. 1. or convict him upon Proclamation and default and so may the Justices of Assize and Goal-delivery proceed either way For the words of 3 Jac. 4. § 7. N. 2. and of 29 Eliz. 6. § 5. N. 5. which give the Proclamation being in the Affirmative do not take away the proceedings upon 23 Eliz. 1. § 9. N. 2. but that the Justices may waive the Conviction by Proclamation if they please Nor is the Informers popular suit 23 Eliz. 1. § 11. N. 1. taken away by 29 Eliz. 6. § 4. N. 3. or by this Statute 3 Jac. 5. § 7. N. 2. Dr. Fosters Case 11 Co. 61. Page 163. CLXVI Against any person either for not repairing to Church c. 3 Jac. 4. § 7. N. 2. so that this branch of the Statute which gives the Conviction by Proclamation extends to other Recusants besides Popish Recusants and is not restrained to this latter sort but is misrecited in this particular Dalt Cap. 100. tit forfeiture Page 163. CLXVII Shall be rendred to the Sherif c. before the next Assizes c. 3 Jac. 4. § 7. N. 2. in 2 Rol. 108. Bridgman 122 in an action brought against Sir John Web and his Wife for recovery of twenty pound per month for the Recusancy of the Wife the defendants plead that the Feme was before that time Convicted for the same absence upon Indictment at the Kings suit and Proclamation made that she should render her self at the next Assizes and default of appearance thereupon but it was resolved by the Court of B. R. that the plea was ill and that this was not a Conviction according to Law and therefore was in effect as no Conviction for the Proclamation was Erronius in two points 1. In the person to whom 3 Jac. 4. § 7. N. 2. saith it shall be proclaimed that the offendors body shall be rendred to the Sherif c. but this Proclamation was that she should render her self to the Justices of Assize For the rendring of the body to the Sherif is a material point And the intent of the Statute is not persued in this Proclamation for the intent was that Recusants being dangerous Members of the Common-wealth should be in the Custody of the Sherif c. ne nocere valeant 2. In the time when the Proclamation was that she should render her self at the next Assizes but 3 Jac. 4. § 7. N. 2. before the next Assizes And when the Proclamation is ill the Conviction for default of appearance thereupon cannot be good nor shall Bar the King or the Informer of their Action And altho by 3 Jac. 4. § 16. N. 1. That no Proclamation shall be avoided for any defect c. The Recusant perhaps may be estopped to take such exception to the Proclamation yet the King is not Note that Palmer 40 41. hath slated the difference beetwen the Statute and the Proclamation as here and so was the truth of the Case but in reciting Bridgmans Argument he reports it quite contrary viz. that the Proclamation was that the Recusants body should be rendred to the Sheriff and that it ought to have been that it should be rendred to the Justices of Assize but this is a mistake and contrary to the Statute and the truth of the Case Page 164. CLXVIII Or other Keeper of the Goal 3 Jac. 4. § 7. N. 2. a Keeper of a Goal may be by usage or prescription 42. Ass 7. and 1 Inst 114. and if the person Indicted for Recufancy live in a Corporation where the Sheriff hath not to do and he be proclaimed upon this Statute he may render himself to the Keeper of the Goal there CLXIX Appearance Page 164 Shall not make appearance of Record 3 Jac. 4. § 7. N. 3. and if the Recusant do appear of Record at the Assizes Goal-delivery or general or Quarter Sessions it shall be sufficient to save his default altho he did not render himself to the Sheriff upon the Proclamation and this is clear by the words of 3 Jac. 4. § 7. N. 3. which is grosly mistaken Wingate Crown 102. who saith the Recusant shall be Convicted if he render not his body to the Sheriff or Bayliff of the Liberty and that default be recorded 2. This appearance on 3 Jac. 4. § 7. N. 3. must be in proper person and not by Attorny for none can at first appear by Attorny unless enabled by some Statute and all appearances by the defendent in any Court ought by the Common Law to be in person 10 Co. 101. Bewfages Case But after a Plea pleaded to an Indictment an Attorny may be admitted at the discretion of the Court if they think fit but not otherwise and in some Cases not not without a special Writ directed to the Justices to that purpose 16 Ed. 4.5 F. N. B. 26. 3. The party Indicted and proclaimed on 3 Jac. 4. § 7. N. 3. who appears at the Assizes or Sessions must take care that his appearance be entred of Record For if the Clerk of the Assizes or Clerk of the Peace should mistake and instead thereof record his default he hath no way to avoid his standing Convicted But he is put to his Action upon the Case against such Clerk of the Assizes or Peace see Popham 29. Keilway 180. 4. The personal presence at the next Assizes or Sessions of the Party indicted of Recufancy and proclaimed on 3 Jac. 4. § 7. N. 3. altho he continue there from the beginning to the ending is no
278 Eyre vers Woodfine Pasch 34. Eliz. Pellam Justice doubted thereof C. B. and observed that 11 H. 4 65. which saith that the party outlawed shall upon reversal of the outlary have restitution speaks only of Goods seised but not of a term sold before But Anderson Ch. I. and Walmsley held that the termor in this case should have his term again in whosoever hands the land came and upon whatsoever consideration and not the money for which the term was sold for the Outlary being reverst it is as if there were no record of it and the Queens interest was but conditional scilicet if the outlary were good and judgment accordingly Nor is this like the case where a Sheriff upon a fieri facias venditioni exponas sells a term for there if the judgment be reversed the party shall have the money for which the term was sold but not restitution of the term it self as was resolved 26 Eliz. Dyer 362. And the reason is because the Sheriff did no more than he was commanded for he was commanded to sell and therefore the sale shall be good to all intents But in the case of an outlary it is otherwise and there is no such command which difference between a fieri facias capias utlagatum was agreed in Doctor Druryes Ca. 8. Co. 143. A man is seized of an Advowson in gross Presentment the Church becomes void and then the patron is outlawed upon an indictment of recusancy whereupon the King presents the presentee is instituted and inducted and afterwards the outlawry reversed in this case the patron shall be restored to his presentment So if the patron of an advowson in gross hath judgment in a Quare impedit and is afterwards outlawed for recusancy and the King presents and the presentee is instituted and inducted in this case the patron shall have a fi fa. to execute the judgment and shall oust the presentee of the King And the reason in both Cases is because upon reversal of an Outlawry the party shall be restored to all things which are principal and here the presentment was the principal thing forfeited by the Outlary and therefore upon reversal the patron shall be restored to it Moor 269 pl. 421. Savil 89 pl. 166. Bluerleigh vers Cornwall But if the King upon an Outlary seize a Mannor to which an advowson is appendant and the Church becomes void whereupon the King presents and the presentee is inducted there 't is otherwise and the King's presentee shall not be removed upon reversal of the Outlary for the presentment in that Case is but as an accessory that follows the Principal which is the Mannor the profits of which Mannor the King was to have during the Outlawry and consequently the presentment as a profit of the advowson which is a parcel of the Mannor CLXXXVIII Amendment Page 180. 