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
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
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
pleasure 1 Inst 129 130. Rast Entr. 466. Tit. Judgment 3. Inst 218. 2. But his intalled Lands he shall forfeit only during his life for this forfeiture must be understood of such an Estate as he may lawfully forfeit and the general words of the Statute of Praemunire 16 Rich. 2. § 2. N. 7. scil Lands and Tenements shall not take away the force of the Statute de donis conditionalibus 13 Ed. 1. W. 2. cap. 1. § N. 1 Inst 130 131. Godbolt 308. pl. Lord Sheffeild and Ratcliffe 11 Cook 63. 3. And the person Attainted in a Praemunire is disabled to be a witness in any Cause 1 Inst 6. or to sue for Attainder in a Praemunire is a good Plea in disability of the Plaintiff according to Littleton 41. 4. By the Statute of 25 Ed. 3. St. 5. cap. 22. § 1. N. 2. which saith that a man attainted in a Praemunire shall be out of the Kings Protection and 25 Ed. 3. St. 5. § 1. N. 3. It may be done with him as with the Kings Enemy It seemeth that any man might have lawfully slain such a person as was held 24 H. 8. Coron Br. 196 2 Bulstrode 299. Sir Anthony Mildmayes Case and this Sir Edw. Cook 7 Cook 14 in Calvine's Case and 12 Cook 38. seemeth to allow for Law before this Statute of 5 Eliz. 1. § 21. N. 1. and positively affirms it to have been the Law in 1 Inst 130. and yet in the same Case of Calvin 7 Co. he saith that 25 Ed. 3. St. 5. cap. 22. § 1. N. 2. is intended only a legal Protection according to Littleton 41 and so likewise he expounds it in 3 3 Inst 126. But yet that the Party attainted was still under that Protection which the Law of Nature giveth to the King which he explains to be such a Protection as a Person attainted of Felony or Treason is under notwithstanding his Attainder so that if any man had kill'd him without warrant he should have been punished by Law as a man slayer and this sort of Protection by the Law of Nature saith he is indelibilis immutabilis which the person could not take away but yet under favour if a man attainted in a Praemunire were before 5 Eliz. 1. § 21. N. 1. under that indelible and immutable protection of the King given by the Law of nature then the opinion Coron Brook 196. and allowed by himself was not Law but if that opinion Coron Brook 196. were Law and any man might before 5 Eliz. 1. § 21. N. 1. have killed a man attainted in a Praemunire and that by force of 25 Ed. 3. Sta. 5. cap. 22. § 1. N. 3. It followeth that the Protection which the Law of Nature giveth is not Indelebilis or Immutabilis but that an Act of Parliament might in a particular Case take it away but there is now no further need of this question in the Case of a Praemunire for if this protection by the Law of Nature were taken away by 25 Ed. 3. Stat. 5. cap. 22. § 1. N. 3. It is now restored by this Statute 5 Eliz. 1. § 21. N. 1. And no man can lawfully slay a person attainted in a Praemunire no more than he can without Warrant a man attainted of Felony or of Treason 13 Eliz. 2. Of BVLLS PAge 50. LI. Upon 13 Eliz 2. § 2. N. 1. a man absolves or reconciles or is absolved or reconciled to the Pope or See of Rome without any Bull writing or Instrument to that purpose This Case seemeth not to be within the meaning of this Statute for there must be some Bull Writing or Instrument to Authorize such Absolution or Reconciliation or the person who gives or receives it is not punishable by this act altho he may be by 23 Eliz. 1. § 2. N. 1. and 3 Jac. 4. § 22. N. 1. LII Accessary Page 51. Note all concealers of this offence are not within the danger of this Law 13 Eliz. 2. § 5. N. 1. as Wingate Crown 35. misrecites and therefore if a man be present at such offer motion or perswasion and conceal it he shall not incur Misprision of Treason unless he be the party to whom any such Bull c. or Absolution c. was ofered LIII Ouster le mere Page 52. Upon 13 Eliz. 2. § 7. N. 1. A man brings into the Kings Dominions such Agnus Dei or other like superstitious things and another offers and delivers them It seemeth that neither he that brings them in nor he that offers or delivers them is within this Act or lyable to the penalty for 13 Eliz. 2. § 7. N. 2. By the express words it must be the same person So that neither the bringer in unless he offer and deliver them or Cause them to be delivered nor he who delivers them or offereth them to be delivered unless he be the person who brought them in is an offender within this Act. LIV. Alien Page 52. Vpon 13 Eliz. 2. § 7. N. 2. The offer or delivery of such Agnus Dei or other superstitious things to any sort of person is not an offence within this act as Wingate Crown 37. supposeth it to be but to make it an offence it must be delivered or offered to a subject of this Realm or of the Dominions of the same LV. Intendment Page 52.53 Upon 13 Eliz. 2. § 7. N. 3. The intent is material in this Case and therefore if a man be indicted upon the Statute for bringing in and offering or delivering such Agnus Dei c. or receiving the same the intent must be mentioned in the Indictment as it must be in Indictments upon all Statutes where the intent as here is made part of the offence so in an Indictment upon 5 6 Ed 6.4 § 3. N. 1. It is not enough to say the party drew his Dagger in the Church against I. S. but it must be averred that he did it with an intent to strike him as was resolved by the Court of B. R. 33 Eliz. in Penhalls Case 4 Leonard 49. pl. 127. It seemeth by the words of 13 Eliz. 2. § 7. N. 3. That to make the Receiver of such superstitious things an offendor within it there must be a Concurrence of intentions for the using or wearing them both in the giver and receiver and that therefore if a person coming from beyond the Seas brings into this Realm any such superstitious things but with no intent they should be worn or used and gives them to his friend at his request who receives them with an intent to wear or use them this is penal to neither Not to the giver for he had no superstitious intent and the intent is material nor to the receiver for that the offering or delivering them to be worn or used is expresly made in the Statute 13 Eliz. 2. § 7. N. 2. a condition precedent to the obliquity of the fact in receiving them for the Statute 13 Eliz. 2. §
