receiving of the profits there it was said Copy-holds shall be included within the general words of Lands Tenements and Hereditaments 3. And yet see Owen 37. where this Case of Sulhard and Everet is otherwise reported and that it was at length after great debate adjudged that Copyhold Lands are not within 29 Eliz. 6 § 4. N. 3. nor are seizable for the Kings two parts And according to this Judgment I take the modern practice of the Exchequer to have been that neither the Land it self nor the profits of Copyhold Lands are lyable to such seizure CIII Process Page 107 108. If the same be taken at any Assize or Goal-delivery 29 Eliz. 6. § 5. N. 6. for if the Indictment had been taken before Justices of Peace no Proclamation thereupon could have been made upon this Statute by the Justices of Assize or Goal-delivery as was resolved in the Case of Sir Edward Plowden And therefore upon such an Indictment for Recusancy taken before Justices of Peace the Court was to remove the Indictment in B. R. and there process might have been made out against the Recusant and he Convicted for the Justices of Peace could do no more than Indict all other proceedings being taken away from them by this Statute 29 Eliz. 6 § 2. N 2.11 Co 63. and 1 Rol. 94. but now by 3 Jac. 4. § 7. N. 1. the Law is altered in this point and the Justices of Peace upon Indictments taken before them may proceed to proclaime and convict the Recusant as well as Justices of Assize and Goal delivery supra 95. N. 2. Page 108 CIV Upon such default 29 Eliz. 6. § 5. N. 6. that is upon his default of appearance of record at the next Assizes or Goal delivery For if he make such appearance that shall save his default of not rendring his body to the Sheriff And the not rendring himself to the Sheriff shall be no Conviction as Wingate Crowne 66. would make it Page 108. CV As sufficient a Conviction in Law 29 Eliz. 6. § 5. N. 6. that is as if he were Convicted by Verdict but not as sufficient as if a Judgment were had against the Recusant For altho by force of 29 Eliz. 6. § 5. N. 5. and other Statutes the Conviction upon Proclamation and default of appearance make a Recusant lyable to divers penalties and Incapacities and is in those respects as forceable as a Judgment yet it shall not in other Cases have the force or effect of a Judgment and therefore it was resolved 37 and 38 Eliz. in the Case of the general pardon Anno 35 Eliz. where there is an exception of all penalties and forfeitures due to the Queen and converted to a debt by Judgment that notwithstanding that exception a Recusant Convicted upon Proclamation was within the pardon and the forfeitures due upon such Conviction were thereby pardoned for the debt was not due to the Queen by Judgment but upon Conviction only but otherwise it had been if he had been Convicted according to 23 Eliz. 1. § 5. N. 1. without Proclamation and Judgment had been given thereupon 11 Co. 65. Dr. Fosters Case Page 109 110 111. CVI. Upon 29 Eliz. 6. § 6. N. 1. It was resolved by all the Judges Mich. 37 and 38 Eliz. 1 Rol. 94. in Dr. Fosters Case that if a man had been Convicted according to this Statute 29 Eliz. 6. § 5. N. 5. by Proclamation upon default and afterwards conformed himself he should be discharged of the penalty due upon his Conviction notwithstanding these words 29 Eliz. 6. § 6. N. 1. and full satisfaction of all the Arrearages and the reason of this is given by Coke Chief Justice B. R. for that 29 Eliz. 6. § 5. N. 6. saith that such Conviction should be as sufficient as if there were a Verdict recorded but 't is only a Judgment which converts the penalty into a debt and not a Verdict And here all the penalties are discharged upon Conformity unless such as are Converted into a debt 29 Eliz. 6. § 6. N. 1. But otherwise it would have been if there had been a Judgment against the Recusant upon Tryal or Confession upon 23 Eliz. 1. § 5. N. 1. for then his Conformity would have come too late to have saved the penalty Incurred by his Conviction for by the Judgment the penalty was Converted into a debt Quaere tamen Whither these words here 29 Eliz. 6. § 6. N. 1. Due and payable are to be understood due and payable upon a Judgment only However now by 1 Jac. 4. § 1. N. 1. if the Recusant confirm either before or after Judgment he shall be discharged of all penalties 2. But the profits of the Recusants