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
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
but no particular cause for the recusants travel was expressed in the license and this seems to be a good exception for the inserting into the License that the Popish recusant hath urgent or necessary occasion or business answers only the former part of this Proviso 3 Jac. 5. § 7. N. 2. which gives the former Justices power to license him if he hath necessary occasion or business to travel out of the compass of five miles but withall it ought to be mentioned in the license particularly what that occasion or business is which is the cause of the License for so this Act here 3 Iac. 5. § 7. N. 3. expressly appoints and therefore that form of a License for a recusant to travel which Dalton 379 Cap. 124. tit licenses hath set down wherein no cause is mentioned but urgent and necessary business seems too short and general and is not to be relyed on Page 210 CCXXVIII First taking his Corporal oath 3 Iac. 5. § 7. N. 4. in Mansfiel ca. Moor 836. pl. 1127. there is another oath mentioned for a Popish recusant to take before he can be licensed to travel and that is the oath of Allegiance prescribed by 3 Jac. 4. § 25. N. 1. for in Moor 836. it 's said that in an Information brought against the recusant for travelling out of the compass of five miles the defendant pleaded a licence from four Justices of peace and his plea was disallowed because among other things that did not shew that before the licence he had taken the oath of Allegiance yet Quaere of this and by what Law the omitting to take that Oath makes the Licence void but I rather think it to be a mistake and that such an exception might be moved but the plea not disallowed for that reason Page 210 211. Before the said four Justices of the Peace or any of them 3 Jac. 5. § 7. N. 4. Master Shepherd in Sure Guide Cap. 14. Sect. 5. thinks that no less than two of the four Justices of the peace can minister this Oath to the recusant But I take it to be there that any one of the four Justices may minister the Oath in this Case And there is a great difference between any Justices for that denotes the Plural number as in the subsequent clause 3 Jac. 5. § 27. N. 1. where any Justices may imprison the Offender that is any two Justices or more and Any of the Justices are here 3 Iac. 5 § 7. N. 4. which denotes the singular number and the following words who shall have Authority by vertue of this Act to minister the same may be well enough applied to any one Justice of peace Page 211. CCXXX That he hath truly informed them of the Cause of his journey 3 Iac. 5. § 7 N. 4. If an information be brought against a Popish recusant for travelling out of his compass of five miles and he plead a licence from four Justices of peace it seems necessary that he averr in his plea that the cause contained in his licence was true and real Moor 836. pl. 1127. CCXXXI Ability Page 212. This clause 3 Iac. 5. § 8. N. 9. extends not to all sorts of recusants who are convicted or have Wives who are recusants convicted as is mistaken in the Additions to Dalton Cap. 81. Sect. 46. tit Recusants but at this day only to the Popish recusant convicted or having a Wife who is a Popish recusant convicted A Popish recusant not convicted hath a Wife who is convicted of recusancy but is no Popish recusant the Husband is not disabled by 3 Iac. 5. § 9. N. 1. to exercise any publick Office or Charge for that neither the Husband is a convicted recusant nor the Wife a Popish recusant A person who is convicted of recusancy but is no Popish recusant hath a Wife who is a Popish recusant but not convicted the Husband is out of this branch of the Statute 3 Iac. 5. § 9. N. 1. for that neither the Husband is a Popish recusant nor the Wife convicted CCXXXII Women Page 213 214 215. The Issues and Profits of two parts of her Dower 3 Iac. 5. § 10. N. 1. and not of two parts of her Joynture or Dower as Wingate Coron 134 For there are divers Cases where notwithstanding 27. H. 8.10 § 6 N. 3. the Wife shall have her Dower and Joynture both and if she offend against 3 Iac. 5. § 10. N. 1. she shall forfeit the profits of two parts of both and that not only where the Joynture made to her is not warranted by 27 H. 8.10 § 6. N. 1 But in some Cases where the Joynture is pursuant and according to the Statute she shall have her Dower and Joynture both If an Estate be made of Lands to the wife for the Life of another Dower 4 Co. 3 Vernons Case Or for a thousand years if she lives so long 1 Iust 36. Or if a Rent be granted to the Wife for the life of another or for years or any other way not pursuant to 27. H. 8.10 § 6. N. 1. Bickley's Ca. 1. Anderson 288. pl. 296. and 2 Anderson 30 pl. 2. Wentworth's Case Or if an Estate be made to others in Fee or for the Wives life upon trust for her benefit 1 Inst. 36. Or if a man covenant to stand feised to the use of himself in Tayl the Rem to the use of his Wife for life Pasch 16. Jac. B. R. Wood's Ca. Or if the Husband make a Feoffment in Fee to the use of himself for life the Remainder to another for life or years the remainder to the Wife for her life 4 Co 2. Hutt 51. Shrewell's Ca. In all these Cases altho the Lands or rent were conveyed to the Wife for her Joynture yet the Estate not being within 27 H. 8.10 § 6. N. 1. her acceptance thereof shall not barre her Dower but she shall have such Joynture and her Dower also And the reason why in the two last Cases the Wife shall not be barred of her Dower altho there be an Estate limited to her for her life is because the Estate is not in its first Creation appoynted to take immediatly after the death of the Husband and no matter which ariseth ex post facto can salve this or make it a Joynture within 27 H. 8.10 § 6. N. 3. to barre her Dower And therefore if in Wood's Câ—â—â—â—… the Husband Tenant in Tayl dyeth without issue or if in Hutt 51. he in remainder dye before the Husband or the term for years determine in the Husband's life-time so that the Wife may enter presently after his death yet because the Estate to the wife for her life was not originally limited to take immediately after his death it shall not barre her Dower quod ab initio non valet c. And as in all the Cases befo-rementioned if the Estate were made for her Joynture the Wife shall have such Joynture and Dower both so if
against the Defendant upon failer of the Record Hetley 18. But yet if there be a Plea of a Conviction of Recusancy had before the Justices of Gaol delivery and the Defendant mistakes Certiorari and takes out a Certiorari to the Justices of Peace this shall not be a failer of the Record altho the Defendant hath it not at the day for that the issuing of a Certiorari was the Award of the Court but a Certiorari shall be awarded de novo to the Justices of Gaol delivery before whom the Plaintiff was convicted Hob. 135. Pye and Thrill Note If the Defendant be sued in C. B. or any other of the Principal Courts at Westminster and he plead a Conviction of Recusancy before the Justices of Gaol delivery or Justices of Peace he need not take his Certiorari out of the Chancery and so bring it by Mittimus but the Court may send a Certiorari immediately to that inferiour Court where the Plaintiff was convicted as was held Hob. 135. See 19 H. 6.19 And the Justices themselves before whom the Conviction was had must certify and therefore if the Conviction was had before Justice of peace the Certificate cannot be by the Custos Rotulorum alone though he keep the Records for the Certiorari is in such Case directed to the Justices of peace Hob 135. A Popish Recusant is convicted of recusancy in a popular suit and after such Conviction sues the Informer qui tam c. upon some other matter or cause of action arising between them Quaere whether the Desendant may plead such Conviction in disability of the Recusant by 3 Jac. 5. § 11. N. 2. for this Conviction disables the Recusant to sue as if he were excommunicated and no otherwise Now if a Bishop excommunicate any one and the Bishop be afterwards sued at Law for any other matter or cause by the person so excommunicated the Bishop cannot plead this Excommunication in disability of the plaintiff who sueth 1 Inst 134. Swinborn 305. part 5. sect 6. and the reason given for this 8 Co. 68. in Trollop's Case is because the Bishop was a party to the Excommunication and therefore shall take no advantage by it Which reason seems to hold likewise in the case of an Informer Qui tam c. who is a party to the Conviction of the Recusant upon the popular suit which conviction renders the Recusant disabled to all intents as an excommunicate person and therefore he being a party to it by the same Rule shall not take advantage of it in disability of the Recusant in any action brought by the Recusant against him But yet notwithstanding I conceive the Informer qui tam c at whose suit the Recusant was convicted may well take advantage of this Conviction and plead it in disability of the person of the Recusant and that the true reason why the Bishop shall not be admitted to plead an Excommunication pronounced by him in disability c. is not because he is a party to the Excommengement but because in matters of Excommunication the Bishop acts as judge and 't is by his Sentence and Authority that the party is excommunicated and he shall not take advantage in another suit of a sentence given by himself judicially and this will not hold in the case of an Informer c. 14. H. 4.14 If an Executor or Administrator becomes a Popish recusant convict it seems he is disabled by this Act 3 Jac. 5. § 1. N. 1. to sue in either of these capacities for 3 Jac. 5 § 11. N. 1. saith he shall be disabled to all intents as an excommunicate person Now a person actually excommunicated can not sue as Executor or Administrator as is held 21 Ed. 4.49 21 H. 6.30 and 14. H. 6.15 and 1 Inst 134. altho there are some opinions to the contrary Finch 27. Page 219 CCXXXVI 220. Which are not to be seized or taken into the King's hands c. 3 Jac. 5 § 12. N. 1. these words are not restrained to such Lands c. as cannot be seized into the King's hands for recusancy for then the Recusant could in no case sue for more than the third part for that the King may if he please make his Election and seize the other two parts in lieu of the XX. lb per Month But they are intended of all Lands c. of the recusant which neither the King hath seized nor are by Law to be seized by vertue of any thing which the king hath already done or in respect of what the recusant after his conviction hath omitted to do And therefore if a man be convicted of recusancy upon a popular suit or an action of debt at the King's suit alone in which cases the penalty of XX. lib. per Month is not appropriated to the King for the time to come and he payeth the penalty recovered or if he be convicted upon Indictment and after such Conviction duly payes the XX. lib. per Month into the Exchequer and the King makes no Election to take the two third parts of his Estate in lieu thereof such Recusant may by this Proviso 3 Jac. 5. § 12. N. 1. in either of those Cases sue or prosecute for any of his Lands Tenements Leases Rents Annuitys or Hereditaments whatsoever notwithstanding his conviction for when the penalty recovered is satisfied or the forfeiture appropriated to the King is duely paid into the Exchequer his lands c. are not to be seized by force of any Law for recusancy unless the King make his Election to have the two parts and untill that Election they cannot in the sense of this Proviso 3 Jac. 5. § 12. N. 1. be said to be Lands to be seized or taken into the King's hands for that the King cannot have the two parts and the XX. lib. per Month both But if the King make no such Election and the XX. lib. per Month be duely paid into the Exchequer the Recusant is to hold and enjoy all his Lands Tenements c. as if he had never been convicted and during that time there can be no distinction made between the two parts and the Recusants third part so that in this Case the recusant must either be enabled to sue and prosecute for all his Lands c. or none and and to think the latter of these were to render this Proviso 3 Jac. 5. § 12. N. 1. nugatory and vain But when once the King hath seized the two Thirds for Recusancy either by way of Election or for non-payment of the XX. lib. per Month penalty then the Recusant is enabled to sue only for the other Third part whether in the hands of the King or of a common person CCXXXVII Marriage Page 220 221. Every man being or which shall be a Popish Recusant convicted 3 Jac. 5 § 13. N. 2. A man who is no Popish recusant convicted marrieth a Woman who is a Popish recusant convicted in other form than is here