and in such a case it is to be taken in divers other Cases Infra 173. XCVII Days Page 104. Upon 29 Eliz. 6. § 4 N. 1. That is the Term of Easter or Michaelmas which shall first happen and not the next Easter and Michaelmas Terms both for the Recusant ought to pay the whole penalty for the time conteined in the Indictment in the very first of thse Terms next after his Conviction 3 Jac. 4. § 8. N. 1. Infra 172. Page 104. Upon 29 Eliz. 6. § 4. N. 3. Take seiz and enjoy But as to Lands and tenements there must first be an office found for the King XCVIII Seizure for regularly before the finding of such office Lands or Tenements cannot be seized into the Kings hands 2 Inst 573. and 8 Co. 169. Stoughters Case Br. tit Off. 17.55 Com. 486. Nichols Case Page 105. by 29 Eliz. 6. § 4. N. 3. the Queen was to have and enjoy two parts of the Recusants lands and Hereditaments nomine poenae or districtionis XCIX until he had in some other manner satisfied her of the whole forfeiture of the twenty pound per month incuried for his Recusancy And the profits of those two parts should not have been accounted to go to the payment of any part of the said debt or forfeiture for the Statute 29 Eliz. 6. § 4. N. 3. Inflicted this forfeiture upon him meerly as a further penalty for his neglect of payment of the twenty pounds per month as was resolved by the two Chief Justices and Chief Baron Trin. 43 Eliz. in Gages Case 3 Cro. 845.846 and by all the Judges 3 Jac. at Russel house Jones 24 Standen versus Vniversity of Oxford and Whitton but now the law is altered in this point by 1 Jac. 4. § 5. N. 1. Infra 153. Page 105 106. A Recusant is Indicted and convicted and then failes of payment of the twenty pound per month C. Chattels yet his goods are not forfeit to the King by 29 Eliz. 6. § 4. N. 3. before seisure for the King hath his Election whither he will seize them or no by Coke Chief Justice B. R. 12 Jac. Cullom versus Sherman 1 Rol. 7. pl. 8. 2. A Recusant lends mony and for security hath a rent charge granted him in fee by deed indented with condition of Redemption and takes likewise a Recognizance for performance of Covenants in the said Indenture the Recognizance is forfeited and afterwards he is Indicted and convicted of Recusancy and failes of payment of the twenty pound per month in this Case the King shall have the recognizance by force of 29 Eliz. 6. § 4. N. 3. for when forfeited to the Recusant it is but a Chattel personal and shall pass to the King by this word Goods for in an act of Parliament where the offendors goods are given to the King all debts and personal Chattels and actions are thereby given him as well as goods in possession and here in 29 Eliz. 6. § 4. N. 3. as take and seize referre to two parts of the Recusants Lands and Tenements so enjoy referrs to goods and the King shall enjoy the debt due by the Recognizance Nor doth it alter the Case for that the Recognizance was acknowledged for performance of Covenants in an Indenture concerning a rent charge in fee which seems to savor of the realty for it was originally for the loan and forbearance of mony which is personal 12 Co. 1.2 Ford and Sheldon 3. If a man who is a Recusant take such a Recognizance in the name of another the King upon his Conviction shall have the Recognizance for when the Recusant was such at the time of the Recognizance taking it shall be intended that it was done by Covin and that he took it in the name of another with an intent to prevent the King of levying of the forfeiture And such Covin shall not Bar the King 12 Co. 2.3 4. If a Recognizance or obligation be forfeited to the King by force of 29 Eliz. 6. § 4. N. 3. he may grant it over as he may any other Chattel in Action under his private Seal 1 Rol. 7. pl. 8. Cullom versus Sherman Page 106. A Rent of Inheritance CI. Forfeiture and an Advowson in gross are comprehended under this word Hereditaments 29 Eliz. 6. § 4. N. 3. but whither the King may seize such an Advowson as part of his two parts and present by vertue thereof since 3 Jac. 5. § N. which gives the presentation to the Universities see Infra Page 106 107. CII Copy-hold It hath been much disputed whither Copyhold Lands are within this branch of the Statute 29 Eliz. 6. § 4. N. 3. of all other the Lands Tenements and Hereditaments lyable to such seizure or to the penalties aforesaid For regularly in Acts of Parliment which are enacted for forfeiture of Lands Tenements and Hereditaments Copyholds shall not be forfeited but only Lands Tenements and Hereditaments which are such as the C. Law and not those which are such by custome only as Copyholds are And it was agreed in Heydons Case 3 Co. 8 Savil 66 pl. 138. that where an Act of Parliament alters the service or tenure or other thing in prejudice of the Lord there general words in the act of Parliament shall not extend to Copyholds And if the King should seize them by force of the general words 29 Eliz. 6. § 4. N. 3. Lands Tenements and Hereditaments the Lord would during the time they are in the Kings hands lose his Seigniory customes and services But yet it was held by Manwood Chief Baron and Baron Clerk 1 Leonard 97. pl. 126. in the Case of Sulherd