be a Popish Recusant convict at any time after his or her conviction shall exercise any publick Office or Charge in the Commonwealth but shall be utterly disabled to exercise the same by himself or by his Deputy except such Husband himself and his Children which shall be above the age of nine years abiding with him and his Servants in houshold shall once every month at the least not having any reasonable excuse to the contrary repair to some Church or Chappel usual for Divine Service and there hear Divine Service And the said Husband and such his Children and Servants as are of méet age receive the Sacrament of the Lords Supper at such times as are limited by the Laws of this Realm and do bring up his said Children in true Religion This Clause extends not to all sorts of Recusants who are convicted or have Wives who are Recusants convicted as is mistaken in the late additions to Dalton cap. 81. tit Recusants Sect. 46. To whom this clause extends But at this day only to the Popish Recusant convicted or having a Wife who is a Popish Recusant convicted To whom not A Popish Recusant not convicted hath a Wife who is convicted of Recusancy but is no Popish Recusant The Husband is not disabled by this Statute 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 for that neither the Husband is a Popish Recusant nor the Wife convicted Stat. Sect. 11. A Married Woman being a Popish Recusant And be it also Enacted by the Authority aforesaid That every Married Woman being or that shall be a Popish Recusant convict her Husband not standing convicted of Popish Recusancy which shall not conform her self and remain conformed but shall forbear to repair to some Church or usual place of Common Prayer and there to hear Divine Service and Sermon if any then be and within the said year receive the Sacrament of the Lords Supper according to the Laws of this Realm by the space of one whole year next before the death of her said Husband shall forfeit and loose to the Kings Majesty his Heirs and Successors the issues and profits of two parts of her Ioynture and two parts of her Dower in thrée parts to be divided during her life of or out of any the Lands Tenements or Hereditaments which are or were her said Husbands and also be disabled to be Executrix or Administratrix of her said Husband and to have or demand any part or portion of her said late Husbands Goods or Chattels by any Law custom or usage whatsoever The issues and profits of two parts of her Ioynture and two parts of her Dower A Woman may have Joynture and Dower both And not of two parts of her Joynture or Dower as Wingate tit Crown numb 134. For there are divers Cases where notwithstanding the Statute of 27 H. 8. cap. 10. the Wife shall have her Dower and Joynture both And forfeit two parts of both And if she offend against this branch she shall forfeit the profits of two parts of both And that not only where the Joynture made to her is not warranted by that Statute but in some Cases where the Joynture is pursuant and according to the Statute she shall have her Dower and Joynture both Of the first sort are these Where the Joynture is not warranted by Stat. 27 H. 8. 10. If an Estate be made of Lands to the Wife for the life of another Co. 4. 3. Vernons Case Or for a thousand years or for a thousand years if she live so long Co. 1. Inst 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 that Statute Vide Anderson 1. 288. c. 296. Bickley's Case Anderson 2. 30 31. c. 20. Wentworths Case Or if an Estate be made to others in fee or for the Wives life upon Trust for her benefit Co. 1. Inst 36. Or if a man Covenant to stand seized to the use of himself in Tail the Remainder to the use of his Wife for life Pasch 16. Jac. B. R. Woods Case Or if the Husband make a Feoffment in see to the use of himself for life the remainder to another for life or years the remainder to the Wife for her life Co. 4. 2. 3. Hutton 51. Sherwells Case In all these Cases although the Lands or Rent were conveyed to the Wife for her Joynture yet the Estate not being within the Statute of 27 H. 8. her acceptance thereof shall not bar 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 although there be an Estate limited to her for her life is because the Estate is not in its first Creation appointed to take immediately after the death of the Husband And no matter which arises ex post facto can salve this or make it a Joynture within that Statute to bar her Dower And therefore if in the first of those two Cases the Husband Tenant in Tail dies without issue or if in the last Case he in the remainder die before the Husband or the term for years determines in the Husbands 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 bar her Dower For quod ab initio non valet in tractu temporis non convalescet Co. 4. 2 3. Hutton 51. And as in all the Cases before mentioned if the Estate were made for her Joynture the Wife shall have such Joynture and her Dower both so if she be an Offender within this branch of the Act and conform not within the year next before her Husbands death she shall forfeit the profits of two parts of both Of what Lands she shall not forfeit the profits But otherwise it is where an Estate is given or limited by the Husband to the Wife and it s neither expressed nor can be averred and proved to be given or limited for her Joynture or in recompence of her Dower And therefore if any of the Estates before mentioned which are not within the Statute of 27 H. 8. be granted or limited to the Wife by the Husband or any other Estate for her life or otherwise which would be a good Joynture within the said Statute if it were intended for a Joynture as if a man before or after Marriage Covenants to stand seized of Lands to the use of himself for life the Remainder to his Wife for her life and it is neither expressed in the Deed nor can be averred and
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
Curate of the Parish That in every such Case every such Offender being thereunto warned or required by any two Iustices of the Peace or Coroner of the same County where such offender shall then be shall upon his or their corporal Oath Abjuration before any two Iustices of the Peace or Coroner of the same County abjure this Realm of England and all other the Queéns Majesties Dominions forever And thereupon shall depart out of this Realm at such Haven and Port and within such time as shall in that behalf be assigned and appointed by the said Iustices of Peace or Coroner before whom such abjuration shall be made unless the same Offenders be letted or stayed by such lawful and reasonable means or causes as by the Common Laws of this Realm are permitted and allowed in Cases of abjuration for felony And in such Cases of let or stay then within such reasonable and convenient time after as the Common Law requireth in Case of abjuration for felony as is aforesaid Abjuration to be entred of Record and certified And that every Iustice of Peace and Coroner before whom any such abjuration shall happen to be made as is aforesaid shall cause the same presently to be entred of Record before them and shall certifie the same to the Iustices of Assizes or Goal delivery of the said County at the next Assizes or Goal delivery to be holden in the same County If any such person or persons being a Popish Recusant That is any Popish Recusant within the former Branches of the Statute and none but such What Popish Recusants are within this Branch and which not Dalton V. cap. 45. tit Recusants applies this Clause to Popish Recusants convicted as if it concerned them and them only and so both at once extends and restrains the Statute contrary to its true meaning For these words any such person or persons neither extend to all that are convicted nor are restrained to such only as are convicted For the Popish Recusant who hath a certain place of aboad within this Realm although he be convicted is not within this Statute unless he were a Popish Recusant and in England at the time of his Conviction And the Popish Recusant who hath no certain place of aboad within this Realm is within this Statute although he were never convicted so that either of these sorts of Popish Recusants who have an Estate under value viz. he who hath no certain place of aboad and he who having a certain place of aboad was convicted when a Popish Recusant and in England and no other are liable by this Act to Abjuration Of the clear yearly value Clear yearly value of Twenty marks above all Charges A Rent-charge of 40 l. per Annum is issuing out of Lands worth 100 l. per Annum a Popish Recusant liable to be confined by this Statute purchases for his Life or in Fee parcel of the Lands of the clear yearly value of Twenty marks over and above what his proportion of the said Rent-charge comes to This is an Estate of the clear yearly value of Twenty marks within the meaning of this Act and shall free him from abjuration For although in strictness of Law his Estate be not clearly so much above all charges For that 't is chargeable with an yearly Rent of Forty pounds yet in equity he shall pay no more then his proportion of it which the Land he purchased will discharge and yet yield Twenty marks per Annum clearly besides Or Goods and Chattels This Statute being in the disjunctive Lands or Goods an Estate partly of Lands Goods and Lands not to be valued together and partly of Goods will not satisfie the intent thereof And therefore if a Popish Recusant who offends against this Act hath fifteen Marks per Annum clearly in Lands and be worth Thirty pounds in goods although this taken together be in truth an Estate of more value then is here required yet it shall not free him from Abjuration For the Statute doth not warrant any valuation of the Lands and Goods together so as to supply the defect of the yearly value of the Lands by the Goods or the defect of the value of the Goods by the Lands and therefore the Recusant must have such an Estate in the one or the other as will answer the Statute And this is not like the Case of Jurors upon the Statute of 2 H. 5. Stat. 2 H. 5. 3. cap. 3. where 't is said That the Iuror shall have Lands of the clear yearly value of Forty shillings if the Debt or Damage declared amount to Forty marks in which Case although it be in the disjunctive debt or damage yet it hath been adjudged that where the debt and damages both amount to Forty marks it is sufficient and the Juror must have Forty shillings per Annum Co. 1. Inst 272. For in that Case the word or is cumulative and debt or damage both amount to no more then 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 that no Cause declared to be of the value of Forty marks shall be tried by Jurors of a less Estate but in our Case the Lands and Goods are things of different nature one real the other personal and cannot be regularly reduced under one and the same head and therefore shall not be valued together unless the Act had expresly appointed such a Valuation But yet if a Popish Recusant hath a Lease for years But leases for years and personal goods may and personal Goods and both do amount in value to above Forty pounds he shall be out of the danger of Abjuration For although 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 the Statute expresly so appoints without distinguishing between the values of either but makes it sufficient if both of them be of that value Money secured upon a Mortgage Mortgage of Lands is within the meaning of these words Goods and Chattels And if the Popish Recusant hath above Forty pounds owing to him upon such Mortgage he cannot be required to abjure Within three months next after such person shall be apprehended or taken Wingate in abridging this Clause tit Crowne numb 80. clearly mistakes the meaning of it 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 aboad which is a complicated Error For he quite leaves out him who is to repair to the place where he was born or his Father or Mother dwels He makes the party liable to such submission before he becomes an offender by not repairing or not presenting himself and giving in his true name or travelling above five miles He speaks nothing of his being