181. Or other defect whatsoever 3 Jac. 4. § 16 N. 1. this is meant of Defects within the Indictment or other proceeedings and not of any Collateral matter which the recusant hath to Discharge himself as a pardon Auterfoyts Convict c. for the recusant is not hereby disabled to plead such Collateral matter but may take advantage thereof 11 Co. 65. Doctor Festers Ca. Nor yet is this 3 Jac. 4. § 16. N 1. meant of all Defects whatsoever within the Indictment or other proceedings for if there be any defect which apparently tends to the Kings prejudice the recusant may take advantage of it and therefore 1 Co. 504.505 in the Case of the Marquis of Winchester who was indicted and convicted of recusancy and had judgment thereupon but Ideo capiatur was omitted the judgment was reverst for that omission which is not alded by 16 and 17 Car. 2.8 § 1. N. 12. CLXXXIX Ouster le mere Page 182. the Service mentioned throughout this Branch 3 Jac. 4. § P 8. N. 2. is intended of Civil or Domestick as wel as Military 3 Inst 80. And altho 3 Jac. 4. § 19. N. 1. speaks there of Gentlemen and Persons of higher degrcco without poynting at any particular sort of service so that to serve or go to serve a forreign Prince c. in any capacity whatsoever without first doing what is here required is felony by 3 Jac. 4. § 18. N. 2. the passing or going out of this Realm to serve a forreign Prince c. without taking the oath or if of that Quality entring into bond is felony by 3 Jac. 4. § 18. N. 2. altho the Party he never received into actual service for the words are in the Disjunctive go or pass to serve or voluntarily serve 3 Iust 80. Page 182. Or shall c. CXC pass over the Seas and there shall voluntarily serve 3 Jac. 4. § 18. N. 2. So if he pass over the Seas upon some other occasion and not with an intent to serve a foreign Prince c. yet if when he is there he voluntarily serve him and did not before his departing hence take the oath and if of that Quality enter into such bond he shall incurr the penalty of the Law and suffer as a felon 3 Inst 81. CXCI. Oblig Page 182 shall become bound by Obligation c. unto Our Soveraign Lord the Kings Majesty 3 Jac. 4. § 18. N. 1. An obligat made to the Kings use is not sufficient nor will satisfy the intent of the act but it must be made to the King himself for the bond must be Domino Regi according to 33 H. 8 39. § 51 1 N. 2. or the Officer who takes it is liable so imprisonment for taking the bond contrary to that statute therefor Wingate Corone 112. lays a snare for the Officer of the Port when he directs him only to take this bond to the Kings use and he might have been informed out of 33 H. 8.39 § 51. 1 N. 2. 24 H. 8.8 § 1. N. 3. of the difference between a bond made to the King and to the King'suse Savil 13. Pl. 33. Page 183. shall be a Felon CXCII 3 Jac. 4. § 18. N. 2. the offender against any part of this Branch of the Statute may have the benefit of his Clergy The Laws CXCIII c. 183 184. which said Customer and Controller 3 Jac. 4. § 21. N. 2. These words notwithstanding the Copulative And are not to be taken Conjunctively as if every bond and oath is to be certified both by the Customer and Controller for if the Customer take the bond and oath the Controller is not to be punisht for not certifying no more is the Customer if the Controller take them for each of them shall forfeit for his own default and not for the default of the other And it can not be reasonably presumed that one of them is privy to the doings of the other And therefore these words must be construed Disjunctively Customer or Controller 3 Jac. 4. § 21. N. 2. that is he of the two
who takes the bond and oath is to certify them into the Court of Exchequer or to forfeit c. for where the literal sense will ingen der an absurdity or impossibility such a construction must be made as will stand with Reason and the intent of the Law-makers and in such Cases a Copulative shall be taken for a Disjunctive or contra Com. 289 363. But if the Deputy of the Customer or Controller take the bond or oath and no Certificate thereof is made the Customer or Controller himself whose Deputy he is shall forfeit for that default altho he had no notice from his Deputy of the taking of the said bond or oath for he is answerable for all the defaults of his Deputy See Dyer 238 239. where it was held that the Customer should forfeit the treble value of the Merchandize upon 3 H. 6 3. § N. for his Deputies concealing of the payment of the Customs so a Sheriff shall answer for all his Officers under him 4 Co. 33. Miltons Ca. Crompt Jurisd 110. And so generally shall all other Officers answer for their Deputies 9 Co. 48.98 Terms de Ley 111.32 H. 34. Forfeiture Br. 27. CXCIV Alien Page 185 186. withdraw any of the Subjects of the King's Majesty c. from their natural obedience 3 Jac. 4. § 22. N. 1. by the King's Subjects to be understood here Natural Subjects only that is such whose Subjection is Natural and absolute Due by Nature and Birth-right and which begins with their Birth and not Aliens altho they are Naturalized or made Denizens much less those who are only local Subjects for none but Natural Subjects can be said to be withdrawn from their natural obedience and as the King of England cannot be said to be a Natural Lord or King to an Alien born so neither can an Alien be said to be his Natural Subject Natural Prince and Natural Suject being correlatives And an Indictment of high Treason against an Alien born who resides here altho it shall be contra ligeantiae suae debitum contra Dominum Regein in respect of his local Ligeance yet naturalem shall be omitted out of the Indictment and so it was 2 3 Ph. Mar. in the Case of Sherley a French man 36 Eliz. in the Cases of Stephano Ferara de Grana and Emmanual Lewis Tmore two Portugals who conspired with Doctor Lopes against Queen Elizabeth And so as it seems it ought to be for the same reason if the Alien were indenized or naturalized for Naturalization it self which is by Act of Parliament and the highest priviledg an Alien is capable of yet cannot create this natural Subjection or Obedience which is not due by any Law or Constitution of Man Naturalization being but a fiction in Law which confers the priviledges of a Natural Subject but cannot make him a Natural Subject who was none before for then he would have two natural Princes one where he was born the other where he was naturalized Vaughan 279.283 Crane and Ramsey 7 Co. 567.25 Calvins Ca. 2 and 3 Ph. and Mar. Dyer 145 Heb 171. Courteens Ca. So that to absolve persuade withdraw or reconcile an Alien born whose Subjection to the King began not with his Birth or for any such to be absolved persuaded withdrawn or reconciled seems not to be Treason within this Act 3 Jac. 4. § 22. N. 1. But this Subjection is not to be understood locally or in respect of the place of a man's birth but in respect of the Prince to whom Subjection is due at the time of his birth and therefore if a Scot or Irish-man be absolved or reconciled in England altho the Offence be committed in another Kingdom than where his Subjection began yet being born a Subject to the King of England it's Treason in the absolver or person reconciling and in him that is absolved or reconciled nor is it necessary in all Cases that the Party be born in the King's Dominions but that he may be a natural Subject notwithstanding and consequently within this Act 3 Jac. 4. § 22. N. 1. as in the Case of an Ambassador 7 Co. 18. Calvins Ca. CXCV. Page 186 187. which shall hereafter be reconciled 3 Jac. 4. § 24. N. 1. in the late Additions to Dalt Cap. 140 Sect. 12. is intimated that this Clause extends to no Cases of Treason or Misprision of Treason for there in reciting 3 Jac. 4. § 24. N. 1. the Cases of Treason and misprision of Treason are excepted which is a great mistake for the Submission here spoken of 3 Jac. 4. § 24. N. 1. is only in the Case of a declared Treason seil being reconciled to the Pope or Sea of Rome CXCVI. Page 187. For and touching the poynt of so being reconciled only 3 Jac. 4. § 23. N. 1. there are three several sorts of Offences made Treason 1 To be willingly absolved or withdrawn from a man's natural obedience 2 To be willingly reconciled to the Pope or See of Rome 3 To promise obedience to any pretended Authority of that See or to any other Prince State or Potentate But in 3 Jac. 4. § 24. N. 1. only the second of these Offences is remitted in case of Submission viz the being reconciled to the Pope or See of Rome by which I conceive to be meant the forsaking of the Religion established by Law and embracing that which is professed and maintained by the Pope and Sea of Rome and in that sense these words 3 Jac. 4. § 24. N. 1. are commonly taken at this day And that this is the meaning of 3 Jac. 4. § 24. N. 1. appears by 23 Eliz. 1. § 2. N. 1. which makes it Treason to absolve or withdraw the Subjects from their natural obedience or 23 Eliz. 1. § 2. N. 3. to move them to promise obedience to the See of Rome or any other Prince c. to answer which follows in that Act 23 Eliz. 1. § 2. N. 5. three other Sorts of Treason viz 1 To be absolved or withdrawn Or 2 To be reconciled Or 3 To promise such Obedience so that the Offence of being reconciled answers to the Offence of withdrawing the Subjects from the Religion establisht to the Romish Religion which explains what is meant by such Reconciliation viz the being so withdrawn from the one Religion to the other But by this Chance 3 Jac. 4. § 24. N. 1. if a Person be thus reconciled that is change his Religion and become a Papist yet if he be capacitated to submit as is required by this Act and submit accordingly and take the oaths of Supremacy and Allegiance such offence of being reconciled shall not be Treason But as for being absolved or withdrawn from his natural Obedience Or 2 promising obedience to the pretended authority of the See of Rome or any other Prince State or Potentate besides his Natural King such Submission and taking the Oaths by 3 Jac. 4. § 24. N. 1. shall not absolve him