and Everet Mich. 30. Eliz. that Copyholders are within 29 Eliz. 6. § 4. N. 3. and altho Manwood seemed to grant that they are not within it directly by express words yet they both conceived they were within the intent of the Act by reason as Manwood said of these words all other the Lands c. liable to such seizure or to the penalties aforesaid 2. But it was granted on all hands that by these general words here 29 Eliz. 6. § 4 N. 3. the King hath not any estate given him in the Recusants Copyhold Lands but only a right and title to two thirds of the profits By the Kings receiving of which the Lord cannot be impeached of his customes and services as he would be if the King should seize the land it self And a difference was there taken 1 Leonard 98. pl. 126. between an Act of Parliament which transsers an Estate to the King and an Act of Parliament which gives him only the profits of the Estate for in the first Case the Rule 3 Co. 8. that Copy-hold Lands shall not pass by general words shall stand good for the prejudice that may otherwise accrew to the Lord But where the Lords Seigniory Custome and services are not to be impeached or taken away as here they will not by the Kings bare
out all the aforesaid qualifications 35 Eliz. 2. § 3. N. 1. required in him who hath a certain place of abode 2. And it clearly distinguishes between him who is convicted for not repairing to some Church c. which 35 Eliz. 2. § 3. N. 1. is required in those whose abode is certain and him who doth not usually repair to some Church which 35 Eliz. 2. § 4 N. 1. in those whose abode is uncertain it is sufficient to bring them with 〈◊〉 the danger and penalty of this Law if they repair not to the place appointed them by this Act or remove above five miles from thence 3. And 't is observable that in this Clause 35 Eliz. 2. § 4. N. 1. which speaks of the Popish Recusant who hath no certain place of abode there is no mention made of Forty days to be allowed him after his Conviction to repair to the place appointed him the reason ' whereof is because it takes in the whole kind of such Popish Recusants as well the not Convicted as the Convicted and makes no distinction between them if they have no certain place of abode Et ubi lex non distinguit nee nos distinguere debemus 4. Nor was it without great reason 35 Eliz. 2. § 4. N. 1. that ubiquitary Popish Recusants should be consined whether they were Convicted or not Convicted as for the other who have a certain place of abode it is to be presumed that the most considerable of them would be prosecuted and convicted for their Recusancy in the respective places where they dwell and de minimis non curat lex may in this Case be applyed to persons as well as in other cases to things but as for him who is fixed to no certain place as he is the more dangerous of the two so the more unlikely to be persecuted to a Conviction being here one day and gone the next and therefore the less taken notice of and had 35 Eliz. 2 § 4. N. 1. taken in only such as are convicted it would have been cluded and rendred inessectual for want of a Conviction of the greater part of such ubiquitary Recusants 5. The want of due consideration of 35 Eliz. 2. § 3. and 4. in each of these parts of it hath occasioned some mistakes and Wingate Crown 78. restrains both parts 〈◊〉 it to Recusants convicted and makes no mention that such as have no abode must â—e in England at the time of their Conviction And in the late Additions to Dalton cap. 81. Sect. 14. t is not only said that both sorts must be Convicted but that they must be in England at the time of their Conviction which two things are only requisite in such who have a certain place of abode and not in the other sort who have no abode who are within the meaning and danger of 35 Eliz. 2. § 4. N. 1. without any precedent Conviction for Recusancy CXXIX Lieu. Page 134. A Popish Recusant repairs to the place appointed him by this act 35 Eliz. 2. § 3. and 4. and keeps within his compass of five miles but doth not present himself or deliver in his name as 35 Eliz. 2. § 6. N. 2. he doth not forfeit his goods or Lands for there is no particular penalty inflicted in this part of the Act for that omission nor yet in the subsequent branch 35 Eliz. 2. § 8. N. 2. for him that hath 20 marks per annum in freehold or goods and Chattels worth forty pound But yet such person may be Indicted for such neglect and fined upon the general words 35 Eliz. 2. § 6. N. 1. which commands Indictment the thing to be done for where an Act of Parliament Commands any thing to be done and inflicts no penalty an Indictment lyeth against the person who ought to do it for his neglect or omission 2 Inst 55.163 3 Cro. 655. Crouthers Case CXXX Exile Page 135 136. If any such person or persons being a Popish Recusant 35 Eliz. 2. § 8. N. 2. that is any popish Recusant within the former branches of the Statute and none but such Dalton Cup. 45. tit Recusants applieth 35 Eliz. 2. § 8. N. 2. to Popish Recusants Convicted as if it concerned them and them only and so both at once extends and restrains the Stature 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 abode within this Realm altho he be convicted is not within 35 Eliz. 2. § 3. and § 8. N. 2. unless he were a Popish Recusant and in England at the time of his Conviction And the Popish Recusant who hath no place of abode within this Realm is within 35 Eliz. 2. § 4. and 8. altho he were never convicted So that either of these sorts of Popish Recusants who have an Estate under value viz. he who hath no place of abode and he who having a certain place of abode was Convicted when a Popish Recusant and in England and no other are lyable by 35 Eliz. 2. § 8. N. 4. to abjuration CXXXI Estates Page 136. Of the clear