Profession or Calling whatsoever or repair in or to any the same to be instructed perswaded or strengthned in the Popish Religion or in any sort to profess the same every such person so sending or causing to be sent any Child or other person beyond the Seas to any such purpose or intent shall for every such Offence forfeit to his Maiesty his Heirs and Successors the sum of one hundred pounds and every such person so passing or being sent beyond the Seas to any such intent and purpose as is aforesaid shall by Authority of this present Act as in respect of him or her self only and not to or in respect of any of his Heirs or Posterity be disabled and made uncapable to inherit purchase take have or enjoy any Mannors Lands Tenements Annuities Profits Commodities Hereditaments Goods Chattels Debts Duties Legacies or Sums of money within this Realm of England or any other his Majesties Dominions And that all and singular Estates Terms and other Interests whatsoever hereafter to be made suffered or done to or for the use or behoof of any such person or persons or upon any trust or confidence mediately or immediately to or for the benefit or relief of any such person or persons shall be utterly void and of none effect to all intents constructions and purposes Publick Colledges c. only here intended To any Colledge c. This Act extends only to publick Houses or Colledges but not to such as are bred beyond the Seas in any private Popish Family And therefore the Statute of 3 Car. 1. cap. 2. Stat. 3 Car. 1. 2. was made to supply that defect Stat. Sect. 6. They who are in Seminaries c. shall return And be it further Enacted by the Authority aforesaid That if any person born within this Realm or any the Kings Majesties Dominions be at this present in any Colledge Seminary House or place in any parts beyond the Seas to the end to be instructed or strengthned in the Popish Religion which shall not make return into this Realm or some of his Majesties Dominions within one year next coming after the end of this Session of Parliament and submit himself as is aforesaid shall be in respect of himself only and not to or in respect of any of his Heirs or Posterity utterly disabled and uncapable to inherit have or enjoy any Mannors Lands Tenements Hereditaments Goods Chattels Debts or other things aforesaid within this Realm or any other his Majesties Dominions Stat. Sect. 7. Remedy for such as return into the Realm and become conformable Provided always That if any such person or Child so passing sent sending or now being beyond the Seas as aforesaid to such intent as is before mentioned shall after become Conformable and Obedient unto the Laws and Ordinances of the Church of England and shall repair to the Church and there remain and be as is aforesaid and continue in such Conformity according to the true intent and meaning of the said Statutes and Ordinances That in every such Case every such person and Child for and during such time as he or she shall continue in such Conformity and Obedience shall be fréed and discharged of all and every such disability and incapacity as is before mentioned And be it further Enacted by the Authority of this present Parliament That no Woman Stat. Sect. 8. No Woman or Child shall pass over the Seas without Licence except c. nor any Child under the age of one and twenty years except Sailers or Ship-boys or the Apprentice or Factor of some Merchant in Trade of Merchandize shall be permitted to pass over the Seas except the same shall be by Licence of the King his Heirs or Successors or of some six or more of the Kings Privy Council thereunto first had under their hands upon pain that the Officers of the Port that shall willingly or negligently suffer any such to pass The forfeiture of the Officer of the Port. Owner of the Ship or shall not enter the names of such Passengers licensed shall forfeit his Office and all his Goods and Chattels And upon pain that the Owner of any Ship or Vessel that shall wittingly or willingly carry any such over the Seas without Licence as is aforesaid shall forfeit his Ship or Vessel and all the Tackle and every Master or Marriner Master and Marriners of or in any such Ship or Vessel offending as aforesaid shall forfeit all their Goods and suffer Imprisonment by the space of twelve months without Bail or Mainprize And be it further Enacted by the Authority aforesaid Stat. Sect. 9. The forfeiture for being or keeping a Schoolmaster contrary to this Act. That no person after the Feast of St. Michael the Archangel next shall kéep any School or be a Schoolmaster out of any of the Vniversities or Colledges of this Realm except it be in some publick or frée Grammar School or in some such Noblemans or Noblewomans or Gentlemans or Gentlewomans House as are not Recusants or where the same Schoolmaster shall be specially licensed thereunto by the Archbishop Bishop or Guardian of the Spiritualties of that Diocess upon pain that as well the Schoolmaster as also the party that shall retain or maintain any such Schoolmaster contrary to the true intent and meaning of this Act shall forfeit each of them for every day so wittingly offending forty shillings Note All Grammar Schools are not here excepted Grammar Schools Gentlemens Houses 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 Dalton cap. 87. tit Schoolmaster Sect. 1. Stat. Sect. 10. The forfeitures how to be recovered The one half of all the penalties and sums of money before-mentioned to be forfeited to be to the King his Heirs and Successors the other to him or them that shall or will sue for the same in any the Courts of Record in Westminster by Action of Debt Bill Plaint or Information in which no Essoign Protection or Wager of Law shall be allowed Stat. iii Jac. cap. iv An Act for the better discovering and repressing of Popish Recusants FOrasmuch as it is found by daily experience that many his Majesties Subjects Stat. Sect. 1. that adhere in their hearts to the Popish Religion by the infection drawn from thence and by the wicked and devillish Counsel of Iesuites Seminaries and other like persons dangerous to the Church and State Some Popishly affected do repair to the Church are so far perverted in the point of their Loyalties and due Allegiance unto the Kings Majesty and the Crown of England as they are ready to entertain and execute any treasonable conspiracies and practices as evidently appears by that more then barbarous and horrible attempt to have blown up with Gunpowder the King Queén Prince Lords and Commons in the House of
cap. 1. Sect. 9. in that part touching the Informer and the Cases there cited to prove that no other Suits are restrained by that Statute to a year and a day but only Suits by Indictment By Action of Debt Bill Plaint Information If the King sue by any of these ways no Proclamation Proclamation can be made thereupon For the Proclamation given by the Statutes of 29 Eliz. 6. 3 Jac. 4. Stat. 29 Eliz. 6 3 Jac. 4 in Case of Recusancy at the Kings Suit is upon Indictment only Co. 11. 62. Dr. Fosters Case The Kings-Bench Common-Pleas or Exchequer This Statute adds two other Courts where the King may sue for Recusancy Two Courts added where the King may sue Stat. 29 Eliz. 6 or for saying or hearing of Mass For by 29 Eliz. cap. 6. the Queen was limited to the Kings-Bench the Assizes or general Goal delivery and that only by way of Indictment but now by this Statute she might sue not only in those Courts by Indictment but in the Kings-Bench Common-Pleas or Exchequer by Action of Debt Bill Plaint or Information Co. 11. 61. Dr. Fosters Case But whereas 't is there said that this Statute of 35 takes not off the restriction of the Informer Qui tam c. by the Statute of 29 Eliz. cap. 6. to the Courts there mentioned viz. the Kings-Bench Assizes and general Goal delivery This passage was occasioned by an opinion there held in the said Case of Dr. Foster that the Informer Qui tam c. was restrained by 29. to those Courts The Informer not restrained by 29 Eliz. 6. But that opinion is not Law nor was there ever any such restriction of the Informer for the Statute of 29 Eliz. intends only Suits by Indictment but touches not the popular Action or Information Vide Stat. 29 Eliz. cap. 6. Sect. 2. As c. any other Debt c. should or may be recovered Before this Statute the Queen had no way to recover of the Husband the intire forfeiture for the Recusancy of his Wife For if the Wife had been Indicted of Recusancy at the Queens Suit and convicted thereupon this had not affected the Husband who shall never be charged for the Act or default of his Wife but where he may be made party to the Action or Suit as in an Action of Debt Trespass Action of the Case for scandalous words by the Wife c. but not upon an Indictment And in this respect the Queen having before this Statute no remedy for recovery of the forfeiture but by Indictment where the Husband could not be charged for his Wife the Informer was then in better Case then the Queen For he may charge the Husband and Wife both for the Recusancy of the Wife and shall recover the forfeiture of him by force of the Statute of 23 Eliz. cap. 1. Stat. 23 Eliz. 1 Vide that Stat. Sect. 9. But upon the Conviction of the Wife upon Indictment the Queen must have staid till the death of the Husband before she could have levied the forfeiture and if the Wife had died before her Husband it was utterly lost in most Cases Baron and Feme may be charged for Recusancy of the feme But by this Act the Queen might and the King may at this day charge the Husband and Wife joyntly by Action of Debt Bill Plaint or Information for the Recusancy of the Wife in such sort as he may be charged in any other Action at Common Law for the Debt or Trespass of his Wife and the forfeiture for her Recusancy shall be recovered of him And this was the principal end and scope of making this Branch of the Statute and to this purpose were these words added here In such sort and in all respects as by the ordinary course of the Common Laws of this Realm any other Debt due by any such person in any other Case should or may be recovered Co. 11. 