from that Guilt but he shall have judgment and suffer for the same as in Case of high Treason notwithstanding such Submission c. Dalt Cap. 89 tit High Treason is thereby clearly mistaken in extending the benefit of this Submission 3 Jac. 4. § 24. N. 1. generally to all who have been willingly absolved withdrawn or reconciled or have promised such obedience Page 188. CXCVII The Offender may be proceeded against by force of this Act 3 Jac. 4. § 25. N. 1. in any County where he shall be imprisoned for so the word taken is to be expounded and the like exposition hath been made use of 2 and 3 R 2. § 6. N. 2. of Souldiers 1 Jac. 11. § 1. N. 3. of having two Wives living Hutt 131. If the Offence be committed out of this Realm yet it can not be tried upon 35. H. 8.2 § 1. N. 2. for this Act 3 Jac. 4. § 25. N. 1. hath prescribed a special form of a Trial in this Case which must be observed and if such Offender be a Peer of England the Indictment can not be taken before any others than the Justices of Assize and Gaol delivery in the County where he is imprisoned or the Justices of B. R. Hutt 13. the Lord Digbyes Ca. CXCVIII. Alien Page 189. 190. by a Subject of this Realm 3 Jac. 4. § 27. N. 1. is to be understood a Natural born Subject or an Alien Naturalized here by Act of Parliament or made a Denizen of England by the King's Letters Patents but these words here are exclusive of two sorts of Subjects 1. Of an Alien inhabiting this Realm who oweth to the King a local Subjection or Ligeance and is neither Naturalized or made a Denizen for the word Subject is a mark of distinction and must be necessarily exclusive of some persons or other within this Realm and therefore can not be supposed to taken for meer aliens who if neither naturalized or made Denizens are only local Subjects and of the lowest form for if no person inhabiting within the Realm were here intended to be excepted the word Subject would be idle and to no purpose 2. An Alien Naturalized by Act of Parliament in Scotland or Ireland or made Denizen of either of those Kingdoms by the King's Letters Patents is for the same reason out of the meaning of this Branch 3 Jac. 4. § 27. N. 1. altho he live in England for it seems that such a person is still an Alien here and shall not partake of any priviledges in England by his being Naturalized or made Denizen in Scotland or Ireland their Acts or Laws not being obligative or concluding to us in England Vaughan 278.280 c. Crane and Ramsey And therefore the Power here given any one Justice of Peace 3 Jac. 4. § 27. N. 2. to levy the XII d. per Sunday doth not extend to either sort of these Aliens But yet they may forfeit XII d. per Sunday for their absence from Church upon an Indictment on 1 Eliz. 2. § 14. N. 1. and that by force of the General words every person or persons inhabiting within this Realm so that what is said in Doctor Fosters Ca. 11 Co. 63. that this Statute 3 Jac. 4. § 27. N. 1. gives a more speedy remedy for the recovery of the XII d. is not to be understood of all persons within 1 Eliz 2. § 14. N. 1. but only of the Subjects of this Realm in the sense of 3 Jac. 4. § 27. N. 1. And if a man be born within any of the King's Dominions which were such and united with England in their Subjection at the time of his Birth altho he be not born within England yet if he live here he is a Subject of this Realm within the intent of this Act 3. Jac. 4. § 27. N. 1. For Natural Subjection and Legeance are not local or confined to that Kingdom or Countrey where he was born but he is a natural Subject in any of the Dominions belonging at the time of his birth to the Prince under whom he was born and upon that ground it was resolved 7 Co. In Calvin's Ca. that a man born in Scotland after the Union of the two Kingdoms should inherit in England So that a man born in Scotland or Ireland or any other of the King's Dominions which were such and so united at the time of his Bâ—rth if he live in England is punishable by this Act 3 Jac. 4. § 27. N. 1. and any Justice of Peace may grant his warrant to levy the XII d. for his absence from Church CXCIX Proof Page 190. To the Satisfaction of the Iustice of Peace 3 Jac. 4. § 27. N. 2. in this Case the Justice of Peace is sole Judge whether the excuse the Party makes for his absence be sufficient and sufficiently proved and the same can not be brought into question elsewhere by the Party CC. Dayes Page 190. Every Sunday 3 Jac. 4. § 27. N. 1. this repairing to the Church every Sunday must be as well to Evening Prayers as to Morning-Prayers for it ought to be an entire Day and an entire Service by Hutton and Berclay Justices Dalt Cap. 45. tit Recusants Page 190 To Levy 12 d. for every such Default 3 Jac. 4. § 27. N. 2. So that this forfeiture of XII d. may be levyed weekly for it is due for every absence as soon as the Sunday is ended and hath no relation to the forfeiture of XX lb per Month given by 23 Eliz. 1. § 5. N. 1. but the offender may be punished both by 3 Jac. 4. § 27. N. 2. for his weekly absence and by 23 Eliz. 1. § 5. N. 1. for his monthly absence by Coke Ch. J.B.R. 1 Roll 94. Doctor Foster's Ca. CCII. Accessory Page 198 192. Willingly c. keep or harbour 3 Jac. 4. § 32. N. 1. A man freely and of his own accord takes an apprentice or covenant-servant for a certain time and not knowing him or her to be a recusant and such Apprentice or servant forbears to come to Church it seems that the Master shall forfeit nothing altho he keeps them in his house for he doth no more than what the Law will compell him to do during the time agreed on and limited for such apprenticeship or service and this can not be said to be done willingly for it is not in his choice to discharge them untill the time is expired But if the Master before he took such Apprentice or other servant knew him or her to be a Recusant or after their forbearance to come to Church retains them for a longer time than was at first agreed on this is a keeping or harbouring them willingly and he shall be liable to this penalty 3 Jac. 4. § 33. N. 1. Infra 205. Page 192. in his CCIII her or their service fee or Liverty 3 Jac. 4. § 33. N. 1. This extends to all Servants whatsoever although they dwell not in the
Master's house nor are his menial Servants for if they are retained in his service fee or livery as Bailiff Steward or in any other capacity and forbear to come to Church the Master shall be punished for their absence Page 192 193. wanting without fraud or Covin other habitation or sufficient maintainance CCIV. 3 Jac. § 34.4 N. 1. A Father or Mother hath no settled habitation but yet hath sufficient maintainance the child receives such Parent into his house who forbears to come to Church in this case the child shall forfeit X l. per month for altho the Parent had no habitation yet this is not a wanting habitation within the meaning of this Act seeing he wanted not sufficient means to procure one But if the Parent hath an habitation yet if he want sufficient maintainance to keep him in that habitation altho he refuse to come to Church the child shall forfeit nothing for receiving him into his house for the words here 3 Jac. 4. § 34. N. 1. are in the Disjunctive and if the Parent wants either other habitation in the sense of the Act or sufficient maintainance the Child may receive him Page 193. that shall be committed by authority to the Custody CCV c. 3 Jac. 4 § 34. N. 1. The former Case of an apprentice was put only of such an one whom the Master takes of his own accord supra 202. But if it be a Parish child bound by the Church-Wardens and Overseers with the assent of the Justices of Peace if the Master be duely required to take him such Apprentice as it seems is committed to the Master's custody within the meaning of this proviso 3 Jac. 4. § 34. N. 1 for he is punishable if he refuse him and if he were a recusant or forbear to come to Church yet the Master shall forfeit nothing for keeping or harbouring him A Serjeant at Armes Pursivant Messenger c. who keeps his prisoner in his house or a Gaoler if he keeps his prisoner in his own house which is no part of the Prison shall not forfeit any thing by force of this Act 3 Jac. 4. § 34. N. 1. Altho he suffers him to go abroad in the Day-time at his pleasure and he forbears to come to Church for that such prisoner was committed by Authority to his Custody Page 193. Standing excommunicated 3 Jac. 4. § 35. N 1. infra a Popish recusant after conviction shall be disabled as an excommunicate person CCVI. yet to other intens he shall not be reputed as a person standing Excommunicate Page 193 for such recusancy 3 Jac. 4. § 35. N. 1. So that if a Popish recusant stand excommunicate for any other cause than for recusancy CCVII. this branch of the Statute doth not affect him CCVIII Lieu. Page 194 wherein such offence shall happen 3 Iac. 4. § 36. N. 2. If a man serves or goes to serve a forreign Prince State or Potentate without first taking the oath of Allegiance or if of that Quality entring into bond altho part of the Offence was done out of the Realm yet for