Lands taken before his Conformity shall never be restored 3. It hath been questioned upon 29 Eliz. 6. § 6. N. 1. if a Recusant Convicted by Proclamation upon default had died before seizure of two parts of his Lands whither his lands might have been seized after his death for the Arrearages of the 20 l. per month or if they were seized in his life time whither they should have been discharged after his death without payment of such Arrears And the opinion of those who held that the seizure should neither ensue nor continue after his death but that the Arrears were discharged was pricipalpally grounded upon 29 Eliz. 6. § 6. N. 1. that due and payable extended only to Arrearages due and payable upon a Judgment and converted into a debt But when the Recusant was Convicted by Proclamation the penalty was never Converted into a debt and therefore when he died there were no Arrearges due in the sense of 29 Eliz. 6. § 6. N. 1. for the heir to pay and yet by such offendor here is generally intended all Recusants Convicted as well by Proclamation upon default as upon on Judgment and the heirs of either should have had the benefit of this Proviso viz. that upon the death of the Ancestor no seizure should ensue or be continued only in the Case of a Judgment the Arrears were to have been paid 4. But there seems now to be no further need of this Question for 1 Jac. 4. § 3. N. 1. meets with both these Cases For if there be no seizure of the Recusants Lands in his life time the discharge of the heir will depend upon his Conformity and if there were seizure the two parts shall continue in his Majesties possession till the Arrears are paid and satisfied But this 29 Eliz. 6. § 6. N. 1. is not intended of entailed Lands For without any aid of this Proviso if a Recusant Tenant in Tail be convicted by Proclamation upon default and dieth neither any Seizure for the Arrears of the 20 l. per month shall ensue after his death nor if they were seized in his life time shall the seizure be continued after his death nor is the heir in Tail bound to pay any such Arrears But if a Judgment be had
the arrears CLII. Seizure Page 150. 151. Where any seizure shall be had 1 Jac. 4 § 5. N. 1. That is a seizure upon either a Judgment against the Recusant by Indictment on 23 Eliz. 1. § 5. N. 1. or an Indictment and Conviction by Proclamation and default of appearance according to 29 Eliz. 6. § 5 N. 5. for the seizure of two parts of the Recusants lands was given the King by 29 Eliz. 6. § 4. N. 3. upon default of payment of the twenty pound per month in either of those Cases Page 151. Go towards the satisfaction and payment of the twenty pound 1 Jac. 4. § 5 N. 1. CLIII Hereby a Principal Branch of 29 Eliz. 6. is altered for whereas by 29 Eliz 6. § 4. N. 3. supra 99. 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 penalties until the 20 l. per month had been paid and yet the profits should not have gone towards the satisfaction of the said 20 l. per month 1 Jac. 4. § 5. N. 1. was made for ease and benefit of the Recusant in that point 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 3 Jac. 4. § 11. N. 4. make his Election and seizeth two parts in lieu of the twenty pound per month And therefore the Resolution or Judgment said to be 1 or 2 Jac. Grayes Case cited in Beckets Case Lane 93. and by Bridgman 16 Jac. in his argument of Parker and Webbs Case 2 Rol. 25. and applied thereunto viz. that if a Recusant Convicted failes of payment of the 20 l. per month the King shall have his Lands as a gage or penalty and the profits shall not go in satisfaction thereof However it were true as the Law stood upon 29 Eliz. 6. § 4. N. 3. and before the making of 1 Jac. 4. § 5. N. 1. yet 't is not Law at this day nor could be applicable to either of chose Cases Lane 93. of Becket or 2 Rol. 25. of Parker which came to be debated long after this Act was made and the Law altered in that point Page 151. CLIV. Where any such seizure shall be had c. 1 Jac. 4. § 5. N. 3. this relative such takes in both the Seizures before mentioned viz. A Seizure upon Indictment and Judgment thereupon by 23 Eliz. 1. § 5. N. 1. and a Seizure upon Conviction on Proclamation and default according to 29 Eliz. 6. § 4. N. 3. and as in both these Cases the Recusant who failes of the payment of the 20 l. 