61 62. Dr. Fosters Case Rolles 1. 233 234. Roy versus Law son feme Savile 25. C. 59. Provided always Stat. Sect. 9. How the third part of the Penalties shall be imployed That the third part of the penalties to be had or received by vertue of this Act shall be imployed and bestowed to such good and charitable uses and in such manner and form as is limited and appointed in the Statute made in the 28. year of her Majesties Reign touching Recusants The Statute here mentioned Stat. 29 Eliz. 6 and called the Statute of 28 Eliz. is the same with 29 Eliz. cap. 6. before recited It being in some Books called the Statute of 28 in others of 29 but as it seems more properly 29. For the Session wherein it was made was by Prorogation held the 15 of February 29. Eliz. Provided also That no Popish Recusant Stat. Sect. 10. Popish Recusant or Feme Covert not to abjure Popish recusant or Feme Covert shall be compelled or bound to abjure by vertue of this Act. No Popish Recusant Here Wingate tit Crowne n. 77. leads his Reader into a great mistake for he mentions only a Feme Covert leaving out the Popish Recusant Feme Covert not here excepted in all Cases Or Feme Covert In the late additions to Dalton cap. 81. tit Recusants Sect. 7. 't is said that no married Woman is punishable by this Statute but are thereout excepted whereas in truth they are no where excepted throughout this Statute save only that they shall not be compelled or bound to abjure For if a married Woman comes not to Church but forbears for a month and goes to Conventicles or any other Meetings or Assemblies under colour or pretence of the exercise of Religion contrary to Law whether they be Popish or other or perswades others so to do or to forbear the Church or to impugne the Kings Authority in Causes Ecclesiastical she shall be imprisoned by force of this Act until she conform and submit her self but she cannot be further proceeded against so as to require her to abjure A married Woman with her Husband is likewise punishable by this Act for her Recusancy by Action of Debt c. brought against her and her Husband at the Kings Suit so that 't is a great mistake to say she is not punishable by this Statute Stat. Sect. 11. The forfeiture of him that abjures or refuses to abjure The Wise shall lose no Dower nor the heir any Land for these Offences Provided also That every person that shall abjure by force of this Act or refuse to abjure being thereunto required as aforesaid shall forfeit and lose to her Majesty all his goods and chattels forever and shall further lose all his Lands Tenements and Hereditaments for and during the life only of such offender and no longer and that the Wife of any Offender by force of this Act shall not lose her dower nor that any corruption of Blood shall grow or be by reason of any offence
taken in only such as are convicted it would have been eluded and rendred ineffectual for want of a Conviction of the greater part of such ubiquitary Recusants The want of due consideration of this Statute in each of these parts of it hath occasioned some mistakes in those who have handled it And Wingate tit Crown numb 78. restrains both parts of it as well relating to those that have no certain place of abode as those whose place of abode is certain to Recusants convicted and makes no mention that this later sort must be in England at the time of their Conviction And in the late Additions to Dalton cap. 81. tit Recusants Sect. 14. 't is not only said that both sorts must be convicted but that they must be in England at the time of their Conviction which two things are only requisite in such who have a certain place of abode and not in the other sort who are within the meaning and danger of this Law without any precedent Conviction for Recusancy See more of this matter Licence to Travel Stat. 3 Jac. 5. and how a Popish Recusant shall be licensed to Travel out of his compass of five miles Stat. 3 Jac. cap. 5. Sect. 8. And be it further Enacted by the Authority aforesaid Stat. Sect. 4. A Popish Recusant Copy-holder That every such Offender as is before mentioned which hath or shall have any Lands Tenements or Hereditaments by Copy of Court Roll or by any other customary tenure at the will of the Lord according to the Custom of any Mannor shall forfeit all and singular his and their said Lands Tenements and Hereditaments so holden by Copy of Court Roll or customary tenure as aforesaid for and during the life of such offender if his or her Estate so long continue to the Lord or Lords of whom the same be immediately holden if the same Lord or Lord or Lords be not then a Popish Recusant and convicted for not coming to Church to hear Divine Service but forbearing the same contrary to the Laws and Statutes aforesaid nor seized or possessed upon Trust to the use or behoof of any such Recusant as aforesaid And in such Case the same forfeiture to be to the Quéens Majesty Provided always Stat. Sect. 5. Popish Recusants shall notifie their coming and deliver in their names and be it further Enacted by the Authority aforesaid That all such persons as by the intent and true meaning of this Act are to make their repair to their place of dwelling and abode or to the place where they were born or where their Father or Mother shall be dwelling and not to remove or pass above five miles from thence as is aforesaid shall within twenty days next after their coming to any of the said places as the Case shall happen notifie their coming thither and present themselves and deliver their true names in writing to the Minister or Curate of the same Parish and to the Constable Headborough or Tithingman of the Town and thereupon the said Minister or Curate shall presently enter the same into a Book to be kept in every Parish for that purpose Which shall be certified to the Sessâ—ons and enrolled there And afterwards the said Minister or Curate and the said Constable Headborough or Tithingman shall certifie the same in writing to the Iustices of the Peace of the same County at the next general or Quarter Sessions to be holden in the same County and the said Iustices shall cause the same to be entred by the Clerk of the Peace in the Rolls of the same Sessions Goods and Lands where not forfeited A Popish Recusant repairs to the place appointed him by this Act and keeps within his compass of five miles but doth not present himself or deliver in his name he doth not forfeit his Goods or Lands For there is no particular penalty inflicted in this part of the Act for that omission nor yet in the subsequent Branch for him that hath clearly twenty marks per annum in Freehold or Goods and Chattels worth forty pounds But yet such person may be Indicted for such neglect and fined upon the general words of the Statute which commands the thing to be done For where an Act of Parliament commands any thing to be done and inflicts no penalty an Indictment lies against the person who ought to do it for his neglect or omission Co. 2. Inst. 55. 163. Vide Cro. Hill 41 Eliz. 655. Crouthers Case Stat. Sect. 6. The penalty of a Popish Recusant of small ability offending against this Act. And to the end that the Realm be not pestered and overcharged with the multitude of such Seditious and dangerous people as is aforesaid who having little or no ability to answer or satisfie any competent penalty for their contempt and disobedience of the said Laws and Statutes and being committed to Prison for the same do live for the most part in better Case there then they could if they were abroad at their own liberty The Lords Spiritual and Temporal and the Commons in this present Parliament Assembled do most humbly and instantly beséech the Quéens Majesty that it may be further Enacted That if any such person or persons being a Popish Recusant not being a Feme Covert and not having Lands Tenements Rents or Annuities of an absolute Estate of Inheritance or freehold of the clear yearly value of twenty marks above all charges to their own use and behoof and not upon any secret trust or confidence for any other or Goods and Chattels in their own right and to their own proper use and behoof And not upon any such secret trust and confidence for any other above the value of forty pounds shall not within the time before in this Act in that behalf limited and appointed repair to their place of usual dwelling and aboad if they have any or else to the place where they were born or where their Father or Mother shall be dwelling according to the tenor and intent of this present Act And thereupon notifie their coming and present themselves and deliver their true Names in writing to the Minister or Curate of the Parish and to the Constable Headborough or Tithingman of the Town within such time and in such manner and form as is aforesaid or at any time after such their repairing to any such place as is before appointed shall pass or remove above five miles from the same And shall not within three months next after such person shall be apprehended or taken for offending as is aforesaid conform themselves to the obedience of the Laws and Statutes of this Realm in coming usually to the Church to hear Divine Service and in making such publick Confession and Submission as hereafter in this Act is appointed and expressed being thereunto required by the Bishop of the Diocess or any Iustice of the Peace of the County where the same person shall happen to be or by the Minister or