yearly value of twenty marks above all charges 35 Eliz. 2. § 8. N. 2. A rent charge of forty pound per Annum is issuing out of lands worth C. l. per Annum A Popish Recusant lyable to be confined by this Statute purchaseth for his life or in Fee parcel of of the Lands of the clear yearly value of 20 Marks over and above what his proportion of the said Rent-charge comes to this is an Estate of the clear yearly value of 20 marks within the meaning of this Act and shall free him from abjuration For altho in strictness of Law his Estate be not clearly so much above all charges for that it is chargeable without yearly Rent of 40 l. yet in equity he shall pay no more then his proportion of it which the Land he purchased will discharge and yet yeild 20 marks per Annum clearly besides Page 136 137 CXXXII This Statute 35 Eliz. 2 § 8. N. 2. Or Goods and Chattels being in the disjunctive Lands or Goods an Estate partly of Lands and partly of goods will not satisfie the intent thereof and therefore if a Popish Recusant who offends aginst this Act hath 15 marks per Annum yearly in Lands and be worth 30 l. in goods altho this taken together be in truth an estate of more value then is here required yet it shall not free him from abjuration for 35 Eliz. 2. § 8. N. 2. doth not warrant any valuation of the goods and Lands 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 2 H. 5. § 2. cap. 3. § 1. N. 2. where t is said that the Juror shall have Lands of the clear yearly value of 40 s. if the debt or damage declared amount to 40 marks in which Case altho it be in the disjunctive debt or damage yet it hath been adjudged that where the debt and damages doth amount to 40 marks it is sufficient and the Juror must have 40 s. per Annum 1 Inst 272. For in that Case the word or is cumulative and debt or damage both amount to no more than one intire thing viz. The value of the Cause or Action depending And it appears plainly to be the intent of the makers of the Law 2 H. 5. Sect. 2. Cap. 3. § 1. N. 2. that no Cause declared to be of the value of 40 Marks shall be tryed by Jurors of a less Estate But in our Case the Lands and Goods are things of different natures one real and the other personal and cannot be regularly reduced under one and the same head and therefore shall not be valued together unless 35 Eliz. 2. § 8. N. 2. had expresly appointed such a valuation 2. But yet if a Popish Recusant hath a lease for years and personal Goods and both do amount in value to above 40. l. he shall be out of the danger of abjuration for altho the lease is in the realty and the goods are personal yet they shall in this Case be valued together For that by this Copulative and 35 Eliz. 2. § 8. N. 2. expresly so appoints without distinguishing between the values of either but makes it sufficient if both of them be of that value 3. Mony secured upon a Mortgage of Lands is within the meaning of these words Goods and Chattels 35 Eliz. 2. § 8. N. 2. And if the Popish Recusant hath above 40. l. owing to him upon such Mortgage he cannot be required to abjure CXXXIII Days Page 137. Within three months next after such person shall be apprehended or taken 35 Eliz. 2. § 8. N. 3. Wingate Crown 80. clearly mistakes the meaning for he saith that a Popish Recusant whose Estate is under value must make the submission prescribed by this Act within three months next after his arrival at his place of abode which is a complicated Error for he quites leaves out him who is to repair to the place where he was born or his Father or Mother dwells he makes the party lyable to such submission before he becomes an offendor by not repairing or not presenting himself and giving in his true name or Travelling above five Miles He speakes nothing of his being apprehended whereas by the Act he cannot be required to abjure until three months after his apprehension and he turns the three months after his apprehension into three months after his arrival all great mistakes and fit to be taken notice of by Justices of Peace whose part it is to require the submission and abjuration that they may not be misled in the Execution of this part of their office by trusting to that abridgment Page 138. CXXXIV Being thereunto required by the Bishop c. 35 Eliz. 2. § 8. N. 3. If the offendor be not before the end of the three months next after his appreliension required by the Bishop a Justice of Peace or the Minister or Curate to make such submission he cannot be required afterwards nor be compelled to abjure by force of this Act but if he be required within the three months to make submission and refuse he may be at any time afterwards warned or required to abjure CXXXV Exile Page 138 139. The Oath of abjuration 35 Eliz. 2. § 8. N. 4. may be in this form or to this effect You shall Swear that you shall depart out of this Realm of England and out of all other the Kings Majesties Dominions and that you shall not return hither or come again into any of his Majesties Dominions but by the licence of our said Soveraign Lord the King or of his heirs So help you God 3 Inst 217. Stamford 119.120 Wilkinson 66. hath set down another form c. resembling that of a Felon c. This hear you Sir Coroner that I J M. of H. in the County of S. am a Popish Recusant and in the contempt of the Laws and Statutes of this Realm of England I have and do refuse to come to hear Divine Service there read and exercised I do therefore according to the intent and meaning of 35 Eliz. 2. § 8. N. 4. c. abjure the Land and Realm of King Charles now King of England Scotland France and Ireland and I shall hast me towards the Port of P. which you have given and assigned to me and that I shall not go out of the high-way leading thither nor return back again c. If I do I will that I