this is not like the Case of Jurors upon 2 H. 5. § 2. cap. 3. § 1. N. 2. where t is said that the Juror shall have Lands of the clear yearly value of 40 s. if the debt or damage declared amount to 40 marks in which Case altho it be in the disjunctive debt or damage yet it hath been adjudged that where the debt and damages doth amount to 40 marks it is sufficient and the Juror must have 40 s. per Annum 1 Inst 272. For in that Case the word or is cumulative and debt or damage both amount to no more than one intire thing viz. The value of the Cause or Action depending And it appears plainly to be the intent of the makers of the Law 2 H. 5. Sect. 2. Cap. 3. § 1. N. 2. that no Cause declared to be of the value of 40 Marks shall be tryed by Jurors of a less Estate But in our Case the Lands and Goods are things of different natures one real and the other personal and cannot be regularly reduced under one and the same head and therefore shall not be valued together unless 35 Eliz. 2. § 8. N. 2. had expresly appointed such a valuation 2. But yet if a Popish Recusant hath a lease for years and personal Goods and both do amount in value to above 40. l. he shall be out of the danger of abjuration for altho the lease is in the realty and the goods are personal yet they shall in this Case be valued together For that by this Copulative and 35 Eliz. 2. § 8. N. 2. expresly so appoints without distinguishing between the values of either but makes it sufficient if both of them be of that value 3. Mony secured upon a Mortgage of Lands is within the meaning of these words Goods and Chattels 35 Eliz. 2. § 8. N. 2. And if the Popish Recusant hath above 40. l. owing to him upon such Mortgage he cannot be required to abjure CXXXIII Days Page 137. Within three months next after such person shall be apprehended or taken 35 Eliz. 2. § 8. N. 3. Wingate Crown 80. clearly mistakes the meaning for he saith that a Popish Recusant whose Estate is under value must make the submission prescribed by this Act within three months next after his arrival at his place of abode which is a complicated Error for he quites leaves out him who is to repair to the place where he was born or his Father or Mother dwells he makes the party lyable to such submission before he becomes an offendor by not repairing or not presenting himself and giving in his true name or Travelling above five Miles He speakes nothing of his being apprehended whereas by the Act he cannot be required to abjure until three months after his apprehension and he turns the three months after his apprehension into three months after his arrival all great mistakes and fit to be taken notice of by Justices of Peace whose part it is to require the submission and abjuration that they may not be misled in the Execution of this part of their office by trusting to that abridgment Page 138. CXXXIV Being thereunto required by the Bishop c. 35 Eliz. 2. § 8. N. 3. If the offendor be not before the end of the three months next after his appreliension required by the Bishop a Justice of Peace or the Minister or Curate to make such submission he cannot be required afterwards nor be compelled to abjure by force of this Act but if he be required within the three months to make submission and refuse he may be at any time afterwards warned or required to abjure CXXXV Exile Page 138 139. The Oath of abjuration 35 Eliz. 2. § 8. N. 4. may be in this form or to this effect You shall Swear that you shall depart out of this Realm of England and out of all other the Kings Majesties Dominions and that you shall not return hither or come again into any of his Majesties Dominions but by the licence of our said Soveraign Lord the King or of his heirs So help you God 3 Inst 217. Stamford 119.120 Wilkinson 66. hath set down another form c. resembling that of a Felon c. This hear you Sir Coroner that I J M. of H. in the County of S. am a Popish Recusant and in the contempt of the Laws and Statutes of this Realm of England I have and do refuse to come to hear Divine Service there read and exercised I do therefore according to the intent and meaning of 35 Eliz. 2. § 8. N. 4. c. abjure the Land and Realm of King Charles now King of England Scotland France and Ireland and I shall hast me towards the Port of P. which you have given and assigned to me and that I shall not go out of the high-way leading thither nor return back again c. If I do I will that I be taken as a Felon of our laid Lord the King and that at P. I will diligently seek for passage and I will stay there but one flood and Ebb if I can have passage and unless I can have it in such space I will go every day into the Sea up to my knees assaying to pass over So God me help and his holy Judgment But in alluding to the old Oath for Felony c. Wilkinson is mistaken in the very Offence for which the Popish Recusant is to abjure by force of 35 Eliz. 2. § 8. N. 4. For the Offence is not his Refusal to hear Divine Service for that is but one of the precedent qualifications of the person but the Offence it self is of another nature viz. his not repairing to the place the Statute appoints him or his removal from thence contrary to the Statute or his not presenting himself and delivering his true name as aforesaid Either of these if he be a Popish Recusant within the meaning of this Act is a Crime for which he ought to abjure unless he prevents his abjuration by a timely Submission Nor is the Popish Recusant bound to swear that he will not go out of the high way or return back or will tarry but one Flood and Ebb or go into the Sea up to his knees Nor ought the Coroner or Justices of Peace to require any such Oath of him for this is a new Offence made by a Statute Law which doth not require the strict form of Abjuration as in Case of Felony and altho the Felon were tied to these Circumstances yet the Recusant is not nor shall be a Felon for omitting them but 't is sufficient if he simply abjure as 35 Eliz. 2. § 8. N. 4. directs and go from the appointed Port within the time limited and not return without Licence into any of the Kings Dominions He that thus abjures the Realm doth yet owe the King his Ligeance and remaineth within the Kings Protection Qui abjurat Regnum amittit regnum sed non Regem amittit Patriam sed