she should not be doubly punished both that way and at the Suit of the Informer And for the same reason it was urged that this Information would not lye against the Husband and Wife for after the Husbands death she would be liable to pay into the Exchequer all the arrears after the rate of Twenty pounds per month from the time of her Conviction and her goods and two parts of her Lands might be then seized for non-payment thereof And if the Husband and Wife should in the mean time at the Suit of the Informer pay Twenty pounds per month for part of the same time for which the Wife was liable to pay after the Husbands death this would be a double punishment for one and the same offence and it was further said that it was usual where the Wife was Indicted and Convicted for Recusancy Seizure of the Wives Lands and Leases to seize by Exchequer Process the Lands and Leases which the Husband had in her right and one Woods Case was cited to this purpose which proves that a Feme Covert is within the meaning of the Act and therefore after she is once Convicted upon Indictment shall be no more subject to the Informers popular Suit then a Feme sole Cro. Pasch 16 Jac. 481.482 But this last point is much to be questioned for the Lands and Leases of the Wife are the Husbands during the Coverture and 't is a general rule that his Goods or Lands cannot be seized for the forfeiture or penalty where the Wife only is Indicted and Convicted of the Offence See more of this matter antea Stat. 23 Eliz. cap. 1. Stat. 23 Eliz 1 Sect. 9. A Recusant is Indicted for absenting himself from Church for 12 months and afterwards is Convicted upon that Indictment Where an Informer may sue after Conviction upon Indictment Quaere whether 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 his Conviction For these words here 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 incur 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 Except in such Cases where the King shall c. refuse the same The King may seize two parts presently after Conviction If a man be Indicted and Convicted of Recusancy the King is not bound to stay till the next Easter or Michaelmas Term to see whether the Recusant will tender twenty pounds for every month contained in the Indictment and incurred after such Conviction for the King having his Election whether 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 wave the twenty pounds per month For he may take his Election as soon as he will after Conviction By Jones Justice in the Case of Standen and the University of Oxford Jones 24. Stat. Sect. 7. Every Conviction shall be certified into the Exchequer And that every Conviction recorded for any Offence before-mentioned shall from the Iustices before whom the Record of such Conviction shall be remaining be certified into the Kings Majesties Court of Exchequer before the end of the Term following such Conviction in such convenient certainty for the time and other circumstances as the Court of Exchequer may thereupon award out Process for the seizure of the Lands and Goods of every such Offender as the Cause shall require And if default shall be made in any part of any payment aforesaid contrary to the form herein before limited that then and so often the Kings Majesty his Heirs and Successors shall and may by process out of the said Exchequer take seize and enjoy all the Goods and two parts as well of all the Lands Tenements and Hereditaments Leases and Farms of such Offender as of all other the Lands Tenements and Hereditaments liable to such seizure or to the penalties aforesaid by the true meaning of this Act leaving the third part only of the same Lands Tenements and Hereditaments Leases and Farms to and for the maintenance and relief of the same Offender his Wife Children and Family Timber Trees All the Goods A Recusant convicted is Tenant for Life the Remainder to a Stranger in Fee He in the Remainder with the Recusants assent cuts down Timber Trees and sells them In this Case the King can be no ways intitled to the Trees Bulstrode 1.133 Vide Stat. 29 Eliz. cap. 6. Sect. 4. Aswell of all the Lands c. Leases and Farms of such Offender Lease in trust for another Elizabeth Bowes was convicted of Recusancy and she standing so Convicted a Lease was made to her in trust which she conveyed over according to the trust The question was whether the King might seize this Lease And the reason given in Lane 39. why the King should have the Term is because the Recusant after she was Convicted was not capable of any trust and therefore the Conveyance made by her was as if it had been voluntary without relation to the Trust Tamen quaere by what Law a Recusant meerly for the matter of Recusancy is incapable of any Trust although Convicted All other the Lands c. liable to such seizure Copyhold Lands Stat. 29 Eliz. 6. or to the penalties aforesaid Whether Copyholds be liable to such seizure vide Stat. 29 Eliz. cap. 6. Sect. 4. Lands are conveyed to A. in trust for B. a convicted Recusant Lands in trust for a Recusant Quaere whether the King may seize such Lands for the Recusants non-payment of the twenty pounds per month for if he make his Election and accepts of two thirds in lieu of the twenty pounds per month there is no question but such Lands are liable to seizure For the words of the subsequent Clause 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 Recusant But in this Clause which relates to the seizure of two parts for non-payment the words seem to be more restrictive Vide Lane 105. 106. Halseys Case And whereas by an Act made in the Session of Parliament holden by Prorogation at Westminster in the thrée and twentieth year of the Reign of the late Queén Elizabeth entituled Stat. Sect. 8. The Stat. of 23 Eliz. 1. touching a Recusants monthly forfeiture An Act to retain the Subjects of the said late Quéen in their due Obedience It was amongst other things Enacted by Authority of the said Parliament That every person above the age of sixtéen years which should not repair to some Church Chappel or usual place of Common Prayer
meét to be Executors or Administrators to any person or persons whatsoever nor to have the Education of their own Children much less of the Children of any other of the Kings Subjects nor to have the marriage of them Be it therefore Enacted by the Authority aforesaid A Recusant shall not be Executor or Administrator That such Recusants convicted or which shall be convicted at the time of the death of any Testator or at the time of the granting of any Administration shall be disabled to be Executor or Administrator by force of any Testament hereafter to be made or Letters of Administration hereafter to be granted Or Guardian nor shall have the custody of any Child as Guardian in Chivalry Guardian in Socage or Guardian in nurture of any Lands Tenements or Hereditaments being Fréehold or Copyhold but shall be adjudged disabled to have any such Wardship or Custody of any such Child or of their Lands Tenements or Hereditaments being Fréehold or Copyhold as aforesaid Who shall have the Wardship And that for the better Education and Preservation of the said Children and of their Estates the next of the kin to such Child or Children to whom the said Lands Tenements or Hereditaments of such Child or Children cannot lawfully descend who shall usually resort to some Church or Chappel and there hear Divine Service and receive the holy Sacrament of the Lords Supper thrice in the year next before according to the Laws of this Realm shall have the Custody and Education of the same Child and of his said Lands and Tenements being holden in Knights Service until the full age of the said Ward of one and twenty years And of his said Lands Tenements and Hereditaments being holden in Socage as a Guardian in Socage And of the said Lands Tenements and Hereditaments holden by Copy of Court Roll of any Mannor so long as the Custom of the