be taken as a Felon of our laid Lord the King and that at P. I will diligently seek for passage and I will stay there but one flood and Ebb if I can have passage and unless I can have it in such space I will go every day into the Sea up to my knees assaying to pass over So God me help and his holy Judgment But in alluding to the old Oath for Felony c. Wilkinson is mistaken in the very Offence for which the Popish Recusant is to abjure by force of 35 Eliz. 2. § 8. N. 4. For the Offence is not his Refusal to hear Divine Service for that is but one of the precedent qualifications of the person but the Offence it self is of another nature viz. his not repairing to the place the Statute appoints him or his removal from thence contrary to the Statute or his not presenting himself and delivering his true name as aforesaid Either of these if he be a Popish Recusant within the meaning of this Act is a Crime for which he ought to abjure unless he prevents his abjuration by a timely Submission Nor is the Popish Recusant bound to swear that he will not go out of the high way or return back or will tarry but one Flood and Ebb or go into the Sea up to his knees Nor ought the Coroner or Justices of Peace to require any such Oath of him for this is a new Offence made by a Statute Law which doth not require the strict form of Abjuration as in Case of Felony and altho the Felon were tied to these Circumstances yet the Recusant is not nor shall be a Felon for omitting them but 't is sufficient if he simply abjure as 35 Eliz. 2. § 8. N. 4. directs and go from the appointed Port within the time limited and not return without Licence into any of the Kings Dominions He that thus abjures the Realm doth yet owe the King his Ligeance and remaineth within the Kings Protection Qui abjurat Regnum amittit regnum sed non Regem amittit Patriam sed
but no particular cause for the recusants travel was expressed in the license and this seems to be a good exception for the inserting into the License that the Popish recusant hath urgent or necessary occasion or business answers only the former part of this Proviso 3 Jac. 5. § 7. N. 2. which gives the former Justices power to license him if he hath necessary occasion or business to travel out of the compass of five miles but withall it ought to be mentioned in the license particularly what that occasion or business is which is the cause of the License for so this Act here 3 Iac. 5. § 7. N. 3. expressly appoints and therefore that form of a License for a recusant to travel which Dalton 379 Cap. 124. tit licenses hath set down wherein no cause is mentioned but urgent and necessary business seems too short and general and is not to be relyed on Page 210 CCXXVIII First taking his Corporal oath 3 Iac. 5. § 7. N. 4. in Mansfiel ca. Moor 836. pl. 1127. there is another oath mentioned for a Popish recusant to take before he can be licensed to travel and that is the oath of Allegiance prescribed by 3 Jac. 4. § 25. N. 1. for in Moor 836. it 's said that in an Information brought against the recusant for travelling out of the compass of five miles the defendant pleaded a licence from four Justices of peace and his plea was disallowed because among other things that did not shew that before the licence he had taken the oath of Allegiance yet Quaere of this and by what Law the omitting to take that Oath makes the Licence void but I rather think it to be a mistake and that such an exception might be moved but the plea not disallowed for that reason Page 210 211. Before the said four Justices of the Peace or any of them 3 Jac. 5. § 7. N. 4. Master Shepherd in Sure Guide Cap. 14. Sect. 5. thinks that no less than two of the four Justices of the peace can minister this Oath to the recusant But I take it to be there that any one of the four Justices may minister the Oath in this Case And there is a great difference between any Justices for that denotes the Plural number as in the subsequent clause 3 Jac. 5. § 27. N. 1. where any Justices may imprison the Offender that is any two Justices or more and Any of the Justices are here 3 Iac. 5 § 7. N. 4. which denotes the singular number and the following words who shall have Authority by vertue of this Act to minister the same may be well enough applied to any one Justice of peace Page 211. CCXXX That he hath truly informed them of the Cause of his journey 3 Iac. 5. § 7 N. 4. If an information be brought against a Popish recusant for travelling out of his compass of five miles and he plead a licence from four Justices of peace it seems necessary that he averr in his plea that the cause contained in his licence was true and real Moor 836. pl. 1127. CCXXXI Ability Page 212. This clause 3 Iac. 5. § 8. N. 9. extends not to all sorts of recusants who are convicted or have Wives who are recusants convicted as is mistaken in the Additions to Dalton Cap. 81. Sect. 46. tit Recusants but at this day only to the Popish recusant convicted or having a Wife who is a Popish recusant convicted A Popish recusant not convicted hath a Wife who is convicted of recusancy but is no Popish recusant the Husband is not disabled by 3 Iac. 5. § 9. N. 1. to exercise any publick Office or Charge for that neither the Husband is a convicted recusant nor the Wife a Popish recusant A person who is convicted of recusancy but is no Popish recusant hath a Wife who is a Popish recusant but not convicted the Husband is out of this branch of the Statute 3 Iac. 5. § 9. N. 1. for that neither the Husband is a Popish recusant nor the Wife convicted CCXXXII Women Page 213 214 215. The Issues and Profits of two parts of her Dower 3 Iac. 5. § 10. N. 1. and not of two parts of her Joynture or Dower as Wingate Coron 134 For there are divers Cases where