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
the King the King only should by his Prerogative have presented during the Wardship 47 Ed. 3.14 and 38 H. 6.9 But yet altho two parts of an Advowson shall pass to the King by the word Hereditaments and the Seizure of the Mannor shall draw with it the Seizure of the Advowson yet the Kings two parts of the Advowson shall not pass from him by such General words and therefore if the King seizeth two parts of a Mannor belonging to a Recusant Convict to which an Advowson is appendent and grants over his two parts of the Mannor to a Subject with all Hereditaments appurtenances c. yet two parts of the Advoswon will not pass unless specially named or the grant be adeo plene integre in tam amplis modo forma prout c. The Recusant had the Manor Hob. 126. Moor 872. Page 173. CLXXIX In lieu and full recompence of the twenty pound per month 3 Jac. 4. § 11. N. 4. So that if the King makes his Election to seize the two parts the Recusant is no longer lyable to pay the twenty pound per month but the two parts of his Lands shall go in lieu and full recompence thereof Jones 24. Standens Case Page 173. CLXXX Mansion-house is in Law most commonly taken for the Chief messuage or habitation of the Lord of a Mannor or the Mannor-house where he most remains or continues Termes de la Ley 199. But it is to be taken here 3 Jac. 4. § 12. N. 1. in a larger sense for any other house which is the Recusants chief dwelling house Page 174. CLXXXI These words passing c. and unknown 3 Jac. 4. § 13. N. 4. being in the Conjunctive it seems that the Bishop or two Justices ought not to examine upon Oath or tender this Oath to any passenger or Traveller quatenus such unless he be unknown viz such an one as conceals his true name or quality for so it must be reasonable intended and not of all Travellers through the Country as Wingate Crown 106. mistakes for it appears by the other qualifications here enumerated that the intent of the Act is that it shall be offered by the Bishop or two Justices to such only of whom there is any just Cause of suspition 7 Jac. 6. § 26. N. 2. Infra 260. CLXXXIL Imprisonment Page 175. there to remain without Bayl or maynprise 3 Jac. 4. § 14. N. 1. The Bishop or two Justices can not take Suretyes of him who refuseth the Oath for his appearance at the Assizes or Sessions as Wingate Coton 107. mistakes but must commit him immediatly to Goal nor can any other Court or Justices Bail him in this Case CLXXXIII Justices Page 175 Until the next Assises or General or Quarter Sessions 3 Jac. 4. § 14. N. 1. This being in the disjunctive the Bishop or two Justices have their Election to commit the Party refusing the Oath either until the next Assizes or until the next Sessions as they shall think fit for some may be more aptly committed untill the next Assises and some untill the next Sessions 12. to 131. Page 175 176. CLXXXIV These words any other Person whatsoever 3 Jac. 4. § 14. N. 3. are Exclusive of the said Person or Persons who are committed for refusal for 't is here in the disjunctive so that it seems that if any person whatsoever of the age of 18 years or above and under the degree of a Nobleman or Noblewoman be at the Assizes or General Quarter Sessions of the peace whether voluntarily or brought in upon process on an Indictment of recusancy or for any other matter and be there tendered this Oath and refuse to take it altho it were never tendered to him before yet upon his refusal there he incurs a praemunire and in this respect this Statute 3 Jac. 4. § 14. N. 3. is more Exclusive than 7 Jac. 6. § 26. N. 6. where there must be a prior tender and refusal of this oath otherwise a refusal of it at the Assizes or Sessions doth not make a praemunire by that act 12 Co. 131 infra 265. CLXXXV Corent Page 176. shall incurre the danger and penalty of premunire 3 Jac. 4. § 14. N. 3. If a man be committed by the Bishop or two Justices of peace for the refusal of this oath and the tender and refusal be expressed in the Mittimus the Justices of Assize or Justices of Peace in their Sessions are bound to take notice of this tender and refusal Indictment And after they have there made the party a second tender of the oath and he refuseth it by which he incurrs a praemunire the indictment against him to convict and attaint him of praemunire must contain all the special matter viz that he stood convicted or indicted of recusancy or that he had not received the Sacrament twice within the year next before or that passing through the countrey and unknown being examined upon oath he confessed or denyed not c. as the case is and that the oath was tendered to him by the Bishop or two Justices of peace Quorum â—â—us c. and he refused it and that it was again tendred to him in open Court and he again refused it for in this case the Mittimus is the ground upon which he must be proceeded against at the Assizes or Sessions But if the first tender and refusal be not expressed in the Mittimus or warrant of Commitment there altho there was a tender and refusal of the oath before the Bishop or two Justices yet the Justices of assize or Justices of peace in their Sessions can take no notice of it but they must there tender him the oath without reference to any prior tender which they may do by such of the General words any other person whatsoever 3 Jac. § 14. N. 3. and if he refuse he incurrs a praemunire and in this case the Indictment may be short and General scilicet that he was tendred the oath in the open Court and refused it c. and so it must be in all cases where in truth there was never any prior tender and refusal See 7 Jac. 6. § 26. N. 2. Whereby the power of the Justices of Peace is in some particular cases enlarged in reference to this oath of Allegiance infra 266. CLXXXVI Oath Page 179. unto which Oath so taken the said person shall subscribe his or her name or mark 3 Jac. 4. § 15. N. 6. if a man refuse to take any word of this oath 't is a refusal of the whole 1 Bulstr 198. Lord Vauxes Ca CLXXXVII Vilary Page 179. 180. Outlary 3 Jac. 4. § 16. N. 1. a Termor for years was utlawed upon an indictment of Recusancy the term was sold by the Lord Treasurer and Barons of the Exchequer and afterwards the utlary was reversed The Question was whether upon reversal of the utlary the recusant should have restitution of term again 3 Cro.