charged in what not in respect or by reason of his or her Ancestors Recusancy And if at the decease of any such Recusant his heir shall happen to be a Recusant and after shall become conformable and obedient to the Laws and Ordinances of the Church of England and repair to the Church and continue there during the time of the Divine Service and Sermons according to the intent and true meaning of the said Statutes and Ordinances in that behalf made as is aforesaid and also shall take the Oath of Supremacy in such sort as that Oath is expressed in one Act of Parliament made in the first year of the Reign of our late Sovereign Lady Quéen Elizabeth before the Archbishop or Bishop of the Diocess that in every such Case every such heir shall be freed and discharged of all and singular the penalties charges and incumbrances happening upon him or her in respect or by reason of any of his or her Ancestors Recusancy Provided always and be it Enacted by Authority of this present Parliament That if the heir of any Recusant shall happen to be within the age of sixtéen years at the time of the decease of his or her Ancestor and shall after his or her said age of sixteen years become or be a Recusant that in every such Case any such heir shall not be freéd or discharged of all or any of the penalties charges and incumbrances happening upon him or her in respect or by reason of any of his or her Ancestors Recusancy until he or she shall submit or reform him or her self and become obedient to the Laws and Ordinances of the Church of England and repair to the Church and continue there during the time of the Divine Service and Sermons according to the intent and true meaning of the said Statutes and Ordinances in that behalf as is aforesaid and shall take the said Oath of Supremacy in manner and form afore expressed and yet nevertheless from and after such submission and Oath had and taken every such heir shall be fréed and discharged of all and singular the penalties charges and incumbrances happening upon him or her in respect or by reason of any of his or her Ancestors Recusancy If any Recusant shall hereafter die That is Convicted Recusant a Recusant either Convicted upon Proclamation and Default or Convicted by Verdict Confession c. and adjudged For in both those cases if the Recusant die the discharge of the heir depends upon his Conformity Of all and singular the penalties Judgment against Tenant in Tail charges and incumbrances If Judgment be had at the Kings Suit against a Recusant Tenant in Tail for Recusancy this is a charge and incumbrance within this Statute of which the heir in Tail shall not be discharged unless he conforms but must satisfie all the arrears incurred in the life time of his Ancestor For it being a Debt to the King upon a Judgment the intailed Lands are liable thereto by the Statute of 33 H. 8. cap. 39. Stat. 33 H. 8. 39 But these two Clauses discharge the arrears of the Twenty pounds per month incurred in the Recusants life time upon the conformity of the heir in such Cases only where the two parts of the Recusants Lands were not seized before his death Seisure in the Recusants life time for if they are seized in his life time and continue so till his death neither his Fee-simple Lands nor his Intailed Lands if a Judgment were had against him for his Recusancy at the Kings Suit shall be discharged upon the heirs conformity without payment of the arrears for which Vide postea Sect. 4. Stat. Sect. 4. The two parts of a Recusants Lands shall go towards satisfaction of the Twenty pounds per month And be it further Enacted by Authority of this present Parliament That where any seizure shall be had of the two parts of any Lands Tenements Hereditaments Leases or Farmes for the not payment of the Twenty pounds due and payable for each month according to the Statute in that Case lately made and provided That in every such Case every such two parts shall according to the extent thereof go towards the satisfaction and payment of the Twenty pounds due and payable for each month and unpaid by any such Recusant and that the third part thereof shall not be extended or seized by the Kings Majesty his Heirs or Successors for not-payment of the said Twenty pounds payable for each month forfeited or lost by any such Recusant And after his death shall remain in the Kings hands until the arrears be satisfied And where any such seizure shall be had of the two parts of the Lands Tenements Hereditaments Leases or Farmes of any such Recusant as is aforesaid and such Recusant shall die the debt or duty by reason of his Recusancy not paid satisfied or discharged that in every such Case the same two parts shall continue in his Majesties possession until the residue or remainder of the said debt or duty be thereby or otherwise paid satisfied or discharged And that his Majesty his Heirs or Successors shall not seize or extend any third part descending to any such heirs or any part thereof either by reason of the Recusancy of his or her Ancestors or the Recusancy of any such heir What seizure is here meant Where any seizure shall be had That is a seizure upon either a Judgment against the Recusant by Indictment on the Statute of 23 Eliz. cap. 1. Stat. 23 Eliz. 1 29 Eliz 6 or on Indictment and Conviction by Proclamation and default of appearance according to the Statute of 29 Eliz. cap. 6. For the seizure of two parts of the Recusants Lands was given the King by 29. upon default of payment of the Twenty pounds per month in either of those Cases as hath been said for which see that Statute Sect. 4. Go towards the satisfaction and payment of the Twenty pounds Stat. 29 Eliz 6 altered Hereby a principal branch of the Statute of 29 Eliz. cap. 6. is altered For whereas by 29. the Queen might for non-payment of the forfeiture have seized two parts of a convicted Recusants Lands nomine poenae and as a gage or penalty until the Twenty pounds per month had been paid and yet the profits should not have gone towards the satisfaction of the said Twenty pounds per month This Statute was made for the ease and benefit of the Recusant in that point The two parts satisfactory of the penalty so that now if two parts of his Lands be seized for default of payment of the forfeiture the profits received to the Kings use shall go towards satisfaction thereof and when the forfeiture is paid out of the profits the Recusant shall have his Land again unless in such Case where the King by force of the Statute of 3 Jac. cap. 4. Stat. 3 Jac. 4. makes his Election and seizes two parts in
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
proved that it was for her Joynture or if a man devise Lands by his last Will to his Wife generally and there is no mention in the Will that 't is for her Joynture for in this Case an Averment that it was so intended will not serve unless there be express words in the Will to that purpose These Estates so gained by the Wife as they do not bar her Dower out of the residue of her Husbands Estate but that she shall enjoy both the one and the other Co. 4. 4. so they are not within the meaning of this Act because not made for her Joynture And she shall not forfeit the profits of two parts of them although she may forfeit the profits of 2 parts of her Dower which she hath out of the residue of her Husbands Estate If Lands be conveyed to the Wife before marriage for part of her Joynture and other Lands are conveyed to her after Marriage in full satisfaction of her Jointure and she refuse those conveyed after Marriage in this Case she may retain those conveyed before Marriage and yet be endowed of the residue of her Husbands Estate For that the Lands first setled on her were not for her whole Joynture Co. 1. Inst 35. Co. 4. 3. Forfeiture of the profits of part of her Jointure And if she be a Popish Recusant Convict and her Husband none and she conform not within the year next before his death she shall forfeit the profits of two parts both of such Dower and of the Estate so conveyed to her before her Marriage And as the Wife shall have her Joynture and Dower both Where the Jointure is pursuant to the Statute in such Cases where the Joynture is not pursuant to the Statute of 27 H. 8. so in some Cases likewise where she hath a Joynture pursuant to that Statute As where she hath such a Joynture made to her by the Husband before Marriage and he afterwards endow her ad ostium Ecclesiae or if she hath a Joynture made by the Husband in his life time and after his death his Heir or Feoffee assign other Lands to her in Dower or the Heir plead to her in a Writ of Dower ne unque seisi que Dower c. or nient accouple in Loyal Matrimony or any other Plea save Joynture in bar of Dower and it be found against him In these Cases the Wife shall hold her Joynture and yet be endowed and if she be an Offender within this branch of the Act shall forfeit the profits of two parts of her Joynture and Dower both But if a Widow Dower not forfeited who is indowed of the Lands of her deceased Husband takes a second Husband who is no Popish Recusant Convicted by whom she hath a Jointure and she becomes a Popish Recusant Convict and the second Husband dies and the Wife is an Offender within this Act In this Case she shall not by force thereof forfeit the profits of two parts of such Dower and Jointure both but only of her Jointure For that her Dower is not out of the Lands of her said Husband that is of the Husband in whose life time she stood convicted and after such Conviction forbore to conform c. within the year next before his death And be it further Enacted by the Authority aforesaid Stat. Sect. 12. A Popish Recusant shall be disabled as an Excommunicate person That every Popish Recusant which is or shall be convicted of Popish Recusancy shall stand and be reputed to all intents and purposes disabled as a person lawfully and duly Excommunicated and as if he or she had béen so denounced and excommunicated according to the Laws of this Realm until he or she so disabled shall conform him or her self and come to Church and hear Divine Service and receive the Sacrament of the Lords Supper according to the Laws of this Realm and also take the Oath appointed and prescribed in one other Act made this present Session of Parliament Intituled An Act for the better discovering and repressing of Popish Recusants And that every person or persons sued or to be sued by such person so disabled shall and may plead the same in disabling of such Plaintiff as if he or she were Excommunicated by Sentence in the Ecclesiastical Court What Conviction disables him Convicted of Popish Recusancy The Conviction mentioned here and in the other branches of this Statute seems to be intended not only of a Conviction according to the Statute of 29 Eliz. 6. or 3 Jac. 4. Stat. 29 Eliz. 6. 3 Jac. 4. upon Proclamation and default of appearance but of a Judgment likewise upon an Indictment or popular Suit on the Statute of 23 Eliz. 1. or an Action of Debt c. by the King alone by force of the Statute of 35 Eliz. 1. 35 Eliz. 1. For Convicted in relation to these three last mentioned remedies is to be taken for adjudged or attainted Vide for this the Statute of 23 Eliz. 1. Sect. 5. And the Popish Recusant who is either convicted upon Proclamation and default of appearance or against whom Judgment is had upon an Indictment popular Suit or Action of Debt c. at the Kings Suit is hereby disabled as an Excommunicate person and liable to all other the penalties and incapacities inflicted by this Act on a Popish Recusant convicted To what intent as excommunicate Reputed to all intents and purposes disabled as a person c. Excommunicated And not reputed to all intents as an Excommunicate person as Wingate tit Crown numb 135. misrecites the Statute For as it seems by the words of the Statute the Popish Recusant convicted is not to be reputed as a person Excommunicate in any other respect or to any other intent but as to his disability only And yet the Opinion of the Court of Kings Bench Mich. 11 Jac. in the Case of Griffith and others seems to be to the contrary and that a Popish Recusant convicted may by force hereof be attached upon a Writ of Excommunicato capiendo Excommmnicato capiendo Bulstrode 2. 155. Tamen Quaere whether this Statute being a penal Law and speaking only of the point of disability shall be extended by Equity to other Cases or the Recusant be attached upon an Excommunicato capiendo unless he be first actually Excommunicated A Popish Recusant Convict is disabled as an Excommunicate person Witness to be a Witness in any Cause between party and party By Coke Chief Justice Bulstrode 2. 155. This disability but quousque May plead the same in disabling of such Plaintiff This disability in the Popish Recusant convicted is but quousque c. until he Conform c. and take the Oath of Allegiance And the Defendant must in this Case plead the Conviction at large and must as in a Plea of Excommengement demand if the Plaintiff shall be answered Hetley 18. which is the legal conclusion of a Plea in disability of
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
and really in him who hath the right of nomination as is held in 14 H. 4. 11. Chancellor and Schollers of the Vniversity Chancellor and Schollers a good description Although the University be incorporated by the name of Chancellor Masters and Schollers yet the description here made of them by the name of Chancellor and Schollers is well enough and sufficiently denotes the persons intended And the University shall have the presentation c. as if the true name of the Incorporation had been expressed For Acts of Parliament as well as Wills are to be taken according to the intent of the Makers and not according to the strict Letter Co. 10. 57. Shall have the presentation c. What is given the University It hath been made a Question what is given the University by these words whether only a bare power or liberty to present or a setled estate and interest in the Partronage or Advowson See the before cited Case of Standen versus University d'Oxon Jones 22 23 25 26. where two Justices Hutton and Jones were divided in opinion upon this point For Hutton held that that which is given to the University by this Act is a setled estate and interest and compared it to the interest or estate of the Lord who was to hold the Land until he was satisfied the value of the marriage of the Heir and to that of the Conusee by the Statute of Acton Burnell and to an estate given to a Man until a hundred pounds be paid In all which Cases the party hath a setled estate and interest in the Land But Jones held the contrary and that the University hath by this Act only a power or liberty to Present when the Church becomes void and compared it to the power given to the Bishop to Present by lapse after the six months and to that given by the Statute of Proviso's 25 E. 3. where the Pope provides Stat. 25 E. 3. 31 Eliz. 6 and to that given the King by the Statute of 31 Eliz. of Simony In which Cases no Estate or Interest is transferred but only a power or liberty granted to Present For this Act doth not remove the Patronage from the Popish Recusant The Recusant is still Patron but that continues still in him and he is Patron notwithstanding his Conviction and as Patron shall confirm a Lease made by the Incumbent as he might have done before his Conviction which proves that the Interest of the Patronage is not devested out of him nor consequently setled in the University Private clause Note Although this be a general Statute and that part of it which disables the Recusant to Present c. or to grant any Avoidance be general of which the Judges ought to take notice yet this part of it which gives the Presentation c. to the Universities is special and private for that it concerns only particular persons and must be pleaded or specially found or otherwise the Judges cannot take notice of it Hobart 227. Anne Needler versus the Bishop of Winchester Co. 10. 57. See the Rules touching publick and private Acts of Parliament and touching special or private Clauses in general Acts of Parliament 13 E. 4. 