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 CLV Dayes Page 152 153. Two parts of the Lands c. Of any such Recusant This Clause 1 Jac. 4. § 5. N. 3. 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 20 l. 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 nature of a Verdict only and not of a Judgement as was hold in 1 Rol. 94. Dr. Fosters Case 2. 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 changed by general words in the Statute which gives the forfeiture or seizure an instance whereof we have in the Case of a Recusant Tenant in Tail Indicted Convicted and Adjudged upon 23 Eliz. 1. § 5. N. 1. for his intailed Lands shall remain after his death in the Kings possession until the Arrears be satisfied and that by force of 29 Eliz. 6. § 4. N. 3. and this Statute 1 Jac. 4. § 5. N. 3. Cooperating with the Statute 33 H. 8.39 § 66. 26. N. 1. which chargeth the Lands of the Heir in Tail with debts due to the King upon a Judgment had against the Ancestor But otherwise 't is in the Case of a Praemunire upon 16 Rich. 2.5 § 2. N. 6. which saith the Lands and Tenements of the offendor shall be forfeit to the King for there his entailed 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 13 Ed. 1. Cap. 1. § N. de donis Conditionalibus 1 Inst 130.391 and 11 Co. 63. Godbolt 308. pl. Sheffield and Ratelifs Case And therefore in 26 H. 8.13 § N and 5 and 6 Ed. 6.11 § N. which makes Intailed Lands forfeitable for Treason the word Inheritance was added any Estate of Inheritance which expresly denotes Lands in Fee Tail as well as Fee simple Now there being neither in this Act 1 Jac. 4. § 5. N. 3. or that of 29 Eliz. 6. § 4. N. 3. 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 chargeth the Heir in Tail with the forfeiture due to the King upon Conviction by Proclamation and default the general words here 1 Jac. 4. § 5. N. 3. that his Lands Tenements c. shall continue in the Kings possession shall not inforce a construction in prejudice of the Heir in Tail who claimes by 13 Ed. 1.1 de donis conditionalibus 3. 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 entailed Lands upon 29 Eliz. 6. § 6. N. 1. which speaks of the full satisfaction of Arrears in Case of the death of the Recusant And the Arrearages were to be 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 here in this last Case the Heir in Tail was not bound by the Statute
33 H. 8.39 § 68. 26 N. 1. because it is not a debt by Judgment as that Statute requires Moor 523. pl. 691. And thus the opinion Trin 43 Eliz. of the two Chief Justices 3 Cro. 846. is to be understood for they held that if intailed Lands had been seized for non-payment of the twenty pound per month and the Tenant in Tail had died the issue in Tail should not have had the Land out of the Queens hands before the debt were satisfied but should have been charged with the said debt At the end of 3 Cro. 846. pl. is added a Dubitatur But yet the opinion there held stands good if it be intended only of a Conviction of the Ancestor by Judgment upon Trial or Confession and not of a Conviction upon Proclamation and default Page 154. CLVI To any Colledge c. 1 Jac. 4. § 6 N. 1. extends only to publick houses or Colledges but not to such as are bred beyond the Seas in any private Popish Family and therefore 3 Car. 1. cap. 2 3 § 1. N. 2. was made to supply that defect CLVII Scholars Page 155. Note all Grammar Schools are not here 1 Jac. 4. § 9. N. 1. excepted but only publick or free Grammar Schools nor yet all Gentlemens Houses but only of such as are not Recusants in both which respects this Statute is defectively recited in the late additions to Dalt cap. 87. Sect. 1. 3 Jac. 4. of convictions PAge 158 159. CLVIII Every Popish Recusant Convicted 3 Jac. 4. § 2. N. 2. Wingate Crown 98. Speaks Indefinitely as if this extended to all Recusants whatsoever which is contrary to the express words of the Statute 2. In an Information upon 3 Jac. 4. § 2. N. 2. for not receiving the Sacrament Information the Conviction of the party for Recusancy ought to be shewed in certain before whom in what Court c. for before he is Convicted of Recusancy he is not lyable to the penalty Inflicted by 3 Jac. 4. § 2. N. 2. for not receiving And yet if it be only generally shewed in the Information that the defendant was Convicted in due form of Law and the defendant doth not demur thereto but pleads not guilty and it be found against him