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
any Common Informer but the matter shall be heard and determined before Justices of Assize Nisi prius Goal-delivery or Oyer and Terminer or Justices of Peace in their general Sessions according to 21 Jac. 4. § 1. N. 3. but the Informer if it be for Recusancy may by force of that exception 21 Jac. 4. § 5. N. 1. lay or alledge such offence in what County he will for the said exception extends only to the County 21 Jac. 4. § 2. N. 1. and not to the Courts 21 Jac. 4. § 1. N. 5. where the Informer is to sue Which opinion of his touching the extensiveness of the exception is probable enough viz. that 21 Jac. 4. § 5. N. 1. extends only to the County and not to the Courts where the Informer is to sue for the latter part of it speaks only of the County but this is unaptly applied to popular Informations upon 23 Eliz. 1. § 11. N. 1. for they are not within the meaning of that branch of 21 Jac. 4. § 1. N. 5. touching the Courts where the Informer is to sue for 21 Jac. 4. § 1. N. 5. medles not with those Informations upon those penal Laws which give the Informer no other remedy for recovery of the penalty but by Debt Bill plaint or Information in the Courts of Record at Westminster Nor doth 21 Jac. 4. § 1. N. 3. give the Justices of Assize or other Justices there named any new or further power than they had before but only appoints that where Informations might have been brought before them or in the Courts of Westminster at the Election of the Informer now they shall be brought before Justices of Assize Nisi prius Goal delivery or Oyer and Terminer or at the Sessions of the Peace in the County where the offence was committed for the ease of the Subjects who are defendents and not in the Courts at Westminster 4 Co. 1. 1 Cro. 112.113 But in our Case of Recusancy there is no such Election given the Informer by 23 Eliz. 1. § 11. N. 1. but he is strictly tyed to take his remedy by debt Bill plaint or Information in one of the Courts at Westminster and therefore 21 Jac. 4 § 1. N. 5. extends not to it in that branch touching the Courts where the Informer is to sue And as for Sir Edward Cokes Opinion that since 21 Jac. 4. § 1. N. 5. the Courts at Westminster cannot receive or hold Plea of any Information brought by a Common Informer not only common Experience ever since that Statute is against it but the Judgments and resolutions both of B. R. Mich. 4. Car. 1. Greene and Guy 1 Cro. 146. pl. upon 21 H. 8.13 § 11. N. 2. and Fentons Case Mich. 27. Car. 2. upon this Statute of 23 Eliz. 1. and of C. B. in Farrington and Leymer 1 Cro. 112. Hutton 99. Trin. 4 Car. 1. upon 23 H. 8.4 § 5. N. 3. Are directly in point Contrary thereunto and so is the opinion of Rolls in Styles 340. Buck stone and Shurlock 7 Ed. 6.5 § 6. N. 3. and the resolution in Jones 193. And yet altho in penal Statutes any Court of Record shall be restrained to the ordinary Courts of Record at Westminster possibly in other Statutes those words may admit of a larger Construction 1 Rol. 51. pl. 21. Floyd and Best LXXXI Information Page 85 86. Upon 23 Eliz. 1. § 11. N. 1. by Action of debt Bill plaint or Information by 18 Eliz. 5. § 1. N. 3. it is enacted that none shall be admitted or received to prosecute against any person upon any penal Statute but by way of Information or original Action and not otherwise 6 Co. 19.20 Moor 412. pl. 565. and 600. pl. 827. Gregories Case 3 Cro. 544. Gadley versus Whitecote And this seems to extend as well to penal Statutes made afterwards as to those that were in force when 18 Eliz. 5. § 1. N. 3. was made for t is usual for a latter act of Parliament to be guided by a former as 4 Co. 4. Vernons Case But then it must be in such Cases where there are not express words in the latter act to controule the former and therefore altho the word of 18 Eliz. 5. § 1. N. 3 that the Informer shall not prosecute otherwise then by Information or original action yet the Affirmative words of this subsequent Statute 23 Eliz. 1. § 11. N. 1. that the Informer may sue by Bill hath taken away the force of that negative in 18 Eliz. 5. § 1. N. 3. in relation to the offence mentioned in 23 Eliz. 