that other part thereof viz his going or passing over the Sea was done in the Realm he shall be tried in the Court where that part of the Offence happened that is where the haven or port is from whence he went or passed over for a Statute is to be so expounded ut verba accipiuntur cum effectu 3 Inst 80. CCIX. Bar. some Page 195. with any penalty or forfeiture by force of this Act 3 Jac. 4 § 40. N. 1. But yet a married woman may be punished by force of any other Act for not receiving the Sacrament during her Marriage 11 Co. 94. Doctor Foster's Ca. And therefore if she be a Popish Recusant convict and receive not the Sacrament within the year next before her husband's death she shall forfeit the profits of two thirds of her joynture and dower and be further disabled as 3 Jac. 5. § 10. N. 1. And unless she receive the Sacrament after conviction she cannot be plaintiff with her Husband in any action but is disabled by 3 Jac. 5. § 11. N. 2 And if she receives it not within three months after her Conviction she may be imprisoned by 7 Jac. 6. § 28 N. 1. unless the husband pay to the King as is there appointed Page 195 For any such offence of not receiving CCX 3 Jac. 4. § 40. N. 1. Wingate Coron 125. Quite mistakes the meaning of it for a married Woman is not exempted from all penalty by force of this Act but only from the Penalty for not receiving the Sacrament during her marriage and there is no question but she may be imprisoned by 3 Jac. 4. § 14. N. 1. if she refuseth the Oath of Allegiance and an Indictment of high Treason lieth against her upon 3 Jac. 4. § 23. N. 1. If she be absolved or withdrawn from her obedience to his Majesty or become roconciled to the Pope or Seo of Rome or promise obedience to the said See c. CCXI. Iustices Page 196 197. Where any Bishop or Justices of the Peace 3 Jac. 4. § 41. N. 1. the Justices of Peace have a twofold power given them by this Act in reference to the Oath of Allegiance 1. Out of Sessions and so any two Justices of Peace Quorum unus c. may tender the oath to any person by 3 Jac. 4. § 13. N. 2. eighteen years old or above other than Noblemen or Noblewomen 2. In their General or Quarter Sessions and there they may by 3 Jac. 4. § 14. N. 2. 3. They may tender the oath to any such person who hath before refused it or to any person whatsoever of or above that age other than Noblemen or Noblewomen Now whther the six privy Counsellours here mentioned 3 Jac 4. § 41. N. 1. may require the Oath of Noblemen and Noblewomen in all cases where the Justices of Peace may require the same of any subject either in or out of Sessions or only in such Cases where they may require it out of Sessions seems to be a question For if the power here given 3 Jac. 4. § 41. N. 1. to the six privy Counsellours be the same with that of the Justices of peace in their Sessions they may by force of this Act tender it to any Nobleman or unmarried Noblewoman whatsoever above 18 years old for the Justices of peace in their Sessions by 3 Jac. 4. § 14. N. 2. may tender it there to any other person whatsoever but if it be meant of the power given the Justices of peace out of Sessions 3 Jac. 4. § 13. N 1. then the six privy Counsellours can tender it by force of this Act 3 Jac. 4. § 41. N. 1. to such Noblemen or unmarryed Noblewomen only who stand convicted or indicted of recusancy for not coming to Church or who have not received the Sacrament twice within the year next before or who
that the Recusant if he live within ten miles distance of London is to deliver up his name to the Lord Mayor there and 3 Jac. 5. § 4. N. 1. if he live above ten miles distant then to the next Justice of peace but the Statute is there mistaken in both points for by 3 Jac. 5. § 3. N. 3. if the Recusant dwell within ten miles of London and not in London he is to deliver up his name to the next Justice of peace and not to the Lord Mayor and if he dwell above ten miles from London he is not within this Act 3 Jac. 5. § 3. N. 4 nor bound by force thereof to deliver up his name at all Infra 278. CCXIX. Lieu. Page 203 204. This Proviso 3 Jac. 5. § 5. N. 1. is by some taken to be in force at this day But yet under favour as the Proviso is penned it seems to the contrary and that now all Popish Recusants convicted or indicted of Recusancy or not repairing to Church but forbearing by the space of three months are by this Act to depart London and ten miles compass of the same notwithstanding they are Trades-men or have no other place of Dwelling For as to Tradesmen here 3 Jac. 5. § 5. N. 1. are no other excepted than such as when this Act was made used some Trade mystery or manual ocupation and as to both Tradesmen and such as had or should have their only Dwelling in London or ten miles compass the Statute limits them to that place where they inhabited three months next before the Session of Parliament wherein this Act was made which cannot by any strained construction extend to those in future times But the meaning of 3 Jac. 5. § 5. N. 1. seems to be that Popish Recusants indicted or convicted of recusancy or not repairing to Church c. who were then Tradesmen within London or ten miles compass or such as then resided within London or ten miles compass and should have no other place of abode might continue there so that they removed not to any other Dwelling than where they inhabited by the space of three months next before that Session of Parliament or if they did they were to lose the benefit of this Proviso and must have removed above ten miles from London as well as other Popish Recusants convicted or indicted or not repairing to Church as aforesaid And for those words such as shall have their onely Dwelling within the said City c. 3 Jac. 5. § 5. N. 1. the future tense shall have doth not intend such Recusants as should have their Dwelling there or within the ten miles compass after the making of this Act and not before but only such who having their Dwelling there before that Session of Parliament should at the time of their being indicted or convicted have their onely Dwelling there For if they had at such time of their being convicted or indicted two several houses one within London or ten miles and the other at a further distance altho they inhabited in that which was within London or ten miles for three months next before that Session of Parliament yet if they were not Tradesmen at the time of the makieg of this Act 3 Jac. 5. § 5. N. 1. they should have had no benefit by this Proviso but ought within ten days after such Indictment or Conviction for Recusancy to have removed out of the compass of ten miles Page 205. CCXX Licence Giving Power to grant license or licenses unto the said Recusants by 35. Eliz. 2. § 12. N. 1. in the Proviso which is by 3 Jac 5. § 6. N. 4. here repealed is only that which there impowers the Justices of peace for that is the onely Provise which gives power to grant licence and the cause here alledged for the repeal 3 Jac. 5. § 6. N. 2. is the giving of sundry Licences to recusants under colour of a Proviso in 35 Eliz. 2. which can be construed only of those which were given by the Justices of peace 35 Eliz. 2. § 12. N. 1. and not of the other Licenses given by 35 Eliz. 2. in several other Cases so that the Proviso's there 35 Eliz. 2. § 13 and 14. permitting the Popish recusant to travel in case of process or commandment by privy Counsellours or the Queens Commissioners or Proclamation to render his body to the Sheriffs remain still in force and unrepealed and the recusant may take the benefit thereof ae this day Page 207 CCXXI 208. by such Recusant is intended here 3 Jac. 5. § 7 N. 1. such Recusant as is confined by 35 Eliz. 2. § 3. N. 1 and § 4. N. 1. and not only such as were mentioned in 3 Iac. 5. § 6. N. 1 for that recital is imperfect in that it mentions only the Popish recusant convict 35 Eliz. 2. § 3. N. 1. whereas 35 Eliz. 2. § 4. N. 1. speaks as well of the Popish recusant not convicted who hath no certain place of abode And the benefit of having Licenses from the King or three Privy Counsellours by force of this Act 3 Jac. 5. § 7. N. 1. is intended as well to the one as the other altho the convicted only are mentioned in the recital And this will plainly appear 1. by the following words here 3 Iac. 5. § 7. N. 2 which impower the Justices of peace to grant licences and expressly extend to all now It cannot be presumed that the makers of the Law intended any difference between the persons to be licensed by the King or privy Counsellours the persons to be licensed by the Justices of peace the power given 3 Jac. 5. § 7. N. 1. to the King or privy Counsellours being more absolute and not under such praecautions as is that which is given 3 Jac. 5. § 7. N. 3. to the Justices of peace for the King or privy Counsellours may grant a license to the Recusant to travel without any particular Cause shewn in the license or the assent of any other person and whithout any oath to be made by the recusant which the Justices of peace cannot do and there is no reason to think that the power here given to the King or privy Counsellours which in all other Particulars is so much more absolute and extensive than that given to the Justices of peace should be yet less extensive as to the persons to be licensed 2. It were absurd to think that the makers of 3 Jac. 5. § 7. N. 1. intended to confer a greater Priviledge upon the Recusant convicted whose offence appears upon record then to such as are not convicted c. But if by such Recusants should be meant only such as are mentioned in the recital 3 Jac. 5. § 6. N. 1. viz those convicted and not all who are confined by 35. Eliz. 2. § 3. N. 1. § 4. N. 1. it would follow that the convicted recusant who is the more notorious offender may have a licence