AN Explanation OF THE LAWS AGAINST RECUSANTS c. ABRIDGED By JOSEPH KEBLE Of GRAYES-INNE Esq LONDON Printed for SAMUEL KEBLE At the Turks Head in Fleet-street over against Fetter-lane-end 1681. TO THE READER Reader THe Usefulness of the LAWS concerning Recusants c. Explained which is here referred to in Pag. 7. occasioned the Paines in suiting this Abridgement to the several Editions of the Statutes by Quotations directed to the Particular Statute Paragraph and Number or distinct Sentence of each Paragraph which is most proper to the last Edition now in the Press and to evince the Necessity or great Convenience of those several Wayes of Section without which I could not without some Difficulty discover the Meaning of any Cases of the least Variation And therefore what I wrote for my own Ease I hope will not be thought uneasy to others my Design not intending this Publick when wrote But to pleasure a Particular Friend I have permitted it to be so Some things of weight are here added particularly Pl. 251. and other things of less moment are added or omitted as seemed fit and that it be but as kindly received as I intended is the utmost Desire of Grayes Inne 27 March Anno 1681. JOSEPH KEBLE AN EXPLANATION OF THE LAWS AGAINST POPERY ABRIDGED Stat. 1. Eliz. 1. Of SVPREMACY PAge 2. The Statute of 1 2 Phil. and Mar. 8. mentioned 1 Eliz. 1. § 2. N. 1. repealed 26 H. 8.1 and 35 H. 8.3 by both which King H. 8. his Heirs and Successors were declared Supream Head of the Church of England and by repeal of 1 and 2 Ph. and Mar. 8. those other Statutes 26 H. 8.1 and 35 H. 8.3 were revived and are again in force III. 4 Inst 325. Page 5. By the abrogation of the Jurisdiction of any forreign Prelate 1 Eliz. 1. § 16. N. 2. all Jurisdiction derived from such Forreigner is abrogated likewise IV. and therefore the concurrent Jurisdiction which the Arch-Bishop of Canterbury is supposed to have in the inferiour Dioceses ought not now to be exercised by him but is utterly taken away by this Act for he had it not as Arch-bishop but as Legatus natus to the Pope Hob. 17. Dr. James Case Lamb. 224. V. High Commission Page 8. The Jurisdiction and authority by 1 Eliz. 1. § 18. N. 1. given to the late Court called the High Commission Court are now taken away by 17 Car. 1 cap. 11. § 4. N. 1. But the power given by 1 Eliz. 1. § 18. N. 1. to the Queen to constitute such Commissioners was no more than she had before by ancient prerogative and the Laws of the Land for thereby she might have made such an Ecclesiastical Commission if 1 Eliz. 1. § 18. had never been made 5. Co. 8.9 Cawdries Case and 2 Cr. 37. Page 13. If a man had done any deed or act VI. or executed any thing which amounted to the holding standing with or maintaining the Spiritual or Ecclesiastical Jurisdictiction of any foreign Prelate c. he might before the Statute of 23 Eliz. 1. § 8. N. 1. have been indicted for it after the year expired for the restraint here 1 Eliz. 1. § 31. N. 1. in point of time extends to offences committed by preaching teaching or words only and not to all Cases within this branch as Wing Crown 10. mistakes But now by the Statute 23 Eliz. 1. § 8. N. 1. It seemeth that the prosecution must be within a year and a day for all offences whatsoever against this Act. VII Dayes Page 13 14. The half year here mentioned 1 Eliz. 1. § 31. N. 2. is not to be understood of six months as Wingate Crown 10. mistakes which is in Law to be accounted secundum numerum singulorum dierum allowing XXVIII dayes to every month and not according to the Solar month nor according to the Kalendar unless it be on 13 Ed. 1. W. 2. cap. 5. § N. for the lapse in Quare Impedit and by 2 and 3 Ed. 6.13 § N. of proving a suggestion 1 Inst 135. and 2 Crook 166 167. B. of Peterborough vers Catesby Yelverton 100. Catesby vers Baker and Hob. 179. Copley against Collins But the halfe year in 1 Eliz. 1. § 31. N. 2. is to be understood according to the Kalendar Infra pl. 65. Page 14. Sir Edw. Coke 4 Inst 331 in his Construction of 1 Eliz. 1. § 31. N. 2. saith that no persons shall be impeached for any of the offences by preaching teaching VIII or words unless they be lawfully indicted within the space of half a year but yet it seemeth that the words of the. Statute will not bear such a Construction neither if they did is it Law at this day nor was then when the Institutes were wrote 1. For that 1 Eliz. 1. § 31. N. 2. refers only to the Case of Imprisonment that where the Offender by preaching teaching or words is imprisoned and is not indicted within half a year after the offence committed he shall be set at liberty and shall be no longer detained in Prison for any such cause or offence and this was done in favour of liberty and to prevent a long imprisonment upon a malicious and groundless accusation but there is no colour to extend the words to the Offender who was never imprisoned altho the offence was by preaching teaching or words only 2. Put the Case that an Offender by preaching teaching or words had been imprisoned within the half year yet it seems very questionable whether at the half years end when he was set at liberty as he ought to be by 1 Eliz. 1. § 31. N. 2. if he be not in the mean time indicted he should have been clearly discharged by this Act from any prosecution during the half year then next following for altho it be said he shall be no longer detained in Prison for any such cause or offence yet that seems to refer only to his imprisonment before conviction and detained imports as much Viz. That he should not be continued or remain in the same imprisonment which he suffered within the first half year before any Indictment was found against him but not that he should not be indicted afterwards within the compass of the year and if found guilty suffer the imprisonment and other penalties inflicted by this act and it might so have happened that an Offender by preaching teaching or words might have been accused taken and imprisoned a day or two before the half year next after the offence expired in which Case it cannot be thought to be the meaning of the makers of the Law that by his imprisonment for a day or two he should escape the penalties of the Law and could not be afterwards indicted within the compass of the year and yet in that Case he ought to be set at liberty by the express words of the Act which saith he shall be set at liberty if not indicted within half a year after the offence
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
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
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
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