the Grantee should have been Guardian notwithstanding this Act for the mischief intended here to be pretended was removed when the seigniory was granted to another who was no recusant by Jones 19. So if the King had seized the reusants seigniory as part of his two parts the King should have had the Wardship and not the next of Kin for the same reason Jones 21. Page 236 237. CCLIV Shall be thought unmeet for such recusant 3 Jac. 5. § 26. N. 2. So that the Justices of peace are not bound by this Act to deface all reliques of Price or to burn or deface all other Reliques or Popish books as Wingate Coron 144. misleads c. And though herein much is referred to the discretion of the Justices of peace yet where the Husband is a Protestant and only the Wife a Popish recusant it seems by these words 3 Jac. 5. § 26. N. 2. that they are not to consider what is unmeet for the Husband but what is unmeet for the Recusant viz. the Wife and that it was not intended that they should seize burn or deface any Books of the Husbands tho Popish unless such whereby the Wife might be aided or confirmed in her superstition So that in this Case Books written in a Language or Style unintelligible to the Wife are not within the meaning of 3 Jac. 5. § 26. N. 2. nor ought by colour thereof to be taken from the Husband who is no Popish Recusant CCV Warre Page 238. In the same County where such Popish Recusant shall be resident 3 Jac. 5. § 27. N. 1. A Popish Recusant lives in one County and his Arms are kept in another County by one who is no Popish Recusant such Arms cannot be seized by force of this Act by the Justices of Peace of either County Not by the Justices of Peace of the County where the Arms are kept for the seizure or taking is here limited to be by Warrant at the Sessions in the County where the Recusant resides and 3 Jac. 5. § 27. N. must be strictly pursued in that particular nor by the Justices of peace of the County where the Recusant is resident for the Arms are in another County where they have nothing to do And altho in some cases where a Statute appoints a Justice of peace to do a thing Justices he may do it out of his County as to take an Examination upon the Statute of Winton 13 Ed. 1. St. 2. Cap. 1. N. of a Robbery 27 Eliz. 13. § 11. N. 2. as was resolved 1 Co. 213 Jones 239. Helier vers H. of Bluhurst yet he cannot exercise any coërcive power out of his County as was resolved in that Case for his potestas jurisdictionis is confined to his County as well as that of a Bishop is confined to his Diocess see Palmer 473. Astuiths case infra 266. N. 2. And here the taking of the Recusants armour is a coërcive act and therefore by 3 Jac. 5. § 27. N. 1. can be executed by warrant of the four Justices of peace in that County only where they are Justices so that this is clearly easus omissus and not provided for by this Act Page 238. CCLVI. Imprisoned by Warrant of or from any Justices of peace 3 Jac. 5. § 28. N. 1 any two Justices may grant their Warrant for imprisoning the Offender and 't is sufficient in this Case for Pluralis numerus est duobus contentus but a Warrant from any one Justice will not serve contrary to Wingate Ceron 145. Page 238 239. CCLVII Of such County 3 Jac. 5. § 28. N. 1. that is of the County where the Popish Recusant is resident for no other County was named before a Popish Recusant lives in one County and his Arms are kept in another County by one who is no Popish Recusant the Justices of peace of that other County cannot by force of this Act 3 Jac. 5. § 28. N. 1. imprison him that keeps them for they are not named here but the power in this Case is expressly limited to other Justices and no other can intermeddle therein neither will the Warrant of the Justices of peace of the County where the Recusant is resident reach him who is in another County for the coercive authority of a Justice of peace cannot exceed his limits or bounds as Comm. 37. is held in the Case of the Lord Say It was resolved that if a Justice of Peace of the County where the Felony was committed pursue a Felon into another County and take him there the Felon must be imprisoned in the County where he is taken and the Justice of peace who pursued him hath no power to carry him to the Gaol of the County where he did the Felony for he is a Prisoner in the County where he was taken and there the Justice of Peace hath no more power to do than an ordinary person 13 Ed. 48. Freshsuit Br. 3. So that as it seems in this Case the party who keeps such Arms cannot be imprisoned by 3 Jac. 5. § 28. N. 1. but this likewise wise is casus omissus and not here provided for 7 Iac. 6. Of Allegiance PAge 243.243 upon 7 Jac. 6. § 8. N. 1. the King cannot dispence with any Member of the Commons House of Parliament from taking this Oath of Alleglance CCLVIII. for that he is here declared to be persona inhabilis untill he take it Vaughan 355. Thomas and Sorrell supra 44 and 3 Inst 154. Page 246. For any two Justices of Peace within any County CCLIX City or Town Corporate c. 7 Jac. 6. § 26. N. 2. the two Justices may require his Oath of any person that shall happen to be within their Jurisdiction altho his Habitation be in another County or Liberty for the Oath of Allegiance sequitur personam non locum 2 Bulstr 155. the King against Griffith c. Page 246. To require any person or persons CCLX 7 Jac. 6. § 26. N. 2 This is an enlargement of the power given to two Justices of Peace by 3 Jac. 4. § 13. N. 4. For thereby they could have required the Oath but only in some particular Cases supra 181. but by 7 Iac. 6. § 26. N. 2. they may require it of any person whatsoever of competent age and under the degree of a Baron or Baroness The Justices of the Peace in this Case 7 Iac. 6. § 26. N. 2. or the Justice of peace in the following Case 7 Iac. 6. § 26. N. 4. may make his or their special Warrant to the Constable to bring the party before the said Justice or Justices to take the oath for by 7 Iac. 6. § 26. N. 2. by giving them power to require the Oath doth implicitly authorize them to make such a Warrant Quando Lex aliquid alicui concedit concedere videtur id sine quo res ipsa esse non potest and it is against the Office of the Justices of Peace
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
made Treason no time is limited for the persecution but the offender may be Indicted at any time after the year and day for the latter part of 23 Eliz. 1. § 8. N. 2. Speakes of those offences of Treason which the Justices of Peace cannot hear and determine and there no time is limited altho there be in the former part 23 Eliz. 1. § 8. N. 1 for those offences which are inquirable by Justices of Peace 1 Leonard 238. pl. 322. Guilfords Case LXX Justices Page 66. 67. Upon 23 Eliz. 1. § 9. N. 1. The Justices of the Court of B. R. are the Soverain Justices of Oyer and Terminer and Goal-delivery 9 Co. 118. Lord Sanchors Case and therefore may enquire of hear and determine the offences against this Act altho they be not here especially named 2. If an Indictment be preferred upon this Statute 23 Eliz. 1. § 9. N. 1. before Justices of Oyer and Terminer or of Assie for any offence not made Treason or misprision and there is an Indictment before Justices of Peace likewise for the same offence the Judgment of the Justices who do first enquire hear and determine the same shall stand and the Judgment given by the other shall be void as was held in the like Case 2 Inst 739. Upon 31 Eliz. 7. § N. of Inmates 3. The Power here given 23 Eliz. 1. § 9. N. 2. The Justices of Peace in their open Quarter Sessions to hear and determine the offence of not coming to Church is in force at this day notwithstanding 29 Eliz. 6. § 2. N. 2. which saith that every conviction for not coming to Church shall be in B. R. or at the Assizes or General Goal-delivery and not elsewhere for 3 Jac. 4. § 7. N. 1. hath given power to Justices of Peace in their General or Quarter Sessions to enquire hear and determine of all offences for not coming to Church according to former Laws in such manner as the Justices of Assize and Goal delivery might do by former Laws in the Case of Recusancy for not repairing to Church which is clearly a reviver of the power of Justices of Peace given to them by 23 Eliz. 1. § 9. N. 2. to proceed against Recusants and taken from them by 29 Eliz. 6. § 2. N. 2. 4. Nor doth that following Clause 3 Jac. 4. § 7. N. 2. Touching Conviction by proclamation impeach this or restrain the Justices of Peace to proceed to conviction upon proclamation only and default of appearance no more than the Justices of Assize or Goal-delivery are restrained thereby or by 29 Eliz. 6. § 2. N. 5. which gives them likewise Authority to proceed by Proclamation 5. For these Clauses of 3 Jac. 4. § 7. N. 1.2 are in the Affirmative viz. first that the Justices of Peace shall have power to hear and determine the offence of not coming to Church according to Laws in such manner as Justices of Assize and Goal-delivery might do and those Justices might hear and determine that offence according to this Statute 23 Eliz. 1 § 9. N. 1. and then comes the next Clause of 3 Jac. 4. § 7. N. 2. That the Justices of Peace shall have power to convict by proclamation which is purely affirmative also and therefore abrogates no part of the power given them by the former Clause of 3 Jac. 4 § 7. N. 1. and this agrees with what Sir Ed. Coke saith 12 Co. 13 that if a man be Indicted for Recusancy at the Assizes or Sessions of the peace the Court may waive the proceedings by proclamation upon 3 Jac. 4. § 7. N. 2. And may still if they please proceed against the party by process upon this Statute 23 Eliz. 1. § 9. N. 2. in which Case the process must be by Venire facias capias c. As in Indictments of trespass and if saith he the party be fugitive in another County the Indictment may be removed in B. R. and then process may be there made out against him into any County of England LXXI Justices Page 67. Upon 23 Eliz. 1. § 9. N. 2. by Quarter Sessions is intended here only the Sessions of the Peace held at four times of the year and not any other altho it be general Sessions 2. And therefore the Justices of Peace in London who hold a Sessions every month cannot take Indictments upon this Statute 23 Eliz. 1. § 9. N 2. at any of them unless it be the Quarter Sessions For that their Authority is given them only at a certain time as was resolved upon 5 Eliz. 9. § 9. N 1. in the like Case Mich. 17. Jac. B. R. Palmer 44. pl. Taylors Case 3. And 3 Jac. 4. § 7. N. 1. which gives Justices of Peace power to take Indictments of Recusancy at their general or Quarter Sessions for so the word said there imports having reference to the general or Quarter Sessions mentioned before 3 Jac. 4. § 4. N. 2. about presentments yet doth not enlarge the power of the Justices of Peace in this particular nor enable them to take such Indictments at any Sessions but at their four Quarter Sessions for altho it be put there 3 Jac. 4. § 4. N. 2. dis-junctively General or Quarter yet the latter word is but Explicative of the former and shews what general Sessions are meant as appears by 3 Jac. 4. § 14. N. 1. and 7 Jac. 6. § 26. N. 5. touching the Oath of Allegiance for in 3 Jac. 4. § 14. N. 1. t is said that if the party refuse the Oath he shall be committed to Goal until the next Assizes or general Quarter Sessions and if he refuse the Oath tendred him by the Justices of Assize and Goal-delivery in their open Assizes or by the Justices of Peace in their said general Quarter Sessions he shall incurre a Praemunire and in 7 Jac. 6. § 26. N. 5. that the party refusing shall be committed to Goal until the next Assizes or general Quarter Sessions and if he refuse the Oath tendred him by the Justices of Assizes and Goal-delivery in their open Assizes or Goal-delivery or the Justices of Peace or the greater part of them in their general or Quarter Sessions he shall incurre a Praemunire which clearly shews that the same thing is intended by General Quarter Sessions and General or Quarter Sessions and that all General Sessions which are not Quarter Sessions are excluded out of the meaning of those Statutes LXXII Endictment Page 68. the Justices named in 23 Eliz. 1. § 9. N. 2. are hereby impowered to proceed by Indictment only and no other way for they are to hear and determine after enquiry infra 95. 165. 2. And the word Enquire implyeth an Indictment and is alwaies so to be expounded supra 35 and so are the other words hear and determine where other proceedings are not specially named as here they are not 3. For the Action of debt Information c. in any Court of Record is given to the Informer
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