8. Co. 4. 76 77. Hollands Case During such time as the Patron thereof shall be and remain a Recusant Convict Conviction when requisite If the University bring a Quare Impedit upon this Statute they must averr that the Popish Recusant Convict was and remained such at the time when the Church became void For without that they do not enable themselves to Present But they need not averr that he remains a Popish Recusant Convict at the time of the bringing of the Quare Impedit for when the Presentment hac vice is once vested in the University although the Recusant conform or die yet the University shall Present Co. 10.57 58. University hath a limited power These words are words of restraint and the Statute gives only a limited power to the University scil so long as the Recusant shall be Patron or the Patron shall be a Recusant So that if before the Church becomes void the Recusancy be removed from the Patron by his Conformity or the Patronage be removed from the Recusant although he continues a Recusant the University have lost their power to Present Jones 19. And therefore if the Patron grant the Advowson in Fee or in Tail Grants which bar the University or for life or years these Cases are out of the Statute And although after the Grant he becomes a Popish Recusant Convict and then the Church becomes void yet the University shall not Present And it seems that although the Patron make such Grant of the Advowson after his Conviction and before the Church is void yet this shall bar the University For the Patronage was before the Avoidance removed from the Recusant Jones 19. Co. 10. 56. contrary to the Opinion of Hutton who held that if a man make a Lease for years of an Advowson yet if afterwards he becomes a Popish Recusant Convict the University shall have the Presentation as a future interest given to them by this Act notwithstanding such Lease Jones 26. And the reason why by such Grants the University shall be barred is for that the disability here inflicted on the Recusant is only a disability to Present or to grant the next Avoidance which extends not to any of the Grants beforementioned nor severs the Patronage from the Patron as those other Grants do And the intent of the Statute is to prevent a Presentation by the Recusant or by him to whom he should grant the next Avoidance Intent of the Statute who it was presumed would Present such an one as the Recusant should appoint But now when he grants the Advowson it self away that mischief is prevented and the Statute intended not in that Case to give away the Presentation from the Grantee to the University Jones 19 20. And yet if the Recusants Grant of the Advowson in Fee Covinous Grant or in Tail or for life or years were by Covin or in Trust on purpose to avoid this Statute and be averred and found so to be such Grant shall not bar the University Jones 20. Co. 10. 56. Vide Godbolt 216. C. 309. But then the Averment Averment in such Case must not be of Covin or Fraud to any other intent only but it must be averred to be to the particular intent to avoid this Statute and defeat the University of the Presentment and so it must be found by the Jury Verdict For if it be averred or the Jury find that the Recusant granted away the Advowson for any other Covinous purpose Intent as to deceive Creditors or the like and not to avoid this Act this will not help the University nor shall they take advantage thereof so as to devest or impeach the Interest or Estate of the Grantee in the Advowson And this
sue And as for Sir Edward Cokes Opinion that since the said Statute of 21 Jac. the Courts at Westminster cannot receive or hold Plea of any Information brought by a common Informer not only common Experience ever since that Statute is against it but the Judgments and Resolutions both of the Kings Bench Mich. 4 Car. 1. in the Case of Greene and Guy upon the Statute of 21 H. 8. cap. 13. of Non-residence Stat. 21 H. 8. 13. and of the Common Pleas. Trin. 4 Car. 1. in the Case of Farrington and Leymer upon the Statute of 23 H. 8. cap. 4. of Brewers 23 H. 8. 4. are directly in point contrary thereunto Cro. Car. 146. ibid. 112 113. Hutton 99. And so is the Opinion of Rolles upon the Statute of 7 E. 6. cap. 5. 7 E. 6. 5. of Selling Wines without Licence Styles 340. Buckstone against Shurlock and the Resolution in Jones 193. And yet although in penal Statutes any Court of Record shall be restrained to the ordinary Courts of Record at Westminster In what Statutes Courts of Record may be taken in a large sense possibly in other Statutes those words may admit of a larger Construction Vide Rolles 1. 51. C. 21. Floyde versus Beste By Action of Debt Bill Plaint or Information An Informer may sue upon this Statute by Bill Stat. 18 Eliz. 5. By the Statute of 18 Eliz. cap. 5. it is Enacted That none shall be admitted or received to pursue against any person upon any penal Statute but by way of Information or original Action and not otherwise Vide Co. 6. 19 20. Gregories Case Moore 412. C. 565. 600. C. 827. the same Case Cro. Hill 39 Eliz. 544. Gadley versus Whitecot And this seems to extend to as well penal Statutes made afterwards as to those which were in force when the said Act was made For 't is usual for a later Act of Parliament to be guided by a former of which see several Instances in Vernons Case Co. 4.4 But then that must be in such Cases where there are not express words in the later Act to controul the former And therefore although the words of 18 Eliz. be in the Negative that the Informer shall not pursue otherwise then by Information or original Action yet the Affirmative words of this subsequent Statute of 23 Eliz. that the Informer may Sue by Bill hath taken away the force of that Negative in 18 in relation to the Offences mentioned in 23. And the prosecutor Qui tam c. upon this Statute may Sue by Bill in the Kings-Bench as well as by Information which otherwise had there been no direct words here to that purpose he could not do as it seems by the resolution given in Woodson and Clarks Case in a Suit brought by Bill in the Kings-Bench 23 H. 6. 10. upon the Statute of 23 H. 6. cap. 10. of Sheriffs Co. 3. Inst 194. and in Vdeson and the Mayor of Nottinghams Case Moore 248. C. 390. contrary to the opinion in Styles 381. 382. Hill against Dechair Within threé months after Iudgment thereof given shall be committed to Prison Qui non habet in aere luet in corpore The Judgment shall be absolute And yet the Judgment in this Case shall be absolute that the King and Informer recover c. Anderson 1. 140. C. 190. Vachels Case A Feme Covert Feme Covert Recusant if the forfeiture be not paid within the time here limited may be imprisoned by force of this Statute until she pay or conform Co. 11. 61. Dr. Fosters Case Hobart 97. Moore vesus Hussey And if she be convicted upon Indictment at the Kings Suit in which Case the Husband is not bound to pay the penalty she ought by the opinion of Manword to have hard and close Imprisonment Imprisoned and be sequestred from all Company until she conform or the forfeiture be paid Savile 25. C. 59. But if the Husband and Wife be Sued upon this Statute in a popular Action or Information for the Recusancy of the Wife Her Husband chargeable and Judgment be had against them and the forfeiture is not paid within the three months the Husband in that Case may be imprisoned likewise Savile 25. C. 59. Stat. Sect. 10. Service in a mans private House Provided also That every person which usually on the Sunday shall have in his or her house the Divine Service which is established by the Law of this Realm and be thereat himself or her self usually or most commonly present and shall not obstinately refuse to come to Church and there to do as is aforesaid and shall also four times in the year at the least be present at the Divine Service in the Church of the Parish where he or she shall be resident or in some other open Common Church or such Chappel of ease shall not incur any pain or penalty limited by this Act for not repairing to Church Stat. Sect. 11. Fraudulent Assurances to defeat forfeitures And be it likewise Enacted and Declared That every Grant Conveyance Bond Iudgment and Execution had or made since the beginning of this Session of Parliament or hereafter to be had or made of Covinous purpose to defraud any interest right or title that may or ought to grow to the Queén or to any other person by means of any Conviction or Iudgment by vertue of this Statute or of the said Statute of the said thirteenth year shall be and be adjudged to be utterly void against the Quéen and against such as shall Sue for any part of the said penalties in form aforesaid Since the beginning of this Session of Parliament And yet a Covenons Conveyance though made before that Session of Parliament should not have defeated the interest Fraudulent conveyances right or title which was given to the Queen by this Statute And therefore in the Case or Sir John Southwell who in An. 19 Eliz. conveyed his lands to certain Feoffees and their heirs in Trust for the maintenance of him and his Family marriage of his Daughters payment of his Debts c. and to answer to him the Surplusage of the mean profits with a Clause of Revocation after which he granted Trees took fines for Leases c. and then came this Statute upon which he was Indicted and Convicted It was resolved by all the Judges of England that the said Lands were liable to this Statute and the Jurors charged to inquire what Lands he had were committed to the Fleet and fined each of them Fifty pounds for that they would not find those Lands to be his Leonard 3. 147. 148. By means of any Conviction or Iudgment Pauncefoot being Indicted of Recusancy A 〈◊〉 Outlawâ—â—â— made a Deed of Gift of all his Leases and Goods to a great value coloured over with fained considerations to defeat the Queen of what might accrew to her by his recusancy or flight and then went beyond Sea and afterwards was
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
the arrearages of twenty pounds monthly before such seizure due or payable shall ensue or be continued against such Offender so long as the same person shall continue in coming to Divine Service according to the intent of the said Estatute It was resolved by all the Judges Mich. 37 38 Eliz. That if a man had been convicted according to this Statute by Proclamation upon default and afterwards conformed himself Where Conformity discharges the penalty he should be discharged of the penalty due upon his Conviction notwithstanding these words and full satisfaction of all the Arrearages And the reason of this given by Coke Chief Justice B. R. in Dr. Fosters Case is for that this Statute 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 penalties are discharged upon Conformity unless such as are converted into a Debt But otherwise it would have been if there had been a Judgment against the Recusant upon Trial or Confession on the Statute of 23 Eliz. cap. 1. Stat. 23 Eliz. 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 Rolles 1. 94. C. 41. Quaere tamen Whether these words here due and payable are to be understood due and payable upon a Judgment only However now by the Statute of 1 Jac. cap. 4. 1 Jac. 4. if the Recusant conform either before or after Judgment he shall be discharged of all penalties But the profits of the Recusants Lands taken before his Conformity shall never be restored Savile 130. C. 201. The profits not to be restored It hath been questioned upon this Statute Where the penalty is discharged upon the death of the Recusant where not if a Recusant convicted by Proclamation upon default had died before seizure of two parts of his Lands whether 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 whether 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 principally grounded upon the aforesaid construction of this Statute viz. 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 Arrearages due in the sense of this Statute for the heir to pay And yet that by such Offender here is generally intended all Recusants convicted as well by Proclamation upon default as upon 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 But there seems now to be no further need of this Question for the Statute of 1 Jac. cap. 4. Stat. 1 Jac. 4. 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 a seizure the two parts shall continue in his Majesties possession till the Arrears are paid and satisfied Intailed Lands when discharged and when not But this is not intended of intailed Lands For without any aid of this Proviso if a Recusant Tenant in Tail be convicted by Proclamation upon default and dies 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 against the Recusant Tenant in Tail in his life time the Heir is bound in that Case of which see farther in Stat. 1 Jac. cap. 4. Sect. 4. If a Judgment was had against the Recusant before the said Statute of 1 Jac. and he had died before seizure of the two parts of his Lands The question was whether after his death they might have been seized by force of this Statute of 29. for the Arrears of the penalty incurred in his life time For that the seizure here given is meerly in nature of a nomine poenae 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 Vide Lane 92 93. Beckets Case Ibid. 107. Halseys Case Stat. 1 Jac. 4. But now by the Statute of 1 Jac. 4. the seizure is not as a meer penalty for the contempt of non-payment but for the satisfying of the King of the Arrears of the 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 Seizure after the Recusants death unless the Heir discharge himself by his Conformity Note Discharge upon Affidavit in all these Cases of seizure where the Land is to be discharged upon the death of the Recusant although an Affidavit be made of his death and a discharge obtained thereupon yet 't is a Rule in the Court of Exchequer Commission to enquire That a Commission shall be awarded first to enquire Savile 130. Case 201. And where by the said former Estatute Stat. Sect. 8. The third part of the forfeiture how to be disposed of the third part of the forfeitures for not coming to Divine Service is limited to the Poor Be it further Enacted by the Authority aforesaid That it shall and may be lawful to and for the Lord Treasurer of England Chancellor and Chief Baron of the Exchequer for the time being or two of them to assign and dispose of the full third part of the twenty pounds for every month paid or to be paid into the Receipt of the Exchequer as is aforesaid for the relief and maintenance as well of the Poor and of the Houses of Correction as of impotent and maimed Soldiers as the same Lord Treasurer Chancellor and Chief Baron or any two of them shall order or appoint Any thing in the said Estatute made in the said thrée and twentieth year of her Majesties Reign mentioned to