said Mannor shall permit and allow the same and in every of the said Cases shall yield an Accompt of the profits thereof to the said Ward as the Case shall require And that if at any time hereafter any of the Wards of the Kings Majesty or of any other shall be granted or sold to any Popish Recusant Convict such Grant or Sale shall be utterly void and of none effect Convicted at the time of the death of any Testator or at the time of the granting of any Administration Granting of Administration These words are to be construed reddendo singula singulis viz. That the Recusant shall be disabled to be Executor if he be convicted at the time of the death of the Testator or to be Administrator if he be Convicted at the time of the granting of Letters of Administration For so these words at the time of the granting of any Administration are here to be understood And therefore if a man makes his Will and therein appoints a Recusant Convict to be his Executor Executor where not disabled and before the Testators death the Conviction is removed by Reversal of the Judgment or avoided or discharged for some defect in the Indictment Proclamation or other proceedings and then the Testator dies In such Case the Recusant is not by this Act disabled to be Executor For although the naming of an Executor is in Law a granting of Administration And if a man by his last Will grants the Administration of his Goods and Chattels to J. S. without more saying thereby J. S. is made his Executor Dyer 290. So that the naming of an Executor and the granting of Administration seem to be the same thing yet this is not a granting of Administration within the meaning of this Act Administration here relating only to an Administrator and not to an Executor besides the naming of an Executor amounts not to a compleat grant of Administration until the Testators death For then and not before the Will becomes in force And if the party stands not then convicted he is not disabled Much less shall he be disabled to be Executor who is not convicted at the time of the Testators death although he be convicted at the time of the Probate of the Will For if these words granting of Administration should relate to an Executor as well as to an Administrator which in truth they do not yet the power given to the Executor by the Ordinary or Ecclesiastical Judge upon the probate of the Will cannot be called a granting but only a committing of Administration Committing of Administration What the Ordinary grants to an Executor according to the Will of the deceased And in such Case all that the Ordinary or Ecclesiastical Judge can grant are Letters testifying what the Testator hath already given to the Executor and a Power or Authority to execute the Will As Guardian in Chivalry Although the Recusant seized in Chivalry and Convicted could not have been Guardian yet if he had granted the Seigniory Seigniory granted over to one who was no Recusant the Grantee should have been Guardian notwithstanding this Act for the mischief here intended to be prevented was removed when the Seigniory was granted to another who was no Recusant By Jones Justice C. B. Hill 20. Jac. Jones 19. So if the King had seized Seized by the King the Recusants 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. Stat. Sect. 22. Popish Books And be it further Enacted by the Authority of this present Parliament That no person or persons shall bring from beyond the Seas nor shall Print sell or buy any Popish Primmers Ladies Psalters Manuels Rosaries Popish Catechisms Missals Breviaries Portalls Legends and Lives of Saints containing superstitious matter Printed or Written in any Language whatsoever nor any other superstitious Books Printed or Written in the English Tongue upon pain of forfeiture of Forty shillings for every such Book one third part thereof to be to the Kings Majesty his Heirs and Successors one other third part to him that will sue for the same and the other third part to the Poor of the Parish where such Book or Books shall be found to be recovered by Action of Debt Bill Plaint or Information in any of the Kings Majesties Courts of Record wherein no Essoin Protection or Wager of Law shall be admitted or allowed and the said Books to be burned Stat. Sect. 23. Popish Reliques and Books And that it shall be lawfull for any two Iustices of Peace within the Limits of their Iurisdiction or Authority and to all Mayors Bailiffs and Chief Officers of Cities and Towns Corporate in their Liberties from time to time to search the Houses and Lodgings of every Popish Recusant Convict or of every person whose Wife is or shall be a Popish Recusant Convict for Popish Books and Reliques of Popery And that if any Altar Pix Beads Pictures or such like Popish Reliques or any Popish Book
Conviction do yet remain unpaid in form as hereafter ensueth that is to say the one moiety thereof before the end of the next Trinity Term and the other moiety thereof before the end of the next Hillary Term or at any such other times as by the Lord Treasurer Chancellor and Chief Baron of the Exchequer or any two of them shall by composition upon good Bond and Surety taken be limited before the end of the said next Trinity Term if any such Composition shall happen to be And shall also in every Easter and Michaelmas Term until such time as the same person do make Submission and be Conformable according to the true meaning of the said Statute pay into the said Receipt of the Exchequer twenty pounds for every month which shall incur in all that mean time Stat. Sect. 4. And be it also Enacted by the Authority aforesaid That every such Offender in not repairing to Divine Service but forbearing the same contrary to the said Estatute as hereafter shall fortune to be thereof once convicted shall in such of the Terms of Easter or Michaelmas as shall be next after such Conviction pay into the said Receipt of the Exchequer after the rate of twenty pounds for every month which shall be contained in the Indictment whereupon such Conviction shall be And shall also for every month after such Conviction without any other Indictment or Conviction pay into the Receipt of the Exchequer aforesaid at two times in the year that is to say in every Easter Term and Michaelmas Term as much as then shall remain unpaid after the rate of Twenty pounds for every month after such Conviction The Queen may take all the Goods and two parts of the Lands and Leases of the Offender who pays not 20 l. a month And if default shall be made in any part of any payment aforesaid contrary to the form herein before limited that then and so often the Quéens Majesty shall and may by Process out of the said Exchequer take seize and enjoy all the Goods and two parts as well of all the Lands Tenements and Hereditaments Leases and Farms of such Offender as of all other the Lands Tenements and Hereditaments liable to such seizure or to the penalties aforesaid by the true meaning of this Act leaving the third part only of the same Lands Tenements and Hereditaments Leases and Farms to and for the maintenance and relief of the same Offender his Wife Children and Family What Conviction is here meant and when the penalty is appropriated to the King Once convicted This Statute meddles not with any other way of Conviction then 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 then what she had against the Recusant by the Statute of 23 Eliz. cap. 1. that is by Indictment but only gave her a more speedy way of proceeding upon that fundamental remedy Co. 11. 60. Dr. Fosters Case Rolles 1. 93. C. 41. the same Case so that a Conviction upon an Information against the Recusant upon 23. or any other way save by Indictment doth not appropriate the penalty of twenty pounds per month to the King for the time to come by force of this Statute Hobart 205. Pye and Lovells Case nor for the same reason by force of that 3 Jac. cap. 4. where the same words are used and a Conviction by Indictment only intended as here In that Case of Pye and Lovell its said That if a man at the making of this Statute had been convicted of Recusancy by any other means then by Indictment he had not been bound by this Law to pay the twenty shillings It should be twenty pounds a month from the Conviction And if a man be now convicted in the Kings Bench by Indictment or otherwise he cannot be proclaimed nor otherwise his penalty run on which last words infer that the Conviction here intended is only a Conviction according to this Statute by Proclamation upon default But if we compare together this Clause which speaks of a Conviction after the making of this Statute and the former Clause which speaks of a Conviction before this Statute the contrary will evidently appear For the former Clause touching Conviction before this Statute must necessarily be intended of Convictions according to 23 Eliz. cap. 1. without any Proclamation For the Proclamation in the Case of Recusancy was not given until 29. And if a man had been convicted of Recusancy upon Indictment in the Kings Bench or elsewhere before this Act the forfeiture of 20 l. per month should by force of this Act have run on from the time of such Conviction that 's clear by the express words of the former Clause Then comes this Clause which provides what shall be done upon Convictions for the future and appoints in that Case likewise the forfeiture of 26 l. 