receiving of the profits there it was said Copy-holds shall be included within the general words of Lands Tenements and Hereditaments 3. And yet see Owen 37. where this Case of Sulhard and Everet is otherwise reported and that it was at length after great debate adjudged that Copyhold Lands are not within 29 Eliz. 6 § 4. N. 3. nor are seizable for the Kings two parts And according to this Judgment I take the modern practice of the Exchequer to have been that neither the Land it self nor the profits of Copyhold Lands are lyable to such seizure CIII Process Page 107 108. If the same be taken at any Assize or Goal-delivery 29 Eliz. 6. § 5. N. 6. for if the Indictment had been taken before Justices of Peace no Proclamation thereupon could have been made upon this Statute by the Justices of Assize or Goal-delivery as was resolved in the Case of Sir Edward Plowden And therefore upon such an Indictment for Recusancy taken before Justices of Peace the Court was to remove the Indictment in B. R. and there process might have been made out against the Recusant and he Convicted for the Justices of Peace could do no more than Indict all other proceedings being taken away from them by this Statute 29 Eliz. 6 § 2. N 2.11 Co 63. and 1 Rol. 94. but now by 3 Jac. 4. § 7. N. 1. the Law is altered in this point and the Justices of Peace upon Indictments taken before them may proceed to proclaime and convict the Recusant as well as Justices of Assize and Goal delivery supra 95. N. 2. Page 108 CIV Upon such default 29 Eliz. 6. § 5. N. 6. that is upon his default of appearance of record at the next Assizes or Goal delivery For if he make such appearance that shall save his default of not rendring his body to the Sheriff And the not rendring himself to the Sheriff shall be no Conviction as Wingate Crowne 66. would make it Page 108. CV As sufficient a Conviction in Law 29 Eliz. 6. § 5. N. 6. that is as if he were Convicted by Verdict but not as sufficient as if a Judgment were had against the Recusant For altho by force of 29 Eliz. 6. § 5. N. 5. and other Statutes the Conviction upon Proclamation and default of appearance make a Recusant lyable to divers penalties and Incapacities and is in those respects as forceable as a Judgment yet it shall not in other Cases have the force or effect of a Judgment and therefore it was resolved 37 and 38 Eliz. in the Case of the general pardon Anno 35 Eliz. where there is an exception of all penalties and forfeitures due to the Queen and converted to a debt by Judgment that notwithstanding that exception a Recusant Convicted upon Proclamation was within the pardon and the forfeitures due upon such Conviction were thereby pardoned for the debt was not due to the Queen by Judgment but upon Conviction only but otherwise it had been if he had been Convicted according to 23 Eliz. 1. § 5. N. 1. without Proclamation and Judgment had been given thereupon 11 Co. 65. Dr. Fosters Case Page 109 110 111. CVI. Upon 29 Eliz. 6. § 6. N. 1. It was resolved by all the Judges Mich. 37 and 38 Eliz. 1 Rol. 94. in Dr. Fosters Case that if a man had been Convicted according to this Statute 29 Eliz. 6. § 5. N. 5. by Proclamation upon default and afterwards conformed himself he should be discharged of the penalty due upon his Conviction notwithstanding these words 29 Eliz. 6. § 6. N. 1. and full satisfaction of all the Arrearages and the reason of this is given by Coke Chief Justice B. R. for that 29 Eliz. 6. § 5. N. 6. saith that such Conviction should be as sufficient as if there were a Verdict recorded but 't is only a Judgment which converts the penalty into a debt and not a Verdict And here all the penalties are discharged upon Conformity unless such as are Converted into a debt 29 Eliz. 6. § 6. N. 1. But otherwise it would have been if there had been a Judgment against the Recusant upon Tryal or Confession upon 23 Eliz. 1. § 5. N. 1. for then his Conformity would have come too late to have saved the penalty Incurred by his Conviction for by the Judgment the penalty was Converted into a debt Quaere tamen Whither these words here 29 Eliz. 6. § 6. N. 1. Due and payable are to be understood due and payable upon a Judgment only However now by 1 Jac. 4. § 1. N. 1. if the Recusant confirm either before or after Judgment he shall be discharged of all penalties 2. But the profits of the Recusants Lands taken before his Conformity shall never be restored 3. It hath been questioned upon 29 Eliz. 6. § 6. N. 1. if a Recusant Convicted by Proclamation upon default had died before seizure of two parts of his Lands whither his lands might have been seized after his death for the Arrearages of the 20 l. per month or if they were seized in his life time whither they should have been discharged after his death without payment of such Arrears And the opinion of those who held that the seizure should neither ensue nor continue after his death but that the Arrears were discharged was pricipalpally grounded upon 29 Eliz. 6. § 6. N. 1. that due and payable extended only to Arrearages due and payable upon a Judgment and converted into a debt But when the Recusant was Convicted by Proclamation the penalty was never Converted into a debt and therefore when he died there were no Arrearges due in the sense of 29 Eliz. 6. § 6. N. 1. for the heir to pay and yet by such offendor here is generally intended all Recusants Convicted as well by Proclamation upon default as upon on Judgment and the heirs of either should have had the benefit of this Proviso viz. that upon the death of the Ancestor no seizure should ensue or be continued only in the Case of a Judgment the Arrears were to have been paid 4. But there seems now to be no further need of this Question for 1 Jac. 4. § 3. N. 1. meets with both these Cases For if there be no seizure of the Recusants Lands in his life time the discharge of the heir will depend upon his Conformity and if there were seizure the two parts shall continue in his Majesties possession till the Arrears are paid and satisfied But this 29 Eliz. 6. § 6. N. 1. is not intended of entailed Lands For without any aid of this Proviso if a Recusant Tenant in Tail be convicted by Proclamation upon default and dieth neither any Seizure for the Arrears of the 20 l. per month shall ensue after his death nor if they were seized in his life time shall the seizure be continued after his death nor is the heir in Tail bound to pay any such Arrears But if a Judgment be had
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
without any cause shewn or oath made but he who is not convicted is barred of that priviledge and can apply himself only to the Justices of peace for a licence clogged with divers circumstances which are not required in a licence granted by the King or the three privy Counsellours 3 Jac. 5. § 7. N. 1. Much less shall this recital 3 Jac 5. § 6. N 1. of the Statute 35 Eliz. 2. § 3. N. 1. impeach the express words of that Statute 35 Eliz. 2. § 4. N. 1. as if no other Popish Recusants were intended to be confined thereby but only such as are convicted because no other are mentioned in the recital for the recital of an Act of Parliament in another Act of Parliament being only by way of Preface or Introduction cannot add to or diminish the Act recited or make it liable to any other construction than what shall naturally flow from the Act it self 4. Inst 331 Page 208. CCXXII Without any other cause to be expressed 3 Jac. 5. § 7. N. 1. here is one difference between a licence by the King or three of the privy Counsel and a licence by Justices of peace for by these 3 Iac. 7. § 5. N. 2. it ought not to be granted unless the Popish rcusant hath necessary occasions or business but the King 's or privy Counsellours licence may be granted in any case at the Recusants request Page 208 Vnder the Hands and Seals CCXIII. 3 Jac. 5. § 7. N. 2. An Indictment was brought upon 35 Eliz. 2. § 3. N. 1. for travelling out of the compass of five miles the recusant pleaded a license under the Seals of four Justices of peace and exception was taken to the plea for that the license ought to have been under their hands as well as their seals 2 Cr. 352. Mich. 12. Jac. Maxfield Case And this is a good exception for a license by Justices of peace altho in writing 't is not sufficient without Seals and subscription both 1 Roll 108 Pl. 47 Mucclefields Ca. CCXXIV. Recusantis Of four of the Justices of Peace 3 Jac. 5. § 7. N. 2. and a license from less than four will not now serve since the repeal of 35 Eliz. 2. § 12. N. 1. and therefore 1 Roll 108 is misreported in that particular for there mention is made of a license from two Justices of peace as if no more were then requisite and that Case could not be grounded upon the Proviso in 35 Eliz. 2. § 12. N. 1. which required only two Justices as well for the distance of time being nine years after the repeal of that Proviso by 3 Jac. 5. § 6. N. 4. As for that in Roll 108 there is mention of a licence under the Seals of the Justices of Peace and of the oath to be taken by the recusant neither of which was appointed by 35 Eliz. 2. § 12. N. 1. but by this Statute 3 Jac. 5. § 7. N. 4. which must therefore necessarily be there intended and Page 208 CCXXV. 209. With the privity and assent in writing of the Bishop c. the Lieutenant or of any Deputy Lieutenant 3 Jac. 5. § 7. N. 2. An information was brought against a Popish recusant convict for removing above five miles from the place of his confinement who pleaded a licence from four Justices of peace but the plea was disallowed Mich. 12 Jac. Moor 836. Pl. 1127. Mansfields Ca. But yet if it had been granted with the assent of any Deputy Lieutenant residing in the County there is no doubt but it had been good enough The Bishop Lieutenant or Deputy Lieutenant who gives his assent must be a distinct person from the Justices of peace who grant the licence by 3 Jac. 5. § 7 N. 2. and therefore if one and the same person be a Justice of peace and Deputy Lieutenant he can not act herein in both capaciteis for una persona non potest supplere vicem duorum and if he sign and seal the licence as a Justice of peace the assent of some other Deputy Lieutenant or of the Bishop or Lieutenant must be had thereto or the licence is void Mich. 12. Jac. Maxfield's Ca. 2 Cr. 352. and Mansfield's Ca. Moor 836. Pl. 1127. and Mucclefield's Ca 1 Roll 108. and that Rule Quando duo jura concurrunt in una persona aequum est ac si essent in diversis holds not in such Cases where distinct persons are necessarily required by Law 7 Co. 14. Calvin's Ca. and here four persons 3 Jac. 5. § 7 N. 2. are necessarily required to grant the licence and another person to assent to it In 2 Cr. 352. one exception to the license in Maxfield's Ca. was that the assent of the Deputy Lieutenant was contained in the license granted by the four Justices of peace and was not separate and distinct by it self But to this the Court made no answer and it seems that such an assent is well enough by 3 Iac. 5. § 7. N. 2. tho in the same writing with the license if it be expressed that the four do license and the Deputy Lieutenant doth assent and such writing be under the Hands and Seals of all five Page 209 210. residing within the said county or liberty 3 Iac. 5. § 7. N. 2. these words seem to refelr as wel to the Bishop Lieutenant as to the Deputy Lieutenant so that if a Bishop's Diocess extends into divers Counties and he resides in one of them his assent can be good only for the Popish recusants of that County where he resides and not for those of any other part of this Diocess CCXXVI Licence So if a Lieutenant resides out of the County whereof he is Lieutenant his assent to such license is void and that these words Residing within the County or Liberty 3 Iac. 5. § 7. N. 2. cannot be restrained to the Deputy Lieutenant only appears by those next before-going viz of the same County which clearly relate to the Lieutenant as well as to the Deputy Lieutenant and by consequence so must the word immediately subsequent viz Residing and as to the Bishop the inconvenience is the same as in the Case of the Lieutenant 3 Jac. 5. § 7. N. 2. for by their remoteness they are disabled to judge of the condition and behaviour of the Recusant to be licensed and of the circumstances wherein he stands and whether such license may be granted to him without hazard of the publick safety which seems to be the reason of this restriction to the County or Liberty where the party who is to assent resides and holds as well the case of the Bishop or Lieutenant as of any Deputy Lieutenant residing out of the County Page 210 The particular Cause of the said License CCXXVIII 3 Jac. 5. § 7. N. 3. in Maxfield's Ca. 2 Cr. 352 another exception to the license granted by the four Justices was that it was said to be granted for certain urgent causes
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
and not half a year after his imprisonment 3. It seems now to be out of doubt but that any Offender against 1 Eliz. 1. altho by preaching teaching or words may be indicted at any time within a year and a day after the offence committed and that by 23 Eliz. 1. § 8. N. 1. which saith that all offences against 1 Eliz. 1. and 5 Eliz. 1. and 13 Eliz. 2. touching acknowledgment of her Majesties Supream Government in Causes Ecclesiastical shall and may be inquirable within a year and a day after the offence commmitted and the affirming or maintaining the Spiritual or Ecclesiastical Jurisdiction of a Foreigner was without question an offence against her Majesties Supream Government in Causes Ecclesiastical against the acknowledgment thereof so that the year limited by 23 Eliz. 1. § 8. N. 1. is now extended to a day further and what ever the meaning of it was as to the half year all offences against it whether by preaching teaching or words or otherwise for 23 Eliz. 1. § 8. N. 1. is general and reaches all offences whatsoever against 1 Eli. 1. touching the Supremacy Ecclesiastical may now be inquired of within a year and a day whether the party be in prison or not but yet it seemeth that in Case of Imprisonment within the first half year this provision 1 Eliz. 1. § 31. N 2. for the setting at liberty of the Prisoner at the end thereof if he be not before that time indicted remains still in force and is not abrogated by 23 Eliz. 1. § 8. N. 1. IX Dignity Page 16. The Provision made in 1 Eliz. 1. § 34. N. 1. and other Acts of Parliament for the Tryal of a Peer by his Peers in case of Treason where he was to be tryed by the Course of the Common Law is ex abundanti and he should have such tryal if no such provision were inserted the like in the case of Felony Stamf. Coron 159. X. Treason Lambert 2. cap. 7. pag. 227. Justices of Peace cannot deal with Traytors in the point of Treason but as Breakers of the peace saying that in some Cases they have a special power to inquire and receive Indictments only and of this sort are 1. Treason of extolling Foreign power by 1 Eliz. 1. § 27. N. 1. 