she be an Offender within 3 Jac. 5. § 10. N. 1 and conform not within the year next before her Husband's death she shall forfeit the profits of two parts of both But otherwise it is where an Estate is given or limited by the Husband to the Wife and it 's neither expressed nor can be averred and proved to be given or limited for her Joynture or in recompense of her Dower and therefore if any of the Estates before-mentioned which are not within 27 H. 8.10 § 6. N. 1. be granted or limited to the Wife by the Husband or any other Estate for her life or otherwise which would be a good Joynture within the said Statute if it were intended for a Joynture as if a man before or after Marriage covenants to stand seised of Lands to the use of himself for life the remainder to his Wife for her life and it is neither expressed in the deed nor can be averred and proved that it was for her Joynture Or if a man devise Lands by his last Will to his Wife generally and there is no mention in the Will that 't is for her Joynture for in this Case an Averment that it was so intended will not serve unless there be express words in the will to that purpose These Estates so gained by the Wife as they do not barre her Dower out of the Residue of her Husband's Estate but that she shall enjoy both the one and the other 4 Co. 4. So they are not within the meaning of this Act 3 Jac. 5. § 10. N. 1. because not made for her Joynture and she shall not forfeit the Profits of two parts of them altho she may forfeit the Profits of two parts of her Dower which she hath out of the residue of her Husband's Estate If Lands be conveyed to the Wife before Marriage for part of her Joynture and other Lands are conveyed to her after Marriage in full satisfaction of her Joynture and she refuse those conveyed after Marriage in this Case she may retain those conveyed before marriage and yet be endowed of the residue of her Husband's Estate for that the Lands first settled on her were not for her whole Joynture 1 Inst 35. and 4 Co. 3. And if she be a Popish recusant convict and her Husband none and she conform not within the year next before his Death she shall forfeit the Profits of two parts both of such Dower and of the Estate so conveyed to her before her Marriage And as the Wife shall have her Joynture and Dower both in such Cases where the Joynture is not pursuant to 27 H. 8.10 § 6. N. 1. So in some Cases likewise where she hath a Joynture pursuant to that Statute as where she hath such a Joynture made to her by the Husband before Marriage and he afterwards endow her ad ostium Ecclesiae or if she hath a Joynture made by the Husband in his life-time and after his death his Heir or Feoffee assigne other Lands to her in Dower or the Heir plead to her in a Writt of Dower ne unques seisie que Dower c. or nient accouple in Loyal Matrimony or any other plea save Joynture in Barre of Dower and it be found against him in these Cases the Wife shall hold her Joynture and yet be endowed and if she be an Offender within 3 Jac. 5. § 10. N. 1. shall forfeit the profits of two parts of her Joynture and Dower both But if a Widow who is endowed of the Lands of her deceased Husband takes a second Husband who is no Popish Recusant convicted by whom she hath a Joynture and she becomes a Popish Recusant convict and the second Husband dyeth and the Wife is Offender within 3 Jac. 5. § 10. N. 1. In this Case she shall not by force thereof forfeit the profits of two parts of such Dower and Joynture both but only of her Joynture for that her Dower is not out of the Lands of her said Husband that is of the Husband in whose life-time she stood convicted and after such conviction forbore to conform c. within the year next before his death CCXXXIII Judgment Page 216. Convicted of Popish Recusaney 3 Jac. 5. § 11 N. 1. The conviction mentioned here and in the other Branches of this Statute seems to be intended not only of a Conviction according to 26 Eliz. 6 § 5. N 5. or 3 Jac. 4. § 7. N. 2. upon Proclamation and default of appearance but of a judgment likewise upon an Indictment or popular suit on 23 Eliz. 1. § 5. N. 1. and 11. N. 1. for Conviction in relation to these three last mentioned Remedies is to be taken for adjudged or attainted supra 63. N. 2. and the Popish Recusant who is either convicted upon proclamation and default of appearance or against whom Judgment is had upon an Indictment popular suit or action of debt c. at the King's suit is hereby disabled as an excommunicate person and liable to all other the penalties and incapacities inflicted by this Act 3 Jac. 5. on a Popish Recusant convicted CCXXXIV Excomgent Page 216 Reputed to all intents and purposes disabled as a person c. excommunicate 3 Jac. 5. § 11. N. 1. and not reputed to all intents as an excommunicate person as Wingate Coron 135 mis-recites for as it seems by the words of the Statute the Popish Recusant convicted is not to be reputed as a person excommunicate in any other respect or to any other intent but as to his Disability only infra 243. and yet 2 Bulstr 145.155 the opinion of the Court in B. R. Mich. 11. Jac. Griffith's Ca. seems to be to the contrary that a Popish Recusant convicted may by force of 3 Jac. 5. § 11. N. 1. be attached upon a Writ de excommunicato capeindo Tamen quaere whether this statute being a penal Law and speaking only of the point of disability shall be extended by equity to other Cases or the Recusant be attached upon an excommunicato capiendo unless he be first actually excommunicated A Popish Recusant convict is disabled as an excommunicate person to be a witness in any Cause between Party and Party by Coke Ch. Inst 2 Bulstr 155. Page 216 217 218. CCXXXV May plead the same in disabling of such Plaintiff 3 Jac. 5. § 11. N. 2. this disability in the Popish Recusant convicted is but Quousque c. untill he conform c. and take the Oath of Allegeance and the Defendant must in this Case plead the Conviction at large and must as in a plea of Excommengement demand if the plaintiff shall be answered Hetley 18. which is the Legal Conclusion of a Plea in disability of the person The Defendant in debt upon an Obligation pleads that the Plaintiff is a Popish Recusant convict who replyeth nul tiel record such plea in disability of the person is peremptory and nul tiel record is an issue and judgment shall be given
two Justices Hutton and Iones were divided in opinion upon this point For Hutton held that that which is given to the University by 3 Iac. 5. § 19. N. 1. is a settled Estate and Interest and compared it to the Interest or Estate of the Lord who was to hold the Land until he was satisfied the value of the Marriage of the Heir 52 H. 3.6 § N. and to that of the Counsel by action Burnell 11 Ed. 1. pag. 35. § N. and to an Estate given to a man until C. lib. be paid In all which Cases the party hath a settled Estate and Interest in the Land But Iones contrary that the University by 3 Iac. 5. § 19. N. 1. hath only a power or liberty to present when the Church becomes void and compared it to the power given to the Bishop to present by lapse after the six months 13 Ed. 1.5 § N. and to that given by 25 Ed. 3. St pog 121. § N. of Proviso's where the Pope provides and to that given to the King by 31 Eliz. 6. § N. of Symony In which Cases no Estate or Interest is transferred but only a power or liberty granted to present For this Act 3 Jac. 5. § 19. N. 1. doth not remove the patronage from the Popish Recusant but that continues still in himself and he is Patron notwithstanding his Conviction and as Patron shall confirm a lease made by the Incumbent as he might have done before his Conviction which proves that the Interest of the Patronage is not divested out of him nor consequently settled in the University Note Altho this 3 Jac. 5. be a general Statute and 3 Jac. 5. § 18. N. 1. be general of which the Judges ought to take notice yet this part of it 3 Jac. 5. § 19. N. 1. is Special and private for that it concerns only particular persons and must be pleaded or specially found or otherwise the Judges cannot take notice of it Hob. 227. An. Needlers