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 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 then in the former Clause where the penalty should have run on upon any conviction whatsoever upon Indictment or that the conviction in the former Clause by Indictment upon 23. without Proclamation should be wholly shut out of the later Clause By Conviction therefore in these two Clauses 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 in the former which speaks of the time foregoing a Conviction upon 23 Eliz. without Proclamation and in this later which speaks of the time to come a Conviction either with or without a Proclamation In either of which Cases the penalty of 20 l. per month shall run on by force of this Act and consequently it shall run on if the Recusant be Indicted Convicted and adjudged in the Kings Bench although he cannot be proclaimed there And accordingly it was agreed 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 Roiles 1. 93. C. 41. And 't is not restrained there to a Conviction upon Proclamation only But yet although this Clause extends as well to a Conviction upon 23 Eliz. as to a Conviction by Proclamation yet every Conviction upon 23 Eliz. is not here intended For if a man Indicted of 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 until Judgment nor shall the penalty of 20 l. per month run on or be appropriated to the King until Judgment be given By Convicted therefore is here to be understood convicted by Proclamation and 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 sense it is to be taken in divers other Cases Stat. 23 Eliz. 1 Vide Stat. 23 Eliz. cap. 1. Sect. 5. When the 20 l per month is to be paid In such of the Terms of Easter or Michaelmas 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 contained in the Indictment in the very first of those Terms next after his Conviction See for this Stat. 3 Jac. 4. Stat. 3 Jac. 4. Sect. 6. From what time the said penalty shall run on Stat. 23 Eliz. 1. 3 Jac. 4. For every month after such Conviction For what time the penalty of 20 l. per month shall run on after the Recusant is indicted and convicted and in what Cases the Informer and all others but the King shall be barred after such Conviction Vide Stat. 23 Eliz. cap. 1. antea Stat. 3 Jac. cap. 4. Sect. 6. postea Office Take seize and enjoy But as to Lands and Tenements there must first be an Office found for the King for regularly before the finding of such Office Lands or Tenements cannot be seized into the Kings hands Co. 2. Inst 573. Co. 8. 169. Paris Stoughters Case Bro. tit Office 17. 55. Plowden 486. Nicholls Case By this Statute the Queen was to have and enjoy two parts of the Recusants Lands and Hereditaments nomine poenae or districtionis The two parts not satisfactory of the twenty pounds per month until he had in some other manner satisfied her of the whole forfeiture of the Twenty pounds per month incurred for his Recusancy And the profits of those two parts should not have been accompted to go to the payment of any part of the said debt or forfeiture For the Statute inflicted this forfeiture upon him meerly as a farther 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 Cro. Eliz. 845. 846. and by all the Judges The Law now altered in that point 3 Jac. at Russell House Jones 24. Standen versus Vniversity d'Oxon Whitton But now the Law is altered in this point by the Statute of 1 Jac. cap. 4. Vide the Stat. infra Sect. 4. Stat. 1 Jac. 4 All the goods A Recusant is Indicted and Convicted Recusants goods when forfeited and then fails of payment of the Twenty pounds per month yet his goods are not forfeited to the King by this Statute before seizure For the King hath his Election whether he will seize them or no. By Coke Chief Justice B. R. 12. Jac. Rolles 1. 7. C. 8. Cullom versus Sherman A Recusant lends money Recognizance forfeited 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 fails of payment of the Twenty pounds per month In this case the King shall have the Recognizance by force of this Act for when forfeited to the Recusant it is but a chattel personal What is given to the King by this word Goods and shall pass to the King by this word goods For in an Act of Parliament where the Offenders 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 this Act as take and seize refer to two parts of the Recusants Lands and Tenements so enjoy refers 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 savour of the realty for it was originally for the loan and forbearance of money which is personal Co. 12. 1. 2. Ford and Sheldons Case If a man who is a Recusant take such a Recognizance in the name of another Recognizance taken in anothers name forfeited the King upon his Conviction shall have the Recognizance for when the Recusant was such at the time of taking the Recognizance and so continued until the time of his Conviction 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 the levying of the forfeiture and such Covin shall not bar the King Co. 12. 2. 3. the same Case The Kings grant If a Recognizance or Obligation be forfeited to the King by force of this Act he may grant it over as he may any other Chattel in Action under his private Seal Rolles 1. 7. C. 8. Cullom versus Sherman Hereditaments Rent Advowson in gross Hereditaments A Rent of Inheritance and an Advowson in gross are comprehended under this word But whether the King may seize such an Advowson as part of his two parts and present by vertue thereof since the Stat. of 3 Jac. c. 5. which gives the Presentation to the Universities Stat. 3 Jac. 5 Vide that Stat. infra Sect. 19. All other the Lands Tenements and Hereditaments liable to such seisure or to the penalties aforesaid It hath been much disputed whether Copyhold Lands are within this Branch of the Statute Copyhold Lands if seizable for regularly in Acts of Parliament which are Enacted for forfeiture of Lands Tenements and Hereditaments Copyholds shall not be forfeited but only Lands Tenements and Hereditaments which are such at the Common Law and not those which are such by custom only as Copyholds are And it was agreed in Heydons Case Co. 3. 8. 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 shall not extend to Copyholds Vide Savile 67. C. 138. And if the King should seize them by force of the general words here viz. Lands Tenements and Hereditaments the Lord would during the time they are in the Kings hands lose his Seigniory Customs and Services But yet it was held by Manwood Chief Baron and Baron Clark in the Case of Sulherd and Everet Mich. 30 Eliz. That Copyholds are within this Act and although 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 But it was granted on all hands that by these general words here the King hath not any estate given him in the Recusants Copyhold Lands but only a right or title to two thirds of the profits By the Kings receiving of which the Lord cannot be impeached of his Customs and Services as he would be if the King should seize the Land it self And a difference was there taken between an Act of Parliament which transfers 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 in Heydons Case that Copyhold 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 Customs and Services are not to be Impeached or taken away as here they will not by the Kings bare receiving of the profits there it was said Copyholds shall be included within the general words of Lands Tenements and Hereditaments Leonard 1. 97. C. 126. And yet Vide Owen 37. where this Case is otherwise reported and that it was at length after great debate adjudged that Copyhold Lands are not within this Statute 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 liable to such seizure And for the more spéedy conviction of such Offender Stat. Sect. 5. The Indictment sufficient though it be not mentioned that the party is within the Realm in not repairing to Divine Service but forbearing the same contrary to the said Estatute Be it Enacted by the Authority aforesaid That the Indictment of every such Offender mentioning the not coming of such Offender to the Church of the Parish where such person at any time before such Indictment was or did keép House or Residence nor to any other Church Chappel or usual place of Common Prayer shall be sufficient in the Law And that it shall not be neédful to mention in any such Indictment that the party Offender was or is inhabiting within this Realm of England or any other the Queens Majestis Dominions But if it shall happen any such Offender then not to be within this Realm or other her Majesties Dominions that in such case the party shall be relieved by Plea to be put in in that behalf and not otherwise And that upon the Indictment of such Offender Stat. Sect. 6. A Proclamation that the party Indicted shall render his Body to the Sheriff a Proclamation shall be made at the same Assizes or Goal delivery in which the Indictment shall be taken if the same be taken at any Assize or Goal delivery by which it shall be commanded that the body of such Offender shall de rendred to the Sheriff of the same County before the said next Assizes or general Goal delivery to be holden in the same County And if at the said next Assizes or Goal delivery the same Offender so proclaimed shall not make appearance of Record that then upon such default Recorded the same shall be as sufficient a conviction in Law of the said Offence whereof the party so standeth Indicted as is aforesaid as if upon the same Indictment a Trial by Verdict thereupon had proceeded and been recorded If the same be taken at any Assize or Goal delivery For if the Indictment had been taken before Justices of Peace Proclamation by whom to be made 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 Edward Plowden And therefore upon such an Indictment for Recusancy taken before Justices of Peace the Court was to remove the Indictment into the Kings-Bench And there process might have been made out against the Recusant and he convicted For the Justices of Peace could do no more then Indict all other proceedings being taken away from them by this Statute Co. 11. 