2. The Treason of absolving or withdrawing his Majesties Subjects from their natural obedience by 23 Eliz. 1. § 2. N. 1. c. And 3. The Treason of putting in are any Instrument of Reconciliation gotten from the See of Rome by 13 Eliz. 2. § 2. N. 1. Lambert 56. There hath been care taken XI once or twice in our memory to exact this Oath of Supremacy Oath 1 Eliz. 1. § 19. N. 4. of all the Justices of the Peace throughout the Realm whereof some good hath ensued but yet many a Justice there is that by indirect practice never took either this or the Oath of Offices whereof what harms do or may grow I leave to wiser and higher Men to be considered adding this only that it would avail greatly to the furtherance of the service if the Dedimus Potestatem to give these Oaths were dirigible to the Justices and none other to minister the same not elsewhere but in their open Sessions Crompt 10. b. Every Justice of Peace before he takes upon him to exercise or occupy the Office of a Justice of Peace shall take the Oath of Supremacy XII Justices 1 Eliz. 1. § 19. N. 4. Crompt 11. Nota XIII That the Justices of Peace ought to take this Oath of Supremacy in the open Court of Sessions where he serves by 12 Eliz. 1. § 15. N. 1. and I have seen it done at the Assizes in the County of Stafford and its the best way to be so done for where on 5 Eliz. 1. § 7. N. 1. a Commission is made to take their Oaths when they are made Justices of Peace it may be hath taken his Oath when he hath not done so in fact if he that be to be sworn be such a one as is not well affected to the Religion now established Crompt 12. Charge in Sessions XIV First to inquire if any within this year and day hath depraved Religion despised or contemned the Sacrament of the Body and Blood of our Saviour Jesus Christ in contempt thereof by any Contemptuous words or by any words of depraving despising or advisedly hath in any other manner contemned despised or reviled the said Sacrament contrary to the Edicts and Declarations heretofore c. 1 Ed. 6.1 § N. 1 Eliz. 2. § N. and 23 Eliz. 1. § N. 1 Eliz. 2. Of RELIGION XV. Incumbent PAge 21. Altho the first part of this Clause of 1 Eliz. 2. § 3. N. 1. Viz. all and singular Ministers in any Cathedral or other place seems to intend a local Minister only and not one who is neither Parson Vicar or Stipendary Chaplain yet the next words 1 Eliz. 2. § 4. N. 1. If any Parson Dicar or other Minister that ought to say Common Prayer or minister the Sacraments c. thereby comprehend all lawful Ministers and Priests whatsoever for 't is held in our Law that as he is Sacerdas he ought and is bound Jure divino celebrare Coenam Dominicam dictae Coenae actiones c. and if he be indicted upon this Statute with the addition of Clericus that word implies him to be a Priest or Minister within the meaning thereof Dyer 203. pl. 2. Note That by the Statute 13 and 14 Car. 2.4 § 2. N. 2. this 1 Eliz. 2. and all other Laws which were then in force for the Uniformity of Prayer and administration of the Sacraments within the Realm of England are now applicable to the Book of Common Prayer authorized by 14 Car. 2.4 and are to be put in ure with relation to the said Book XVI Religion Page 21 22. These words 1 Eliz. 2. § 4. N. 2. wilfully or obstinately standing in the same seem to restrain the Law to such other prayers as are used in hinderance of or opposition to the Common-prayer or after admonition or warning to the contrary and therefore the Prayers used in the Pulpit before Sermon seem not to be within the meaning of this Law nor to be forbidden by it because generally tollerated by those in authority and so not obstinately used and were those words wanting altho the words of the Statute 1 Eliz. 2. § 4. N. 2. are general any other Form or open Prayers yet they ought to have a particular Construction according to reason and the intent of the Makers of the Law Viz. That no Minister shall use any other form to the hindrance of or in opposition to this for a penal Law shall not alwayes be construed according to the words but according to the intent Com. 18.465 466 467.109 110. and the words of a Law may be infringed and yet the Law it self may not which intent shall never
and the Indictment was certified in B. R. and it was held by the greater part of the Justices that the Indictment was insufficient for want of those words 5 Eliz. 1. § 2. N. 3. upon purpose and to the intent to set forth and extol the Authority c. contra formam Statuti will not supply that defect Trin. 20. Eliz. Dyer 363 pl. 2. Note in the report of Dyer 363. pl. the Statute 1 Eliz. is mistaken for this 5 Eliz. 1. there being no mention of the intent in 1 Eliz. 1. The Intent is a thing hidden and lieth in the heart and therefore there must be some overt act or speech which declares the intent for the intent it self is not traversable but that by which it is made manifest as was adjudged in 5 Cook 77. Booths Case XXXIV Indictment Page 36 37. All Offences 5 Eliz. 1. § 3. N 1. contrary to the true meaning of the premisses that is the Offences 5 Eliz 1. § 2. N. 1. in holding or standing with to extoll c. the Jurisdiction of the See or Bishop of Rome or attributing such jurisdiction c. or procuring counselling c. which is here for the first offence made a Praemunire for these are the only premisses in the Act. 2. And 5 Eliz. 1 § 3. N. 1 Extends not to the Oath of Supremacy or any offence in refusing of it much less to all Offences against this act as it is mistaken in the late Additions to Dalt Cap. 140. Tit. High Treason Sect. 11. 3. Nor doth it seem to be the intent of 5 Eliz. 1. § 3. N. 1. to give the Justices of Peace any power to enquire of any offence made High Treason thereby for the power here given to the Justices of Peace is only to inquire of Offences contrary to the true meaning of the premisses and the premisses extend only to those Offences made a Praemunire and this clearly appears by the subsequent words viz. 5 Eliz. 1. § 3. N. 2. that the Presentment thereof shall be certified in B. R. who shall hear and determine every such Offence as if the Offender had been presented upon any matter in the Statute of 16 Rich. 2. § Now that cannot be intended of high Treason Dalt 54. Cap. 20. 4. The like may be said of Justices of Assize for as they are meerly Justices of Assize they cannot by force of this Act 5 Eliz. 1. § 3. N. 1. inquire of either the first or second Offence in refusing the Oath of Supremacy nor of the second Offence in extolling the Bishop of Romes authority only for the first Offence in Extolling c. they may inquire and take Indictments thereof and certifie them in B. R. 5. But then by their Commission of Oyer and Terminer they may not only inquire of the first or second Offence in extolling the Bishop of Romes authority or refusing the Oath of Supremacy but may hear and determine them and accordingly Savil 46 47. pl. 99. Slade and Bode were indicted arraigned and tryed in the County of Southampton of a Praemunire for the first Offence in extolling the Bishop of Romes authority upon which they were attainted and afterwards of Treason for the second Offence before Sir Roger Manwood and Justice Periam Justices of Assize by vertue of their Commission of Oyer and Terminer for the Certificate here mentioned 5 Eliz. 1. § 3. N. 2. which is to be sent in B. R. is required only of the Justices of Assize and the Justices of the Peace but Justices of Oyer and Terminer upon Indictments taken before them may proceed to hear and determine as Manwood and Periam did in that Case as well for the first as second Offence 6. For which first Offence in extolling the Bishop of Romes authority it seems the Justices of Assize who have a Commission of Oyer and Terminer have their Election either as Justices of Assize to enquire only and then they must certifie the presentment or Indictment into B. R. or to inquire hear and determine as they are Justices of Oyer and Terminer and then they are not bound to certifie for Commissioners of Oyer and Terminer are not within the meaning of this branch of 5 Eliz. 1. § 3. N 2. as was held Savil 46 47. pl. 69. 7. By what hath been said it appears that the question put in Savil 47. pl. 99. by Ayloffe viz. how they could proceed upon such an Indictment not certified in B. R. within forty dayes was grounded upon a double mistake 1. That Justices of Oyer and Terminer were bound to certifie in B. R. all Indictments for extolling the authority of the Bishop of Rome taken before them 2. That Indictments for the second Offence were within the meaning of 1 Eliz. 1. § 3. N. 2. for the speaks thereof the second Indictment which was for High Treason Page 37. By Presentment here 5 Eliz. 1. § 3. N. 2. is to be understood not only that which is properly so called which the Jurors find and present to the Court XXXV Indictment without any former Indictment delivered to them 〈◊〉 also an Indictment which is drawn and engrossed in form of Law and delivered to the Jurors to be inquired of which Indictment the Justice here named have power to take by force of the word Inquire 5 Eliz. 1. § 4. N. 1. and is included within the word Presentment 5 Eliz. 1. § 3. N. 2. being a species of it for every Indictment found by the Jurors is a Presentment and the Record saith Juratores c. presentant c. when they find an Indictment but every Presentment is not an Indictment 2 Inst 239. and as well the one as the other touching the Offences aforesaid must be certified in B. R. infra 72. Page 27 38. XXXVI Dayes If the term be then open in 5 Eliz. 1 § 3. N. 2. is the Essoyn day which is the first day of the Term properly so called and on that day the Term is open At the first day of ful Term 5 Eliz. 1. § 3. N. 2. that is quarto die post which is the usual day of Appearance and the first day of every Term in common reputation for the Essoyn day is the first day of the Term only to some perticular intents and 't is not full Term till quarto die post Savil 124. pl. 193. Matthew ver Harcourt So that if forty dayes expire on the day before the Essoyn day the Presentment need not be certified until quarto die post which is the day of Appearance but if they expire on the Essoyn day or afterwards and before the quarto die post the Justices here named 5 Eliz. 1. § 3. N. 1. must not stay till the quarto die post but are bound to certifie by the last day of the Forty days under the penalty here limited 5 Eliz. 1. § 3. N. 3. for the Term was then open XXXVII Oath Page 39. All Persons who are preserred to any
7. N. 3. saith then as well the person so doing as also every other person receiving thm to that intent shall incurre a Praemunire so that then only when the person delivering them so doth that is delivers them to be worn or used the person receiving them to that intent shall incurre a Praemunire But yet there needs not any such concurence of intentions in the giver and receiver to make the giver an offender and therefore if a man brings into the Realm such superstitious things and delivers them to be worne or used tho the party receive them not to the intent to use or wear them but defaces burns or otherwise destroyes yet he that gave or delivered them incurrs a Praemunire for the words in the act 13 Eliz. 2. § 7. N. 2. relating to the offerer or deliverer are intire in themselves and have no dependence on the subsequent words 13 Eliz. 2. § 7. N. 3. relating to the receiver but generally make all offenders who bring them in and either offer or deliver them to a superstitious intent without any respect to the intent of the party who receives or is offered them LVI Justices Page 54. Upon 13 Eliz. 2. § 8. N. 1. If the person to whom such Agnus Dei c. Is offered do bring the offender to any Justice of Peace of the County where the offer is made altho he be not the next Justice yet it is good enough and satisfieth the intent of this act for the word next is put in such cases into acts of Parliament but for conveniency and the more speedy Execution of Justice Styles 246. pl. Maine and Sergeants Case LXVII Justices Page 54. The Statute 13 Eliz. 2. § 8. N. 1. provides for the discovery of the offender in order to his punishment in three Cases 1. If any such superstitious thing be offered and the party be able to apprehend him that offers it he must bring him to the next Justice of Peace of the County where the offer is made 2. But if he cannot apprehend him he is to disclose his name and place of abode or resort to the Ordinary of that Diocese or a Justice of Peace of that County where the person to whom the offer was made is resident and that within three dayes after such offer made 3. But 13 Eliz. 2. § 8. N. 2. If he receives the thing offered then he is not to apply to the Ordinary but is strictly tyed to deliver it within a day after to some Justice of Peace of that County where he who received it shall then be Resident or happen to be and in this last Case if he receives it with an intent to use or wear it and keeps it above a day or delivers it to any other person or Justice of Peace or any other County he incurrs a Praemunire But these Justices of Peace are strangely confounded as well in Dalt 229. cap. 89 tit high Treason as in Wingate Crown 37 Lambert 194. 195. Page 56. LXVIII Upon 13 Eliz. 2. § 10. N. 1. As is aforesaid So that if the offence be not declared as is aforesaid that is to such Justice of Peace as is appointed in 13 Eliz. 2. § 8. N. 1. but it shall be declared to any oother Justice of Peace of a wrong County that other Justice of Peace shall not incurre a Praemunire if he doth not signifie or declare it to a Privy Counsellor Here 13 Eliz. 2. § 10. N. 1. 