came 23 Eliz. 11 § 13. N. 1. upon which he was Indicted and convicted It was resolved by all the Judges of England that the said lands were liable to this Statute and the Jurors charged to enquire what lands he had and were committed to the Fleet and fined each of them fifty pounds for that yet they would not find those Lands to be his 2. By means of any Conviction or Judgment 23 Eliz. 1. § 13. N. 1. Pauncefoot being Indicted of Recusancy made a deed of gift of all his leases and goods to a great Value coloured over with feined considerations to defeat the Queen of what might accrew to her by his Recusancy or flight and then went beyond Sea and afterwards was outlawed upon the said Indictment and it was resolved 36 Eliz. by the whole Court of Exchequer that this was a fraudulent Conveyanc within 13 Eliz. 5. § 2. N. 3. which was made for the relief of the Queen and otherpersons as well as Creditors But as this Case is related in 3 Co. 82. Twines Case t is observable that altho it was debated whither the Queen should avoid this Conveiance by force of 50 Ed. 3. 6. § 1. N. 2. or that of 3 H. 7.4 § 1. N. 2. or that of 13. Eliz. 5. § 2. N. 3. yet there is no mention made of this branch of 23 Eliz. 1. § 13. N. 1. for t is clear that the Queen could not avoid such a fraudulent Conveyance by force of 23 Eliz. 1. § 13. N. 1. unless Judgment had been first given against the Recusant or he had been convicted and Pauncefoot was neither Convicted or adjudged to be a Recusant but the Queens interest accrewed to her by means of the outlawry only LXXXIV Priviledge Page 88. Upon 23 Eliz. 1. § 14. N. 1. altho a Peer shall be tryed per pares yet he is to be indicted by an inquest under the degree of Nobility and may be Indicted before Commissioners of Oyer and Terminer or in B. R. if the offence be Committed in the County where the Kings bench is 2 Co. 49. 27 Eliz. 2. Of JESVITS LXXXV Alien PAge 90. And his Being born within this Realm c. 27 Eliz. 2. § 3. N. 1. must be comprised in the Indictment but it need not be shown in what particular place he was born but generally Quod J. S. natus infra hoc regnum Angliae c. And so it must be alledged in the Indictment on 27 Eliz. 2. § 3. N. 1. that he was made a Jesuit or Priest c. by authority Challenged or pretended from the See of Rome But it needed not be shewed where he was made a Jesuit or Priest c. whither beyond the Sea or within the Realm for wheresoever it was it is within this Law if he were made so by the pretended Authority of the See of Rome Popham 94. Southwells Case LXXXVI Seminary Page 91. In the late additions to Dalt Cap. 140. § 13. tit high Treason 'T is said that 27 Eliz. 2. § 4. N. 1. relates only to such as had before that time taken Orders which conceit I suppose is grounded on these words viz. who at the end of the said forty days and after such time of departure as aforesaid shall receive c. as if no Jesuit or Priest were here intended but such a one as was then a Priest or Jesuit and had fourty days given him for his departure and no person a Felon by 27 Eliz 2. § 4. N. 1. who receives or releives any other 2. But the words here such Iesuit c. seem to be more Extensive and to relate as well to the Receivers or Releivers of a Jesuit or Priest in Orders at this day as to those who were in Orders at the time of making this Stature and if we weigh the Gramatical Construction of the words with much more reason the former than the latter For the Proximum Antecedens to such is the Jesuit or Priest 27 Eliz. 2. § 2. N. 1. who was to be made ordained or professed and not he that was then ordayned or professed already And those words in 27 Eliz. 2. § 4. N. 1. Every Parson which after the end of the same XL. dayes c. shall receive c. that is fourty days next after the end of that Session of Parliament may well be construed to Extend to all Cases as well of receiving or relieving such who should be afterwards in Orders and should be found within the Realm for the time to come at any time after those fourty days as of such who were then in Orders and were to depart before the XL. days were expired 3. So that the receiving releiving or maintaining of a Jesuit Popish Priest or other Popish Ecclesiastical