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
there is a great difference between the penning of this Statute 35 Eliz. 2. § 15. N. 1. and 35 Eliz. 1. § 1. N. 5. for in 35 Eliz. 1. § 1. N. 5. there is an express designation of the place where such Submission and Declaration shall be viz. in any Church Chappel or usual place of Common prayer whither the Offender comes and this shall free him from his Imprisonment supra 112 But 35 Eliz. 2. § 8. N. 3. Where 't is said that he shall abjure unless he comes usually to Church and make such Confession and Submission c. His coming usually to Church cannot be applied to his Confession and Submission for that is to be made but once and not usually and therefore there being no place appointed where this Confession and Submission shall be made we must necessarily have recourse to 35 Eliz. 2. § 15. N. 1. where a place is appointed viz. some Parish Church So that the coming usually to Church without this formal Submission and Confession or Declaration in some Parish Church frees not the Offender here in any Case from abjuration Altho the coming to any Church Chappel or usual place of Common-prayer and hearing Divine service and making open Submission and Declaration there shall free an Offender within 35 Eliz. 1. § 1. N. 5. from Imprisonment Page 144 145. CXLVI Submission 35 Eliz. 2. § 15. and 16. If a Popish Recusant Indicted upon this Statute makes his Submission and brings with him into B. R. a testimonial thereof it is the Course of that Court to cause him there to make his Submission again upon his knees which the Clerk of the Crown reads to him and so was it done Pasch 2. Car. 1. Latch 16. in the Case of one Throgmorton but Jones Justice said there was no Statute to compel him to this second Submission and Throgmorton complained that he was not therein dealt with according to Law 2. 35 Eliz. 2. § 16. N. 2. Is Over her Majesty or within any her Majesties Realms or Dominions And not over her Majesty within any her Dominions as Wingate Crown 85. grosly misrecites for that denies only Popes or See of Romes Authority over her Majesty but not any other ther Authority which they might claim over her Subjects And 't is clear by the disjunctive or which Wingate omits that both these Authorities are intended to be denied by this Submission these words or any Colour or means of any Dispensation which are a very material part of the Submission are likewise omitted by Wingate CXLVII Certificate Page 145. Such Relaps 35 Eliz. 2. § 18. N. 1. with the Indictment thereof is to be certified into the Court of Exchequer as was done by the Justices of B. R. 1 Bulstrode 133 in the Case of Francis Holt Pasch 9 Jac. 1 Iac. 4. Of SEIZVRES CXLVIII Oath PAge 147. By the Oath of Obedience is here 1. Jac. 4. § 1. N. 2. meant the Oath of Supremacy in 1. Eliz. 1. § 19. N. 4. supra and by that name it is here called afterwards 1 Jac. 4. § 3. N. 2. Crompt 13. Page 148. CXLIX It hath been doubted on 1 Jac. 4. § 2. N. 1. whether these words Accodring to the true meaning of the Statutes in that behalf do refer only to the manner of the Recusants Conformity or to the time likewise when it is to be done as well as to the manner For if they refer to the time then the Recusant is still bound notwithstanding this Statute to Conform before Judgement according to 23 Eliz. 1. § 10. N. 1. or his Conformity afterwards shall not discharge him of the penalty But the better opinion is that by these words according to the true meaning of the Statutes 1 Jac. 4. § 2. N. 1. is to be Intended only that the Recusant must Conform in such manner as is there appointed But as to the time the general words 1 Jac. 4. § 2. N 1. have enlarged the time limited by 23 Eliz. 1. § 10. N. 1. For this Statute 1 Jac. 4. § 2. N. 1. is made in further favour of the Recusant So that now if he Conforms after Judgment 't is time enough and he shall be discharged of all penalties in respect of his Recusancy 2. And if an Information tam pro Domino Rege quam pro seipso be brought upon 23 Eliz. 1. § 11. N. 1. against the Recusant and after Judgment had against him thereupon he Conforms he shall be discharged of the Judgment but first his Conformity must appear of Record otherwise the Court cannot take notice of it and as for that his Remedies against the