'T is plain that any one Privy Counsellor sufficeth and the Justice of Peace is not bound to signifie the offence to the Privy Council as Wingate Crown 138. misrecites the Statute 23 Eliz. 1. Of CHVRCHES PAge 58. Upon 23 Eliz. 1. § 2. N. 1. LXXIX Conspiracy It was held Mich. 12 Jac. in Loult and Faulklands Case 2 Cro. 357.358 and 2 Bulstrode 271. 253. and 1 Rol. 209. pl. 49. that if a man were indicted for endeavouring and practising voluntarie felonice proditorie to perswade and withdraw any of the Kings Subjects from his obedience unto the Romish Religion and was afterwards debito modo acquietatus yet an Action upon the Case in Nature of a Conspiracy would not lie a-against the party who procured him to be Indicted and the main reason given was that sorasmuch as every man is bound to discover Treason and 't is dangerous to conceal any thing which may tend to Treason therefore the procuring one to be Indicted concerning it was no Cause of Action And Coke Chief Justice said that such an Action was never brought before that time But later Resolutions have been to the contrary of this opinion and 't is held for Law at this day that if a man procures another to be Indicted of High Treason an Action upon the Case in nature of a Conspiricy lieth against him that procures it as well as if it were for Felony the first leading Case of this nature which was resolved upon solemn argument or debate was that of Hil. 1. Car. 1. of Smith and Crashaw c. addition to Bendloes 152. Latch 79.80 Jones 93.94.95 Where it was adjudged upon great deliberation by all the four Judges of B. R. that an Action in nature of a Conspiracy doth well lie in such Case and that not only in Case of acquital upon Tryal but upon the Exhibiting a Bill of Indictment for High Treason to the Court or Jury if the Jury bring in Ignoramus altho in this last Case a Writ of Conspiracy lyeth not and Lovets Case was denyed to be Law and Justice Dodderidge who concurred 2 Bulstrode 271 253 changed his opinion in Smiths Cas◠and held the Action maintainable so that whosoever of meer malice without probable cause causeth any to be Indicted on 23 Eliz. 1. § 2. N. 1. or on 3 Jac. 4. § 22. N. 1. for endeavouring or practiceing so to perswade or withdraw any Subject or prefers a Bill to the Court or Jury for that purpose is lyable to an Action upon the Case for so doing if the party be acquitted or the Jury bring in Ignoramus as in other Cases of Felony LX. Accessory Page 59. These words And shall not within twenty dayes c. disclose the same 23 Eliz. 1. § 3. N. 1. have no reference to those who are aiders and maintainers of the offender but only to those who have barely a knowledge of the offence without aiding or maintaining the party And therefore if such as are aiders or maintainers of the person offending discover the offence within twenty daies yet such discovery shall not free them from the guilt of Imprisonment of Treason as Wingate Crown 42. mistakes but if they once aid or maintaine the party knowing him to be an offendor they are guilty whither they disclose or conceal the offence and shall have no benefit of the twenty dayes LXI Enfant Page 60. Upon 23 Eliz. 1. § 5. N. 1. Moor 606. pl. 838. Talbot was Indicted quod existens aetatis 16
Convict any person upon Indictments for Recusancy or for saying hearing or being at Mass which they were enabled to do by 23 Eliz. 1. § 8. N. 1. but again disabled by these negative words in this Act 29 Eliz. 6. § 2. N. 2. and the hearing and determining of those offences commited only to the Justices of B. R. Assizes and general Goal-delivery But for Informations by a common Informer they were never intended here 29 Eliz. 6. § 2. N. 2. and the Justices of Assize and Goal delivery cannot hold plea of such Information as was resolved by the Judges Mich. 4. Car. 1. Jones 193. And yet 29 Eliz. 6. § 2. N. 2. did not wholly abrogate the power of the Justices of Peace or of any other Justices to whom Authority was given by 23 Eliz. 1. § 8. N. 1. surra 72. in relation to the offences of Recusancy or of saying or hearing Mass but that they might after 29 Eliz. 6. § 2. N. 2. take Indictments notwithstanding the negative words here for this Statute restraines them only from proceeding to Conviction but not from taking Indictments as was held in Sir Edward Plowdens Case cited 11 Co. 63. in Dr. Fosters Case and now by 3 Jac. 4. § 7. N. 1. the power of Justices of Peace to hear and determine the offences of not coming to Church is again restored to them Infra 103.165 XCXX Proces Page 102 103 104. This Statute 29 Eliz. 6. § 3. N. 1. medles not with any other way of Conviction than at the Queens suit by Indictment as hath been said and so is the Conviction here mentioned to be understood for this Statute is not Introductory of a new Law nor gave the Queen any new or other remedy than what she had against the Recusant by 23 Eliz. 1. § 5. N. 1. that is by Indictment but only gave her a more speedy way of proceeding upon that sundamental remedy 11 Co. 60. and 1 Rol. 93. Dr. Fosters Case So that a Conviction upon an Information against the Recusant upon 23 Eliz. 1. § 11. N. 1. or any other way save by Indictment doth not appropriate the penalty of twenty pound per month to the King for the time to come by force of 29 Eliz. 6. § 3. N. 1. Inrfa 165. supra 72. Hob. 205. Pie and Lovel nor for the same person by force of 3 Jac. 4. § 8. N. 1. where the same words are used and a Conviction by Indictment only intended as here 2. In Hob. 205. It s said that if a man at the making of 29 Eliz. 6. § 3. N. 1. had been Convicted of Recusancy by any other means then by Indictment he had not been bound by 29 Eliz. 6. § 3. N. 1. to pay the twenty shillings it should be twenty pound a month from the Conviction and if a man be now Convicted in B. R. by Indictment or otherwise he cannot be proclaimed nor otherwise his penalty run on which last words Inferr that the Conviction here intended is only a Conviction according to 29 Eliz. 6. § 5 N. 6. by Proclamation upon default 3. But if we compare together 29 Eliz. 6. § 2. N. 2. which speaks of a Conviction after the making of this Statute and 29 Eliz. 6. § 2. N. 1. which speaks of a Conviction before this Statute the Contrary will evidently appear for 29 Eliz. 6. § 2. N 1. must necessarily be intended of Convictions according to 23 Eliz. 1. § 5 N. 1. without any Proclamation for the Proclamation in the Case of Recusancy was not given until 29 Eliz. 6. § 5. N. 5. And if a man had been Convicted of Recusancy upon Indictment in B. R. or elsewhere before 29 Eliz. 6. § 5. N. 5. the forfeitures of twenty pound per month should by force of 29 Eliz. 6. § 3. N. 1. have run on from the time of the Conviction that is clear by the express words of the former clause 29 Eliz. 6. § 2 N. 1. Then comes 29 Eliz. 6. § 3. N. 1. which provides what shall be done upon Convictions for the future and appoints in that case likewise the forfeiture of twenty pound per month to run on from the time of Conviction Both which Convictions as well before as after this Statute are granted to be meant only of Convictions upon Indictment and there is no difference between the penning of these two Clauses 29 Eliz. 6. § 2. N. 1.2 but that one respects the time past and the other the time to come but both appoint the penalty to run on Now there is no reason to suppose that the makers of the Law intended the word Convicted in a more restrained sense in this Clause 29 Eliz. 6. § 3. N. 1. then in the former Clause 29 Eliz 6. § 2. N. 1. where the penalty should have run on upon any Conviction whatsoever upon Indictment or that the Conviction in 29 Eliz. 6. § 2. N. 1. by Indictment upon 23 Eliz. 1. § 5. N. 1. without Proclamation should be wholly shut out of the latter Clause 29 Eliz. 6. § 2. N. 2. By Conviction therefore in these Clauses 29 Eliz. 6. § 2. N. 1.2 seems to be meant such Convictions upon Indictment as were warranted by the Statutes in force at the several and respective times here mentioned that is to say in 29 Eliz. 6. § 2. N. 1. a Conviction upon 23 Eliz. 1. § 5. N. 1. without a Proclamation And in 29 Eliz. 6. § 2. N. 2. a Conviction either with or without a Proclamation In either of which Cases the penalty of twenty pound per month shall run on by force of this Act 29 Eliz. 6. § 3. N. 1. and consequently it shall run on if the Recusant be Indicted Convicted and adjudged in B. R. altho he cannot be Proclaimed there And accordingly it was agreed 1 Rol. 93. in Dr. Fosters Case that where the Recusant is Convicted upon Indictment the penalty should ever after run on and be appropriated to the King and t is not restrained there to a Conviction upon Proclamation only 4. But yet altho this Clause 29 Eliz. 6. § 3. N. 1. Extends as well to a Conviction upon 23 Eliz. 1. § 5. N. 1. as to a Conviction by Proclamation yet every Conviction upon 23 Eliz 1. § 5. N. 1. is not here Intended for if a man Indicted for Recusancy do upon his Arraignment confess the Indictment to be true and plead guilty Or upon trial a Verdict pass against him these are Convictions in Law but yet by these Convictions he forfeits nothing untill Judgment nor shall the penalty of twenty pound per month run on or be appropriated to the King until Judgment be given by Conviction Therefore is here 29 Eliz. 6. § 3. N. 1. to be understood Convicted by Proclamation or default or Convicted by Verdict Confession c and adjudged for so the word is here to be taken viz. For Adjudged or Attainted unless it be in case of Conviction upon Proclamation
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
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
Goods or Lands cannot be seized for the forfeiture or penalty where the Wife only is Indicted and Convicted of the offence 4. A Recusant is Indicted for absenting himself from Church for twelve months and afterwards is Convicted upon that Indictment Quaere whither nevertheless the Informer Qui tam c. may not sue him for his absence for the months intervening between the time laid in the Indictment and the time of Conviction For these words here 3 Jac. 4. § 8. N. 2. viz. after such Conviction seem to relate to the proximum antecedens Every month and to imply that the penalty here appropriated to the King is only the penalty due for the months which Incurre after such Conviction upon Indictment at the Kings suit but not to hinder the Informer after Conviction from suing for the months incurred before Conviction CLXXIV Forfeitures Page 168. Except in such Cases where the King shall c. Refuse the same 3 Jac. 4. § 8. N. 3. Jenes 24. in Standens Case if a man be Indicted and Convicted of Recusancy the King is not bound to stay till next Easter or Michaelmas Term to see whither the Recusant will tender twenty pound for every month contained in the Indictment and incurred after such Conviction for the King by 3 Jac. 4. § 11. N. 4. having his Election whither he will accept thereof or seize two parts of the Recusants Lands a Commission for seizure of the Lands may Issue out presently if the King will waive the twenty pound per mouth for he may take his Election as soon as he will after Conviction by Jones Justice Page 168 CLXXV 169. All the Goods 3 Jac. 4. § 9. N. 2. A Recusant Convicted is Tenant for life the remainder to a stranger in Fee he in Remainder with the Recusants Assent cuts down Timber Trees and sells them in this Case the King can be no wayes entitled to the Trees 1 Bulstrode 133. Page 169. CLXXVI All other the lands c. lyable to such seizure or to the penalties aforesaid 3 Jac. 4. § 9. N. 2. Lane 105 106. Halseyes Case Lands are Conveyed to a trust for B. a Convicted Recusant Quaere whither the King may seize such Lands for the Recusants non-payment of the twenty pound per month for if he make his Election and accepts of two thirds in lieu of the twenty pound per month there is no question but such Lands are lyable to seizure for the words of 3 Jac. 4. § 11. N. 4. are that the King may seize two parts of all Lands that shall come to any other person to the use of or in trust for such Recusants but in 3 Jac. 4. § 9. N. 2. which relates to the seizure of two parts for non-payment the words seem to be more restrictive Page 171. CLXXVII Tho it be tendered or ready to be paid 3 Jac. 4. § 11. N. 4. by this branch of the Act a new advantage is given to the King against the Recusant for whereas by 29 Eliz 6. § 4. N. 2. the Convicted Recusant had his Election to pay the King twenty pound per month and so prevent the Seizure of the two third parts of his Lands now by 3 Jac. 4. § 11. N. 4. that Election is taken away and the choice is given to the King whether he will accept of the twenty pound per month or refuse it and seize two third parts of the Recusants Lands in lieu thereof and if the King chuseth the Lands the tender of the twenty pound per month at the Exchequer will not save the Seizure but the King shall enjoy the Lands notwithstanding Jones 24 25. Standens Case Page 171 172 173. CLXXVIII Hereditaments 3 Jac. 4. § 11. N. 4. An advowson is an Hereditament and passeth by that word 18 Eliz. Dyer 351. and is demisable by 32 H. 8.1 § N. as an Hereditament And if it be an Advowson in gross yet it may be seized by the King by 3 Jac. 4. § 11. N. 4. as part of his two parts of the Recusants Hereditaments Jones 23 24. for t is a thing valuable and shall be Assets and is extendable for the Kings debt and upon a writ of right of an Adowson there shall be a Recovery in value 9. 