there Judgment shall not be staid for this defect for he hath lost his advantage and by his plea hath admitted the point of Conviction and at the trial the only thing in issue was whether he had received the Sacrament and not whether he was Convicted 2 Gro. 365 366. Sivedal and Lenthal CLIX. Conformity Page 159. This Conformity 3 Jac. 4. § 2. N. 2. need not be set forth in the Information in every particular Circumstance as when or before whom the Popish Recusant Conformed himself For it is sufficient if it be said that he went to Church and continued there dureing Divine Service and afterwards neglected to receive the Sacrament c. and upon such Conformity and neglect he is liable to the Penalty inflicted by this Act altho he never went before the Ordinary 2 Cro. 366. CLX Forfeiture Page 159 160. And for every year after such not receiving forty pound 3 Jac. 4. § 3. N. 2. Note the Statute saith not that the Offender shall forfeit for the first second and third Offence but for the first and second year and for every year after For if it had been said he should have forfeited twenty pound for the first Offence forty pound for the second and sixty pound for the third he must have been Convicted and have had Judgment of the first Offence before he could have incurred the penalty for the second and of the second before he could have incurred the penalty for the third and every one of these Offences must have appeared Judicialiter which could not be ante Judicinum But here 3. Jac 4. § 3. N. 2. where 't is said he shall forfeit twenty pound for the first year forty pound for the second and sixty pound for every year after it is otherwise and the Offender shall forfeit sixty pound for the third year altho he was never Convicted for the first or second 2. And therefore in an Information upon 3 Jac. 4. § 3. N. 2. for sixty pound against a Popish Recusant Convicted for Recusancy who hath conformed and neglected to receive the Sacrament the third year after his Conformity its sufficient to set forth that he was a Popish Recusant and was convicted and conformed himself and went to Church c. two years before such a day and that after the said day he sailed for a whole year to receive the Sacrament without mentioning what he did the first or second year after his Conformity and so was 2 Cro. 365. Page 160. CLXI Shall for every such Offence lose and forfeit threescore pounds 3 Jac. 4. § 3. N. 3. If a Popish Recusant once receive the Sacrament after his Conformity and after neglect so to do within the time prescribed by this Act 3 Jac. 4 § 1. N. 2. and is guilty of such neglect for two years together altho he was never convicted for the first year yet an Information lieth against him and he shall forfeit threescore pound for the second year for 3 Jac. 4. § 3. N. 3. he is liable to pay so much for every Offence that is for every year wherein he neglects to receive the Sacrament after he hath once received it and the Informer is at his liberty for which Offence or year he will inform whether for the first second c. and the reason of this is because here are no steps or gradations to encrease the penalty for the second or third Offence but the penalty is equal and alike in this Case for every Offence 2 It is observable that the Popish Recusant who after his Conformity receives the Sacrament and afterwards neglects so to do for the space of one or more years is in worse Condition than he who conforms and receives it not at all for in this last Case he shall forfeit but twenty pound for the first and forty pound for the second year but if he once receive the Sacrament and afterwards neglect it for the space of two years he shall forfeit for each of those years threescore pound Page 160. CLXII To him that will sue for the same 3 Jac. 4. § 3. N. 4 An Information upon this Branch must be brought by an Informer Qui tam c. within a year after the Offence or neglect or he can take no advantage thereof for such an Information is within 31 Eliz. 5. § N. 2. Cro. 366. Page 160. CLXIII Justices Or before Justices of Assize c. 3 Jac. 4. § N. 3 5. Note that notwithstanding these words an Information upon this Statute by an Informer Qui tam c. for not receiving the Sacrament cannot be brought before Justices of Assize or Goal-delivery or Justices of Peace for no Common Informer can sue