63. Dr. Fosters Case Rolles 1. 94. C. 41. the same Case But now by the Statute of 3 Jac. cap. 4. the Law is altered in this point Stat. 3 Jac. 4. and the Justices of Peace upon Indictments taken before them may proceed to proclaim and convict the Recusant as well as Justices of Assize and Goal delivery Shall be rendred to the Sheriff Vide Stat. 3 Jac. cap. 4. Sect. 5. Before the said next Assizes or general Gaol delivery Vide Stat. 3 Jac. cap. 4. Sect. 5. Appearance Make appearance of Record What appearance will serve in this Case Vide Stat. 3 Jac. cap. 4. Sect. 5. Vpon such default That is upon his default of appearance of Record at the next Assizes or Goal delivery For if he makes such appearance Default saved 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 would make it to be Tit. Crowne numb 66. As sufficient a Conviction in Law That is as if he were convicted by Verdict Conviction upon Proclamation no Judgment but not as sufficient as if a Judgment were had against the Recusant For although by force of this and other Statutes the conviction upon Proclamation and default of appearance make the Recusant liable 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 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 the Statute of 23 Eliz. cap. 1. Stat. 23 Eliz. 1 without Proclamation and Judgment had been given thereupon Vide Co. 11. 65. Dr. Fosters Case Stat. Sect. 7. Provided always That whensoever any such Offender as is aforesaid shall make submission and become conformable according to the form limited by the same Estatute made in the thrée and twentieth year of the Quéens Majesties Reign The Offender submitting or dying no forfeiture shall ensue or be continued or shall fortune to die that then no forfeiture of twenty pounds for any month or seizure of the Lands of the same Offender from and after such Submission and Conformity or Death and full satisfaction of all
but forbear the same contrary to the tenor of a Statute made in the first year of the Reign of the said late Quéen for Vniformity of Common Prayer and being thereof lawfully convicted should forfeit to the said Quéen for every month after the end of the said Session of Parliament which he or she should so forbear twenty pounds of lawful English money as in and by the said Act of Parliament more at large appeareth And whereas afterward by another Act of Parliament of the said Quéen It was further Enacted by the Authority of the said Parliament amongst other things how and when the said payments of the said 20 l. should be made and that if default should be made in any part of any payment of the said twenty pounds contrary to the form in the said last specified Statute limited that then and so often the said Quéen should and might by Process out of her Highness Exchequer take seize and enjoy all the Goods and two parts as well of all the Lands Tenements and Hereditaments Leases and Farms of such Offender as of all other the Lands Tenements and Hereditaments liable to such seizure or to the penalties aforesaid by the true meaning of the said Act of Parliament leaving the third part only of the same Lands Tenements and Hereditaments Leases and Farms to and for the maintenance and relief of the same Offender his Wife Children and Family as in and by the last specified Statute more at large also may appear Now forasmuch as the said penalty of twenty pounds monthly is a greater burden unto men of small living then unto such as are of better ability and do refuse to come unto Divine Service as aforesaid who rather then they will have two parts of their Lands to be seized will be ready always to pay the said twenty pounds according to the limitation of the said Statutes and yet retain the residue of their livings and Inheritance in their own hands being of great yearly value which they do for the most part imploy as experience hath taught to the maintenance of Superstition and Popish Religion and to the relief of Iesuits Seminaries Popish Priests and other dangerous persons to the State Therefore to the intent that hereafter the penalty for not repairing to Divine Service might be inflicted in better proportion upon men of great ability Be it Enacted by the Authority of this present Parliament The King may refuse 20 l. a month and take two parts of a Recusants Lands That the Kings Majesty his Heirs and Successors shall from and after the Feast of St. Michael the Archangel next coming after the end of this Session of Parliament have full power and liberty to refuse the penalty of twenty pounds a month though it be tendred ready to be paid according to the Law and thereupon to seize and take to his own use and the uses intents and purposes hereafter limited two parts in threé to be divided as well of all the Lands Tenements and Hereditaments Leases and Farms that at the time of such seizure shall be or afterward shall come to any the said Offenders in not coming to Church or any other to his or her use or in trust for him or her or at his or her disposition or whereby or wherewith or in consideration whereof such Offender or his Family or any of them shall be relieved maintained or kept as of all other Lands Tenements and Hereditaments in any wise or at any time liable to such seizure or to the penalties aforesaid and the same to retain to his own and other uses intents and purposes hereafter in this Act appointed till every such Offender shall conform him or her self respectively as aforesaid in lieu and full recompence of the twenty pounds monthly that during his such seizure and retainer shall incur any thing in the said Statutes or any of them or any other Statute to the contrary in any wise notwithstanding saving to our Soveraign Lord the Kings Majesty his Heirs and Successors and all and every person and persons Saving the Right of others bodies politick and corporate their Heirs and Successors other then the said Offender his or her Heirs and all claiming to his or their use or in trust for him or them or at his or their will or disposition all and all manner of Leases Rents Conditions and other Rights and Titles whatsoever had made and done bona fide and without fraud and covin before such seizure Though it be tendred or ready to be paid By this Branch of the Act a new advantage is given to the King against the Recusant For whereas by the Statute of 29 Eliz. cap. 6. Stat. 29 Eliz. 6. the convicted Recusant had his Election to pay the King twenty pounds per month and so prevent the seizure of the two third parts of his Lands now by this Statute that Election is taken away Election taken from the Recusant and given to the King and the choice is given to the King whether he will accept of the twenty pounds per month or refuse it and seize two third parts of the Recusants Lands in lieu thereof and if the King chooses the Lands the tender of the twenty pounds per month at the Exchequer will not save the seizure but the King shall enjoy the Lands notwithstanding Jones 24 25. Standen versus University of Oxford Hereditaments An Advowson is an Hereditament Hereditament Advowson and passes by that word 18 Eliz. Dyer 351. and is devisable by the Statute of 32 H. 8. cap. 1. of Wills as an Hereditament and if it be an Advowson in gross yet it may be seized by the King by force of this Act as part of his two parts of the Recusants Hereditaments Jones 23 24. Standen versus University of Oxford 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 Advowson there shall be a Recovery in value scil for every mark twelve pence Fitzh Recovery in value 9. 11. Hobart 304. London versus the Chapter of Southwell Co. 1. Inst 374. Britton 185. In the late Additions to Dalton cap. 81. tit Recusants Sect. 23. 't is said That the King may refuse the twenty pounds per month and take to two parts of the Recusants Lands and all the Goods c. And an Advowson is without that Clause and the said Case of Standen and the University of Oxon is there cited for Authority 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 refusal of the twenty pounds per month should take the Recusants Goods For the seizure of the Goods is given where the Offender fails of payment of the twenty pounds per month Where a Recusants Goods cannot be seized but not