King and the Informer must be several for against the Informer he must bring his Audita Querela and against the King he must plead his Conformity which he may do in this Case after Judgment for that no Audita Querela lieth against the King 11 H. 7.10 and it he should not be admitted to plead he would be without any legal Remedy to discharge himself of the forfeiture and Judgement as to the Kings part whose Execution will not be hindered by the Audita Querela against the Informer But if the Defendant neglect to put in his Plea and Execution issueth for the King and he be taken in Execution he comes too late to plead his Conformity and hath then no other way left to releive himself as to the Kings part but by his Petition to the King to pardon the Debt 2 Bulstrode 324 1. Rol. 95. Dr. Fosters Case Savil 23. pl. 56. Tiringhams Case CL. Heir Page 149. If any Recusant shall hereafter die 1 Jac. 4. § 3. N. 1. that is a Recusant either Convicted upon Proclamation and default or Convicted by Verdict Confession c. and adjudged for in both those Cases if the Recusant die the discharge of the Heir depends upon his Conformity CLI Forfeiture Page 149 150. Of all and singular the penalties Charges and Incumbrances 1 Jac. 4. § 3. N. 1. If Judgment be had at the Kings suit against a Recusant Tenant in Tail for Recusancy this is a charge and Incumbrance within this Stature of which the Heir in Tail shall not be discharged unless he conforms but must satisfie all the Arrears incurred in the life time of his Ancestor For it being a debt to the King upon a Judgment the entailed Lands are lyable thereto by 33 H. 8.391 § N. But these two Clauses 1 Jac. 4. § 3. N. 1. discharge the Arrears of the 20 l. per month Incurred in the Recusants life time upon the Conformity of the Heir in such Cases only where the two parts of the Recusants Lands were not seized before his death For if they are seized in his life time and continue so till his death neither his fee simple Lands nor his Intailed Lands if a Judgment were had against him for his Recusancy at the Kings suit shall be discharged upon the Heirs conformity without payment of
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
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
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
Goods or Lands cannot be seized for the forfeiture or penalty where the Wife only is Indicted and Convicted of the offence 4. A Recusant is Indicted for absenting himself from Church for twelve months and afterwards is Convicted upon that Indictment Quaere whither nevertheless the Informer Qui tam c. may not sue him for his absence for the months intervening between the time laid in the Indictment and the time of Conviction For these words here 3 Jac. 4. § 8. N. 2. viz. after such Conviction seem to relate to the proximum antecedens Every month and to imply that the penalty here appropriated to the King is only the penalty due for the months which Incurre after such Conviction upon Indictment at the Kings suit but not to hinder the Informer after Conviction from suing for the months incurred before Conviction CLXXIV Forfeitures Page 168. Except in such Cases where the King shall c. Refuse the same 3 Jac. 4. § 8. N. 3. Jenes 24. in Standens Case if a man be Indicted and Convicted of Recusancy the King is not bound to stay till next Easter or Michaelmas Term to see whither the Recusant will tender twenty pound for every month contained in the Indictment and incurred after such Conviction for the King by 3 Jac. 4. § 11. N. 4. having his Election whither he will accept thereof or seize two parts of the Recusants Lands a Commission for seizure of the Lands may Issue out presently if the King will waive the twenty pound per mouth for he may take his Election as soon as he will after Conviction by Jones Justice Page 168 CLXXV 169. All the Goods 3 Jac. 4. § 9. N. 2. A Recusant Convicted is Tenant for life the remainder to a stranger in Fee he in Remainder with the Recusants Assent cuts down Timber Trees and sells them in this Case the King can be no wayes entitled to the Trees 1 Bulstrode 133. Page 169. CLXXVI All other the lands c. lyable to such seizure or to the penalties aforesaid 3 Jac. 4. § 9. N. 2. Lane 105 106. Halseyes Case Lands are Conveyed to a trust for B. a Convicted