appointed he shall not forfeit any thing or be disabled by this Act infra 239. Page 221. CCXXXVIII by a Minister lawfully authorized 3 Jac. 5. § 13. N. 2. in an Information upon this Statute for being married otherwise than 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 Traveller come of the other side then the Defendant is in his rejoynder to shew the time and place 2 Bulstr 50 CCXXXIX 52. Creswick against Rookesly Every Woman being or which shall be a Popish Recusant convicted 3 Jac. 5. § 13. N. 3. A Woman who is no Popish recusant convicted marrieth 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 cited supra 237. the Woman only shall be disabled so in this case the man only shall forfeit or be disabled Page 222. CCXL Or any Joynture of the Lands and Hereditaments of her Husband or any of his Ancestors 3 Jac. 5. § 13. N. 3. A Feme who is a Popish recusant convicted and married otherwise than is appointed by this Act is not therefore disabled to have any sort of Joynture as Wingate Coron 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 settled 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 of 3 Jac. 5. § 13. N. 3. nor shall the Wife altho a Popish recusant convicted and married otherwise c. be disabled by any strained construction of this Law to enjoy the Lands after her Husband's death For a penal Law shall be taken strictly and not by Equity or Intendment especially where the intent of the Law-makers doth not appear to the contrary and the Case such as doth but rarely happen and it is a good Rule in the construction of Statute-Laws Vaughan 373. that when the words of a Law extend not to an inconvenience rarely happening and do to those which often happen it is good reason not to strain the words further than they reach but to say it is Casus omissus and that the Law intended Ea quae frequentius accidunt And yet there is no question but such Lands are a Joynture and if made with the Wives assent before Marriage shall barre her Dower by 27 H. 8.10 § 6. N. 1. which speaks of one Estate or Purchase made to the Wife for her Joynture generally not saying by whom described by Shepherds Epitome Page 222. By vertue of any Custom of any County CCXLI. City or Place 3 Jac. 5. § 13. N. 3. and not of Citys only as 't is restrained in the late Additions Dalton Cap. 85. Sect. 48. The custom here mentioned 3 Jac. 5 § 13 N. 3. viz that the Wife shall have a certain portion of her Husband's Goods after his decease is of force throughout the whole Province of Yorke and in divers other places of England and if he gives them away from her by his will the bequest is void Swinborn 1551 152. part 3. cap. 14.9 H. 3.18 § N. A Woman is an Offender within this Branch 3 Jac. 5. § 13. N. 3. and her Husband by his last Will gives her all or part of his Goods not claimable by Custom she is not by this Act disabled to enjoy them after his Death for the words here are plainly restrictive to such Goods as she claims by Custom Page 222. Whereof he may be entituled to be Tenant by the courtesy CCXLII. 3 Jac. 5. § 13. N. 4. A Popish recusant convicted marrieth an Inheretrix in other form than is appointed by this Act the Wife dyes without issue born alive of the Marriage in this Case altho the Husband is not intituled to be Tenant by the Courtesy yet the possibility which he once had to be so entituled seems to satisfy the intent of this Act and he shall not forfeit the C. li. So that here is another Casus omissus for it may so happen that a Popish recusant convict may have a great portion with his Wife and but a small Estate in Lands with her perchance but a few Acres yet if he be an Offender within this Branch 3 Jac. 5. § 13. N. 4. the Lands for that he may be entitled to be Tenant by the Courtesy by them shall save his C li. And if his Wife dye having had no issue born alive he is wholly exempted out of the Act and cannot be punished either way Page 223. The Exception here CCXLIII 3 Jac. 5. § 15. N. 1. of Popish Recusant excommumunicate is intended only of one actually excommunicated and not of him who is a Popish recusant convict who shall not be reputed as a person excommunicate to this intent but only as to the point of Disability as supra 234. So that if any Popish Recusant not actually excommunicate be buried elsewhere or otherwise than is here mentioned altho he were convicted yet 't is an Offence punishable by this Law 