where the King discharges him of that payment by refusing it so that where the King refuses the twenty pounds per month the Recusants Goods cannot be seized but only two parts of his Lands The Law likewise is mistaken For if the King refuses the twenty pounds per month he may seize an Advowson as part of his two parts as hath been said so that an Advowson is within this Clause An Advowson is within this Clause and not without it And the Case of Standen and the University of Oxon is quite contrary to that Opinion in the late Additions to Dalton For Justice Jones held strongly that an Advowson was within this Clause And Hobart Chief Justice and Justice Winch declared themselves to be of the same mind and Justice Hutton denied not that an Advowson was within it only held that the force of it as to an Advowson in gross was taken away by the Statute of 3 Jac. cap. 5. Stat. 3 Jac. 5. University 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 died The King should present and not the University See of this matter more at large Stat. 3 Jac. car 5. Sect. 19. If the King seize by Inquisition two parts of a Mannor belonging to a Recusant Convict to which an Advowson is Appendant Two parts of an Advowson Appendant seized by seizure of two parts of the Mannor by such seizure two parts of the Advowson are likewise seized by consequence although it be not named in the Inquisition as was resolved in the Case of the Chancellor c. of Cambridge and Walgrave Hobart 126 127. Moore 872. C. 1214. The King shall present alone And there although the King hath Title but to two parts of the Advowson yet he shall present alone by his Prerogative as was resolved in that Case 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 E. 3. 14. 38 H. 6. 9. But yet His two parts shall not pass from him by general words although 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 seizes two parts of a Mannor belonging to a Recusant Convict to which an Advowson is Appendant and grants over his two parts of the Mannor to a Subject with all Hereditaments Appurtenances c. yet two parts of the Advowson will not pass unless specially named or the grant be adeo plene integre in tam amplis modo forma prout c. the Recusant had the Mannor Hobart 126 127. Moore 872. C. 1214. All other Lands c. liable to such seizure or to the Penalties aforesaid Whether Copyhold Lands Copyhold Lands are seizable by force of these words Vide Stat. 29 Eliz. cap. 6. Sect. 4. Stat. 29 Eliz. 6. In lieu and full Recompence of the twenty pounds monthly So that if the King make his Election to seize the two parts the Recusant is no longer liable to pay the twenty pounds per month The twenty pounds per month discharged but the two parts of his Lands shall go in lieu and full Recompence thereof Jones 24. Standen versus University of Oxon. Provided always Stat. Sect. 9. A Recusants Mansion house shall be reserved to him and be it Enacted by the Authority aforesaid That the Kings Majesty his Heirs and Successors shall not take into his two parts but leave to such Offender his chief Mansion House as part of his third part and shall not Demise Lease or put over the said two parts nor any part thereof to any Recusant nor to or for the use of any Recusant The Kings two parts shall not be demised to a Recusant And that whosoever shall take the same in Lease or otherwise of his Majesty his Heirs and Successors shall give such security not to commit nor suffer wast to be committed in or upon any the said premises as by the Court of Exchequer shall be allowed sufficient His chief Mansion House Mansion House 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. Mansion But it is to be taken here in a larger sence for any other House which is the Recusants chief dwelling House And for the better Tryal how his Majesties Subjects stand affected in point of their Loyalty and due Obedience Stat. Sect. 10. Who are compellable to take the Oath Be it also Enacted by the Authority aforesaid That from and after the end of this present Session of Parliament it shall be lawful to and for any Bishop in his Diocess or any two Iustices of Peace whereof one of them to be of the Quorum within the limits of their Iurisdiction out of the Sessions to require any person of the age of Eightéen years or above being or which shall be Convict or Indicted of or for any Recusancy other then Noblemen or Noblewomen for not repairing to Divine Service according to the Laws of this Realm or which shall not have received the said Sacrament twice within the year then next past Noblemen and Noblewomen excepted or any person passing in or through the County Shire or Liberty and unknown except as is last before excepted that being examined by them upon Oath shall confess or not deny himself or her self to be a Recusant or shall confess or not deny that he or she had not received the said Sacrament twice within the year then last past to take the Oath hereafter following upon the holy Evangelist Certificate of the name and place of abode of him which taketh the Oath Which said Bishop or two Iustices of the Peace shall certifie in writing subscribed with his or their Hands at the next General or Quarter Sessions for that Shire Limit Division or Liberty within which the said Oath shall be so taken the Christen Name Surname and place of aboad of every person which shall so take the said Oath which Certificate shall be there recorded by the Clerk of the Peace or Town-Clerk and kept amongst the Records of the said Sessions Where this Oath cannot be tendred Passing in or through the County Shire or Liberty and unknown These words passing and unknown 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
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 Kings Suit alone in which Cases the penalty of Twenty pounds per month is not appropriated to the King for the time to come and he pays the penalty recovered or if he be Convicted upon Indictment and after such Conviction duly pays the Twenty pounds 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 in either of those Cases Sue or Prosecute for any of his Lands Tenements Leases Rents Annuities or Hereditaments whatsoever notwithstanding his Conviction For when the penalty recovered is satisfied or the forfeiture appropriated to the King is duly 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 until that Election they cannot in the sense of this Proviso be said to be Lands to be seized or taken into the Kings hands for that the King cannot have the two parts and the Twenty pounds per month both But if the King make no such Election and the Twenty pounds per month be duly 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 Recusant's 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 to think the latter of these were to render this Proviso nugatory and vain But when once the King hath seized the two thirds for recusancy either by way of Election or for nonpayment of the 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 Stat. Sect. 14. And for that Popish Recusants are not usually Married nor their Children Christned nor themselves Buried according to the Law of the Church of England but the same are done superstitiously by Popish Persons in secret whereby the days of their Marriages Births and Burials cannot be certainly known Stat. Sect. 15. Marriages of Popish Recusants Be it further Enacted by Authority of this present Parliament That every man being or which shall be a Popish Recusant convicted and who shall be hereafter Married otherwise then in some open Church or Chappel and otherwise then according to the Orders of the Church of England by a Minister lawfully Authorized shall be utterly disabled and excluded to have any Estate of Fréehold into any the Lands Tenements and Hereditaments of his Wife as Tenant by the Courtesie of England And that every Woman being or which shall be a Popish Recusant convicted and who shall be hereafter Married in other form then as aforesaid shall be utterly excluded and disabled not only to claim any Dower of the Inheritance of her Husband whereof she may be endowable or any Iointure of the Lands and Hereditaments of her Husband or any of his Ancestors but also of her Widows Estate and Frank-bank in any Customary Lands whereof her Husband died seized and likewise be disabled and excluded to have or enjoy any part or portion of the goods of her said Husband by vertue of any custom of any County City or Place where the same shall lie or be And if any such man shall be Married with any Woman contrary to the intent and true meaning of this Act which Woman hath or shall have no Lands Tenements or Hereditaments whereof he may be intituled to be Tenant by the Curtesie Then such man so Marrying as aforesaid shall forfeit and lose One hundred pounds the one half thereof to be to the Kings Majesty his Heirs and Successors and the other moiety to such person or persons as shall Sue for the same by Action of Debt Bill Plaint or Information in any of the Kings Majesties Courts of Record wherein no Essoin Protection or Wager of Law shall be admitted or allowed Where the Husband is no offender Every man being or which shall be a Popish Recusant Convicted A Man who is no Popish Recusant Convicted marries a Woman who is a Popish Recusant Convicted in other form then is here appointed He shall not forfeit any thing or be disabled by this Act. By a Minister lawfully Authorized Minister lawfully Authorized In an Information upon this Statute for being married otherwise then is here appointed it is sufficient for the Defendant to say that he was married c. by a Minister lawfully Authorized without shewing in particular how or where or when but if a Traverse come of the other side then the Defendant is in his Rejoynder to shew the time and place Vide Bulstrode 2. 