11. scil for every mark twelve pence Hob. 304. Britton 185. 1 Inst 185. 2. In the late additions to Dalt cap. 81. Sect. 23. 't is said that the King may refuse the twenty pound per month and take to two parts of the Recusants Lands and all the goods c. And an Advowson is not of 3 Jac. 4. § 11. N. 4. and Standens Case cited But this is a mistake as to the Clause it self and as to the point in Law and the Authority brought for it for in truth there is no such Clause in this Statute nor in any other that the King upon the refusal of the twenty pound per month should take the Recusants goods for the seizure of the Goods is given 3 Jac. 4. § 9. N. 2. where the offendor failes of payment of the twenty pound per month but not where the King dischargeth him of that payment by refusing it so that where the King refuseth the twenty pound per month the Recusants Goods cannot be seized but only two parts of his Lands The Law likewise is mistaken for if the King refuseth the twenty pound per month he may seize an Advowson as part of his two parts as hath been said so that an Advowson is within 3 Jac. 4. § 11. N. 4. and not without it And the Case of Standen is quite contrary to that opinion in the late Additions to Dalt cap. 81. Sect. 23. for Justice Jones held strongly that an Advowson was within 3 Jac. 4. § 11 N. 4 and Hobart Chief Justice and Winch declared themselves to be of the same mind and Justice Hutton denyed not that an Advowson was within it only held that the force of 3 Jac. 4. § 11. N. 4. as to an Advowson in gross is taken away by 3 Jac. 5. § 19. N. 1. which gives the presentation to the University but the three other Justices were against him and held that where the King had seized it as part of his two parts and the Incumbent dyed the King should present and not the University Infrà 250. N. 5. 3. If the King seize by Inquisition two parts of a Mannor belonging to a Recusant Convict to which an Advowson is appendant by such seizure two parts of the Advowson are likewise seized by consequence altho it be not named in the Inquisition as was resolved in the Case of the Chancellor of Cambridg and Walgrave Hob. 126.127 Moor 872. pl. 1214. And there altho the King hath title but to two parts of the Advowson yet he shall present alone by his Prerogative and so he should have done where there were three Coparceners of an Advowson two of full age and one under age and in ward to
the King the King only should by his Prerogative have presented during the Wardship 47 Ed. 3.14 and 38 H. 6.9 But yet altho two parts of an Advowson shall pass to the King by the word Hereditaments and the Seizure of the Mannor shall draw with it the Seizure of the Advowson yet the Kings two parts of the Advowson shall not pass from him by such General words and therefore if the King seizeth two parts of a Mannor belonging to a Recusant Convict to which an Advowson is appendent and grants over his two parts of the Mannor to a Subject with all Hereditaments appurtenances c. yet two parts of the Advoswon will not pass unless specially named or the grant be adeo plene integre in tam amplis modo forma prout c. The Recusant had the Manor Hob. 126. Moor 872. Page 173. CLXXIX In lieu and full recompence of the twenty pound per month 3 Jac. 4. § 11. N. 4. So that if the King makes his Election to seize the two parts the Recusant is no longer lyable to pay the twenty pound per month but the two parts of his Lands shall go in lieu and full recompence thereof Jones 24. Standens Case Page 173. CLXXX Mansion-house is in Law most commonly taken for the Chief messuage or habitation of the Lord of a Mannor or the Mannor-house where he most remains or continues Termes de la Ley 199. But it is to be taken here 3 Jac. 4. § 12. N. 1. in a larger sense for any other house which is the Recusants chief dwelling house Page 174. CLXXXI These words passing c. and unknown 3 Jac. 4. § 13. N. 4. being in the Conjunctive it seems that the Bishop or two Justices ought not to examine upon Oath or tender this Oath to any passenger or Traveller quatenus such unless he be unknown viz such an one as conceals his true name or quality for so it must be reasonable intended and not of all Travellers through the Country as Wingate Crown 106. mistakes for it appears by the other qualifications here enumerated that the intent of the Act is that it shall be offered by the Bishop or two Justices to such only of whom there is any just Cause of suspition 7 Jac. 6. § 26. N. 2. Infra 260. CLXXXIL Imprisonment Page 175. there to remain without Bayl or maynprise 3 Jac. 4. § 14. N. 1. The Bishop or two Justices can not take Suretyes of him who refuseth the Oath for his appearance at the Assizes or Sessions as Wingate Coton 107. mistakes but must commit him immediatly to Goal nor can any other Court or Justices Bail him in this Case CLXXXIII Justices Page 175 Until the next Assises or General or Quarter Sessions 3 Jac. 4. § 14. N. 1. This being in the disjunctive the Bishop or two Justices have their Election to commit the Party refusing the Oath either until the next Assizes or until the next Sessions as they shall think fit for some may be more aptly committed untill the next Assises and some untill the next Sessions 12. to 131. Page 175 176. CLXXXIV These words any other Person whatsoever 3 Jac. 4. § 14. N. 3. are Exclusive of the said Person or Persons who are committed for refusal for 't is here in the disjunctive so that it seems that if any person whatsoever of the age of 18 years or above and under the degree of a Nobleman or Noblewoman be at the Assizes or General Quarter Sessions of the peace whether voluntarily or brought in upon process on an Indictment of recusancy or for any other matter and be there tendered this Oath and refuse to take it altho it were never tendered to him before yet upon his refusal there he incurs a praemunire and in this respect this Statute 3 Jac. 4. § 14. N. 3. is more Exclusive than 7 Jac. 6. § 26. N. 6. where there must be a prior tender and refusal of this oath otherwise a refusal of it at the Assizes or Sessions doth not make a praemunire by that act 12 Co. 131 infra 265. CLXXXV Corent Page 176. shall incurre the danger and penalty of premunire 3 Jac. 4. § 14. N. 3. If a man be committed by the Bishop or two Justices of peace for the refusal of this oath and the tender and refusal be expressed in the Mittimus the Justices of Assize or Justices of Peace in their Sessions are bound to take notice of this tender and refusal Indictment And after they have there made the party a second tender of the oath and he refuseth it by which he incurrs a praemunire the indictment against him to convict and attaint him of praemunire must contain all the special matter viz that he stood convicted or indicted of recusancy or that he had not received the Sacrament twice within the year next before or that passing through the countrey and unknown being examined upon oath he confessed or denyed not c. as the case is and that the oath was tendered to him by the Bishop or two Justices of peace Quorum â—â—us c. and he refused it and that it was again tendred to him in open Court and he again refused it for in this case the Mittimus is the ground upon which he must be proceeded against at the Assizes or Sessions But if the first tender and refusal be not expressed in the Mittimus or warrant of Commitment there altho there was a tender and refusal of the oath before the Bishop or two Justices yet the Justices of assize or Justices of peace in their Sessions can take no notice of it but they must there tender him the oath without reference to any prior tender which they may do by such of the General words any other person whatsoever 3 Jac. § 14. N. 3. and if he refuse he incurrs a praemunire and in this case the Indictment may be short and General scilicet that he was tendred the oath in the open Court and refused it c. and so it must be in all cases where in truth there was never any prior tender and refusal See 7 Jac. 6. § 26. N. 2. Whereby the power of the Justices of Peace is in some particular cases enlarged in reference to this oath of Allegiance infra 266. CLXXXVI Oath Page 179. unto which Oath so taken the said person shall subscribe his or her name or mark 3 Jac. 4. § 15. N. 6. if a man refuse to take any word of this oath 't is a refusal of the whole 1 Bulstr 198. Lord Vauxes Ca CLXXXVII Vilary Page 179. 180. Outlary 3 Jac. 4. § 16. N. 1. a Termor for years was utlawed upon an indictment of Recusancy the term was sold by the Lord Treasurer and Barons of the Exchequer and afterwards the utlary was reversed The Question was whether upon reversal of the utlary the recusant should have restitution of term again 3 Cro.
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
passing through the Countrey unknown shall upon examination confess or deny their recusancy or that they have not so received the Sacrament For the salving of which doubt it is to be considered that the Bishop and not the Justices of Assize are here joyned with the Justices of peace and these words 3 Jac. 4. § 41. N. 1 Where any Bishop or Justices of Peace seem to bear this construction viz either the one or the other indifferently may require the oath and that can be intended only of the power given out of Sessions for in the Sessions the Bishop hath nothing to do But had the Justices of Assize been here added scil in all Cases where the Bishops Justices of Assize or Justices of peace may require this oath it had been clear that the power here 3 Jac. 4. § 41. N. 1. given the six privy Counsellours was as extensive as that which 3 Jac. 4. § 14. N. 3. is given the Justices of Assize or Justices of peace in their Sessions and they might have required the oath of any Nobleman or unmarried Noblewoman whatsoever of competent age So if the Justices of Peace only had been here named it had been clearly intended of the Justices of peace in either capacity either in or out of Sessions But Bishops 3 Jac. 4. § 41. N. 1. seems here to be a restrictive word and to give the privy Counnsellours no more power in respect of the Nobility than the Bishops had in reference to any other Subject 2. These words in all Causes where c. 3 Jac. 4. § 41. N. 1. seem to be restrictive likewise and exclusive of some Causes but the power of Justices of peace in Sessions 3 Jac. 4. § 14. N. 3. extends to all Causes and persons under the degree of Nobility whatsoever which therefore can not be here intended 3 Jac. 4. § 41. N. 1. but only some particular Causes ejusdem generis which can be no other than the Causes before-mentioned 3 Jac. 4. § 13. N. 1. wherein the Bishops or two Justices out of Sessions may deal scil where the party was before convicted or indicted or had not received the Sacrament or passed unknown and confessed c. And yet as it is reported 1 Bulstr 197. the Lord Vaux Ca. Pasch 10. Car. 1. is to the contrary for it is said there he was committed to the Fleet by the Privy Counsel for refusing the oath of Allegeance and afterwards indicted in B. R. of a praemunire for such his refusal he being then of the age of 18 years and above and the said oath being lawfully tendered c. All which was certified to the Court by divers of the Privy Counsel upon which Indictment he was arraigned and no word in the Indictment of his standing convicted or indicted of Recusancy or not having received the Sacrament c. and yet the Indictment was grounded upon 3 Jac. 4. § 41. N. 1. and not upon 7 Jac. 6. § 26. N. 1. for by that statute 7 Jac. 6. § 26. N. 5. he could not have been indicted of a praemunire for the first refusal but must have been committed until the next Assizes or Sessions and if he had there refused it the second time he might have been indicted of a praemunire and not otherwise but whether this Indictment were according to Law or only passed sub silentis quaere Note by 7 Jac. 6. § 26. N. 1. any privy Counsellour or the Bishop of the Diocess may now require this oath of any Baron or Baroness of or above the age of 18 years in all Cases and in some Cases some privy Counsellours Quorum unus c. may require it of persons above the said degree CCXII. Dignity Page 198. Noblewoman 3 Jac. 4. § 41. N. 1. A Noblewoman who was such by marriage only becomes a Widow and takes to her second husband a person under the degree of Nobility by this her second Marriage she hath lost her Nobility and if she again becomes a Widow the oath shall not be tendred her by Privy Counsellours but the Bishop or two Justices of peace Quorum unus c. may by force of this Act 3 Jac. 4. § 41. N. 1. require her to take it and upon her refusal may proceed against her as is above directed in the Case of a common person supra infra 262. CCXIII. Days Page 198. then being above the age of 18 years 3 Jac. 4. § 41. N. 1. in this Case that day eighteen years on which the party was born must be wholly elapsed for before this oath cannot be tendered altho the hour of his birth be elapsed for the Law rejects all fractions and divisions of a Day for the uncertainty which is always the mother of contention 5 Co. 1. Claytons Ca. 2 Rolls Abr. 521 tit Temps Page 198. CCXIV. Praemunire 3 Iac. 4. § 41. N. 2. in 1. Bulstr 197. the Court of B. R. denied the Lord Vaux Counsel or trial by his Peers and it was there held that the trial of a Nobleman by his Peers is at Common Law in 4 Cases only viz Treason felony and misprision of both but not to be allowed in the case of a praemunire for that in effect is no more than a contempt CCXV Cinque Ports Page 198 199. If the Warden of the Cinque Ports do take such bond and minister such oath and do not certify them into the Exchequer this seems to be casus omissus and not provided for by the Act 3 Iac. 4. § 42. N. 1. for he shall not be liable to the penalty inflicted by 3 Iac. 4. § 21. N. 2. on the Customer and Controller for that altho it be within the same mischief there are no express words here 3 Iac. 4. § 4. N. 1. to reach him and penal statutes shall not be taken or construed by equity Lee 77 Yelvert 22 Com 17.86 Kelway 96 2 Roll 420. 1. Inst 238. 13 Iac. 5. Of RECUSANTS CCXVI Days PAge 201. Within three Days next after the Offence commited 3 Iac. 5. § 1. N. 3. So that if three Days next after the Offence committed elapse before the discovery is made the discoverer shall have no benefit by this Act. And therefore if the person discovering had no notice of the Offence till the three Days expire altho he discovers it presently upon such notice given him yet he comes too late much less shall he have three days after notice as Wingate Coron 128. mistakes CCXVII Sherifs Page 201. commanding the said Sheriff or other Officer to pay the same 3. Jac. 5. § 1. N. 5. In the late Additions to Dalton Cap. 81. Sect. 57. 't is said that the Sheriff is to grant his warrant for the payment of the discoverer but that is a meer mis-recital for the Sheriff himself is to pay him Page 203. CCXVIII In the late Additions to Dalt Cap. 81. Sect. 45. this Clause 3 Jac. 5. § 3. N. 2. is otherwise recited viz