3 Jac. 5. § 5. N. 1. Page 224 CCXLVI 225. The next of his or her Kin 3 Jac. 5.16 N. 2. It hath been a great Question formerly Whether the Mother can be said to be of kin to the child and it stath been held in the Negative as well by the common Lawyers as Civilians as appears by the Duke of Suffolks Case 5. Ed. 6. Administrators Br. 47. and that of Brown and Skelton 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 than is the Brother or Sister and that shall be preferred in the case of an administrator upon 21 H. 8.5 § 3 N. 6. and of guardianship by the Stature of Marlbridg 52. H. 3.7 where a man dyeth sels'd of Lands holden in soccage Which later opinion agreeth with Lit. 1. that the Parent is nearer of blood to the child than the Uncle See 1 Inst 88. and in Ratcliff's Ca. 3 Co. 40. the Duke of Suffolk's Case is denyed to be Law so that if any child be sent or go beyond the Seas contrary to this Act his Mother by 3 Jac. 3. § 6. N. 2. 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 or next of Blood shall not 3 Jac. 5. § 9. N. 2. be accounted here by course of descent but as in the case of Purchase
against the Recusant Tenant in Tail in his life time the heir is bound in that Case 5. If a Judgment was had against the Recusant before 1 Jac. 4. § 5. N. 1. and he had died before seizure of the two parts of his Lands the Question was whither after his death they might have been seized by force of 29 Eliz. 6. § 6. N. 1. for the Arrears of the penalty Incurred in his life time for that the Seizure here given is meerly in nature of a nomine paenae or penalty inflicted for his contempt in not paying the 20 l. per month and should not have gone in satisfaction of the debt but the Queen should have held the Land till the 20 l. per month were otherwise paid and satisfied and when this penalty of seizure was not executed in the Recusants life time by his death the contempt was gone and consequently the penalty inflicted for that contempt could not then be put in Execution Lane 92 93. Beekets Case Lane 107. Halseys Case But now by 1 Jac. 4. § 5 N. 1. the seizure is not as a meer penalty for the contempt of non payment but for the satisfaction of the King of the Arrears of 20 l. per month and the profits of the Land shall go towards the payment and satisfaction thereof so that now there is no question but the two parts of the Recusants Lands may be seized after his death unless the hair discharge himself by his Conformity 4. Note in all these Cases of seizure where the Land is to be discharged upon the death of the Recusant altho an Affidavit be made of his death and a discharge obtained thereupon yet 't is a rule in the Court of Exchequer that a Commission shall be Awarded first to Enquire Savile 130. pl. 201. CVII Page 111. This branch 29 Eliz. 6. § 7. N. 2. seems not to extend to all forfeitures for Recusancy for the power here given to the Lord Treasurer c. is only in relation to those forfeitures which are by 29 Eliz. 6. § 3. N. 1.2 appointed to be paid into the receipt of the Exchequer which are the forfeitures due to the Queen by Conviction upon Indictment for this Act medles with no other so that if the 20 l. per month be recovered in a popular suit by the Informer qui tam c. one third part thereof ought still to be paid to the poor of the Parish only according to 29 Eliz. 1. § 11. N. 1. notwithstanding this act 29 Eliz. 6. § 7. N. 2. 35 Eliz. 1. Of SECTARIES Page 114. Wingate Crown 70. saith that if any person above sixteen years of Age obstinately refuseth to come to Church for a month CVIII Religion or impugnes the Queens Authority in Causes Ecclesiastical he shall be committed to Prison 35 Eliz. 1. § 1. N. 2. which is a great mistake for no man shall be punished by this Act for either of those Causes only the not coming to Church being only a precedent qualification required in the person whom the Act makes liable to the penalties thereof for the other offences therein mentioned Crompton 53. 