notwithstanding 27. H. 8.10 § 6 N. 3. the Wife shall have her Dower and Joynture both and if she offend against 3 Iac. 5. § 10. N. 1. she shall forfeit the profits of two parts of both and that not only where the Joynture made to her is not warranted by 27 H. 8.10 § 6. N. 1 But in some Cases where the Joynture is pursuant and according to the Statute she shall have her Dower and Joynture both If an Estate be made of Lands to the wife for the Life of another Dower 4 Co. 3 Vernons Case Or for a thousand years if she lives so long 1 Iust 36. Or if a Rent be granted to the Wife for the life of another or for years or any other way not pursuant to 27. H. 8.10 § 6. N. 1. Bickley's Ca. 1. Anderson 288. pl. 296. and 2 Anderson 30 pl. 2. Wentworth's Case Or if an Estate be made to others in Fee or for the Wives life upon trust for her benefit 1 Inst. 36. Or if a man covenant to stand feised to the use of himself in Tayl the Rem to the use of his Wife for life Pasch 16. Jac. B. R. Wood's Ca. Or if the Husband make a Feoffment in Fee to the use of himself for life the Remainder to another for life or years the remainder to the Wife for her life 4 Co 2. Hutt 51. Shrewell's Ca. In all these Cases altho the Lands or rent were conveyed to the Wife for her Joynture yet the Estate not being within 27 H. 8.10 § 6. N. 1. her acceptance thereof shall not barre her Dower but she shall have such Joynture and her Dower also And the reason why in the two last Cases the Wife shall not be barred of her Dower altho there be an Estate limited to her for her life is because the Estate is not in its first Creation appoynted to take immediatly after the death of the Husband and no matter which ariseth ex post facto can salve this or make it a Joynture within 27 H. 8.10 § 6. N. 3. to barre her Dower And therefore if in Wood's Câ—â—â—â—… the Husband Tenant in Tayl dyeth without issue or if in Hutt 51. he in remainder dye before the Husband or the term for years determine in the Husband's life-time so that the Wife may enter presently after his death yet because the Estate to the wife for her life was not originally limited to take immediately after his death it shall not barre her Dower quod ab initio non valet c. And as in all the Cases befo-rementioned if the Estate were made for her Joynture the Wife shall have such Joynture and Dower both so if
she be an Offender within 3 Jac. 5. § 10. N. 1 and conform not within the year next before her Husband's death she shall forfeit the profits of two parts of both 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 recompense of her Dower and therefore if any of the Estates before-mentioned which are not within 27 H. 8.10 § 6. N. 1. 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 seised 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 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 barre her Dower out of the Residue of her Husband's Estate but that she shall enjoy both the one and the other 4 Co. 4. So they are not within the meaning of this Act 3 Jac. 5. § 10. N. 1. because not made for her Joynture and she shall not forfeit the Profits of two parts of them altho she may forfeit the Profits of two parts of her Dower which she hath out of the residue of her Husband's 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 Joynture 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 Husband's Estate for that the Lands first settled on her were not for her whole Joynture 1 Inst 35. and 4 Co. 3. 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 in such Cases where the Joynture is not pursuant to 27 H. 8.10 § 6. N. 1. 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 assigne other Lands to her in Dower or the Heir plead to her in a Writt of Dower ne unques seisie que Dower c. or nient accouple in Loyal Matrimony or any other plea save Joynture in Barre 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 3 Jac. 5. § 10. N. 1. shall forfeit the profits of two parts of her Joynture and Dower both But if a Widow who is endowed of the Lands of her deceased Husband takes a second Husband who is no Popish Recusant convicted by whom she hath a Joynture and she becomes a Popish Recusant convict and the second Husband dyeth and the Wife is Offender within 3 Jac. 5. § 10. N. 1. In this Case she shall not by force thereof forfeit the profits of two parts of such Dower and Joynture both but only of her Joynture 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 CCXXXIII Judgment Page 216. Convicted of Popish Recusaney 3 Jac. 5. § 11 N. 1. The conviction mentioned here and in the other Branches of this Statute seems to be intended not only of a Conviction according to 26 Eliz. 6 § 5. N 5. or 3 Jac. 4. § 7. N. 2. upon Proclamation and default of appearance but of a judgment likewise upon an Indictment or popular suit on 23 Eliz. 1. § 5. N. 1. and 11. N. 1. for Conviction in relation to these three last mentioned Remedies is to be taken for adjudged or attainted supra 63. N. 2. 