mentioned in this Act but that the heir of every such Offender by force of this Act shall and may after the death of every Offender have and enjoy the Lands Tenements and Hereditaments of such Offender as if this Act had not beén made Every Abjuration Abjuration as well as that for Felony is an Exile or Banishment and if perpetual and by Authority of Parliament amounts to a civil death and therefore the Wife of a Man banished or abjured forever might sue or be sued without her Husband Suit as was ruled in the Case of the Lady Maltravers 10 E. 3. and of the Lady Belknap 1 H. 4. 1. 2 H. 4. 7. And if a man be perpetually banished by Authority of Parliament unless is be for Felony or by force of this Act his Wife shall be endowed living the Husband And if he had been perpetually banished or abjured for Felony the Wife should have had her joynture Jointure presently although not her Dower Dower as was resolved in Weylands Case 19 E. 1. and the reason is because though the Husband be naturally living yet he is civilly and in the Eye of the Law as a dead man But yet these Cases are to be understood of a Banishment or abjuration forever and not of a Relegation or Exile for a time For in such Case neither could the Wife sue or be sued without her Husband nor could she have her Dower or Joynture during the natural life of her Husband Co. 1. Inst 132. 133. Co. 2. Inst 47. Bulstrode 3. 188. Rolles 1. 400. C. 27. Wilmores Case Moore 851. C. 1159. Wilmots Case But if a man be abjured by force of this Act What dower is here saved the Wife shall not have her Dower or Joynture during the natural life of her Husband although he be abjured forever but she is in worse Case then the Wife of a person perpetually banished was at the Common Law For this Act by express words gives his Lands Tenements and Hereditaments to the Queen during his life which is to be understood of his natural life And the saving here of the Wives Dower is not intended of the Dower which she might claim at Common Law presently upon the abjuration of her Husband nor shall make void the former words of the Act by which all his Lands are given to the Queen during his natural life but is only the usual Provision made in Acts of Parliament which create any new Felony for the saving of the Dower of the Wife after the death of the Husband So that the meaning of this Branch is that if the Husband refuse to abjure or abjure and refuse to depart according to this Act or return without lieence yet the Wife shall be endowed and the heir inherit his Lands after he is naturally dead And this Act to continue no longer than to the end of the next Session of Parliament Stat. Sect. 12. Note this Act being at first but temporary This Act at first but temporary was afterwards discontinued Hutton 61. 62. but is since revived by the Statute of 3 Car. 1. c. 4. and is in full force at this day And in such Case it hath been questioned if a Statute be discontinued and afterwards revived how an Indictment thereupon shall conclude whether contra formam Statuti or Statutorum Where if a Statute be discontinued and revived it shall be contra formam Statuti and where contra formam Statutorum For if a Statute be temporary and afterwards continued for a longer time or made perpetual and never discontinued there without doubt it shall be contra formam Statuti but it hath been held by some that where it was once discontinued and then revived there it is as if there were two several and distinct Statutes and the Indictment shall conclude contra formam Statutorum Palmers Case 9 Eliz. But others have held the contrary and that there is not any difference in the Case of a Statute at first temporary and afterwards before any discontinuance continued for a longer time or made perpetual and a Statute discontinued and then revived but that it shall in both Cases be held but as one Statute and the conclusion shall be contra formam Statuti and not Statutorum unless where the Act of Reviver makes any addition to the former Act or increaseth the penalty or forfeiture For then there is no doubt but they are two distinct Acts of Parliament And according to this later opinion hath the practice been in Informations upon the Statute of 5 Eliz. cap. 9. of Perjury Stat. 5 Eliz. 9 which determined 14 Eliz. and was revived 29 Eliz. And yet all Informations thereupon conclude Contra formam Statuti And so as it seems ought all Indictments upon this Statute of 35. notwithstanding its discontinuance and reviver Vide Owen 135. Wests Case Stat. xxxv Eliz. cap. ii An Act for the restraining of Popish Recusants to some certain place of abode FOr the better discovering and avoiding of such Traiterous and most dangerous Conspiracies and Attempts as are daily devised and practiced against our most gracious Soveraign Lady the Queéns Majesty Stat. Sect. 1. and the happy estate of this Common-weal by sundry wicked and seditious persons who terming themselves Catholicks and being indéed spies and intelligencers not only for her Majesties forreign Enemies but also for Rebellious and Traiterous Subjects born within her Highness Realms and Dominions and hiding their most detestable and divellish purposes under a false pretext of Religion and Conscience do secretly wander and shift from place to place within this Realm to corrupt and seduce her Majesties Subjects and to stir them to Sedition and Rebellion Be it Ordained and Enacted by our Soveraign Lady the Quéens Majesty and the Lords Spiritual and Temporal A Popish Recusant convicted and the Commons in this present Parliament assembled and by the Authority of the same That every person above the age of sixtéen years born within any of the Quéens Majesties Realms and Dominions or made Denizen being a Popish Recusant and before the end of this Session of Parliament convicted for not repairing to some Church Chappel or usual place of Common Prayer to hear Divine Service there but forbearing the same contrary to the tenor of the Laws and Statutes heretofore made and provided in that behalf and having any certain place of dwelling and abode within this Realm shall within forty days next after the end of this Session of Parliament if they be within this Realm and not restrained or stayed either by Imprisonment or by her Majesties Commandment or by order or direction of some six or more of the Privy Council or by such sickness and infirmity of body as they shall not be able to Travel without imminent danger of Life and in such Cases of absence out of the Realm restraint or stay then within 20 days next after they shall return into the Realm and be
or covin nor for convenient time taken for their return back again upon the same This extends to all Cases in general where the Popish Recusant ought to render his body to the Sheriff upon Proclamation Proclamation and is not restrained to a Proclamation upon an Indictment for Recusancy And therefore if a Popish Recusant confined by this Act had been proclaimed upon the Statute of Marlebridge 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 Vide Stat. 3 Jac. cap. 5. Sect. 7. And furthermore be it Enacted by the Authority of this present Parliament Stat. Sect 12. An Offender upon open submission shall be discharged That if any person or persons that shall at any time hereafter offend against this Act shall before he or they shall be thereof convicted come to some Parish Church on some Sunday or other Festival day and then and there hear Divine Service And at Service time before the Sermon or reading of the Gospel make publick and open Submission and Declaration of his and their Conformity to her Majesties Laws and Statutes as hereafter in this Act is declared and appointed That then the same Offender shall thereupon be clearly discharged of and from all and every pains and forfeitures inflicted or imposed by this Act for any of the said Offences in this Act contained Before he or they shall be thereof convicted Where submission will save abjuration A Popish Recusant confined by this Act whose Estate is under value is apprehended for offending against this Act and before the expiration of three months next after his apprehension is convicted of such Offence and then before the said three months expire conforms and makes such Submission and Declaration as is here and in the former branch appointed In this Case although he comes too late after Conviction to save the forfeiture of his Lands and Goods yet he shall not be compelled to abjure For the affirmative words here 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 the former branch of the Statute he is not compellable to abjure if at any time within three months next after his apprehension he conforms confesses and submits as is there appointed To some Parish Church It must be in some Parish Church 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 there is a great difference between the penning of this Statute and that branch of 35 Eliz. cap. 1. Stat. 35 Eliz 1. where 't is said That the Offender shall be committed to Prison until he come to some Church Chappel or usual place of Common Prayer and hear Divine Service and make such open Submission and Declaration of his Conformity as in the Act is appointed For there there is an express designation of the place where such Submission and Declaration shall be viz. in any Church Chappel or usual place of Common Prayer whither the Offender comes and this shall free him from his Imprisonment Vide that Statute Sect. 4. supra But here where 't is said in the former part of this Act That he shall abjure unless he comes usually to Church and make such Confession and Submission as is therein afterwards appointed and expressed His coming usually to Church cannot be applied to his Confession and Submission for that is to be made but once and not usually and therefore there being there no place appointed where this Confession and Submission shall be made we must necessarily have recourse to this later branch of the Act where a place is appointed viz. some Parish Church so that the coming usually to Church without this formal Submission and Confession or Declaration in some Parish Church frees not the Offender here in any Case from abjuration although the coming to any Church Chappel or usual place of Common Prayer and hearing Divine Service and making open Submission and Declaration there shall free an Offender within the Statute of 35 Eliz. cap. 1. from Imprisonment Parish Church What is a Parish Church Vide Stat. 35 Eliz. cap. 1. Sect. 4. supra Two several Submissions Submission If a Popish Recusant Indicted upon this Statute makes his Submission and brings with him into the Court of Kings Bench a Testimonial thereof it s the course of that Court to cause him there to make his Submission again upon his knees which the Clerk of the Crown reads to him And so was it done in the Case of one Thoroughgood Pasch 2. Car. 1. But Justice Jones said there was no Statute to compell him to this second Submission And Thoroughgood complained that he was not therein dealt with according to Law Latch 16. Stat. Sect. 13. The same Submission to be as hereafter followeth that is to say The form of the Submission I A. B. do humbly confess and acknowledge that I have grievously offended God in contemning her Majesties godly and lawful Government and Authority by absenting my self from Church and from hearing Divine Service contrary to the Godly Laws and Statutes of this Realm and I am heartily sorry for the same and do acknowledge and testifie in my Conscience that the Bishop or See of Rome hath not nor ought to have any Power or Authority over her Majesty or within any her Majesties Realms or Dominions And I do promise and protest without any dissimulation or any colour or means of any Dispensation That from henceforth I will from time to time obey and perform her Majesties Laws and Statutes in repairing to the Church and hearing Divine Service and do my uttermost endeavour to maintain and defend the same Over her Majesty or within any her Majesties Realms or Dominions What Authority of the Pope is to be renounced And not over her Majesty within any her Dominions as Wingate tit Crown numb 85. grosly misrecites this Submission For that denies only the Popes or See of Romes Authority over her Majesty but not any other Authority which they might claim over her Subjects And 't is clear by the disjunctive or which Wingate omits that both these Authorities are intended to be denied by this Submission Or any colour or means of any Dispensation Dispensation These words which are a very material part of the Submission are likewise omitted by Wingate Her Majesties Laws and Statutes The Queens Laws Stat. 27 Eliz. 2. What is meant by her Majesties Laws Vide Stat. 27 Eliz. cap. 2. Sect. 7. And that every Minister or