Recusant Quaere whither the King may seize such Lands for the Recusants non-payment of the twenty pound per month for if he make his Election and accepts of two thirds in lieu of the twenty pound per month there is no question but such Lands are lyable to seizure for the words of 3 Jac. 4. § 11. N. 4. are that the King may seize two parts of all Lands that shall come to any other person to the use of or in trust for such Recusants but in 3 Jac. 4. § 9. N. 2. which relates to the seizure of two parts for non-payment the words seem to be more restrictive Page 171. CLXXVII Tho it be tendered or ready to be paid 3 Jac. 4. § 11. N. 4. by this branch of the Act a new advantage is given to the King against the Recusant for whereas by 29 Eliz 6. § 4. N. 2. the Convicted Recusant had his Election to pay the King twenty pound per month and so prevent the Seizure of the two third parts of his Lands now by 3 Jac. 4. § 11. N. 4. that Election is taken away and the choice is given to the King whether he will accept of the twenty pound per month or refuse it and seize two third parts of the Recusants Lands in lieu thereof and if the King chuseth the Lands the tender of the twenty pound per month at the Exchequer will not save the Seizure but the King shall enjoy the Lands notwithstanding Jones 24 25. Standens Case Page 171 172 173. CLXXVIII Hereditaments 3 Jac. 4. § 11. N. 4. An advowson is an Hereditament and passeth by that word 18 Eliz. Dyer 351. and is demisable by 32 H. 8.1 § N. as an Hereditament And if it be an Advowson in gross yet it may be seized by the King by 3 Jac. 4. § 11. N. 4. as part of his two parts of the Recusants Hereditaments Jones 23 24. for t is a thing valuable and shall be Assets and is extendable for the Kings debt and upon a writ of right of an Adowson there shall be a Recovery in value 9. 11. scil for every mark twelve pence Hob. 304. Britton 185. 1 Inst 185. 2. In the late additions to Dalt cap. 81. Sect. 23. 't is said that the King may refuse the twenty pound per month and take to two parts of the Recusants Lands and all the goods c. And an Advowson is not of 3 Jac. 4. § 11. N. 4. and Standens Case cited But this is a mistake as to the Clause it self and as to the point in Law and the Authority brought for it for in truth there is no such Clause in this Statute nor in any other that the King upon the refusal of the twenty pound per month should take the Recusants goods for the seizure of the Goods is given 3 Jac. 4. § 9. N. 2. where the offendor failes of payment of the twenty pound per month but not where the King dischargeth him of that payment by refusing it so that where the King refuseth the twenty pound per month the Recusants Goods cannot be seized but only two parts of his Lands The Law likewise is mistaken for if the King refuseth the twenty pound per month he may seize an Advowson as part of his two parts as hath been said so that an Advowson is within 3 Jac. 4. § 11. N. 4. and not without it And the Case of Standen is quite contrary to that opinion in the late Additions to Dalt cap. 81. Sect. 23. for Justice Jones held strongly that an Advowson was within 3 Jac. 4. § 11 N. 4 and Hobart Chief Justice and Winch declared themselves to be of the same mind and Justice Hutton denyed not that an Advowson was within it only held that the force of 3 Jac. 4. § 11. N. 4. as to an Advowson in gross is taken away by 3 Jac. 5. § 19. N. 1. which gives the presentation to the University but the three other Justices were against him and held that where the King had seized it as part of his two parts and the Incumbent dyed the King should present and not the University Infrà 250. N. 5. 3. If the King seize by Inquisition two parts of a Mannor belonging to a Recusant Convict to which an Advowson is appendant by such seizure two parts of the Advowson are likewise seized by consequence altho it be not named in the Inquisition as was resolved in the Case of the Chancellor of Cambridg and Walgrave Hob. 126.127 Moor 872. pl. 1214. And there altho the King hath title but to two parts of the Advowson yet he shall present alone by his Prerogative and so he should have done where there were three Coparceners of an Advowson two of full age and one under age and in ward to
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