person at liberty and known by the party to be such is Felony at this day by this Act 27 Eliz. 2. § 4. N. 1. and the Offender shall lose the benefit of his Clergy and so hath the Law been taken upon Actions upon the Case for saying the Plaintiff kept a Seminary-Priest or Jesuit in his house knowing him to be such 2 Cro. 300. Pasch 10 Jac. Smith versus Flynt and Palmer 410. Clerk and Logins Case Lamb. 225. Infra 275. Page 92. By this word Return 27 Eliz. 2. § 5. N. 1. It seems that none are intended here but such as were sent out of this Realm for others born and resident in some other parts of the Kings Dominions untill their Entry into such Colledg or Seminary cannot be properly said to return hither LXXVII Ouster le M◠Page 92 93. Or any other her Highness Dominions 27 Eliz. 2. § 5. N. 1. a Subject of the Kings sent out of England to a Popish Colledg or Seminary is Commanded by Proclamation made in London to return into this Realm and within the six months here limited first goeth into Ireland and then comes into England and within two days submits himself and takes the Oath of Supremacy in this Case notwithstanding his return into England within the six months he shall be guilty of High Treason for after such Proclamation he ought to have come directly into England and into no other of the late Queens Dominions before he had been in England and if he doth he comes into the said Domininions otherwise then is appointed by this Act 27 Eliz. 2. § 5. N. 1. For the intent of 27 Eliz. 2. § 5. N. 1. Seems to be that he should not remain in any of the said Dominions untill he submits and takes the Oath which submission must be made by Oath taken in England within two days after his Arrival here and not elsewhere and altho the Oath of Supremacy be in force in Ireland yet his taking it here will not serve nor yet his submission there for he is to submit to the King and his Laws by which are intended the Laws of England and no other But a submission in Ireland to the Kings Laws
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
Cro. 529. the demand was but for 11 months and when the Jury finds the defendent guilty it shall be intended to be for the 11 months for which the penalty is demanded and that shall be accounted from the 10 September which was the first day of absence alledged in the Information and the rest of the time to the 9 September following after the first 11 months is to be accounted as surplusage But in this Case on 23 Eliz. 1. § 5. N. 1. where the Jury abridgeth the time for which penalty is demanded it may be questioned whither the Verdict shall be intended to be for the first 12 months of the 13. and the Judges of B. R. to salve a Case of the like nature 3 Cro. 835. seemed to be of opinion and 8 Ed. 4.2 § 2. N. 3. that it is not material which were the 12 months wherein the party offended but if that opinion be law it must follow that the party can never be punished for the 13 month but that must be remitted to him because it s left uncertain which of the 13 shall be accounted the month not found by the Jury and it rather seems for this reason that the Verdict is void for the uncertainty which 12 months of the 13 the party offended unless it shall be intended of the first 12. 5. Mr. Shephard in his sure Guide cap. 6. Sect. 5. Raiseth this question viz. 23 Eliz. 1. § 5. N. 1. having reference to 1 Eliz. 2. § 14. N. 1. which sayeth every one shall come to Church every Sunday and Holy-day whither he that is not at Church every Holy-day doth not rigore juris forfeit 20 pound a month by force of 23 Eliz. 1. § 5. N. 1. but this question seems altogether needles for t is clear by the express words of 23 Eliz. 1. § 5. N. 1. that it must be a forbearance from Church for a whole month together that makes the party liable to the forfeiture of 20 l. and if he comes to Church on any Sunday or Holy-day within the month he is ficed from the penalty of 20 l. altho not from the 12d and by 1 Eliz. 2. § 14. N. 1. for the dayes of his absence if he comes not every Sunday and Holy-day both LXVI Behaviour Page 63. 