lieu of the Twenty pounds per month And therefore the Resolution or Judgment said to be given in the Case of one Gray Anno 1. or 2. Jac. and cited in Beckets Case 8 Jac. Lane 93. and by Sergeant Bridgman in his Argument of Parker and Webbs Case 16 Jac. Rolles 2. 25. and applied thereunto viz. That if a Recusant convicted fails of the payment of the Twenty pounds per month the King shall have his Lands as a gage or penalty and the profits shall not go towards satisfaction thereof However it were true as the Law stood upon 29 Eliz. and before the making of this Act of 1 Jac. yet 't is not Law at this day nor could be applicable to either of those Cases of Becket or Parker and Webb which came to be debated long after this Act was made and the Law of 29 Eliz. altered in that point Vide Stat. 29 Eliz. cap. 6. Sect. 7. Where any such seizure shall be had c. This Relative such takes in both the seizures beforementioned viz. a seizure upon Indictment and Judgment thereupon by force of the Statute of 23 Eliz. and a seizure upon Conviction on Proclamation and default according to the Statute of 29 Eliz. And What seizure is here meant Stat. 23 Eliz 1 29 Eliz. â— as in both those Cases the Recusant who fails of the payment of the Twenty pounds per month shall have the benefit to discount the profits received by the King so the King shall in the like Cases of seizure retain the two parts in his hands after the Recusants death until the residue of the Debt or Duty due and payable to the King be satisfied Where this extends not to Intailed Lands Two parts of the Lands c. of any such Recusant This Clause extends not to Intailed Lands unless where there is a Judgment for the King against the Ancestor for his Recusancy And therefore if the Recusant convicted upon Proclamation and default be Tenant in Tail and two parts of his Lands be seized in his Life time for non-payment of the Twenty pounds per month and he die the arrears not being satisfied to the King yet the heir in Tail shall have the Land out of the Kings hands without payment of the arrears For that such Conviction is in the nature of a Verdict only Conviction upon Proclamation no Judgment and not of a Judgment as was held in Doctor Fosters Case Rolles 1.94 C. 41. And where a Statute gives to the King a seizure or forfeiture of Lands it shall not be intended of Lands in Tail unless it be expresly so appointed by the Statute or by force of some other Statute cooperating therewith In which Case the Intailed Lands may be charged by general words in the Statute which gives the forteiture or seizure An instance whereof we have in the Case of a Recusant Tenant in Tail Indicted Stat. 23 Eliz. 1 Convicted and Adjudged upon 23 Eliz. 1. for his Intailed Lands shall remain after his death in the Kings possession until the arrears be satisfied 29 Eliz. 6 33 H. 8. 39 and that by force of 29 Eliz. c. 6. and this Statute cooperating with the Statute of 33 H. 8. cap. 39. which charges the Lands of the heir in Tail with debts due to the King upon a Judgment had against the Ancestor Praemunire Stat. 16 R. 2. 5 But otherwise 't is in the Case of a Praemunire upon the Statute of 16 R. 2. cap. 5. which saith the Lands and Tenements of the Offender shall be forfeit to the King for there his Intailed Lands shall be forfeit during his life only And the reason is for that general words in an Act of Parliament unless aided by some other Act of Parliament shall never take away the force of the Statute de donis conditionalibus Co. 1. Inst. 130. 391. Co. 11.63 Godbolt 308. Lord Sheffeild and Ratcliffe Treason Stat. 26 H. 8. 13 5 E. 6. 11 And therefore in the Statutes of 26 H. 8. cap. 13. and 5 E. 6. cap. 11. which make Intailed Lands forfeitable for Treason the word inheritance was added any Estate of Inheritance which expresly denotes Lands in Fee Tail as well as Feesimple Now there being neither in this Act or that of 29 Eliz. any express appointment that the two parts of all Lands seized in the Recusants life time wherein he had any Estate of Inheritance shall after his death continue in the Kings possession nor no other Statute which charges the heir in Tail with the forfeiture due to the King upon Conviction by Proclamation and Default the general words here that his Lands Tenements c. shall continue in the Kings possession shall not inforce a construction in prejudice of the Heir in Tail who claims by the Statute de donis conditionalibus but where there is no Judgment the Recusants Fee simple Lands shall after his death satisfie the intent of these Statutes And so was the Law in reference to intailed Lands upon the Statute of 29 Eliz. cap. 6. which speaks of the full satisfaction of Arrearages in Case of the death of the Recusant Arrears where to be paid by the Heir in Tail where not And the Arrears were to have been paid by the Heir in Tail only in such Case where there was a Judgment obtained by the King against the Ancestor for his Recusancy but not where the Ancestor Tenant in Tail was convicted only upon Proclamation and default for in this last Case the Heir in Tail was not bound by the Statute of 33 H. 8. cap. 39. because 't is not a Debt by Judgment as that Statute requires Moore 523. C. 691. And thus the Opinion of the two Chief Justices Trin. 43 Eliz. is to be understood for they held That if intailed Lands had been seized for non-payment of the 20 l. 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 Cro. Eliz. 846. At the end of which Case 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 And be it further Enacted by the Authority of this present Parliament Stat. Sect. 2. None shall go or send any other to a Seminary c. That all and every person and persons under the Kings Obedience which at any time after the end of this Session of Parliament shall pass or go or shall send or cause to be sent any Child or any other person under their or any of their Government into any the parts beyond the Seas out of the Kings Obedience to the intent to enter into or be resident in any Colledge Seminary or House of Iesuits Priests or any other Popish Order
although he be there personally present and openly confess himself to be the same person who was Indicted and against whom the Proclamation issued yet if he deny to appear upon the Proclamation or to consent that his appearance be entred of Record it seems that his appearance cannot be Recorded but his default shall and he shall stand Convicted thereupon And this is no more an appearance then where a Prisoner is brought to the Common Pleas Bar by habeas Corpus to the intent to have him appear to an Original brought against him and he denies to appear to the Action in which Case his appearance cannot be Recorded as was resolved in Ascoughs Case 43 Eliz. Gouldsborough 118. Shall be as sufficient a conviction in Law That is a Recusant thus Convicted upon Proclamation and Default of appearance shall be in the same Condition as if he were convicted by Verdict but no Judgment is given Bridgman 122. Parker versus Webb But this Conviction upon Proclamation is no Judgment as was resolved in Doctor Fosters Case Co. 11.65 Conviction upon Proclamation no Judgment And although it shall make the Recusant liable to the several forfeitures penalties and incapacities inflicted on Recusants convict yet it shall not operate as a judgment as hath been already shewed in divers instances For this reason it hath been questioned whether if a Recusant be Convicted upon Indictment and Proclamation the King may not wave his advantage of this Conviction and bring his Action of Debt given him by the Statute of 35 Eliz. cap. 1. Stat. 35 Eliz. 1 For that such Conviction is no Judgment and consequently ought not to bind the King as a Judgment against the Recusant should have done Palmer 40.41 Sir John Webbs Case Worsley obtained a Patent to have all the Penalties of Recusants convict Although such a Patent was illegal for that the King cannot grant the penalty of a penal Law to a Subject for which Vide Rolles 1.10 C. 11. Roy versus Tollin Hobart 155. Colt Glover versus the Bishop of Coventry and Litchfield Ib. 183. Davison versus Barber yet admitting the Patent to be good The King cannot grant the forfeiture on a penal Law it was resolved that the penalties of Recusants convicted by Proclamation should not pass by those general words Rolles 1. 94 95. C. 41. Doctor Fosters Case And be it further Enacted Stat. Sect. 6. The penalty of a convicted Recusant That every offender in not repairing to Divine Service but forbearing the same contrary to the Statutes in that behalf made and provided that hereafter shall fortune to be thereof once convicted shall in such of the Terms of Easter and Michaelmas as shall be next after such Conviction pay into the 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 forfeit Twenty pounds and pay into the Receipt of the Excheqver aforesaid at two times in the year that is to say in every Easter and Michaelmas Term as much as then shall remain unpaid after the rate of Twenty pounds for every month after such Conviction except in such Cases where the King shall and may by force of this Act refuse the same and take two parts of the Lands Tenements Hereditaments Leases and Farms of such Offender till the said party being Indicted for not coming to Church contrary to former Laws shall conform himself and come to Church according to the meaning of the Statute in that behalf made and provided What Convictions are here meant Once Convicted This extends to all Convictions whatsoever upon Indictment whether by Verdict Confession c. whereupon Judgment is given as well as to Convictions upon Proclamation and default And the penalty of Twenty pounds per month shall in any of the said Cases run on forever after and be appropriated to the King Stat. 29 Eliz. 6 Vide Stat. 29 Eliz. cap. 6. Sect. 4. In what Term the forfeiture is to be paid In such of the Terms of Easter and Michaelmas as shall be next after such conviction Here Easter and Michaelmas is to be taken disjunctively for Easter or Michaelmas as it is in the Statute of 29 Eliz. cap. 6. Sect. 4. For the meaning is not that the Recusant shall have both of the Terms of Easter and Mithaelmas next after his Conviction wherein to pay the forfeiture of Twenty pounds for every month contained in the Indictment But he ought to pay the whole into the Exchequer the next Easter or Michaelmas Term which shall first happen after his Conviction And therefore if he be convicted in February he ought to pay the whole the next Easter Term unless where the King chooses to seize the two thirds of his Lands by force of this Statute as was admitted in the Case of Standen and the University of Oxford Hill 20 Jac. Jones 24. 25. And in the Lady Webbs Case who was convicted in March the pleading was that in the Easter Term then next following the said Katherine did not pay into the Exchequer according to the rate of 20 l. per month without any mention of Michaelmas Term Bridgman Pasch 16 Jac. 121. For every month after such Conviction By this Clause and that of 29 Eliz. cap. 6. Sect. 4. 29 Eliz. 6. Penalty appropriated to the King to the same purpose after the Recusant is once Convicted the penalty of Twenty pounds per month shall run on without any new Indictment or Conviction and shall be for ever afterwards appropriated to the King alone and paid into the Exchequer so that the Informer cannot bring any popular Action or Information for the Twenty pounds per month Informer barred for any time incurred after such Conviction but is utterly barred Co. 11.61 Doctor Fosters Case Rolles 1. 93. C. 41. the same Case Owen 37. Sulherd and Evererds Case The Lady Webb was Indicted and Convicted of Recusancy upon Proclamation and default of appearance Whether barred in the Case of a Feme Covert and afterwards an Informer Qui tam c. sued her and her Husband for a new offence of Recusancy in the Wife subsequent to such Conviction to which they both pleaded the said Conviction at the Kings Suit The question was whether the Informer should be barred by this Plea or whether the Information was maintainable notwithstanding such former Conviction of the Wife for that the Wife seems not to be such an Offender as is here intended because she can have no Goods or Lands during the Husbands life which may be seized for non-payment of the penalty But it was granted on all hands that if she had been a Feme sole this had been a good Plea in bar of the Informers popular Suit for then she had been bound to pay the Twenty pounds per month into the Exchequer and
invade or annoy him or his Countries or to discharge any of his Subjects of their Allegiance and Obedience to his Majesty or to give licence or leave to any of them to bear Arms raise Tumult or to offer any Violence or hurt to his Majesties Royal Person State or Government or to any of his Majesties Subjects within his Majesties Dominions Also I do swear from my Heart that notwithstanding any Declaration or sentence of Excommunication or deprivation made or granted or to be made or granted by the Pope or his Successors or by any Authority derived or pretended to be derived from him or his See against the said King his Heirs or Successors or any Absolution of the said Subjects from their Obedience I will bear Faith and true Allegiance to his Majesty his Heirs and Successors and him and them will defend to the uttermost of my power against all conspiracies and attempts whatsoever which shall be made against his or their Persons their Crown and Dignity by reason or colour of any such sentence or declaration or otherwise and will do my best indeavour to disclose and make known unto his Majesty his Heirs and Successors all Treasons and Traiterous Conspiracies which I shall know or hear of to be against him or any of them And I do further swear That I do from my Heart abhor detest and abjure as Impious and Heretical this damnable Doctrine and Position That Princes which be Excommunicated or Deprived by the Pope may be Deposed or Murthered by their Subjects or any other whatsoever And I do Believe and in Conscience am Resolved That neither the Pope nor any Person whatsoever hath Power to absolve me of this Oath or any part thereof which I acknowledge by good and full Authority to be lawfully Ministred unto me and do renounce all Pardons and Dispensations to the contrary And all these things I do plainly and sincerely acknowledge and swear according to these express words by me spoken and according to the plain and common sense and understanding of the same words without any Equivocation or mental Evasion or secret Reservation whatsoever And I do make this Recognition and Acknowledgment heartily willingly and truly upon the true Faith of a Christian So help me God Vnto which Oath so taken the said person shall subscribe his or her Name or Mark. If a man refuse to take any word of this Oath What is a refusal of the Oath 't is a refusal of the whole Bulstrode 1. 