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
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
against the Recusant Tenant in Tail in his life time the heir is bound in that Case 5. If a Judgment was had against the Recusant before 1 Jac. 4. § 5. N. 1. and he had died before seizure of the two parts of his Lands the Question was whither after his death they might have been seized by force of 29 Eliz. 6. § 6. N. 1. for the Arrears of the penalty Incurred in his life time for that the Seizure here given is meerly in nature of a nomine paenae or penalty inflicted for his contempt in not paying the 20 l. per month and should not have gone in satisfaction of the debt but the Queen should have held the Land till the 20 l. per month were otherwise paid and satisfied and when this penalty of seizure was not executed in the Recusants life time by his death the contempt was gone and consequently the penalty inflicted for that contempt could not then be put in Execution Lane 92 93. Beekets Case Lane 107. Halseys Case But now by 1 Jac. 4. § 5 N. 1. the seizure is not as a meer penalty for the contempt of non payment but for the satisfaction of the King of the Arrears of 20 l. per month and the profits of the Land shall go towards the payment and satisfaction thereof so that now there is no question but the two parts of the Recusants Lands may be seized after his death unless the hair discharge himself by his Conformity 4. Note in all these Cases of seizure where the Land is to be discharged upon the death of the Recusant altho an Affidavit be made of his death and a discharge obtained thereupon yet 't is a rule in the Court of Exchequer that a Commission shall be Awarded first to Enquire Savile 130. pl. 201. CVII Page 111. This branch 29 Eliz. 6. § 7. N. 2. seems not to extend to all forfeitures for Recusancy for the power here given to the Lord Treasurer c. is only in relation to those forfeitures which are by 29 Eliz. 6. § 3. N. 1.2 appointed to be paid into the receipt of the Exchequer which are the forfeitures due to the Queen by Conviction upon Indictment for this Act medles with no other so that if the 20 l. per month be recovered in a popular suit by the Informer qui tam c. one third part thereof ought still to be paid to the poor of the Parish only according to 29 Eliz. 1. § 11. N. 1. notwithstanding this act 29 Eliz. 6. § 7. N. 2. 35 Eliz. 1. Of SECTARIES Page 114. Wingate Crown 70. saith that if any person above sixteen years of Age obstinately refuseth to come to Church for a month CVIII Religion or impugnes the Queens Authority in Causes Ecclesiastical he shall be committed to Prison 35 Eliz. 1. § 1. N. 2. which is a great mistake for no man shall be punished by this Act for either of those Causes only the not coming to Church being only a precedent qualification required in the person whom the Act makes liable to the penalties thereof for the other offences therein mentioned Crompton 53. 2. And therefore if a man never comes to Church yet he is no offender within 35 Eliz. 1. § 1. N. 2. unless he advisedly or purposely move or perswade another to deny or Impugne the Kings Authority in Causes Ecclesiastical or to that end or purpose advisedly and malitiously move or perswade some other to forbear to come to Church or receive the Communion or to be present at Conventicles c. or if he himself be present at such Conventicles c. 3. And on the other hand if a man move or perswade any other to deny or Impugne the Kings Authority in Causes Ecclesiastical or to forbear to come to Church or receive the Communion or to be present at Convinticles c. Or if he himself be present at any Conventicles c. yet he is no offendor within 35 Eliz. 1. § 1. N. 2. if he goeth to Church once within the compass of a month 4. So that the party must both forbear to come to Church and be guilty of some other offences here enumerated or he is not punishable by 35 Eliz. 1. § 1. N. 2. and as for the denying or Impugning the Kings Authority in Causes Ecclesiastical it s no offence within this Statute unless the party moves or perswades others so to do and not then neither unless he hath been absent from Church by the space of a month Page 114 115. Under colour or pretence of any exercise of Religion 35 Eliz. 1. § 1. N. 3. Altho this Act is commonly called the Act against Sectaries CIX as distinguished from those of the Romish profession yet in truth it extends to all Recusants whatsoever as well Popish as other except 35 Eliz. 1. § 2. N. 1. in the point of abjuration for Popish service is performed under Color or pretence of Exercise of Religion and the assembly or meeting of Popish Recusants under such Color or pretence is an assembly or meeting contrary to the Laws and Statutes and they as well as others may be Indicted upon this Statute if they forbear to come to Church for the space of a month and be present at any part of the Popish service or move or perswade ut supra And may be Imprisoned without Baile until they conform and make submission as by 35 Eliz. 1. § 4. N. 1. is appointed but they cannot be required to abjure unless they offend against 35 Eliz. 2. § 8. N. 2. 