50. 52. Creswich against Rookesby Every Woman being or which shall be a Popish Recusant Convicted A Woman who is no Popish Recusant Convicted Where the Wife is no offender marries a Man who is a Popish Recusant Convicted in other form than is here appointed she shall not be disabled by this Branch of the Act For the forfeiture or disability extends only to the Popish Recusant Convicted and as in the Case before recited the Woman only shall be disabled so in this Case the Man only shall forfeit or be disabled Or any Ioynture of the Lands and Hereditaments of her Husband or any of his Ancestors Joynture A Feme who is a Popish Recusant Convicted and married otherwise then is appointed by this Act is not therefore disabled to have any sort of Joynture as Wingate tit Crowne n. 136. mistakes but only such Joynture as is of the Lands or Hereditaments of her Husband or some of his Ancestors and therefore if in consideration of some service done or for some other consideration and for the advancement of A. in marriage Lands are setled upon his intended Wife for her Joynture by some person besides A. who is not any of the Ancestors of A. such Joynture is not within this Act nor shall the Wife although a Popish Recusant Convicted and married otherwise c. be disabled by any strained construction of this Law to enjoy the Lands after her Husbands death For a penal Law shall be taken strictly and not by equity or intendment especially where the intent of the Lawmakers doth not appear to the contrary and the Case such as doth but rarely happen And 't is a good Rule in the construction of Statute Laws which the late Lord Chief Justice Vaughan hath laid down in his Argument of Bole and Hortons Case Mich. 25. Car. 2. viz. when the words of a Law extend not to an inconvenience rarely happening and do to those which often
as the person so sent or gone beyond the Seas shall conform him or her self and take the aforesaid Oath and receive the Sacrament of the Lords Supper And after such Oath taken and conforming of himself and receiving the Sacrament of the Supper of the Lord he or they which have so received the profits of the said Lands Tenements Hereditaments Goods and Chattels or any of them shall make account of the profits so received and in reasonable time make payment thereof and restore the value of the said Goods to such person as shall so conform him or her self as aforesaid And of him that sendeth them And that all such persons as shall send the said Child or Children over Seas without Licence as aforesaid unless the said Child or Children be Merchants or their Apprentices or Factors Marriners or Soldiers shall forfeit one hundred pounds to be divided had and recovered in thrée equal parts whereof the one third part shall be to the King his Heirs and Successors the other third part to such as shall sue for the same and the other third part to the Poor of such Parish where such Offender doth inhabit or remain by Action of Debt Bill Plaint or Information in any the Kings Majesties Courts of Record wherein no Essoign Protection or Wager of Law shall be admitted or allowed Next of kin who The next of his or her kin It hath been a great Question formerly whether the Mother can be said to be of kin to the Child and it hath been held in the negative as well by the Common Lawyers as Civilians as appears by the Case in 5 E. 6. called the Duke of Suffolks Case and that of Browne and Shelton Bro. tit Administr ' 47. But the Law is now held to be otherwise viz. That the Mother shall be taken to be of kin to the Child and that in a nearer degree then is the Brother or Sister And that she shall be preferred in the Case of an Administration upon the Statute of 21 H. 8. cap. 5. and of Guardianship by the Statute of Marlebridge where a man dies seized of Lands holden in Socage Which later Opinion agreeth with that of Littleton in his tenures fo 1. where he saith That the Parent is nearer of blood to the Child then the Uncle vide Co. 1. Inst 88. And in Ratcliffes Case Co. 3.40 the Duke of Suffolks Case is denied to be Law So that if any Child be sent or go beyond the Seas contrary to this Act his Mother shall be preferred before his Brother or Sister and as next of kin may have and enjoy his Lands c. unless she be a Popish Recusant For next of kin And who not or next of blood shall not be accounted here by course of descent but as in the Case of a purchase where a Remainder is limited to the next of blood or kin And therefore if a man hath issue three Sons A. B. and C. and dieth A. and B. have issue each of them a Son and die The Son of B. goeth beyond the Seas contrary to this Act In this Case C. the youngest Uncle shall by force of this Act have and enjoy the Lands of the Offender until his Conformity and not the Son of A. the elder Uncle For that C. hath in him jus propinquitatis as being the Uncle and so nearer of kin then the Cousin german And yet the Son of A. is heir at Law jure representationis as being the Son of the eldest Brother Vide Co. 1. Inst 10. Palmer 304 305. Periman versus Pierce Shall have and enjoy the said Lands c. What is forfeited It was held by Montague and Hobart Chief Justices Pasch 15 Jac. in Tredway's Case That if a person goes beyond the Seas contrary to this Act yet the State of the Land is not forfeited nor setled in the next of kin but vests in the heir himself who is the Offender For the Statute saith not that he shall not take by descent but only that he shall take no benefit by descent and that therefore this Statute differs from those of 5 R. 2. of consenting to Ravishment Stat. 5 R. 2. 11 H. 7. Sale by the heir and 11 H. 7. of discontinuances by Women And Hobart said That if the Heir beyond Sea bargain and sell the Land descended to him he shall prevent the next of kin if he hath not entred And if he hath entred the Land shall be taken from him Quaere of this for Tanfeild Chief Baron seemed to be of a contrary Opinion in the main point and held that the State of the Land is setled by this Act in the next of kin Ley 59. Note in the Report of this Case of Tredway it s said to be the meaning of this Act that the profits of the Land should be received by the next of kin during the Offenders Non-conformity But these words have and enjoy seem to imply some what more and that the next of kin shall have the Land it self All such persons as shall send the said Child or Children c. Here Wingate tit Crown numb 139. mistakes the person who shall forfeit the hundred pounds Forfeiture of 100 l. applying it to the Child who goes beyond Sea and not to the person who sends him Stat. Sect. 19. The forfeiture of those already gone beyond the Seas And for that many Subjects of this Realm being neither Merchants nor their Factors nor Apprentices Soldiers nor Marriners are of late gone beyond the Seas without Licence and are not as yet returned Be it further Enacted by the Authority of this present Parliament That if any of the said persons so gone beyond the Seas without Licence which are not yet returned shall not within six months next after their return into this Realm then being of the age of Eighteén years or more take the Oath above specified before some Iustice of Peace of the County Liberty or Limit where such person shall inhabit or remain that then every such Offender shall take no benefit by any gift conveyance descent devise or otherwise of or to any Lands Tenements Hereditaments Goods or Chattels until he or they being of the said age of Eightéen years or above take the said Oath and that likewise in the mean time the next of kin to the person so offending which shall be no Popish Recusant shall have and enjoy the said Lands Tenements Hereditaments Goods and Chattels so given conveyed descended or devised until such time as the person so offending shall conform himself and take the aforesaid Oath and receive the said Sacrament of the Lords Supper And after such conforming taking of the said Oath and receiving of the said Sacrament he or they that shall have so received the profits of the said Lands Tenements Hereditaments Goods and Chattels shall make account of the profits so received and in reasonable time make payment thereof and of the value of such Goods and Chattels to