198. Lord Vaux his Case And be it further Enacted by the Authority aforesaid Stat. Sect. 13. No Indictment or other proceedings against a Recusant shall be discharged or reversed for default of form That no Indictment or Indictments had or found or hereafter to be had or found against any person or persons for not repairing to some Church or Chappel or usual place of Common Prayer but absenting him or her self by the space of one month contrary to the Laws and Statutes in that behalf provided or for not receiving the said Sacrament contrary to this present Law nor any Proclamation Vtlawry or other procéeding thereupon shall at any time hereafter be avoided discharged or reversed by reason of any default in form or lack of form or other defect whatsoever other then by direct traverse to the point of not coming to Church or not receiving the said Sacrament whereof such person or persons hath beén or shall be Indicted but the same Indictment shall stand in force and be procéeded upon Any such default of form or other defect whatsoever notwithstanding Vtlawry A term for years sold upon an Outlawry restored A termor for years was outlawed upon an Indictment of Recusancy The Term was sold by the Lord Treasurer and Barons of the Exchequer and afterwards the Outlawry was reversed The Question was whether upon Reversal of the Outlawry the Recusant should have restitution of his Term again And Periam Justice doubted thereof and observed that the Book of 11 H. 4. 65. which saith that the party outlawed shall upon reversal of the Outlawry have restitution speaks only of Goods seized but not of a term sold before But Anderson Chief Justice and Walmesly Justice held That the Termor in this Case should have his Term again in whose soever hands the Land came and upon whatsoever Consideration and not the money for which the Term was sold For the Outlawry being reversed it is as if there were no Record of it And the Queens Interest was but conditional scil if the Outlawry were good Nor is this like the Case where a Sheriff upon a Fieri facias Fieri facias and venditioni exponas sells a Term For there if the Judgment be reversed the party shall have the money for which the Term was sold but not restitution of the Term it self as was resolved 26 Eliz. Dyer 363. And the reason is because the Sheriff did no more then he was commanded For he was commanded to sell and therefore the Sale shall be good to all intents But in the Case of an Outlawry it is otherwise and there is no such Command which difference between a Fieri facias and Capias utlagatum was agreed in Dr. Drury's Case Co. 8. 143. And in the principal Case here Judgment was given for the Termor according to the Opinion of Anderson and Walmesly Cro. Pasch 34 Eliz. C. B. 278. Eyre versus Woodfine Where the Patron outlawed shall be restored to his presentment A man is seized of an Advowson in gross the Church becomes void and then the Patron is outlawed upon an Indictment of Recusancy whereupon the King presents the Presentee is instituted and inducted and afterwards the Outlawry is reversed In this Case the Patron shall be restored to his presentment So if the Patron of an Advowson in gross hath Judgment in a Quare Impedit and is afterwards outlawed for Recusancy and the King presents and the presentee is instituted and inducted In this Case the Patron shall have a Scire facias to execute the Judgment and shall oust the Presentee of the King And the reason in both these Cases is because upon the Reversal of an Outlawry the party shall be restored to all things which are principal and here the presentment was the principal thing forfeited by the Outlawry and therefore upon reversal the Patron shall be restored to it Vide Moore 269 270. C. 421. Beverleigh versus Cornwall Savile 89. C. 166. the same Case And where not But if the King upon an Outlawry seize a Mannor to which an Advowson is appendant and the Church becomes void whereupon the King presents and the presentee is inducted There 't is otherwise and the Kings presentee shall not be removed upon reversal of the Outlawry For the presentment in that Case is but as an accessary that follows the principal which is the Mannor the profits of which Mannor the King was to have during the Outlawry and consequently the
the person Co. 1. Inst 128. Plea in disability is peremptory The Defendant in Debt upon an Obligation pleads that the Plaintiff is a Popish Recusant Convict who replies nul tiel Record Such Plea in disability of the person is peremptory and nul tiel Record is an Issue and Judgment shall be given against the Defendant upon failer of the Record Hetley 18. But yet if there be a Plea of a Conviction of Recusancy had before Justices of Gaol delivery and the Defendant mistakes and takes out a Certiorari Certiorari to the Justices of Peace this shall not be a failer of the Record Failer of Record although the Defendant hath it not at the day For that the issuing of the 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 Hobart 135. Pye against Thrill Note if the Defendant be sued in the Common Pleas or any other of the principal Courts at Westminster and he plead a Conviction of Recusancy before Justices of Gaol delivery or Justices of Peace he need not take his Certiorari Certiorari out of what Court 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 in that Case of Pye and Thrill vide 19 H. 6. 19. And the Justices themselves And by whom before whom the Conviction was had must certifie and therefore if the Conviction was before Justices of Peace the Certificate cannot be by the Custos Rotulorum Custos rotulorum alone though he keep the Records for the Certiorari is in such Case directed to the Justices of Peace Hobart 135. A Popish Recusant is convicted of Recusancy in a popular Suit and after such Conviction sues the Informer Qui tam c. Who may take advantage of this disability Informer upon some other matter or cause of Action arising between them Quaere whether the Defendant may plead such Conviction in disability of the Recusant 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 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 sues him Co. 1. Inst 134. Swinborne Part 5. Sect. 6. p. 305. And the reason given for this in Trollops Case Co. 8. 68. 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 Excommunicant 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 himself in disability of the person Excommunicated is not because he is a party to the Excommunication but because in matters of Excommunication the Bishop acts as a 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 who though he be a party to the Suit in which the Recusant is disabled as an Excommunicate person yet is no Judge in the Case whether the party Sued shall be disabled or no as the Bishop is in the other Case where the party is actually Excommunicated by him And if the Bishop should be barred to Plead and take advantage of such Excommunication because he is a party thereunto it would follow that the person who Sues in the Spiritual Court and at whose instance the person Sued is Excommunicated should be barred likewise to take advantage of such disability in the Plaintiff at Law for he is a party to the Excommunication for that he is a party to the Suit upon which the Excommunication is originally founded But the contrary to this is strongly implied in 14 H. 4. 14. where the Case was A. was Excommunicated in a Suit depending between him and B. and afterwards A. Sues B. upon the Statute of Praemunire who pleads this Excommunication in disability of the Plaintiff Here the Plea was disallowed because the principal Suit on which the Excommunication depended was brought before the Pope But in the debate of the Case there was not the least word of exception to the Plea upon this ground because the Excommunication was at the instance of the Defendant or that the Defendant should not take advantage of the Plaintiffs disability for that he was a party to the Excommunication which disabled him Executor or Administrator disabled If an Executor or Administrator becomes a Popish Recusant convict it seems he is disabled by this Act to Sue in either of those Capacities For the Act saith He shall be disabled to all intents as an Excommunicate person Now a person actually Excommunicated cannot Sue as Executor or Administrator as is held in 21 E. 4. 49. 21 H. 6. 30. 14 H. 6. 15. Co. 1. Inst 134. Although there are some opinions to the contrary Vide Finch 27. Stat. Sect. 13. What Suits a Popish Recusant may prosecute Provided nevertheless That it shall and may be lawful for any such person so disabled for and notwithstanding any thing in this Law contained to sue or prosecute an Action or Suit for or concerning only such of his or her Lands Tenements Leases Rents Annuities and Hereditaments or for the Issues and Profits thereof which are not to be seized or taken into the Kings hands his Heirs or Successors by force of any Law for or concerning his or her Recusancy or any part thereof Which are not to be seized or taken into the Kings hands c. These words are not restrained to such Lands Lands seized into the Kings hands c. as cannot be seized into the Kings hands for Recusancy For then the Recusant could in no case Sue for more then the third part for that the King may if he please make his Election and seize the other two parts in lieu of the Twenty pounds 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
to any person or capable of any Legacy or Deéd of Gift or to bear any Office within the Realm and shall lose and forfeit all his Goods and Chattels and shall forfeit all his Lands Tenements and Hereditaments Rents Annuities Offices and Estates of Fréehold for and during his natural Life Stat. Sect. 2. He that conforms shall not incur the penalties aforesaid Provided always That no person sent or conveyed as aforesaid that shall within Six months after his Return into this Realm conform himself unto the present Religion established in this Church of England and receive the Sacrament of the Lords Supper according to the Statutes made concerning conformity in other Cases required from Popish Recusants shall incur any the penalties aforesaid Within Six months after his return And not within Six weeks as Wingate tit Crowne numb 157. erroneously Stat. Sect. 3. What Justices shall hear and determine these offences And it is Enacted That all and every of the offences against this Statute may be inquired heard and determined before the Iustices of the Kings Bench or Iustices of Assize or Goal delivery or of Oyer and Terminer of such Counties where the Offenders did last dwell or abide or whence they departed out of this Kingdom or where they were taken Or of Oyer and Terminer Justices of Peace Justices of Peace here excluded cannot take an Indictment upon this Statute for no inferior Court shall take Authority by any Statute unless it be specially named Savile 135. C. 212. Agard and Candish And although Justices of Peace have in their Commission an express Clause ad audiendum terminandum and by that are Justices of Oyer and Terminer 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 Hill 30 Eliz. B. R. in the Case of Richard Smith who was Indicted at the Sessions of the Peace in the County of Oxon upon the Statute of 5 Eliz. cap. 14. Stat. 5 Eliz. 14 of forging Deeds which impowers the Justices of Oyer and Terminer to inquire of hear and determine that offence and yet the Indictment before the Justices of Peace was quashed as taken coram non Judice Co. 9.118 Co. 3. Inst. 103. Cro. Eliz. 87. vide Cro. Mich. 39 40 Eliz. 601. Wilsons Case Ibid. Mich. 41 42 Eliz. 697. Hunts Case Or where they were taken Vide Stat. 3 Jac. cap. 4. 3 Jac. 4. Sect. 21. Provided also That if any person or Child Stat. Sect. 4. In what Case the offenders Lands shall be restored again so passing or sent or now being beyond the Seas shall after his return into this Realm conform himself to the present Religion established in this Church of England and receive the Sacrament of the Lords Supper according to the Statutes made for or concerning conformity in other Cases required from Popish Recusants for and during such time as he or she shall so continue in such conformity and obedience occording to the true intent and meaning of the said Laws and Statutes shall have his or her Lands restored to them again Addendum Stat. xxv Car. ii c. ii An Act for Preventing Dangers which may happen from Popish Recusants FOR preventing Dangers which may happen from Popish Recusants and quieting the minds of His Majesties good Subjects Be it Enacted by the Kings most Excellent Majesty by and with the Advice and Consent of the Lords Spiritual and Temporal and the Commons in this present Parliament assembled and by Authority of the same That all and every person or persons as well Péers as Commoners that shall bear any Office or Offices Civil or Military or shall receive any Pay Salary Fée or Wages by reason of any Patent or Grant from His Majesty or shall have Command or Place of Trust from or under His Majesty or from any of His Majesties Predecessors or by His or their Authority or by Authority derived from Him or them within the Realm of England Dominion of Wales or Town of Berwick upon Tweed or in His Majesties Navy or in the several Islands of Jersey and Guernsey or shall be of the Houshold or in the Service or Imployment of His Majesty or of his Royal Highness the Duke of York who shall inhabit reside or be within the City of London or Westminster or within Thirty miles distant from the same on the first day of Easter Term that shall be in the year of our Lord One thousand six hundred seventy threé or at any time during the said Term all and every the said person and persons shall personally appear before the end of the said Term or of Trinity Term next following in His Majesties high Court of Chancery or in His Majesties Court of Kings Bench and there in publick and open Court between the hours of Nine of the Clock and Twelve in the Forenoon take the several Oaths of Supremacy and Allegiance which Oath of Allegiance is contained in the Statute made in the third Year of King James by Law established and during the time of the taking thereof by the said person and persons all Pleas and Procéedings in the said respective Courts shall cease And that all and every of the said respective persons and Officers not having taken the said Oaths in the said respective Courts aforesaid shall on or before the First day of August One thousand six hundred seventy thrée at the Quarter Sessions for that County or place where he or they shall be inhabit or reside on the Twentieth day of May take the said Oaths in open Court betwéen the said hours of Nine and Twelve of the Clock in the Forenoon And the said respective Officers aforesaid shall also receive the Sacrament of the Lords Supper according to the Vsage of the Church of England at or before the First day of August in the year of our Lord One thousand six hundred and seventy thrée in some Parish Church upon some Lords day commonly called Sunday immediately after Divine Service and Sermon And be it further Enacted by the Authority aforesaid That all and every person or persons that shall be admitted entred placed or taken into any Office or Offices Civil or Military or shall receive any Pay Salary Fée or Wages by reason of any Patent or Grant of his Majesty or shall have Command or Place of Trust from or under his Majesty his Heirs or Successors or by his or their Authority or by Authority derived from him or them within this Realm of England Dominion of Wales or Town of Berwick upon Tweed or in his Majesties Navy or in the several Islands of Jersey and Gernsey or that shall be admitted into any Service or Imployment in his Majesties or Royal Highnesses Houshold or Family after the First day of Easter Term aforesaid and shall inhabit be