2. A Popish Recusant is likewise subject to an Action of debt c. given to the Queen by this Statute 35 Eliz. 1. § 10. N. 2. CX Process Page 115. Being thereof lawfully convicted 35. Eliz. 1. § 1. N. 5. that is convicted both of his absence from Church and of that other offence which makes him punishable by this Act viz. going to Conventicles or moving or perswading c. for his absence from Church for a month must be laid down precisely in the Indictment for without that the other is no offence within this Act. 2. And t is not necessary that the party be Convicted of such absence upon any prior Indictment for altho there was never any former Conviction of him for Recusancy yet if he offend against this Act 35 Eliz. 1. § 1. N. 5. in any of the other particulars he may be Convicted both of that offence and of his absence upon one and the same Indictment and so was the Indictment Mich. 16. Car. 1. in the Case of Lee and others 1 Cro. 593. pl. who were Indicted upon this Statute at the Sessions of the Peace in Essex for absenting themselves for a month from Church and resorting to Conventicles to which they pleaded not guilty and the Indictment was removed in B. R. to be tryed there CIX Oath Page 116. Being thereunto required by the Bishop c. or any Justice of Peace 35
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
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
where a Remainder is limited to the next of Blood or Kin. And therefore if a man hath issue three sons A. B. and C. and dyeth A and B have issue each of them a son and dye the son of B. goeth beyond the Seas contrary to this Act in this Case C. the youngest Uncle shall by force of this Act 5 Jac. 5 § 16. N. 2. have and enjoy the Lands of the Offender untill his conformity and not the son of A the elder Uncle for that C hath in him jus propinquitatis as being the Uncle and so nearer of Kin than the Cousin German and yet the son of A is heir at Law jure representationis as being the son of the eldest Brother 1 Inst 10. Palmer 304 305. Pervian and Pierce CCXLV Forfeiture Page 225 226. Shall have and enjoy the said Lands c. 3 Jac. 5. § 16. N. 2. It was held by Mountague and Hobert Ch. J. Pasch 15. Jac. Lee 59 in Tredwayes Case that if a person goeth beyond the Seas contrary to this Act yet the state of the Land is not forfeited nor fettled in the next of Kin but rests in the Heir himself who is the offender for the Statute 3 Jac. 5. § 16. N. 1. saith not that he shall not take by descent but only that he shall take no benefit by descent and that therefore this Statute differs from 6 Rich. 2.6 § 1. N. 3. of consenting to ravishment And 11 H. 7.20 § 1. N. 2. of Discontinuance by Women And Hobard said Lee 59. that if the Heir beyond Sea bargain and sell the Land descended to him he shall prevent the next of Kin if he hath not entred and if he hath entred the Land shall be taken from him Quaere of this for Tanfield chief Baron seemed to be of contrary opinion in the main point and held that the State of the Land is settled by 3 Jac. 5. § 16. N. 2. in the next of Kin. Note In Lee 59. it 's said to be the meaning of this Act 3 Jac. 5. § 16. N. 2. that the profits of the Land should be received by the next of Kin during the Offenders non-conformity but these words Have and Enjoy seem to imply somewhat more and that the next of Kin shall have the Land it self CCXLVI Presentant Page 226. From and after the end of this present Session of Parliament 3 Jac. 5. § 18. N. 1. A man seised of an Advowson grants the next Avoydance and then becomes a popish Recusant convict the grant of the next Avoydance is void and the University shall present for the foregoing words During his Recusancy do not import the time when his disability shall begin but when it shall end viz when he remains no longer a Recusant But when once he becomes a Popish Recusant convict his disability shall have relation to all the time going before viz from the end of that Session of Parliament wherein this Act was made 10 Co. 55 56. the Chancellor of Oxfords Case and Jones 20. Standens Case c. and such retrospects are usual in Acts of Parliament And yet after the grant of the next Avoydance the Patron or Grantor becomes a Popish Recusant by Covin convict and to the intent to make void such his Grant this shall not deseat the Interest of the Grantor but he may present when the Church becomes void notwithstanding such Conviction Jones 20. But then the Covin must be averred by the Grantee and found by the Jury to be to that particular intent as infra 250. N. 4. Page 228 CCXLVII. 