1. and the prosecutor qui tam c. upon 23 Eliz. 1. § 11. N. 1. may sue by Bill in B. R. as well as by Information which otherwise had there been no direct words here to that purpose he could not do as it seems by the resolution 3 Inst 194. in Woodson and Clerks Case In a suit brought by Bill in B. R. upon 23 H. 6.10 § 1. N. 12. of Sheriffs and in Moor 248. pl. 390. Vdeson and the Major of Nottinghams Case contrary to the opinion in Styles 381. Hill and Dechair LXXXII Imprisonment Page 86. Upon 23 Eliz. 1. § 11. N. 2. Qui non habet in aere luet in corpore And yet in this Case the Judgment shall be absolute that the King and the Informer recover c. 1 Anderson 140. pl. 190. Vachels Case 2. A Feme Covert Recusant if the forseiture be not paid within the time limited 23 Eliz. 1. § 11. N. 2. may be imprisoned by force of this Statute until she pay or conform 11 Co. 61. Dr. Fosters Case Hob. 97. Moor and Hussey And if she be convicted upon Indictment at the Kings suit in which Case the Husband is not bound to pay the penalty she ought by the opinion of Manwood to have hard and close Imprisonment and sequestred from all Company until she conform or forfeiture be paid Savile 25. pl. 59. But if the Husband and Wise be sued upon 23 Eliz. 1. § 11. N. 2. in a popular Action or Information for the Recusancy of the Wife and Judgment be had against them and the forfeiture is not paid within the three months the Husband in that Case may be Imprisoned likewise LXXXIII Assurances Page 87. Upon 23 Eliz. 1. § 13. N. 1. since the beginning of this Session of Parliament and yet a Covenons Conveyance tho made before that Session of Parliament should not have defeated the Interest right or Title which was given to the Queen by this Statute and therefore in the Case of Sir John Southwell 3 Leonard 147.148 pl. who in Anno 19 Eliz. Conveyed his lands to certain Feoffees and their heirs in trust for the maintenance of him and his Family Marriage of his Daughters payment of his debts c. and to answer him the surplusage of the mean profits with a Clause of revocation after which he granted Trees took Fines for leases c. And then
came 23 Eliz. 11 § 13. N. 1. upon which he was Indicted and convicted It was resolved by all the Judges of England that the said lands were liable to this Statute and the Jurors charged to enquire what lands he had and were committed to the Fleet and fined each of them fifty pounds for that yet they would not find those Lands to be his 2. By means of any Conviction or Judgment 23 Eliz. 1. § 13. N. 1. Pauncefoot being Indicted of Recusancy made a deed of gift of all his leases and goods to a great Value coloured over with feined considerations to defeat the Queen of what might accrew to her by his Recusancy or flight and then went beyond Sea and afterwards was outlawed upon the said Indictment and it was resolved 36 Eliz. by the whole Court of Exchequer that this was a fraudulent Conveyanc within 13 Eliz. 5. § 2. N. 3. which was made for the relief of the Queen and otherpersons as well as Creditors But as this Case is related in 3 Co. 82. Twines Case t is observable that altho it was debated whither the Queen should avoid this Conveiance by force of 50 Ed. 3. 6. § 1. N. 2. or that of 3 H. 7.4 § 1. N. 2. or that of 13. Eliz. 5. § 2. N. 3. yet there is no mention made of this branch of 23 Eliz. 1. § 13. N. 1. for t is clear that the Queen could not avoid such a fraudulent Conveyance by force of 23 Eliz. 1. § 13. N. 1. unless Judgment had been first given against the Recusant or he had been convicted and Pauncefoot was neither Convicted or adjudged to be a Recusant but the Queens interest accrewed to her by means of the outlawry only LXXXIV Priviledge Page 88. Upon 23 Eliz. 1. § 14. N. 1. altho a Peer shall be tryed per pares yet he is to be indicted by an inquest under the degree of Nobility and may be Indicted before Commissioners of Oyer and Terminer or in B. R. if the offence be Committed in the County where the Kings bench is 2 Co. 49. 