185. Actions Popular see Informations Acts of Parliament See Statutes Administration and Administrators See Excommengement Executor Probate Recusants Who is disabled to be an Administrator 212. 234 235. 258. 263. The Mother shall administer before the Brother or Sister 225. Advowson See Covin Recusants Vniversity An Advowson is comprehended under the word Hereditament 106. 171. 172. It may be seized for Recusancy 106. 171 172. Where the King hath seized the Advowson of a Popish Recusant whether the King or University shall present 172. 231 232. By the Kings seizure of two parts of a mannor two parts of an Advowson appendant are seized by consequence 172. 233. In such case the King shall present alone by his Prerogative 172. 233. His two parts shall not pass from him by general words 173. Where upon reversal of an utlawry the Patron of an Advowson shall be restored to his Presentment and where not 180. Age 198. Agnus Dei c. Where the bringing in offering delivering or receiving of an Aguns Dei c. is a Praemunire and where not 51 52 53. Where the offender must be apprehended or his name disclosed and to whom 53 54. The Penalty for concealing the offenders name 55 56. Aid see Notice Aiders Maintainers Relievers c. of offenders where and how punishable 12. 17. 34 35. 42. 47. 50 51. 59. 90 91. 93 94. 184 185. Alien An Information lies against an Alien and a Writ of Error for him 76. An Alien though indenized or naturalized is no natural Subject 185. Indictment of High Treason against an Alien by birth 185. It shall not be contra naturalem Dominum 185. An Alien indenized or naturalized in Scotland or Ireland is still an Alien here 189. Where an Alien shall forfeit 12 d. per Sunday or Holiday for not coming to Church and where not 190. Allegiance see Oath of Allegiance Appearance See Baron Feme What appearance upon Proclamation shall save the Recusants default and what not 108. 164 165. Where he cannot appear by Attorney 164. His Remedy if his Appearnce be not recorded 164. Appropriation Where the King may make an Appropriation 7. Archbishop See Bishop Archbishop of Canterburies concurrent jurisdiction abrogated 5. Armour See Iustices of Peace Where the Arms of a Popish Recusant convict may be seized by force of 3 Jac. 5. and where not 237 238. The penalty for refusing to discover or hindring the delivery of such Arms 237. A Popish Recusant Convict shall maintain his Armour 239. Arraignment See Witnesses The party must be first arraigned and convicted before he can be fined and imprisoned at the Kings pleasure 97. Assent see Licence Attainder see Vniversity Attorney see Appearance Audita Querela Audita Quaerela against the Informer 148. It lies not against the King 148. Averment See Covin Indictment Iointure Licence Quare Impedit Bail SPecial Bail where not necessary 75. Baptism The penalty where the child of a Popish Recusant convict is baptized contrary to 3 Jac. 5.222 223. Baron Feme See Conformity Covin Custom Oath Plea Sacrament A married woman is liable to the Penalties for Recusancy 26. 68. And may 〈◊〉 imprisoned for non-payment thereof 86. 252 253. She ought in such case to have hard and close imprisonment 86. Where the Husband may save her imprisonment by paying 10 l. per month or yielding the thirds of his Lands to the King 252 253 254 255 256. Where the Husband is chargeable for the Wives Recusancy and where not 68. 75 76. 79. 122 123. 167. And may be imprisoned for non-payment of the Forfeiture 86. 253. Where the Wife cannot appear or plead without her Husband 75. The penalty by 7 Jac. 6. of a married woman convicted as a Popish Recusant if she conforms not 252. Where she shall forfeit the profits of two thirds of her Jointure and Dower and be otherwise disabled if she conform not in her Husbands life time 212 213. 214. Of what Dower she shall not forfeit any profits 215. Where a Woman may have Jointure and Dower both 213 214 215. Whether the Conviction of the Wife on an Indictment of Recusancy shall bar the King of his action of Debt and the Informer of his popular suit 79. 167. 254. A Feme Covert is within 1 Eliz. 2. of depraving c. the Common Prayer 24. And punishable by 35 Eliz. 1. of Conventicles and by 35 Eliz. 2. of Popish Recusants save as to Abjuration 123 124. 146. In what cases she may be punished upon 3 Jac. 4. and in what cases not 195. Where the Wife of a man abjured may sue without her Husband and shall have her Dower or Jointure in his life time and where not 124 125. Where the Husband of a Popish Recusant convict shall not bear any office 111 112. The penalty on a Popish Recusant convict who is married contrary to 3 Jac. 5. 220 221 222. In what case the Recusant so married cannot be punished by 3 Jac. 5. 222. Bar. See Baron Feme Informers King Good Behaviour see Recusants Benefice See Cura animatum Nomination Recusants Birth Birthright is Character indelebilis 247. Bishop See Archbishop Conformity Ecclesiastical Iurisdiction Excommengement Ordinary Before whom Archbishops and Bishops shall take the Oath of Supremacy 8. And the Oath of Allegiance 241 242. To whom an Archbishop or Bishop may tender or minister the Oath of Supremacy 39. 186. Where an Archbishop or Bishop may associate himself to the Justices of Over and Determiner or of Assise 29. But they 〈◊〉 associate themselves to Head-officers of Corporations 30. Where a Schoolmaster may be license◠〈◊〉 allowed by the Archbishop or Bishop 64 65 1â—5â— Submission to an Archbishop or Bishop in what case 95. Submission and Conformity before the Bishop of the Diocess in what cases 69. 92. 186. The Penalty on an offender who is required by the Bishop of the Diocess and yet refuses to conform and submit himself 118 135 138. Where 〈…〉 and Conformity must be certified to the Bishop 119. 145. Where the Bishop of the Diocess nay 〈◊〉 and â—â—â—â—â—ter the Oath of Allegiance and to whom 174 175. 186. 196 197 198. 242 243 244 245. And may commit the Party refusing it 174. 250. Where he may imprison a married woman convicted as a Popish Recusant and where not 252 253 254. Where his assent to a licence for a Popish Recusant to travel out of his compass of five miles is good and where not 206. 208 209 210. Blood See Corruption of Blood 〈◊〉 What they ought to do who are to be restored in Blood â—40 Books Books maintaining the Authority of the Bishop or See of Rome 34. Popish Books prohibited and the penalty for bringing them in c. 236. Bulls The effect of Bulls brought from Rome 49. Getting â—â— putting them iniure is High Treason 49 50. Bull why so called â—◠〈◊〉 The Penalty if a Popish Recusant be buried contrary to â— Jac. 5.223 Ceremonies Who may ordain Ceremonies and Rites of the Church 31
32. Certificate See Bishop Certiorari Certificates in what cases how to be made and within what time 35. 37 38. 40 41. 60. 96 97. 100. 116. 119. 135. 145. 174. 183. 186. 201. 217. 249 250. 263. Certiorari What Courts may direct a Certiorari immediately to another Court and who must certifie 217. Where a Certiorari to certifie a Record shall be awarded de novo 217. Chattels Money secured upon a Mortgage is within the word Chattels 137. Children see Seas Church See Alien Ceremonies Conformity Ecclesiastical Iurisdiction Ornaments Recusants Where the repairing to Church must be to Morning and Evening Prayers both 190. How the party ought to behave himself there 27. He ought to continue there during Service and Sermon 27. The Penalty for not coming to Church 26. 59 60. 188 189. The party may be punished both for his monthly and weekly absence from Church 27. 190. The 12 d. for absence from Church is due and may be sued for as soon as the Sunday or Holy-day is over 27. 190. Not necessary to go to a mans Parish Church so he go to some other 27 28. Where the Ecclesiastical Court cannot judge what is a mans Parish Church 28. What is a Parish Church 118. The penalty for perswading others to forbear to come to Church 113 114. Church of England see King Cinque Ports The Warden of the Cinque Ports may take the Bond and minister the Oath of Allegiance to such as pass beyond Seas 198. He is not liable to the Penalties inflicted for not certifying them 198 199. Clerk of Assizes and Peace See Recusants Clergy See Ecclesiastical persons Clergy in what case to be allowed 183. Colledge see Seminaries Commission See Courts Ecclesiastical Iurisdiction King Where a Recusants Lands are upon his death to be discharged of the seizure a Commission shall issue to inquire 111. Common Prayer See Baron Feme Iudgment What form of Common Prayer is injoined by the Laws in force what not 21. 32. The penalty on the Minister who useth not or depraveth the Common Prayer or useth any other open Prayers 20 21 22 22 24. What Ministers are there meant 21. What open Prayers are excepted 21. The penalty for depraving the Common Prayer or hindering it to be said or procuring or maintaining any other open Prayers 24 25 26. Hearing of Mass is a maintaining within the Statute 24 25. Concealers Concealers of offenders and offences where punishable 51. 55 56. 59. Confirmation Whose confirmation of a Lease by the incumbent is necessary 228. 230. Conformity and Submission See Baron Feme Bishop Indictments Informations Relapse Sacrament Seminaries What is Conformity 129. Conformity where it discharges the penalties for Recusancy 28. 68 69. 147 148. Where Conformity for some part of the time shall not excuse the offender 61 62. Conformity will not help him upon 1 Eliz. 2.27 What is a Conformity and Submission before Judgment 69. Conformity before the Bishop how to be made and where pleadable 69. Conformity after Judgment will now discharge the Recusant of all penalties 148. The Recusants Remedies upon his Conformity as to the King and Informer 148. Conformity of the Husband of a Popish Recusant convict 212. In what cases Conformity is necessary before an Indictment Utlawry c. for Recusancy can be avoided or reversed and where not 179 180 181. Where the Recusants Conformity shall discharge the Arrears of the 20 l. per month and where not 108 109. The profits taken before Conformity not restorable 109. Where the Conformity of the heir of a Recusant shall discharge the Arrears incurred in the Ancestors life time and where not 148 149 150. Conformity and Submission by such as return from any Seminary c. 91 92. 154 155. 258 259. Submission by a Jesuit Popish Priest c. 94 95. Oaths and Submissions upon 27 El. 2. where to be certified 97. The penalty for not certifying 97. Submission by a person reconciled to the Pope or See of Rome 186. In what case submission is not available 187. What Conformity and Submission discharges the offender against 35 Eliz. 1. of Conventicles 115 116 117 118. Who may require it 115. And within what time 116. The penalty for refusing to make it 116 117. In what cases it must be made in some Parish Church 117 118. What is a Parish Church 118. The form of the Submission 118 119. It must be registred and certified to the Bishop 119. What Conformity and Submission discharges the offender against 35 Eliz. 2. of Popish Recusants confined 135. Who may require it 135. And within what time 135. 137 138. The penalty for refusing to make it 135. It must be made in some Parish Church 143 144. The form of the Submission 144 145. It must be registred and certified to the Bishop 145. Two several submissions required 144. Conventicles See Conformity Conviction The penalty for going to Conventicles or perswading others so to do 113 114. Conviction See Baron Feme Indictments Informations Recusants What is meant by Conviction 61. 216. 252. Conviction of Recusants c. before whom 65 66 67. 84 85. 100 101. 108. 162. Where to be certified 100. What is a sufficient conviction of the Recusant within 23 Eliz. 1.60 What is a good conviction of the Recusant upon Proclamation and default and what not 163. How to be convicted upon Proclamation c. 107. 162. Where by Recusants convict shall not be intended Recusants convict upon Proclamation c. 165. Conviction upon Proclamation c. is no Judgment nor shall operate as a Judgment 69. 108 109 110. 152 153. 165. What Conviction is sufficient upon 35 Eliz. 1. of Conventicles 115. Copulative Where a Copulative shall be taken for a Disjunctive 184. Copyholds Whether Copyhold Lands may be forfeited for Recusancy 106 107. Where they shall not pass by general words 106. To whom to be forfeited by 35 Eliz. 2. 133. Coroner Where the Coroner may give the Oath of Abjuration 135. 138 139. Corporations What offences Mayors and other Head Officers of Corporations may hear and determine and in what manner 29 30. Corruption of Blood Where there shall be no corruption of blood 42. 124. 194. Costs see Informers Covin See Informations Covin shall not bar the King 79. 105 106. A man becomes a Popish Recusant convict by Covin how it shall operate 228. Covinous grant of an Advowson by a Popish Recusant shall not bar the University of their presentment 231. Where the Covin must be averred and found by the Jury 228. 231. Imprisonment of the Feme by Covin shall not avoid the payment of the 10 l. per month during such imprisonment 255 256. Imprisonment by Covin shall not avoid an Utlawry 256. Councel see Praemunire Privy Councel What offences are to be disclosed or signified to the Privy Councel or some or one of them 51. 55 56. 96 97. What Privy Councellors may grant a Licence to go beyond the Seas 94. 155. 224. A Popish Recusant may