Case and 10 Co. 57. and 4 Co. 76. Hollands Case 13 Ed. 4.8 Page 230 231 232 233. During such time as the Patron thereof shall be and remain a Recusant convict 3 Jac. 5. § 19. N. 1. If the University bring a second Impediment upon this Statute they must averr that the Popish Recusant Convict was and remained such at the time when the Church became void For without that they do not enable themselves to present But they need not averr that he remains a Popish Recusant Convict at the time of the bringing of the second Impediment for when the presentment hac vice is once vested in the University altho the Recusant conform or dye yet the University shall present These words 3 Jac. 5. § 19. N. are words of Restraint and the Statute gives only a limited power to the University scilicet so long as the Recusant shall be patron or the patron shall be a recusant So that if before the Church becomes void the recusancy be removed from the patron by his conformity or the patronage be removed from the Recusant altho he continues a Recusant the University have lost their power to present Jones 19. And therefore if the Patron grant the advowson in Fee or in Tall or for life or years these Cases are out of the Statute 3 Jac. 5. § 19. N. 1. And altho after the Grant she becomes a Popish recusant convict and then the Church becomes void yet the University shall not present And if seems that altho the Patron make such a Grant of the advowson after his conviction and before the Church is void yet this shall barre the University for the patronage was before the Avoidance removed from the Reversion Jones 12.10 Co. 56. contrary to the opinion of Hutton who held that if a man made a lease for years of an advowson yet if afterwards he becomes a Popish recusant convict the University shall have the presentation as a future Interest given to them by this Act notwithstanding such Lease Jones 26. And the reason why by such Grants the University shall be barred is for that the Disability here inflicted on the Recusant is only a disability to present or to grant the next Avoydance which extends not to any of the Grants before-mentioned nor severs the patronage from the Patron as those other Grants do And the intent of 3 Iac. 5. § 19. N. 1. is to prevent a Presentation by the Recusant or by him to whom he should grant the Avoidance who it was presumed would present such a one as the Recusant should appoint But now when he grants the Advowson it self away that Mischief is prevented and the Statute 3 Jac. 5. § 19. N. 1. intended not in that Case to give away the presentation from the Grantee to the University Jones 19 20. And yet if the Recusants grant of the Advowson in Fee or in Tayl or for Life or Years were by Covin or in Trust on purpose to avoid this Statute and be averred and found so to be such Grant shall not barr the University 10 Co. 56. Jones 20. supra 246. N. 3. See Godbolt 216 Pl. 309. But then the Averment in such Case must not be of Covin or fraud to any other intent only but it must be averred to be to the particular intent to avoid this Statute and defeat the University of the Presentment and so it must be found by the Jury c. A man seis'd inter alia of an Advowson in gross becomes a Popish Recusant convict the King seiseth the Advowson as part of two parts the Church becomes void in this Case it was held by Hutt that the University and not the King shall present but Jones 17 held strongly to the contrary and that notwithstanding 3 Jac. 5. § 19. N. 1. the King shall have the Presentation for 3 Jac. 4. § 11. N. 4. saith that the King may take and seize two third parts of a Recusants Hereditaments under which word an Advowson is comprehended supra 178. N. 2. And altho the power or liberty of presenting is here 3 Iac. 5.19 N. 1. given the University yet that is to be intended only in such Cases where a Popish recusant convict is Patron but when the King hath seized the Advowson as part of his two parts the King is Patron and not the Recusant nor shall the title the King hath to the Advowson by 3 Jac. 4. § 11 N. 4. be divested by another Act of Parliament unless it had been given away from the King in express terms which Warb. and Winch. agreed To this it hath been objected that when 3 Jac. 5. § 18. N. 1. disables the Recusant to grant any Avoidance it disables him to grant it to the King as well as to any other person but if the Recusant may forfeit the Advowson to the King he may forfeit the avoidance to the King and every forfeiture being a Grant or Gift in Law as Com. 260.263 263. Hales Case the Recusant by consequence may grant
the Avoidance contrary to the express Letter of this Act. But to pass by the Questions whether by the recusants being disabled to grant any Avoidance generally he is disabled to grant an Avoidance to the King or whether the forfeiture of the two Third parts by the recusant can be properly called a Gift or Grant from the Recusant and not rather from the Law which creats the Forfeiture It 's enough here to distinguish between Voluntary Acts and Acts of Compulsion for 3 Jac. 5. § 18. N. 1. was intended only to restrain his Voluntary acts but when he forfeits the avoidance to the King altho the offence viz his recusancy be voluntary yet the conviction and forfeiture thereupon are involuntary and the recusant is therein potius patiens quam agens Jones 21. A Popish recusant convict seized in Fee of an Advowson in gross is attainted of felony or Praemunire and the Church becomes void in this case Jones 20.26 Hutt held that the Interest which accrued to the University upon the conviction for recusancy by 3 Jac 5. § 19. N. 1. should not be divested by the attainder Jones contra And that if a man seised of such an Advowson acknowledge a Statute Merchant and afterwards becomes a Popish Recusant convict and then the Statute is extended the Interest of the University by 3 Jac. 5. § 19. N. 1. shall not be divested by the extent Jones 20.26 If the King seize two parts of a Mannor belonging to a Popish Recusant convict for non-payment of the Forfeiture of XX. lb. per Month by 3 Jac 4. § 11. N. 4. to which Mannor an Advowson is appended the two parts of the advowson shall follow the two parts of the Mannor and the King shall present and not the University notwithstanding 3 Jac. 5. § 19. N. 1. For after such Seisure the King is Patron of the advowson and not the Recusant and in this Case the King shall present alone Hob. 126. Walgrond's Case Moor 872. pl. 1214. Page 233. CCLI As shall then have any other Benefice with cure of Souls 3 Jac. 5. § 21. N. and not as is already beneficed as Wingate Coron 140. mistakes for a sine cura is a benefice and yet the University may present or nominate him who hath a sine cura A Donative of the King 's may be cum cura animorum and so is the Church of the Tower of London 1 Co. 330. Mackaller's Case and the University by 3 Jac. 5. § 21. N. 1. cannot present or nominate him that hath such a Donative Notwithstanding 3 Inst 155. if seems that a Deanary Archdeaconry Prebend c. are not Benefices with cure of Souls nor had they been comprehended under that name in 21. H. 8.13 § 9. N. altho the special Proviso 21. H. 8.13 § 31. N. 1. had been omitted for that Proviso is ex abundanti and there is no such to except them out of 13 Eliz. 12. § 3. N. 1. of reading the Articles And yet if a Dean Archdeacon or Prebendary read not the Articles within the time limited by 13 Eliz. 12. § 3. N. 1. his promotion is not void by that Statute and the reason is because 't is not a Benefice with cure of souls The opinion of Justice Trial at Lincoln in Lent Assizes 1668. who in the case of Doctor Sanderson densed the Archdeacon for that he had not read the Articles within the time so limited and affirmed an Archdeaconry to be a Benefice with care within 13 Eliz. 12. § 3. N. 1. being contrary to the Law and to the recieved meaning of that Statute And as for a Prebend the reason given for the opinion in 3 Co. 79. Bland and Madox case is expressly against 3 Inst 155. for it was there agreed that a Lay-man may be presented to a Prebend quia non habet curam animarum And for the same reason a Dean ' Archdeacon Prebendary c. may be in this case presenced or nominated by the University by 3 Jac. 5. § 21. N. 1. for their promotion is not a Benefice with cure of souls Quaere For if the Corps be a Church with cure as it may he must read Articles but if the Church be only appended the Promotion regularly is no cure of souls which I infer from Dyer 273. pl. 38. Goodman's Case and 18 Ed. 3.36 pl. 20. and 1 Co. 330. Mackaller's Case and 9 Ed. 3.22 pl. 14. Page 234 235. CCLV. Convicted at the time of the death of any Testator or at the time of the Granting of Administrator 3 Jac. 5. § 22. N. 2. These words are to be constructed reddendo singula singulis viz that the Recusant shall be disabled to be Executor if he be convicted at the time of the death of the Testator or to be