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 King's suit is hereby disabled as an excommunicate person and liable to all other the penalties and incapacities inflicted by this Act 3 Jac. 5. on a Popish Recusant convicted CCXXXIV Excomgent Page 216 Reputed to all intents and purposes disabled as a person c. excommunicate 3 Jac. 5. § 11. N. 1. and not reputed to all intents as an excommunicate person as Wingate Coron 135 mis-recites 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 infra 243. and yet 2 Bulstr 145.155 the opinion of the Court in B. R. Mich. 11. Jac. Griffith's Ca. seems to be to the contrary that a Popish Recusant convicted may by force of 3 Jac. 5. § 11. N. 1. be attached upon a Writ de excommunicato capeindo 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 to be a witness in any Cause between Party and Party by Coke Ch. Inst 2 Bulstr 155. Page 216 217 218. CCXXXV May plead the same in disabling of such Plaintiff 3 Jac. 5. § 11. N. 2. this disability in the Popish Recusant convicted is but Quousque c. untill he conform c. and take the Oath of Allegeance 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 the person The Defendant in debt upon an Obligation pleads that the Plaintiff is a Popish Recusant convict who replyeth 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 the Justices of Gaol delivery and the Defendant mistakes Certiorari and takes out a Certiorari to the Justices of Peace this shall not be a failer of the Record altho the Defendant hath it not at the day for that the issuing of a Certiorari was the Award of the Court but a Certiorari shall be awarded de novo to the Justices of Gaol delivery before whom the Plaintiff was convicted Hob. 135. Pye and Thrill Note If the Defendant be sued in C. B. or any other of the Principal Courts at Westminster and he plead a Conviction of Recusancy before the Justices of Gaol delivery or Justices of Peace he need not take his Certiorari out of the Chancery and so bring it by Mittimus but the Court may send a Certiorari immediately to that inferiour Court where the Plaintiff was convicted as was held Hob. 135. See 19 H. 6.19 And the Justices themselves before whom the Conviction was had must certify and therefore if the Conviction was had before Justice of peace the Certificate cannot be by the Custos Rotulorum alone though he keep the Records for the Certiorari is in such Case directed to the Justices of peace Hob 135. A Popish Recusant is convicted of recusancy in a popular suit and after such Conviction sues the Informer qui tam c. upon some other matter or cause of action arising between them Quaere whether the Desendant may plead such Conviction in disability of the Recusant by 3 Jac. 5. § 11. N. 2. for this Conviction disables the Recusant to sue as if he were excommunicated and no otherwise Now if a Bishop excommunicate any one and the Bishop be afterwards sued at Law for any other matter or cause by the person so excommunicated the Bishop cannot plead this Excommunication in disability of the plaintiff who sueth 1 Inst 134. Swinborn 305. part 5. sect 6. and the reason given for this 8 Co. 68. in Trollop's Case is because the Bishop was a party to the Excommunication and therefore shall take no advantage by it Which reason seems to hold likewise in the case of an Informer Qui tam c. who is a party to the Conviction of the Recusant upon the popular suit which conviction renders the Recusant disabled to all intents as an excommunicate person and therefore he being a party to it by the same Rule shall not take advantage of it in disability of the Recusant in any action brought by the Recusant against him But yet notwithstanding I conceive the Informer qui tam c at whose suit the Recusant was convicted may well take advantage of this Conviction and plead it in disability of the person of the Recusant and that the true reason why the Bishop shall not be admitted to plead an Excommunication pronounced by him in disability c. is not because he is a party to the Excommengement but because in matters of Excommunication the Bishop acts as judge and 't is by his Sentence and Authority that the party is excommunicated and he shall not take advantage in another suit of a sentence given by himself judicially and this will not hold in the case of an Informer c. 14. H. 4.14 If an Executor or Administrator becomes a Popish recusant convict it seems he is disabled by this Act 3 Jac. 5. § 1. N. 1. to sue in either of these capacities for 3 Jac. 5 § 11. N. 1. saith he shall be disabled to all intents as an excommunicate person Now a person actually excommunicated can not sue as Executor or Administrator as is held 21 Ed. 4.49 21 H. 6.30 and 14. H. 6.15 and 1 Inst 134. altho there are some opinions to the contrary Finch 27. Page 219 CCXXXVI 220. Which are not to be seized or taken into the King's hands c. 3 Jac. 5 § 12. N. 1. these words are not restrained to such Lands c. as cannot be seized into the King's hands for recusancy for then the Recusant could in no case sue for more than the third part for that the King may if he please make his Election and seize the other two parts in lieu of the XX. lb per Month But they are intended of all Lands c. of the recusant which neither the King hath seized nor are by Law to be seized by vertue of any thing which the king hath already done or in respect of what the recusant after his conviction hath omitted to do And therefore if a man be convicted of recusancy upon a popular suit or an action of debt at the King's suit alone in which cases the penalty of XX. lib. per Month is not appropriated to the King for the time to come and he payeth the penalty recovered or if he be convicted upon Indictment and after such Conviction duly payes the XX. lib. per Month into the Exchequer and the King makes no Election to take the two third parts of his Estate in lieu thereof such Recusant may by this Proviso 3 Jac. 5. § 12. N. 1. in either of those Cases sue or prosecute for any of his Lands Tenements Leases Rents Annuitys or Hereditaments whatsoever notwithstanding his conviction for when the penalty recovered is satisfied or the forfeiture appropriated to the King is duely paid into the Exchequer his lands c. are not to be seized by force of any Law for recusancy unless the King make his Election to have the two parts and untill that Election they cannot in the sense of this Proviso 3 Jac. 5. § 12. N. 1. be said to be Lands to be seized or taken into the King's hands for that the King cannot have the