2. And therefore if a man never comes to Church yet he is no offender within 35 Eliz. 1. § 1. N. 2. unless he advisedly or purposely move or perswade another to deny or Impugne the Kings Authority in Causes Ecclesiastical or to that end or purpose advisedly and malitiously move or perswade some other to forbear to come to Church or receive the Communion or to be present at Conventicles c. or if he himself be present at such Conventicles c. 3. And on the other hand if a man move or perswade any other to deny or Impugne the Kings Authority in Causes Ecclesiastical or to forbear to come to Church or receive the Communion or to be present at Convinticles c. Or if he himself be present at any Conventicles c. yet he is no offendor within 35 Eliz. 1. § 1. N. 2. if he goeth to Church once within the compass of a month 4. So that the party must both forbear to come to Church and be guilty of some other offences here enumerated or he is not punishable by 35 Eliz. 1. § 1. N. 2. and as for the denying or Impugning the Kings Authority in Causes Ecclesiastical it s no offence within this Statute unless the party moves or perswades others so to do and not then neither unless he hath been absent from Church by the space of a month Page 114 115. Under colour or pretence of any exercise of Religion 35 Eliz. 1. § 1. N. 3. Altho this Act is commonly called the Act against Sectaries CIX as distinguished from those of the Romish profession yet in truth it extends to all Recusants whatsoever as well Popish as other except 35 Eliz. 1. § 2. N. 1. in the point of abjuration for Popish service is performed under Color or pretence of Exercise of Religion and the assembly or meeting of Popish Recusants under such Color or pretence is an assembly or meeting contrary to the Laws and Statutes and they as well as others may be Indicted upon this Statute if they forbear to come to Church for the space of a month and be present at any part of the Popish service or move or perswade ut supra And may be Imprisoned without Baile until they conform and make submission as by 35 Eliz. 1. § 4. N. 1. is appointed but they cannot be required to abjure unless they offend against 35 Eliz. 2. § 8. N. 2. 2. A Popish Recusant is likewise subject to an Action of debt c. given to the Queen by this Statute 35 Eliz. 1. § 10. N. 2. CX Process Page 115. Being thereof lawfully convicted 35. Eliz. 1. § 1. N. 5. that is convicted both of his absence from Church and of that other offence which makes him punishable by this Act viz. going to Conventicles or moving or perswading c. for his absence from Church for a month must be laid down precisely in the Indictment for without that the other is no offence within this Act. 2. And t is not necessary that the party be Convicted of such absence upon any prior Indictment for altho there was never any former Conviction of him for Recusancy yet if he offend against this Act 35 Eliz. 1. § 1. N. 5. in any of the other particulars he may be Convicted both of that offence and of his absence upon one and the same Indictment and so was the Indictment Mich. 16. Car. 1. in the Case of Lee and others 1 Cro. 593. pl. who were Indicted upon this Statute at the Sessions of the Peace in Essex for absenting themselves for a month from Church and resorting to Conventicles to which they pleaded not guilty and the Indictment was removed in B. R. to be tryed there CIX Oath Page 116. Being thereunto required by the Bishop c. or any Justice of Peace 35
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 dyeth A and B have issue each of them a son and dye 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 5 Jac. 5 § 16. N. 2. have and enjoy the Lands of the Offender untill 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 than the Cousin German and yet the son of A is heir at Law jure representationis as being the son of the eldest Brother 1 Inst 10. Palmer 304 305. Pervian and Pierce CCXLV Forfeiture Page 225 226. Shall have and enjoy the said Lands c. 3 Jac. 5. § 16. N. 2. It was held by Mountague and Hobert Ch. J. Pasch 15. Jac. Lee 59 in Tredwayes Case that if a person goeth beyond the Seas contrary to this Act yet the state of the Land is not forfeited nor fettled in the next of Kin but rests in the Heir himself who is the offender for the Statute 3 Jac. 5. § 16. N. 1. 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 6 Rich. 2.6 § 1. N. 3. of consenting to ravishment And 11 H. 7.20 § 1. N. 2. of Discontinuance by Women And Hobard said Lee 59. 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 Tanfield chief Baron seemed to be of contrary opinion in the main point and held that the State of the Land is settled by 3 Jac. 5. § 16. N. 2. in the next of Kin. Note In Lee 59. it 's said to be the meaning of this Act 3 Jac. 5. § 16. N. 2. 