and the authority hereby given them to go and seck the party 12 Co. 130. But the Constable cannot by vertue of such Warrant break the House where the party is for he is no Offender before he refuse the Oath or commit some contempt to the King Page 246. If any Person or Persons of or above the said Age and Degree CCLXI 7 Jac. 6. § 26 N. 3. that is of the said Age and above the said Degree of a Baron or Baroness for so the words must be taken viz conjunctively and not of such who are of the Degree of a Baron or Baroness and no more For the precedent words 7 Jac. 6. § 26. N. 1. appointed that the Oath may be tendered to such by any Privy Counsellour or the Bishop of the Diocess in all Cases altho they were never Convicted Indicted or Presented but to such Noblemen or Noblewomen as are above that Degree it cannot be tendered by vertue of this Act 7 Jac. 6. § 26. N. 3. unless they have been before convicted indicted or presented for not coming to Church or not receiving the Sacrament and in those Cases no less than three Privy Counsellours Quorum nuus c. can tender it 12 Co. 130 131. CCLXII Dignity Page 247. If any Person or Persons whatsoever c. under the said Degree 7 Iac. 6. § 26. N. 4. A Baroness or any Woman above that degree who is not of noble birth but only by Marriage becomes a Widow and takes a second Husband under the Degree of Nobility and is convicted indicted or presented of Recusancy or complained of by the Minister c. to a Justice of Peace who finds cause of Superstition the Justice of Peace may require her to take this Oath altho she were once Noble for by her second Marriage she hath lost her Nobility and Name of Dignity together with the Priviledges of her Nobility Quando mulier nobilis nupserit ignobili desinit esse nobilis which is to be understood of Nobility acquired by Marriage supra 212. For that which was gotten by Marriage may also be lost by Marriage Eodem modo quo quid constituitur dissolvitur and in such Case she shall not be tryed by Noblemen for they are no longer her Peers 2 Inst 50. But if a Woman be Noble by Birth or descent whomsoever she marries yet she remaineth Noble for Birthright is Character indelebilis 4 Co. 118. Actons Case and 6 Co. 53. Countess Rutland 6 and 7 Ed. 6. Dyer 79. Rosin Br. 31.69 and 1 Inst 69. And 't is observable that 21 H. 8.13 § 33. N. 1. provides that a Dutchess Marquess Countess or Baroness Widows which take a second Husband under the degree of a Baron may notwithstanding such second Marriage take such number of Chaplains as if she were a Widow which she could not have done if it had not been expressly provided for by the Statute and the reason given 4 Co. 118. is because by such Marriage her Dignity is determined but hkre 7 Iac. 6. § 26. N. 4. there being no such provisional Clause she shall not have the priviledge of Nobility but may be tendred the Oath of Allegiance by the Justice of Peace as in the Case of a common person Page 247. Shall stand and he presented indictid or convicted CCLXIII 7 Iac. 6. § 26. N. 4. These words being in the Disjunctive it is not necessary that the party be convicted but if he stand presented or indicted for not coming to Church or not receiving the Sacrament and be under the degree of a Baron the Justice of peace ought to tender him this Oath CCLXIV Intendment Page 247 248. And the said Iustice shall find cause of Suspicion 7 Iac. 6. § 26. N. 4. and not if the party be suspected as Wingate Coron 159. mistakes for the bare suspicion of the Justice of peace or any other Person is no sufficient ground to require the Oath or committ the party for the refusal but there must be some good cause for that Suspicion and the same must be alledged in Justice of peace his Plea or justification if he be Sued for committing him so Prison for such refusal So if a Man be arrested on Suspicion of Felony and brings his Action for false Imprisonment the Defendant ought to shew some Matter in fact to induce his Suspicion for in these and the like Cases a bare Suspicion is no justification sufficient it being a Matter secret and not traversable but the Cause of Suspicion is traversable 3 Bulstr 28.4 Weale versus Wells 7 Ed. 4.20 and 17. Ed. 45. and 5 H. 7.4 And whether the Suspicion be just and lawfull shall be tryed and determined by the Justices 2 Inst 52.11 Ed. 4.4 CCLXV. Justices Page 248. That then any one Iustice of Peace 7 Iac. 6. § 26. n. 4. What was said by Coke Chief Justice in Griffiths Case 2 Bulstr 155. that any one Justice of Peace may minister this Oath is to be understood of some Cases only 12 Co. 130. which are no others than those here mentioned as he explains his meaning 12 Co. 132. that one Justice of Peace cannot committ any for Refusal of his Oath unless they be prosecuted indicted or convicted and according to 7 Iac. 6. § 26. n. 4. supra 184. Page 248 CCLXVI. 249 250. Within whose Commission or Power such Person or Persons shall at any time hereafter be 7 Iac. 6. § 26. N. 4 A person complained of and against whom Cause of Suspicion is found by the Justice of Peace flyeth into another County Quaere whether a Justice of Peace of that other County can require the Oath of him and committ him upon Refusal for he seems to be impowered thereunto by express words of the Statute for that the Party is fallen within his Commission or Power c. But yet I conceive that 7 Iac. 6. § 26. n. 4. By these words Any one Iustice of peace within whose Commission or Power c. is designed or intended no other Justice than a Justice of that County where the Party was complained of and suspected and that if he fly into another County no proceedings can be there upon the Complaint and Suspicion in the County whence he came nor any one Justice tender him the Oath or committ him for Refusal without a new Complaint and Cause of Suspicion in the County whither he flyeth For where the Party cannot be Indicted of a Praemunire for Refusing the Oath upon the second Tender at the Assizes or Sessions by 7 Iac. 6. § 26. n. 6. There the Justice or Justices of Peace out of Sessions cannot tender the Oath or commit for Refusal for the Commitment is in order to a second Tender and an Indictment of Praemunire thereupon but in this Case the Party can not be Indicted of a Praemunire in the County where he flyeth for refusing it upon the second Tender for the Offence for which the Party must be indicted is a
against the Recusant Tenant in Tail in his life time the heir is bound in that Case 5. If a Judgment was had against the Recusant before 1 Jac. 4. § 5. N. 1. and he had died before seizure of the two parts of his Lands the Question was whither after his death they might have been seized by force of 29 Eliz. 6. § 6. N. 1. for the Arrears of the penalty Incurred in his life time for that the Seizure here given is meerly in nature of a nomine paenae or penalty inflicted for his contempt in not paying the 20 l. per month and should not have gone in satisfaction of the debt but the Queen should have held the Land till the 20 l. per month were otherwise paid and satisfied and when this penalty of seizure was not executed in the Recusants life time by his death the contempt was gone and consequently the penalty inflicted for that contempt could not then be put in Execution Lane 92 93. Beekets Case Lane 107. Halseys Case But now by 1 Jac. 4. § 5 N. 1. the seizure is not as a meer penalty for the contempt of non payment but for the satisfaction of the King of the Arrears of 20 l. per month and the profits of the Land shall go towards the payment and satisfaction thereof so that now there is no question but the two parts of the Recusants Lands may be seized after his death unless the hair discharge himself by his Conformity 4. Note in all these Cases of seizure where the Land is to be discharged upon the death of the Recusant altho an Affidavit be made of his death and a discharge obtained thereupon yet 't is a rule in the Court of Exchequer that a Commission shall be Awarded first to Enquire Savile 130. pl. 201. CVII Page 111. This branch 29 Eliz. 6. § 7. N. 2. seems not to extend to all forfeitures for Recusancy for the power here given to the Lord Treasurer c. is only in relation to those forfeitures which are by 29 Eliz. 6. § 3. N. 1.2 appointed to be paid into the receipt of the Exchequer which are the forfeitures due to the Queen by Conviction upon Indictment for this Act medles with no other so that if the 20 l. per month be recovered in a popular suit by the Informer qui tam c. one third part thereof ought still to be paid to the poor of the Parish only according to 29 Eliz. 1. § 11. N. 1. notwithstanding this act 29 Eliz. 6. § 7. N. 2. 35 Eliz. 1. Of SECTARIES Page 114. Wingate Crown 70. saith that if any person above sixteen years of Age obstinately refuseth to come to Church for a month CVIII Religion or impugnes the Queens Authority in Causes Ecclesiastical he shall be committed to Prison 35 Eliz. 1. § 1. N. 2. which is a great mistake for no man shall be punished by this Act for either of those Causes only the not coming to Church being only a precedent qualification required in the person whom the Act makes liable to the penalties thereof for the other offences therein mentioned Crompton 53. 2. And therefore if a man never comes to Church yet he is no offender within 35 Eliz. 1. § 1. N. 2. unless he advisedly or purposely move or perswade another to deny or Impugne the Kings Authority in Causes Ecclesiastical or to that end or purpose advisedly and malitiously move or perswade some other to forbear to come to Church or receive the Communion or to be present at Conventicles c. or if he himself be present at such Conventicles c. 3. And on the other hand if a man move or perswade any other to deny or Impugne the Kings Authority in Causes Ecclesiastical or to forbear to come to Church or receive the Communion or to be present at Convinticles c. Or if he himself be present at any Conventicles c. yet he is no offendor within 35 Eliz. 1. § 1. N. 2. if he goeth to Church once within the compass of a month 4. So that the party must both forbear to come to Church and be guilty of some other offences here enumerated or he is not punishable by 35 Eliz. 1. § 1. N. 2. and as for the denying or Impugning the Kings Authority in Causes Ecclesiastical it s no offence within this Statute unless the party moves or perswades others so to do and not then neither unless he hath been absent from Church by the space of a month Page 114 115. Under colour or pretence of any exercise of Religion 35 Eliz. 1. § 1. N. 3. Altho this Act is commonly called the Act against Sectaries CIX as distinguished from those of the Romish profession yet in truth it extends to all Recusants whatsoever as well Popish as other except 35 Eliz. 1. § 2. N. 1. in the point of abjuration for Popish service is performed under Color or pretence of Exercise of Religion and the assembly or meeting of Popish Recusants under such Color or pretence is an assembly or meeting contrary to the Laws and Statutes and they as well as others may be Indicted upon this Statute if they forbear to come to Church for the space of a month and be present at any part of the Popish service or move or perswade ut supra And may be Imprisoned without Baile until they conform and make submission as by 35 Eliz. 1. § 4. N. 1. is appointed but they cannot be required to abjure unless they offend against 35 Eliz. 2. § 8. N. 2. 2. A Popish Recusant is likewise subject to an Action of debt c. given to the Queen by this Statute 35 Eliz. 1. § 10. N. 2. CX Process Page 115. Being thereof lawfully convicted 35. Eliz. 1. § 1. N. 5. that is convicted both of his absence from Church and of that other offence which makes him punishable by this Act viz. going to Conventicles or moving or perswading c. for his absence from Church for a month must be laid down precisely in the Indictment for without that the other is no offence within this Act. 2. And t is not necessary that the party be Convicted of such absence upon any prior Indictment for altho there was never any former Conviction of him for Recusancy yet if he offend against this Act 35 Eliz. 1. § 1. N. 5. in any of the other particulars he may be Convicted both of that offence and of his absence upon one and the same Indictment and so was the Indictment Mich. 16. Car. 1. in the Case of Lee and others 1 Cro. 593. pl. who were Indicted upon this Statute at the Sessions of the Peace in Essex for absenting themselves for a month from Church and resorting to Conventicles to which they pleaded not guilty and the Indictment was removed in B. R. to be tryed there CIX Oath Page 116. Being thereunto required by the Bishop c. or any Justice of Peace 35