27 Eliz. 2. Of JESVITS LXXXV Alien PAge 90. And his Being born within this Realm c. 27 Eliz. 2. § 3. N. 1. must be comprised in the Indictment but it need not be shown in what particular place he was born but generally Quod J. S. natus infra hoc regnum Angliae c. And so it must be alledged in the Indictment on 27 Eliz. 2. § 3. N. 1. that he was made a Jesuit or Priest c. by authority Challenged or pretended from the See of Rome But it needed not be shewed where he was made a Jesuit or Priest c. whither beyond the Sea or within the Realm for wheresoever it was it is within this Law if he were made so by the pretended Authority of the See of Rome Popham 94. Southwells Case LXXXVI Seminary Page 91. In the late additions to Dalt Cap. 140. § 13. tit high Treason 'T is said that 27 Eliz. 2. § 4. N. 1. relates only to such as had before that time taken Orders which conceit I suppose is grounded on these words viz. who at the end of the said forty days and after such time of departure as aforesaid shall receive c. as if no Jesuit or Priest were here intended but such a one as was then a Priest or Jesuit and had fourty days given him for his departure and no person a Felon by 27 Eliz 2. § 4. N. 1. who receives or releives any other 2. But the words here such Iesuit c. seem to be more Extensive and to relate as well to the Receivers or Releivers of a Jesuit or Priest in Orders at this day as to those who were in Orders at the time of making this Stature and if we weigh the Gramatical Construction of the words with much more reason the former than the latter For the Proximum Antecedens to such is the Jesuit or Priest 27 Eliz. 2. § 2. N. 1. who was to be made ordained or professed and not he that was then ordayned or professed already And those words in 27 Eliz. 2. § 4. N. 1. Every Parson which after the end of the same XL. dayes c. shall receive c. that is fourty days next after the end of that Session of Parliament may well be construed to Extend to all Cases as well of receiving or relieving such who should be afterwards in Orders and should be found within the Realm for the time to come at any time after those fourty days as of such who were then in Orders and were to depart before the XL. days were expired 3. So that the receiving releiving or maintaining of a Jesuit Popish Priest or other Popish Ecclesiastical person at liberty and known by the party to be such is Felony at this day by this Act 27 Eliz. 2. § 4. N. 1. and the Offender shall lose the benefit of his Clergy and so hath the Law been taken upon Actions upon the Case for saying the Plaintiff kept a Seminary-Priest or Jesuit in his house knowing him to be such 2 Cro. 300. Pasch 10 Jac. Smith versus Flynt and Palmer 410. Clerk and Logins Case Lamb. 225. Infra 275. Page 92. By this word Return 27 Eliz. 2. § 5. N. 1. It seems that none are intended here but such as were sent out of this Realm for others born and resident in some other parts of the Kings Dominions untill their Entry into such Colledg or Seminary cannot be properly said to return hither LXXVII Ouster le M◠Page 92 93. Or any other her Highness Dominions 27 Eliz. 2. § 5. N. 1. a Subject of the Kings sent out of England to a Popish Colledg or Seminary is Commanded by Proclamation made in London to return into this Realm and within the six months here limited first goeth into Ireland and then comes into England and within two days submits himself and takes the Oath of Supremacy in this Case notwithstanding his return into England within the six months he shall be guilty of High Treason for after such Proclamation he ought to have come directly into England and into no other of the late Queens Dominions before he had been in England and if he doth he comes into the said Domininions otherwise then is appointed by this Act 27 Eliz. 2. § 5. N. 1. For the intent of 27 Eliz. 2. § 5. N. 1. Seems to be that he should not remain in any of the said Dominions untill he submits and takes the Oath which submission must be made by Oath taken in England within two days after his Arrival here and not elsewhere and altho the Oath of Supremacy be in force in Ireland yet his taking it here will not serve nor yet his submission there for he is to submit to the King and his Laws by which are intended the Laws of England and no other But a submission in Ireland to the Kings Laws