two parts and the XX. lib. per Month both But if the King make no such Election and the XX. lib. per Month be duely paid into the Exchequer the Recusant is to hold and enjoy all his Lands Tenements c. as if he had never been convicted and during that time there can be no distinction made between the two parts and the Recusants third part so that in this Case the recusant must either be enabled to sue and prosecute for all his Lands c. or none and and to think the latter of these were to render this Proviso 3 Jac. 5. § 12. N. 1. nugatory and vain But when once the King hath seized the two Thirds for Recusancy either by way of Election or for non-payment of the XX. lib. per Month penalty then the Recusant is enabled to sue only for the other Third part whether in the hands of the King or of a common person CCXXXVII Marriage Page 220 221. Every man being or which shall be a Popish Recusant convicted 3 Jac. 5 § 13. N. 2. A man who is no Popish recusant convicted marrieth a Woman who is a Popish recusant convicted in other form than is here
two Justices Hutton and Iones were divided in opinion upon this point For Hutton held that that which is given to the University by 3 Iac. 5. § 19. N. 1. is a settled 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 52 H. 3.6 § N. and to that of the Counsel by action Burnell 11 Ed. 1. pag. 35. § N. and to an Estate given to a man until C. lib. be paid In all which Cases the party hath a settled Estate and Interest in the Land But Iones contrary that the University by 3 Iac. 5. § 19. N. 1. hath 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 13 Ed. 1.5 § N. and to that given by 25 Ed. 3. St pog 121. § N. of Proviso's where the Pope provides and to that given to the King by 31 Eliz. 6. § N. of Symony In which Cases no Estate or Interest is transferred but only a power or liberty granted to present For this Act 3 Jac. 5. § 19. N. 1. doth not remove the patronage from the Popish Recusant but that continues still in himself 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 divested out of him nor consequently settled in the University Note Altho this 3 Jac. 5. be a general Statute and 3 Jac. 5. § 18. N. 1. be general of which the Judges ought to take notice yet this part of it 3 Jac. 5. § 19. N. 1. 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 Hob. 227. An. Needlers Case and 10 Co. 57. and 4 Co. 76. Hollands Case 13 Ed. 4.8 Page 230 231 232 233. During such time as the Patron thereof shall be and remain a Recusant convict 3 Jac. 5. § 19. N. 1. If the University bring a second Impediment 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 second Impediment for when the presentment hac vice is once vested in the University altho the Recusant conform or dye yet the University shall present These words 3 Jac. 5. § 19. N. are words of Restraint and the Statute gives only a limited power to the University scilicet 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 altho 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 Tall or for life or years these Cases are out of the Statute 3 Jac. 5. § 19. N. 1. And altho after the Grant she becomes a Popish recusant convict and then the Church becomes void yet the University shall not present And if seems that altho the Patron make such a Grant of the advowson after his conviction and before the Church is void yet this shall barre the University for the patronage was before the Avoidance removed from the Reversion Jones 12.10 Co. 56. contrary to the opinion of Hutton who held that if a man made 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 Avoydance which extends not to any of the Grants before-mentioned nor severs the patronage from the Patron as those other Grants do And the intent of 3 Iac. 5. § 19. N. 1. is to prevent a Presentation by the Recusant or by him to whom he should grant the Avoidance who it was presumed would present such a one as the Recusant should appoint But now when he grants the Advowson it self away that Mischief is prevented and the Statute 3 Jac. 5. § 19. N. 1. 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 or in Tayl 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 barr the University 10 Co. 56. Jones 20. supra 246. N. 3. See Godbolt 216 Pl. 309. But then the 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 c. A man seis'd inter alia of an Advowson in gross becomes a Popish Recusant convict the King seiseth the Advowson as part of two parts the Church becomes void in this Case it was held by Hutt that the University and not the King shall present but Jones 17 held strongly to the contrary and that notwithstanding 3 Jac. 5. § 19. N. 1. the King shall have the Presentation for 3 Jac. 4. § 11. N. 4. saith that the King may take and seize two third parts of a Recusants Hereditaments under which word an Advowson is comprehended supra 178. N. 2. And altho the power or liberty of presenting is here 3 Iac. 5.19 N. 1. given the University yet that is to be intended only in such Cases where a Popish recusant convict is Patron but when the King hath seized the Advowson as part of his two parts the King is Patron and not the Recusant nor shall the title the King hath to the Advowson by 3 Jac. 4. § 11 N. 4. be divested by another Act of Parliament unless it had been given away from the King in express terms which Warb. and Winch. agreed To this it hath been objected that when 3 Jac. 5. § 18. N. 1. disables the Recusant to grant any Avoidance it disables him to grant it to the King as well as to any other person but if the Recusant may forfeit the Advowson to the King he may forfeit the avoidance to the King and every forfeiture being a Grant or Gift in Law as Com. 260.263 263. Hales Case the Recusant by consequence may grant