Schisme 16. House Where a man may keep a Recusant in his house and where not and the Penalty 191 192 193. Ieofailes Informations on penal Laws within which Stat. of Jeofailes and within which not 73. Iesuite See Iustices of Peace Seminary Priest Imprisonment See Baron Feme Covin Imprisonment in what cases 12 13 14 15. 21 22 23 24 25 26. 59. 64. 70. 79. 86. 96 97. 107. 114. 162 163. 174 175. 182. 189. 193. 198. 211. 216. 237. 250 251 252 253 254. Incapacity see Disability Incertainty see Informations Indictments See Alien Conformity Iustices of Peace Parish Péers Recusants Sessions Witnesses Where 't is necessary that the Indictment for the second offence domention the first Conviction and where not 22. Two Indictments before several Justices for the same offence the first Judgment shall stand 66. Where an Indictment must conclude contra formam Statuti and where contra formam Statutorum 65. 125 126. Indictment for refusing the Oath of Supremacy 40 41. Indictment of Praemunire for refusing the Oath of Allegiance where it must be special and where it may be general 176. It must be directed by the Mittimus 176. Indicting a man of High Treason where actionable 58. Indictment for Recusancy the form of it 107. 129. It need not mention that the party was within the Realm 107. Where such Indictment or the Proceedings thereupon may be avoided or discharged without Conformity and where not 179 180 181. Existens aetatis 16. annorum shall refer to the time of the offence and not of the Indictment 60. In an Indictment on 1 Eliz. 2. for not coming to Church not necessary to aver that the party is an Inhabitant within this Realm 26. Or that he had no lawful or reasonable excuse 26 27. Informers Informations Actions Popular c. See Alien Audita Querela Baron Feme Conformity Ieofailes Plea Sunday In an Information tam c. quam c. Conviction thereupon is a sufficient Conviction within the intent of 23 Eliz. 1. 60 61. In what Courts an Informer Qui tam c. may sue and in what not 82 83 84 85. 100 101. 122. 160. Where an Informer may sue by Bill in the Kings Bench and where not 85 86. Within what time an Informer Qui tam c. must sue 73 74. 122. 160. Popular suit when depending 76. Where a Popular Action or Information becomes appropriated to a particular person 76. 78. Such Suit may be appropriated before Process 76. Two Informations for the same offence 76 77. The Defendant in an Information pleads that a prior Information is depending but mistakes the day of exhibiting it and yet good 76 77. Two Informations supposing the same offence to be done at several times where the first may be pleaded in bar of the second 77. How that case differs from the case of Recusancy 77. Two Informations exhibited the same day for the same offence are both void 78. When an Information may be delivered 78. When it must be dated 78. Action Popular brought by Covin no bar 79. Tam pro Domino Rege c. material 71. In an Information for Recusancy what the Informer is to demand for himself 71. His demand must be certain 72. He demands less then appears to be due yet good 62. He demands for 13 months and the Jury find for 12. Quaere whether the verdict be good or void for incertainty 62 63. Judgment of one moiety to the King and another to the Informer good 72. Where an Information may conclude contra formam Statuti and where it must be contra formam Statutorum 72. Where the particular Statute must be named 71 72. Where upon the demise of the King the proceedings in a popular Suit shall be discontinued and void and where not 80 81. Scire facias against an Informer 82. Where an Informer shall pay Costs 82. But he shall not find Sureties for Costs 82. In an Information for not receiving the Sacrament after Conformity the conviction of the Recusant must be shewed in certain 158 159. Where the Defendant may lose his advantage in that case 158 159. But his Conformity may be shewed generally 159. An Information lies in that case for the third year although the party were never convicted for the first or second year 159 160. Where an Informer is barred and where not 76 77 78 79 80. 163. 166. 167 168 253 254 255. An Informer Qui tam c. may be nonsuited 81. Inquisition see Office Inquiry see Enquiry Intent In what cases material 35. 52 53. Iointure See Baron Feme Where it may be averred that the Lands were for Jointure and where not 214. Where a woman shall be disabled to have a Jointure and what Jointure 220 221. What is a good Jointure within 27 H. 8. cap. 10. and what not 213 214. 221 222. Ireland See Alien Laws Treason Issue See Plea General issue where it may be pleaded 194. Iudgment See Conformity Conviction Failer of Records Informations The Judgment on 1 Eliz. 2. of the Common Prayer 25. The Judgment in a Praemunire 46. The Judgment on 23 Eliz. 1. shall be absolute 86. Where Judgment must be given for the first offence before the party can be punished for the second offence and where not 25. 159 160. Iurisdiction See Archbishop Ecclesiastical Iurisdiction King The penalty on him who holds with or maintains any forraign Jurisdiction within this Realm 11 12 13. 33 34. 36. 41 42. Within what time the offender must be prosecuted on 1 Eliz. 2.13 14 15. Iustices See Indictments Trial. The Justices shall fine and imprison the offender 97. Iustices of Assize and Gaol-delivery To whom they may tender and give the Oath of Allegiance 175 176. 242. 250. What offences they may hear and determine 28 29. 65. 107. 158. 162. 188. 193 194. 258. What offences Justices of Assize can only enquire of 35 36 37. Iustices of the Kings Bench. See Court of Kings Bench Iustices of Oyer and Terminer See Iustices of Peace What offences Justices of Oyer and Terminer may hear and determine 28 29. 36. 65. 258. Iustices of Peace Justices of Peace shall not be comprehended under the general name of Justices of Oyer and Terminer 258. What offences Justices of Peace may hear and determine and what not 65 66. 162. 193 194. 258 259. They may hear and determine the offence of not coming to Church 66. 162. What offences they can only enquire of 35 36. 65. 101. Where they cannot meddle 68. An Informer Qui tam c. cannot sue before Justices of Peace 82 83 84 85. 160. What Acts a Justice of Peace may do out of his County and what not 238 239. 249. His Potestas Jurisdictionis is confined to his County 238 239. The power of Justices of Peace in reference to the Oath of Allegiance twofold 196. Their power inlarged by 7 Jac. 6. 176. 245. The Justice of Peace impowred to tender and give the Oath of Allegiance may grant
his Warrant to bring the party before him 246. But the house cannot be broken by virtue of such Warrant 246. To whom one Justice of Peace may tender or give the Oath of Allegiance 224. 245 246. 247 248 249. Where he may commit the party refusing it 250. To what Justice of Peace the person offering an Agnus Dei c. must be brought or his name disclosed 53 54. The Justice of Peace not declaring the same incurs a Praemunire 55 56. Next Justice of Peace who meant 54. Certificate of Recusancy to be made by a Justice of Peace 60. One Justice of Peace may take the submission of a Jesuite or Popish Priest 95. He may examine a person suspected to be such and commit him if he refuse to answer 140 141. Discovery of a Jesuite or Popish Priest to a Justice of Peace 96. What the Justice of Peace is to do thereupon 96. The penalty if he neglects so to do 96. What Certificate he shall have for his discharge 96 97. Discovery of the entertainer or reliever of a Jesuite or Popish Priest or of Masse said must be to a Justice of Peace 200. One Justice of Peace may require the submission on 35 Eliz. 1. of Conventicles 115. And may require the offender to abjure 115 116. One Justice of Peace may require the submission on 35 Eliz. 2. of Popish Recusants confined 135. One Justice of Peace may cause the 12 d. per Sunday to be levied for absence from Church 188 189. Within what time the party must be called into question 189. Where the Justice of Peace is sole Judge of the parties excuse 190. One Justice of Peace may give the Oath to a Popish Recusant confined by 35 Eliz. 2. 210 211. Any two Justices of Peace may take the submission of a person returning from a Seminary 91 92. And of a person reconciled to the Pope or See of Rome 186. And minister to him the Oaths of Supremacy and Allegiance 186. Where they must certifie the Oaths so taken 186. To what other persons any two Justices of Peace may give the Oath of Allegiance 243. They may require the offender against 35 Eliz. 2. of Popish Recusants to abjure and may give him the Oath of Abjuration 135. Where they may imprison him who keeps the Arms of a Popish Recusant Convict or hinders their delivery and where not 237 238 239. To whom two Justices of Peace Quorum unus c. may tender and give the Oath of Allegiance 174. 196 197 198. 245 246. 249 250. Where they must certifie the taking of it to the Sessions 174. 249 250. And commit such as refuse to take it 174 175. 250. They have their Election to commit the party to the Assizes or Sessions 175. Where they may imprison a married woman convicted as a Popish Recusant and where not 252 253 254. Four Justices of Peace may grant a Licence to a Popish Recusant to travel beyond five miles 206 207 208 209 210 211. And no less then four 208. Where four Justices of Peace by warrant at their Sessions may seize a Popish Recusants Arms and where not 237 238. What arms they may allow Popish Recusants to have 237. The power of the Justices of Peace in their Sessions revived in the case of Recusancy 66 67. 101. 162. They may now proceed there to convict the Recusant upon Proclamation and default 108. 162. At what Sessions they may hear and determine Recusancy 67. In what case they are to discharge the Recusant 68 69. They may at their Sessions give the Oath of Abjuration on 35 Eliz. 1. of Conventicles 116. And must record and certifie it 116. Where upon Conviction before them they are to give a Certificate to the discoverer of the offender 201. Popish Recusants are to be presented at the Sessions of the Peace 160 161. The Presentments are to be entred and recorded there 161. To whom the Justices of Peace in their Sessions are to minister the Oath of Supremacy 262. 264. 266 267. And the Oath of Allegiance 262. 264. 266 267. They are to tender the said Oath at their Sessions to such as have before refused it 175. 250. And are to commit Women Covert till they take it 175. 250. They may there tender it to any of competent age and under the degree of Nobility 175 176. 196. Kin. In what case and how long the next of Kin shall have the Lands and Goods of him who goes beyond Seas without Licence 224 225. Whether he shall have the Lands or only the profits 225. In whom the state of the Land vests 225. The Mother of Kin to the Child and shall be preferred before the Brother or Sister 224 225. Next of Kin or Blood shall be accounted as in the case of a purchase 225. Jus Propinquitatis Jus Representationis 225. Where the next of Kin shall be Guardian and where not 234 235. King See Advowson Baron Feme Courts Forfeiture Informations Pardon The King is the supream Head of the Church of England 2. 5 6 7. Ecclesiastical Jurisdiction restored to the Crown 5. The Kings ancient Ecclesiastical Jurisdiction 5 6. The King is Persona mixta unita cum Sacerdotibus 6. He is the supream Ordinary 6 7. He is Arbitrator between spiritual Persons touching their Jurisdiction 6. He may do what the Pope might by the Canon Law 6 7. He may grant a Commission of Review notwithstanding 25 H. 8. 19. 7. He may make an Appropriation without the Bishop 7. A resignation made to him of a Deanry good 7. The Penalty for perswading others to impugne his power in cases Ecclesiastical 113 114. He cannot be nonsuited 80. Covin shall not bar him 79. 105 106. An Audita Querela lies not against him 148. King where it includes his Successors 95. Who is a mans natural King 185. Within what time the King is to prosecute upon poenal Laws 74 75. 121 122. Where he is barred of the Forfeiture and where not 79. 81 82. 253 254 255. The Recusants remedy upon his Conformity as to the King 148. Where the King may pardon release c. the Forfeiture upon a poenal Law and where not 80. How he may grant a Recognisance or Obligation forfeited 106. He cannot grant the Penalty on a poenal Law to a Subject 165. Action of Debt c. given to the King 120. In what Courts the King may sue for the Penalties given him by 23 El. 1. 122. Where the Penalty for Recusancy shall run on and be appropriated to the King and where not 102 103 104. 166 167 168. 219. 252. 254. The King may seize two thirds of a Recusants Lands presently after Conviction 168. Election given to the King to take the 20 l. per month or two thirds of a Recusants Lands 170 171. 173. 219. But he shall not have the two parts and the 20 l. per month both 219. Where the King having seized an Advowson as part of his two parts shall present and not the