administrator for so these words at the time of the granting of any administration are here to be understood And therefore if a man makes his will and therein appoints a recusant convict to be his Executor and before the Testators death the conviction is removed by reversal of the judgment or avoided or discharged for some defect in the Indictment Proclamation or other Proceedings and then the Testator dyeth in such case the Recusant is not by this Act 3 Jac. 5. § 22. N. 2. disabled to be Executor For altho the naming of an Executor is in Law a granting administration and if a man by his last Will grants the administration of his Goods and Chattels to J. S. without more saying thereby J. S. is made Executor Dyer 290. So that the Naming of an Executor and the Granting of administration within the meaning of 3 Jac. 5. § 22. N. 2. Administration here relating only to an administrator and not to an Executor besides the naming of an Executor amounts not to a compleat Grant of administration untill the Testators death for then and not before the Will becomes in force and if the party stands not then convicted he is not disabled Much less shall he be disabled to be Executor who is not convicted at the time of the death of the Testator altho he be convicted at the time of the Probat of the Will for if these words Granting of Administration 3 Jac. 5. § 22. N. 1. should relate to an Executor as wel as to an Administrator which in truth they do not yet the power given to the Executor by the Ordinary or Ecclesiastical Judge upon the Probat of the Will cannot be called a Granting but only a committing of Administration according to the Will of the Deceased and in such case all that the ordinary or Ecclesiastical Judge can grant are Letters testifying what the Testator hath already given to the Executor and a power or authority to execute the Will Page 235. CCLIII as Guardian in Chivalry 3 Jac. 5. § 22. N. altho the recusant seised in Chivalry and convicted could not have been Guardian yet if he had granted the seigniory to one who was no recusant
complicated Offence consisting of several Particulars 1. In giving just cause of Suspicion without which the Party complain'd of according to this Act 7 Iac. 6. § 26. n. 4 cannot be tendered the Oath by one Justice of Peace Then 2. In refusing the Oath before the Justice of Peace who tendered it And lastly 3. In refusing it upon the second Tender at the Assizes or Sessions all which must be comprized in the Indictment So that the cause of Suspicion is pars communis and that arising in the County where the Party dwelt and was complained of cannot be punished in another County unless the Statute 7 Iac. 6. § 26. n. 4. had expressly made it examinable there supra 184. True it is that some Statutes do enable Justices of Peace to punish an Offence done in another County but that is where they enable them likewise to examin the truth of the Fact and take Process and Evidence thereof So 1 Iac. 27. § 5. n. 2. and 7 Iac. 11. § 8. n. 3. and supra 255. impower the Justices of Peace where the Party is apprehended to examin and punish the Offence but in our Case the cause of Suspicion arising in one County is not made examinable and consequently not punishable in another County and if not punishable there no Justice of Peace of that other County can proceed upon that cause of Suspicion notwithstanding the Party happen to be within his Commission or Power But yet the Party so flying into another County may without any Complaint or cause of Suspicion be tendered the Oath and proceeded against there by two Justices of Peace Quorum unus c. by vertue of the fore-going words of this Clause 7 Iac. 6. § 26. n. 2. Altho he dwell in another County and that for the reason before given viz because this Oath sequitur personam non locum But Wingate Coron 150. saves the labour of this Question for he erroneously restrains the pawer of tendring the Oath in this Case to the Justice of Peace to whom the Complaint is made as if no other Justice of peace of that County could proceed therein which is contrary to the express words as well as the meaning of 7 Iac. § 26. n. 4. Note That Dalton 107. Cap. 45. saith it seems requisite that the Justice or Justices of Peace do make like Certificat as 3 Iac. 4. § 13. n. 5. at the next Assizes or Quarter-Sessions of such Persons as have taken this Oath before them by force of 7 Iac. 6. § 26. n. 4. But upon what ground Master Dalton thought this requisite to be certified at the Assizes I know not seing there is no such Certificate to be made by 3 Iac. 4. § 13. n. 5 but only to the General or Quarter-Sessions of the Peace And as for the Sessions I conceive neither the Justices of Peace if they proceed on 7 Iac. 6. § 26 n. 4. and not upon 3 Iac. 4. § 13. n. 5. are bound to make such Certificate nor the Clerk of the Peace or Town-Clerk to record it for it is not here required to be done But yet in such Cases where the same persons are impowered by both these Statutes to require and minister this oath as where the Party is convicted of Recusancy in which Case two Justices of the Peace Quorum unus c. may require the Oath by the Special words in this Clause of 7 Iac. 6. § 26. n. 2. or of the General words in this Clause of 7 Iac. 6. § 26. n. 2. And it doth not appear upon which of these Statutes they proceed as it may sometimes so happen there if the Party take it will be fafest for the two Justices to make such Certificate to the next General or Quarter-Sessions as is appointed 3 Iac. 4. § 13. n. 5. and for the Clerk of the Peace or Town-Clerk to record it Page 250. CCLXVII If any Person or Persons this Clause 7 Iac. 6. § 26. n. 5. is General and extends to all before So that if any of the Nobility refuse this Oath they may be committed to the Common Gaol c. by such as are by this Act Authorized to tender it 12 Co. 131. Page 251. CCLXVIII Shall refuse to take the said Oath duly tendered to him or her 7 Iac. 6. § 26. n. 5. If the Persons authorized to tender this Oath ask the Party whether he will take it and he saith he will not quaere whether this be such a Tender and Refusal as shall make the refuser liable to be imprisoned proceeded against by force of this Act unless he or they who tender it have in readiness both the Form of the Oath and the Book to swear on for it is to be presumed that the Act intends all requisite Circumstances ready to enable the one to minister and the other to take the Oath And 't is held that before there can be any such Refusal of this Oath as is here intended it ought to be read or offered to be read to the Party especially if he be illiterate or if he be not yet that at least it ought to be offered to him for himself to read it for perhaps the Party never saw or heard it And in such Case it would be against Reason that the Refusal should be penal and therefore in 9 Iac. upon the Tender of this Oath at Sarjeants-Inne in Fleet-Street it was read by Order of the Judges there Page 251. CCLXIX To the Common Gaol 7 Iac. 9. § 26. n. 5. The Justices of the Court of B. R. used to tender this Oath in Court as Justices of Peace of Middlesex and upon Refusal the Party is to be committed to the Prison of the Marshalsey which is the Ordinary Prison of that Court untill the next Sessions 2 Bulstr 155. Dyer 297. Page 252 253 254. CCLXX. Being lawfully Convicted as a Popish Recusant 7 Iac. 6. § 28 n. 1. That is upon Indictment at the King's Suit or a Popular Action or Information upon 23 Eliz. 1. § 5. and 11. or Debate at the King's Suit alone by 35 Eliz. 1. § 10. n. 2. supra 119 In which two last Cases the former Laws are somewhat altered by this Statute For by the former Laws 23 Eliz. 1. and 35. Eliz. 1. If a Person had been convicted of Recusancy any other way than by Indictment no more could have been demanded either by the King or Informer than for the Months mentioned in the Information or Count and the Penalty should not have run on in such Case for that 29 Eliz. 6. § N and 3 Jac. 4 § N. which appropriate the Penalty to the King after Conviction intend no other Conviction than by Indictment as hath been there said But by this Act 7 Jac. 6. § 28. N. 1. If a Popular Action or Information or Action of Debt c. at the King's Suit alone be brought against the Husband and Wife for the Recusancy of the Wife and Judgment be had