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 somewhat more and that the next of Kin shall have the Land it self CCXLVI Presentant Page 226. From and after the end of this present Session of Parliament 3 Jac. 5. § 18. N. 1. A man seised of an Advowson grants the next Avoydance and then becomes a popish Recusant convict the grant of the next Avoydance is void and the University shall present for the foregoing words During his Recusancy do not import the time when his disability shall begin but when it shall end viz when he remains no longer a Recusant But when once he becomes a Popish Recusant convict his disability shall have relation to all the time going before viz from the end of that Session of Parliament wherein this Act was made 10 Co. 55 56. the Chancellor of Oxfords Case and Jones 20. Standens Case c. and such retrospects are usual in Acts of Parliament And yet after the grant of the next Avoydance the Patron or Grantor becomes a Popish Recusant by Covin convict and to the intent to make void such his Grant this shall not deseat the Interest of the Grantor but he may present when the Church becomes void notwithstanding such Conviction Jones 20. But then the Covin must be averred by the Grantee and found by the Jury to be to that particular intent as infra 250. N. 4. Page 228 CCXLVII. 229. Be utterly disabled to present to any Benefice c. 3 Jac. 5. § 18. N. 1. A man hath the right of Nomination to a benefice which is presentative and another hath the Right of Presentation if he who hath the right of Nomination become a Popish Recusant convict I conceive he is disabled by this Act to nominate For altho only the word Present be here used as to a Benefice or Ecclesiastical Living presentative yet this shall extend as wel to Nomination for the intent of the Act 3 Jac. 5. § 18. N. 1. is to prevent a Recusant from appointing who shall be incumbent and the Case of Nomination is in equal mischief with that of the Presentant and if the Recusant should not be disabled to nominate as wel as to present the intent of the Act 3 Jac. 5. § 18. N. 1. would be eluded for he that hath the right of Nomination is in effect the Patron and he that presents at the Nomination of another is but as a Messenger between him and the Ordinary 14 H. 4.11 And if he who is to present presents any other than the person nominated to him or doth not present the person nominated he who nominats may bring a second Impediment against him And he who hath the Nomination must jointly with him who hath the presentation confirm the Lease of the Incumbent Moor 49 Pl. 147. F. N. B. 33. It is true the general Rule is that penal Statutes shall not be taken by Equity from whence may be inferred that 3 Jac. 5. § 18. N. 1. only disabling a Recusant to present to a Benefice presentative shall not be extended to disable him to Nominate altho it be within the same Mischief But that Rule hath some Exceptions and where the intent of the makers of the Law plainly appears by other words in the same Statute a penal Statute shall be expounded largely and according to that Intent beyond the Letter as in case of Symony on 3 Eliz. 6. § N. Hob. 75. Now in the subsequent Clause 3 Jac. 5. § 19. N. 1. touching the University the Nomination as well as Presentation is given to them and consequently the Recusant was intended to be disabled in the one Case as well as in the other Besides the words Disabled to present 3 Jac. 5. § 18. N. 1. may be aptly enough expounded disabled to nominate for the Presentment is truly and really in him who hath the right of Nomination as is held in 14 H. 4.11 Page 229. CCXLVIII Chancellor and Scholars of the Vniversity 3 Jac. 5. § 19. N. 1. altho the University be incorporate by the name of Chancellor Masters and Scholars yet the description here made of them by the name of Chancellor and Scholars is wel enough and sufficiently denotes the persons intended and the University shall have the presentation c. As if the true name of 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 10 Co. 57. Page 229 CCXLIX 230. Shall have the Presentation c. 3 Iac. 5. § 19. N. 1. It hath been a Question what is given to the University by these words whether only a bare power or liberty to present or a settled Estate and Interest in the patronage or advowson Iones 22.25 where