64. Upon the words Be bound in 23 Eliz. 1. § 5. N. 2. Some have made a question and among them Mr. Shephard in his Sure Guide cap. 6. Sect. 5. by whom or in what Court the Recusant shall be bound to the good behavior by force of this Statute for that the Court is not expresly mentioned and Wingate Crown 44. hath stumbled upon a conceit that after certificat made in B. R. a Justice of Assie Goal delivery or Peace shall bind the party to the good behavior and misrecites the Statute accordingly but it seemeth the intention of the Law makers was that he should be bound in B. R. and of that opinion is Dalt 192 § 5 cap. 79 tit good behaviour 2. For where any proceedings are appointed to be upon or after a certificate sent to any Court there by common intendment the proceedings are to be in that Court to whom the Certificate is sent if no other Court be named and it cannot be presumed by any reasonable construction of 23 Eliz. 1. § 5. N. 2. That the Certificate into B. R. is to any other end than for the Justices there to proceed in such manner as the Act directs to be done after such Certificate as no question they may in this Case as well as upon Certificate of a presentment or of refusal of the Oath of Supremacy against 5 Eliz. 1. § 5. N. 10. Supra 39. and t is a rule in Construction of Statutes that where the intention plainly appears the Law ought to be advanced according to its end tho the words be short and imperfect especially Laws made for Religion as is held Hob. 157. and 11 Co. in Magdalen Colledge Case and 2 Bulstrode 155. 3. Popish Recusants convicted are not to be reputed sufficient sureties within 23 Eliz. 1. § 5. N. 2. and therefore were refused by the Court of B. R. in the Case of Grifith 2 Bulstrode 155. LXVII Schools Page 64. An Usher or assistant in teaching is a Master in the School and seemeth to be included within the word School-Master 23 Eliz. 1. § 6. N. 1. and the following words here or teacher explain who is intended viz. Every teacher of youth 23 Eliz. 1. § 7. N. 2. LXVIII Licence Page 64. 65. This Clause repair to Church as is aforesaid or be allowed 23 Eliz. 1. § 6. N. 1. being in the dis-junctive it seemeth that altho a School-Master doth not come to Church yet if he be Licensed by the Bishop or Ordinary it shall excuse the penalty and this is not altered in that particular either by 1 Jac. 4. § N. infra nor by 13 and 14 Car. 2.4 § 11. N. 1. but then he must by 13 and 14 Car. 2.4 § 11. N. 1. c. Among other things subscribe a declaration or acknowledgment that he will confirm to the Liturgy of the Church of England as it is now by law Established or he shall for the first offence suffer three months imprisonment without bail and for the second and every other offence shall suffer three months imprisonment without bail and also forfeit V. li. 2. But if he be licensed and subscribe and do as aforesaid and so cannot be punished by 23 Eliz. 1. § 6. N. 1 or either of the other said acts yet now by 17 Car. 2.2 § 4. N. 1. unless he take the Oath there mentioned and frequent Divine service Established by the Laws of this Kingdom and carry himself there as the said Statute is appointed he shall forfeit for every offence ten pound li. so that now conformity in repairing to Church is is necessarlly required of every such Schoolmaster 3. But now by 13 and 14 Car. 2.4 § 11. N. 1. There may be 12 pence taken for such licence notwithstanding 23 Eliz. 1. § 7. N. 1. LXIX Dayes Page 65. 66. This limitation of time within one year and day 23 Eliz. 1. § 8. N. 1. extends not to any offence made Treason by 23 Eliz. 1. but only to such offences mentioned in this act or 1 Eliz. 1.2 and 5 Eliz. 1. and 13 Eliz. 2. as concern the Kings Supremacy in Causes Ecclesiastical the service of God coming to Church or Establishment of Religion 2. And for those touching Religion 23 Eliz. 1. § 8. N. 1. enlargeth the time limited by 1 Eliz. 2. § 20. N. 1. which saith the party must be Indicted the next Sessions or 1 Eliz. 2. § 22. N. 1. If in a Corporation within fifteen dayes after Easter or Michaelmas for now he may be Indicted at any time within the year and day 3. But for absolving or withdrawing or for being absolved withdrawn or reconciled which are 23 Eliz. 1. § 2. N. 1.
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
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