Eliz. 1. § 2. N. 1. But put the Case that the offendor is Convicted and the three months next after his Conviction elapse before he is required by the Bishop or any Justice of Peace or the Minister or Curate of the Parish to conform and make submission here appointed and afterwards he is required by one of them so to do It seems in this Case such request comes too late for he ought to conform and submit within the three months if he be required but if he be not required he is not bound to abjure for omitting it altho he shall remain in Prison till he conforms and submits But if within the three months he be required to conform and submit and refuse there is no question but he may be at any time afterwards warned or required to abjure Conformity CXII Page 117 118. That 35 Eliz. 1. § 4. N. 5. appoints the Conformity and submission to be At any Church Chappel or usual place of Common-Prayer but 35 Eliz. 1. § 4. N. 1. limits it to be at some Parish Church the meaning whereof seems to be that if a man be an offendor against this Act and Convicted he may within the three months after his Conviction conform and submit by 35 Eliz. 1. § 1. N. 5. in any Church Chappel or usual place of Common-prayer where there is Common-prayer and either a Sermon or the Gospel read Infra 145. But if he be required within the three months to conform and make submission and he refuseth so to do but the three months expire then by 35 Eliz. 1. § 4. N. 1. his Conformity and submission must be more solemn and publick viz. In some Parish Church where it is presumed there will be the greatest number of People to be Witnesses thereof And by this construction the seeming difference between 35 Eliz. 1. § 1. N. 5. and § 4. N. 1. is reconciled and this construction naturally flows from the order wherein these two branches are placed for 35 Eliz. 1. § 1. N. 5. speaks of a Church Chappel or usual place of Common-Prayer before it mentions the parties refusal to conform and submit within three months next after Conviction but when it hath mentioned such refusal 35 Eliz. 1. § 2. N. 1. then it speaks of the Parish Church only and the second time here limited 35 Eliz. 1. § 4. N. 1. to the offendor when he may conform and submit viz. before he be warned and required to abjure presupposes his refusal to conform and submit within the three months for otherwise he could not be required to abjure But if the offendor be not required within three months according to 35 Eliz. 1. § 4. N. 1. to conform and submit it seems he is not afterwards limited to some Parish Church but may do it according to 35 Eliz. 1. § 1. N. 5. in any Church c. for he is then in no danger of abjuration and his Conformity and submission is then to no other end but to free himself from the Imprisonment inflicted on him upon his Conviction and in that Case the Act saith he may conform and submit in any Church Chappel or usual place of Common-prayer And of this difference of places of Conformity no notice is taken in Additions to Dalt cap. 81. Sect. 13. tit Recusants Church 2. By Parish Church 35 Eliz. 1. § 4. N. 1. is to be understood not only that which hath been alwaies the Mother Church and never belonged to any other but every Church which hath the Administration of Sacraments and Sepulture For that in Law is a Parish Church altho it anciently belonged to another Church 2 Inst 363. where the issue was whither it had Baptisterium and Sepulturam And the Church of Stoke Goldenham tho the Town was parcel of the Rectory of of Hinckly whose Church was Anciently the Mother Church yet having all parochial rights and Church-wardens was adjudged a Parish Church and within 43 Eliz. 2. § N. of the poor CXIII Hutton 93. Hilton and Pauls Case Page 119. These words 35 Eliz. 1. § 5. N. 3. Or any color or means of any dispensation are omitted by Wingate Crown 72. and other particulars faulty CXIV Forfeitures c. Page 120 121. These words All and every the said paines duries forfeitures and payments 35 Eliz. 1. § 10. N. 2. are not to be understood simpliciter or Exclusive as if the forfeitures upon 23 Eliz. 1. § 5. N. 1. could be recovered no other way than is prescribed here But only they give the Queen a new remedy for recovery of them which she had not before and take not away the remedy given by 23 Eliz. 1. § 5. N. 1. upon Indictment nor that by 29 Eliz. 6. § 5. N. 6. upon Indictment and Proclamation nor the Informers popular action given by 23 Eliz. 1. § 11. N. 1. for all these three are affirmative Laws and do not abrogate one the other but may well stand together 2. And the meaning of them taken together is that if the Informer recover the forfeiture upon 23 Eliz. 1. § 11. N. 1. he shall have his part thereof but if the offendor were Indicted at the Queens suit and Judgment had against him upon 23 Eliz. 1. § 5. N. 1 or if he were Convicted upon Proclamation and default upon 29 Eliz. 6. § 5. N. 6. the Queen should have the whole penalty excluding the Informer for he shall not be punished again for the same offence at the suit of the Informer 3. But if the offendor were neither Indicted nor sued by the Informer Qui tam c. the Queen should have another remedy to recover the intire forfeiture by Action of debt c. upon this Statute 35 Eliz. 1. § 10. N. 2. so that the remedies given by these three Statutes 23 Eliz. 1. § 5. N. 1.29 Eliz. 6. § 5. N. 6. and 35 Eliz. 1. § 10. N. 2. are Cumulative and not Privative But as 35 Eliz. 1. § 10. N. 2. doth not abrogate any of the former laws touching Recusancy nor takes away the Informers popular suit so it adds nothing as to the Informer nor gives him any more speedy remedy for the recovery of the forfeiture but leaves him in the same condition as he was in before to take his remedy upon 23 Eliz. 1. § 11. N. 1. Dr. Fosters Case 11 Co. 61.62 and 1 Rol. 90.91.93 2 Cro. 481.8 Bridgman 121.122 Parker versus Webb Page 121. To her Majesties use CXV 35 Eliz. 1. § 10. N. 2. before this Statute the Queen had no other way to recover the intire penalty for Recusancy or any other offence within 23 Eliz. 1. § 5. N. 1. but by Indictment only but by this Statute 35 Eliz. 1. § 10. N. 2. a more speedy remedy was given her by Action of debt bill plaint or Information CXVI Days Page 121 122. Shall and may be recovered 35 Eliz. 1. § 10. N. 2. the King by 31 Eliz. 5. § 5. N.
33 H. 8.39 § 68. 26 N. 1. because it is not a debt by Judgment as that Statute requires Moor 523. pl. 691. And thus the opinion Trin 43 Eliz. of the two Chief Justices 3 Cro. 846. is to be understood for they held that if intailed Lands had been seized for non-payment of the twenty pound per month and the Tenant in Tail had died the issue in Tail should not have had the Land out of the Queens hands before the debt were satisfied but should have been charged with the said debt At the end of 3 Cro. 846. pl. is added a Dubitatur But yet the opinion there held stands good if it be intended only of a Conviction of the Ancestor by Judgment upon Trial or Confession and not of a Conviction upon Proclamation and default Page 154. CLVI To any Colledge c. 1 Jac. 4. § 6 N. 1. extends only to publick houses or Colledges but not to such as are bred beyond the Seas in any private Popish Family and therefore 3 Car. 1. cap. 2 3 § 1. N. 2. was made to supply that defect CLVII Scholars Page 155. Note all Grammar Schools are not here 1 Jac. 4. § 9. N. 1. excepted but only publick or free Grammar Schools nor yet all Gentlemens Houses but only of such as are not Recusants in both which respects this Statute is defectively recited in the late additions to Dalt cap. 87. Sect. 1. 3 Jac. 4. of convictions PAge 158 159. CLVIII Every Popish Recusant Convicted 3 Jac. 4. § 2. N. 2. Wingate Crown 98. Speaks Indefinitely as if this extended to all Recusants whatsoever which is contrary to the express words of the Statute 2. In an Information upon 3 Jac. 4. § 2. N. 2. for not receiving the Sacrament Information the Conviction of the party for Recusancy ought to be shewed in certain before whom in what Court c. for before he is Convicted of Recusancy he is not lyable to the penalty Inflicted by 3 Jac. 4. § 2. N. 2. for not receiving And yet if it be only generally shewed in the Information that the defendant was Convicted in due form of Law and the defendant doth not demur thereto but pleads not guilty and it be found against him there Judgment shall not be staid for this defect for he hath lost his advantage and by his plea hath admitted the point of Conviction and at the trial the only thing in issue was whether he had received the Sacrament and not whether he was Convicted 2 Gro. 365 366. Sivedal and Lenthal CLIX. Conformity Page 159. This Conformity 3 Jac. 4. § 2. N. 2. need not be set forth in the Information in every particular Circumstance as when or before whom the Popish Recusant Conformed himself For it is sufficient if it be said that he went to Church and continued there dureing Divine Service and afterwards neglected to receive the Sacrament c. and upon such Conformity and neglect he is liable to the Penalty inflicted by this Act altho he never went before the Ordinary 2 Cro. 366. CLX Forfeiture Page 159 160. And for every year after such not receiving forty pound 3 Jac. 4. § 3. N. 2. Note the Statute saith not that the Offender shall forfeit for the first second and third Offence but for the first and second year and for every year after For if it had been said he should have forfeited twenty pound for the first Offence forty pound for the second and sixty pound for the third he must have been Convicted and have had Judgment of the first Offence before he could have incurred the penalty for the second and of the second before he could have incurred the penalty for the third and every one of these Offences must have appeared Judicialiter which could not be ante Judicinum But here 3. Jac 4. § 3. N. 2. where 't is said he shall forfeit twenty pound for the first year forty pound for the second and sixty pound for every year after it is otherwise and the Offender shall forfeit sixty pound for the third year altho he was never Convicted for the first or second 2. And therefore in an Information upon 3 Jac. 4. § 3. N. 2. for sixty pound against a Popish Recusant Convicted for Recusancy who hath conformed and neglected to receive the Sacrament the third year after his Conformity its sufficient to set forth that he was a Popish Recusant and was convicted and conformed himself and went to Church c. two years before such a day and that after the said day he sailed for a whole year to receive the Sacrament without mentioning what he did the first or second year after his Conformity and so was 2 Cro. 365. Page 160. CLXI Shall for every such Offence lose and forfeit threescore pounds 3 Jac. 4. § 3. N. 3. If a Popish Recusant once receive the Sacrament after his Conformity and after neglect so to do within the time prescribed by this Act 3 Jac. 4 § 1. N. 2. and is guilty of such neglect for two years together altho he was never convicted for the first year yet an Information lieth against him and he shall forfeit threescore pound for the second year for 3 Jac. 4. § 3. N. 3. he is liable to pay so much for every Offence that is for every year wherein he neglects to receive the Sacrament after he hath once received it and the Informer is at his liberty for which Offence or year he will inform whether for the first second c. and the reason of this is because here are no steps or gradations to encrease the penalty for the second or third Offence but the penalty is equal and alike in this Case for every Offence 2 It is observable that the Popish Recusant who after his Conformity receives the Sacrament and afterwards neglects so to do for the space of one or more years is in worse Condition than he who conforms and receives it not at all for in this last Case he shall forfeit but twenty pound for the first and forty pound for the second year but if he once receive the Sacrament and afterwards neglect it for the space of two years he shall forfeit for each of those years threescore pound Page 160. CLXII To him that will sue for the same 3 Jac. 4. § 3. N. 4 An Information upon this Branch must be brought by an Informer Qui tam c. within a year after the Offence or neglect or he can take no advantage thereof for such an Information is within 31 Eliz. 5. § N. 2. Cro. 366. Page 160. CLXIII Justices Or before Justices of Assize c. 3 Jac. 4. § N. 3 5. Note that notwithstanding these words an Information upon this Statute by an Informer Qui tam c. for not receiving the Sacrament cannot be brought before Justices of Assize or Goal-delivery or Justices of Peace for no Common Informer can sue