229. Be utterly disabled to present to any Benefice c. 3 Jac. 5. § 18. N. 1. A man hath the right of Nomination to a benefice which is presentative and another hath the Right of Presentation if he who hath the right of Nomination become a Popish Recusant convict I conceive he is disabled by this Act to nominate For altho only the word Present be here used as to a Benefice or Ecclesiastical Living presentative yet this shall extend as wel to Nomination for the intent of the Act 3 Jac. 5. § 18. N. 1. is to prevent a Recusant from appointing who shall be incumbent and the Case of Nomination is in equal mischief with that of the Presentant and if the Recusant should not be disabled to nominate as wel as to present the intent of the Act 3 Jac. 5. § 18. N. 1. would be eluded for he that hath the right of Nomination is in effect the Patron and he that presents at the Nomination of another is but as a Messenger between him and the Ordinary 14 H. 4.11 And if he who is to present presents any other than the person nominated to him or doth not present the person nominated he who nominats may bring a second Impediment against him And he who hath the Nomination must jointly with him who hath the presentation confirm the Lease of the Incumbent Moor 49 Pl. 147. F. N. B. 33. It is true the general Rule is that penal Statutes shall not be taken by Equity from whence may be inferred that 3 Jac. 5. § 18. N. 1. only disabling a Recusant to present to a Benefice presentative shall not be extended to disable him to Nominate altho it be within the same Mischief But that Rule hath some Exceptions and where the intent of the makers of the Law plainly appears by other words in the same Statute a penal Statute shall be expounded largely and according to that Intent beyond the Letter as in case of Symony on 3 Eliz. 6. § N. Hob. 75. Now in the subsequent Clause 3 Jac. 5. § 19. N. 1. touching the University the Nomination as well as Presentation is given to them and consequently the Recusant was intended to be disabled in the one Case as well as in the other Besides the words Disabled to present 3 Jac. 5. § 18. N. 1. may be aptly enough expounded disabled to nominate for the Presentment is truly and really in him who hath the right of Nomination as is held in 14 H. 4.11 Page 229. CCXLVIII Chancellor and Scholars of the Vniversity 3 Jac. 5. § 19. N. 1. altho the University be incorporate by the name of Chancellor Masters and Scholars yet the description here made of them by the name of Chancellor and Scholars is wel enough and sufficiently denotes the persons intended and the University shall have the presentation c. As if the true name of Incorporation had been expressed for Acts of Parliament as well as Wills are to be taken according to the Intent of the Makers and not according to the strict Letter 10 Co. 57. Page 229 CCXLIX 230. Shall have the Presentation c. 3 Iac. 5. § 19. N. 1. It hath been a Question what is given to the University by these words whether only a bare power or liberty to present or a settled Estate and Interest in the patronage or advowson Iones 22.25 where
contrary to Law Whether they be Popish or other or perswades others so to do or to forbear the Church or to impugne the Kings authority in Causes Ecclesiastical she shall be imprisoned by force of this Act 35 Eliz. 1. § 1. N. 5. until she conform and submits her self but she cannot be further proceeded against so as to require her to abjure A married Woman by this Act 35 Eliz. 1. § 10. N. 2. with her husband is likewise punishable for her Recusancy by action of of Debt c. brought against her and her Husband at the Kings Suit so that 't is a great mistake to say she is not punishable by this Statute CXXIII Exile Page 124 125. Upon 35 Eliz. 1. § 13. N. 1. Every abjuration as well as that for Felony is an Exile or Banishment and if perpetual and by authority of Parliament amounts to a Civil death and therefore the Wife of a man banished or abjured for ever might sue or be sued without her Husband as was ruled in the Case of the Lady Maltravers 10 Edw. 3. and of the Lady Belknap 1 H. 4.1 and 2 H. 4.7 2. And if a man be perpetually banished by Authority of Parliament unless it be for Felony or by force of this Act 35 Eliz. 1. § 13. N. 3. his Wife shall be endowed living the Husband 3. And if he had been perpetually banished or abjured for felony the Wife should have had her joynture presently altho not her dower as was resolved 19 Edw. 1. in Weylands Case and the reason is because tho the Husband be naturally living yet he is civilly and in the eye of the Law as a dead man 4. But yet these Cases are to be understood of a Banishment or abjuration for ever and not of a Relegation or Exile for a time for in such Case neither could the Wife sue or be sued without her Husband nor could she have her Dower or Joynture during the natural life of her Husband 1 Inst 132. 