against them the Husband shall not only pay for the Time contained in the Information or Count but the Wise shall be imprisoned ever afterwards unless she conform or the Huband pay ten Pounds per Month or yield the third part of his Lands to the King And yet this Statute 7 Jac. 6. § 28. N. 1. doth not after such Conviction of the Wise in a Popular Suit or Action of Debt c. at the King's Suit take away the Popular Action or Information from the Informer or the Action of Debt c. from the King for the time to come but that they may be brought against the Husband and Wise for the Recusancy of the Wise for any Month or Months wherein she is absent from Church after such Conviction for 7 Jac. 6. § 28. N. 1. and 23 Eliz. 1. § 11. N. 1. and 35 Eliz. 1. § 10. N. 2. are all Affirmative Laws and may well stand together So that any of the three Remedies given by these Statutes may be pursued 7 Jac. 6. § 28. N. 1. not abrogating any former Law but only providing another way of Punishment for the Wife after she is once Convicted howbeit she shall not be punished by any more than one of these three wayes 11 Co. 63. 1 Roll 94. Doctor Foster's Case 2 Co. 529. Parker vers Lawson Crompt 14. And therefore if the King bring an Action of Debt c. upon 35 Eliz. 1. § 10 N. 2. against the Husband and Wife or the Informer sue them upon 23 Eliz. 1. § 11. N. 1. for any absence of the Wise from the Church after she is once Convicted by either of those wayes and recover the Privy Counsellour Bishop or Justices of Peace here mentioned 7 Jac. 6. § 28. N. 1. cannot imprison her by force of this Act for the non-payment of the ten Pounds per Month by the Husband for those Months for which the King or Informer hath recovered or for his not yielding the Thirds of his Lands to the King And the Reason is for that when the Husband stands charged with the Penalty of XX. lib. per Month for the absence of the Wife the Intent is satisfied in respect of those Months of her absence for which he stands so charged for if he pay not the XX lib. per Month so recovered the King or Informer hath the ordinary Remedy after Judgment by Process or Capias against them both and the Intent of the Act. 7 Jac. 6. § 28. N. 1. was no more than that the Husband should pay for the Recusancy of his Wife or the Wife be imprisoned And if in this Case the Privy Counsellour Bishop or Justices of Peace should have power to inform the Wife unless the Husband would pay ten lib. for the Months for which the King or Informer hath recovered it would follow that the Husband hath his Election whether he will pay ten Pounds per Month to the King by force of this Act 7 Jac. 6. § 26. N. 1. or the twenty Pound per Month so recovered against him by the King or Informer for he shall not pay both the one and the other for that were by his puniri pro uno delicto and if he shall have his Election the King or Informer might by this device be eluded of the Penalty of twenty lib. per Month so recovered which could not be the intent of the Makers of this Law But if the Wise be after such Conviction imprisoned by force of this Act 7 Jac. 6. § 28. N. 1. neither the King or Informer can so sue the Husband and Wife for the Recusancy of the Wife for she is already punished by this Act and must remain in prison until the Husband pay the ten lib. for every Month or yield the Thirds of his Lands to the King or the Wife conforms So if the Husband yields the Thirds of his Lands to save his Wifes imprisonment he is already punished by this Act 7 Jac. 6. § 28. N. 1. and shall not again be punished or sued by the King or Informer either upon 23 Eliz. 1. § 11. N. 1. or 35 Elez. 1. § 10. N. 1. And if after such Conviction of the Wife he pay ten lib. per Month to save her imprisonment he cannot be sued with his Wife for the twenty lib. per Month upon either of those Statutes by the King or Informer for these Months of her absence from Church incurred after her Conviction for which he hath paid the twenty lib. monthly to the King for he shall not bis puniri pro uno delicto Hitherto hath been spoken of the Conviction of the Wife at the King's Suit alone by Action of Debt c. or by the Informer Qui cam c. which doth not appropriate the Penalty to the King by 29 29 Eliz. 6. § 4. N. 1. or 3 Jac. 4. § 8. N. 2. If the Wife be Convicted of Recusancy upon an Indictment it hath been much debated whether that doth not appropriate the Penalty of twenty lib. per Month to the King for the time to come by 29 Eliz. 6. § 4. N. 1. and 3 Jac. 4. § 1. N. 2. that the King cannot bring an Action of Debt or the Informer any Popular Suit against the Husband and Wife for any Offence of Recusancy committed by the Wife after such Conviction supra 79. N. 17. and 173. N. 2. However admitting they may yet now if the King take advantage of this Statute 7 Jac. 6. § 28. N. 1. and the Wife be either imprisoned or the Husband yields the third part of his Lands to the King there is no question but the King and the Informer are both barred to sue for the twenty lib. per Month for any time incurred after her Conviction for the King hath made his Election to punish her this way and the Informer cannot sue her for she is punished already at the Suit of the King And if the Husband pay the ten lib. per Month the King and Informer are likewise barred for those Months of her absence from Church incurred after her Conviction for which the Husband hath paid the ten lib. monthly to the King for he shall not be twice punished for the same Offence Page 255. CCLXXI. Of all his Lands and Tenements 7 Jac. 6. § 28. N. 1. By Tenements are to be understood Offices Rents Commons Profits Apprendre out of Lands Advowsons and the like wherein a man hath any Frank-Tenement and whereof he is seized ut de libeto tenemento for all these are included under the word Tonement as well as Lands and other Inheritances which are holden 1 Iust 6.11 H. 6.22 Grants Br. 143. Perkins Sect. 114 115. Finch 130. 2 Anderson 4 the Womans Lawyer 3. P. 188. But Tenement extends not to a Chattel or Lease for Years Done Br. 41. grants Br. 87. 1 Bulstr 101. Turpine against Farryer So that the Husband need not yield to the King the third part of his Leases for years for the Recusancy
of his Wife Page 255 CCLXXII 256. Shall continue out of Prison 7 Jac. 6. § 28. N. 1. A married Woman convicted as a Popish Recusant is after her Conviction and before any further prosecution or any Election made by the Husband whether he will pay the ten pound per Month or yield the third part of his Lands imprisoned by Process of Law or for some other Clause not relating to such Conviction and afterwards is set at liberty it seems that the Husband shall not pay the ten lib. per Month for the time she was in Prison For the Act 7 Jac. 6. § 28. N. 1. speaks only of the time during which she continueth out of Prison and altho she were not imprisoned for her Recusancy yet seeing she had not during such her imprisonment the Benefit intended to her in consideration of the ten lib. per Month or third part viz her liberty the Husband shall not for that time pay the Penalty here appointed to save her Imprisonment but if he pay it for the time after she is set at Liberty that is sufficient to satisfy the intent of this Act. But if after such Conviction the Wife be imprisoned by Covin upon some pretence not relating to such Conviction that shall not save the Husband's payment of the ten lib per Month for the time she was imprisoned but after she is set at Liberty she may be again imprisoned by force of this Act 7 Jac. 6. § 28. N. 2. unless the Husband pay the ten pound per Month or satisfy to the King the third part of the Profits of his Lands as well for the time of such Covenous Imprisonment as for the future for the Covenous Imprisonment was upon the matter her own act and no person shall take advantage of an Imprisonment covenously caused by him or her self 16 Ed. 45. and here she continued out of Prison in the sense of this Act 7 Jac. 6. § 28. N. 1. because her Imprisonment was not by process of Law in invitam And so if a man be outlawed while he is in Prison yet the Oatlary shall not be avoided for that cause if the Imprisonment were by Coven or consent of the party outlawed 1 Inst 259.38 Ass 17. 3 Car. 1 2. 3 Of Ouster le Mere. PAge 258 259. Or of Oyer and Terminer 3 Car. 1. Cap. 2. 3 § 3. N. 1. Justices of Peace cannot take an Indictment upon this Statute for no inferior Court shall take authority by any Statute unless it be specially named Savill 135. pl. 212. Agard and Sandish And altho Justices of Peace have in their Commission § 14. an express Clause ad audiendum terminandum yet forasmuch as there is a Commission of Oyer and Terminer known distinctly by that name and the Commission of peace is known distinctly by another Name they shall not be included under the general words of Justices of Oyer and Terminer as was adjudged 3 Co. 87. Hill 30 Eliz B. R. in Smyth's Case who was Indicter at the Sessions of the Peace in the County of Oxford on 5 Eliz. 14. of Forging Deeds which impowers Justices of Oyer and Terminer to inquire of hear and determine that Offence and yet the Indictment before the Justices of Peace was quasht as taken coram non judice 9 Co. 118 3 Inst 103. and 3 Co. 60. 1. Wilson's Case and 3 Co. 697. Hunts Case See Justices FINIS KNowing the Learning and Industry of the Author of this Work who hath therein very seasonably bestowed his Pains upon Explaining the Antient Laws made against Recusants I do Recommend the same to the Publick Fra. NORTH May the 7. 1681