2 Inst 47. and 3 Bulst 188. Wilmotes Case 1 Rol. 400. pl. 27. Moor 851. pl. 1159. 5. But if a Man be abjured by force of this Act the Wife shall not have her Dower or Joynture during the natural life of her Husband altho he be abjured for ever but she is in a worse Case than the Wife of a person perpetually banisht was at the Common Law For this Act 35 Eliz. 1. § 13. N. 2. by express words gives his Lands Tenements and Hereditaments to the Queen during his life which is to be understood of his natural life and the saving here of the Wives Dower 35 Eliz. 1. § 13. N. 3. is not intended of the Dower which she might claim at Common Law presently upon the abjuration of her Husband nor shall make void the former words of the Act by which all his Lands are given to the Queen during his natural Life but his only the usual provision made in Acts of of Parliament which create any new felony for the saving of the Dower of the Wife after the death of the Husband so that the meaning of this branch 35 Eliz. 1. § 13. N. 3. is that if the Husband refuse to abjure or abjure and refuse to depart according to this Act or return without license yet the Wife shall be indowed and the Heir inherit his lands after he is naturally dead CXXIV Days Page 125 126. Note that this Act 35 Eliz. 1. § 13. N. 4. being at first but temporary was afterwards discontinued Hutt 61 62. But is since renewed by 3 Car. 1.4 5 § 21. N. 1. and declared to be in Esse 16 Car. 2.4 § 1. N. 1. and is in full force at this day 2. And in such Case it hath been questioned if a Statute be discontinued and afterwards revived Parliament how an Indictment thereupon shall conclude whither contra formam Statuti or Statutorum For if a Statute be temporary and afterwards continued for a longer time or made perpetual and never discontinued there without doubt it shall be contra formam Statuti But it hath been held by some that where it was once discontinued and then revived there it is as if there were two several and distinct Statutes and the Indictment shall conclude contra formam Statutorum 9 Eliz. Palmers Case But others have held the contrary and that there is not any difference in the Case of a Statute at first temporary and afterwards before any discontinuance continued for a longer time or made perpetual and a Statute discontinued and then revived but that it shall in both Cases be held but as one Statute and that the conclusion shall be contrà formam Statuti and not Statutorum unless where the Act of reviver makes any addition to the former Act or increaseth the penalty or forfeiture for then there is no doubt but they are two distinct Acts of Parliament and according to this latter opinion hath the practice been in Informations upon 5 Eliz. 9. of perjury which determined 14 Eliz. and was revived 29 Eliz. 5. § 2. N. 3. and yet all Informations thereupon conclude contra formam Statuti And so as it seems ought all Indictments upon this Statute of 35 Eliz. 1. § 13. N. 4. notwithstanding its discontinuance and reviver Owen 135. Wests Case 35 Eliz. 2. Of CONFINEMENT CXXV Alien PAge 128 129. Born within any her Majesties Realms or Dominions or made denizen 35 Eliz. 2. § 2. N. 1. So that all Popish Recusants are not within this branch as Wingate Crown 78. mistakes for it extends not to an Alien who is born out of the Kings Legelance unless he be made Denizen In the late Additions to Dalt cap. 81. Sect. 14. this Clause 35 Eliz. 2. § 2. N. 1. is restrained to such as are born in England but it is clear that is extends to all the Kings Natural Subjects if they live in England altho they were born in Ireland or any other of the late Queens dominions besides England By Denizen is here to be understood an Alien who owes to the King an acquired Subjection or Allegiance whether he be made Denizen by the Kings Letters Patents or be Naturalized by Act of Parliament for Naturalization includes all the priviledges of a Denizen and something more and every one who is naturalized is thereby made a Denizen altho he that is made a Denizen by the Kings Letters Patents is not thereby Naturalized CXXVI Recusant Page 129 130. Which being then a Popish Recusant this 3.5 Eliz. 1. § 3. N. 1. is the first Penal Statute which was made against Popish Recusants by that name and as distinguished from other Recusants In the late additions to Dalt cap. 81. Sect. 7. It s said that the matter of Recusancy stands in two particulars First absenting from the Church Secondly refusing the Oaths prescribed 1 Eliz. 1. § 19. N. 4. and 3 Jac. 4. § 15. N. 1. but this description of Recusancy is either too
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