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
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 Defendant upon failer of the Record Hetley 18. But yet if there be a Plea of a Conviction of Recusancy had before the Justices of Gaol delivery and the Defendant mistakes Certiorari and takes out a Certiorari to the Justices of Peace this shall not be a failer of the Record altho the Defendant hath it not at the day for that the issuing of a Certiorari was the Award of the Court but a Certiorari shall be awarded de novo to the Justices of Gaol delivery before whom the Plaintiff was convicted Hob. 135. Pye and Thrill Note If the Defendant be sued in C. B. or any other of the Principal Courts at Westminster and he plead a Conviction of Recusancy before the Justices of Gaol delivery or Justices of Peace he need not take his Certiorari out of the Chancery and so bring it by Mittimus but the Court may send a Certiorari immediately to that inferiour Court where the Plaintiff was convicted as was held Hob. 135. See 19 H. 6.19 And the Justices themselves before whom the Conviction was had must certify and therefore if the Conviction was had before Justice of peace the Certificate cannot be by the Custos Rotulorum alone though he keep the Records for the Certiorari is in such Case directed to the Justices of peace Hob 135. A Popish Recusant is convicted of recusancy in a popular suit and after such Conviction sues the Informer qui tam c. upon some other matter or cause of action arising between them Quaere whether the Desendant may plead such Conviction in disability of the Recusant by 3 Jac. 5. § 11. N. 2. for this Conviction disables the Recusant to sue as if he were excommunicated and no otherwise Now if a Bishop excommunicate any one and the Bishop be afterwards sued at Law for any other matter or cause by the person so excommunicated the Bishop cannot plead this Excommunication in disability of the plaintiff who sueth 1 Inst 134. Swinborn 305. part 5. sect 6. and the reason given for this 8 Co. 68. in Trollop's Case is because the Bishop was a party to the Excommunication and therefore shall take no advantage by it Which reason seems to hold likewise in the case of an Informer Qui tam c. who is a party to the Conviction of the Recusant upon the popular suit which conviction renders the Recusant disabled to all intents as an excommunicate person and therefore he being a party to it by the same Rule shall not take advantage of it in disability of the Recusant in any action brought by the Recusant against him But yet notwithstanding I conceive the Informer qui tam c at whose suit the Recusant was convicted may well take advantage of this Conviction and plead it in disability of the person of the Recusant and that the true reason why the Bishop shall not be admitted to plead an Excommunication pronounced by him in disability c. is not because he is a party to the Excommengement but because in matters of Excommunication the Bishop acts as judge and 't is by his Sentence and Authority that the party is excommunicated and he shall not take advantage in another suit of a sentence given by himself judicially and this will not hold in the case of an Informer c. 14. H. 4.14 If an Executor or Administrator becomes a Popish recusant convict it seems he is disabled by this Act 3 Jac. 5. § 1. N. 1. to sue in either of these capacities for 3 Jac. 5 § 11. N. 1. saith he shall be disabled to all intents as an excommunicate person Now a person actually excommunicated can not sue as Executor or Administrator as is held 21 Ed. 4.49 21 H. 6.30 and 14. H. 6.15 and 1 Inst 134. altho there are some opinions to the contrary Finch 27. Page 219 CCXXXVI 220. Which are not to be seized or taken into the King's hands c. 3 Jac. 5 § 12. N. 1. these words are not restrained to such Lands c. as cannot be seized into the King's hands for recusancy for then the Recusant could in no case sue for more than the third part for that the King may if he please make his Election and seize the other two parts in lieu of the XX. lb per Month But they are intended of all Lands c. of the recusant which neither the King hath seized nor are by Law to be seized by vertue of any thing which the king hath already done or in respect of what the recusant after his conviction hath omitted to do And therefore if a man be convicted of recusancy upon a popular suit or an action of debt at the King's suit alone in which cases the penalty of XX. lib. per Month is not appropriated to the King for the time to come and he payeth the penalty recovered or if he be convicted upon Indictment and after such Conviction duly payes the XX. lib. per Month into the Exchequer and the King makes no Election to take the two third parts of his Estate in lieu thereof such Recusant may by this Proviso 3 Jac. 5. § 12. N. 1. in either of those Cases sue or prosecute for any of his Lands Tenements Leases Rents Annuitys or Hereditaments whatsoever notwithstanding his conviction for when the penalty recovered is satisfied or the forfeiture appropriated to the King is duely paid into the Exchequer his lands c. are not to be seized by force of any Law for recusancy unless the King make his Election to have the two parts and untill that Election they cannot in the sense of this Proviso 3 Jac. 5. § 12. N. 1. be said to be Lands to be seized or taken into the King's hands for that the King cannot have the two parts and the XX. lib. per Month both But if the King make no such Election and the XX. lib. per Month be duely paid into the Exchequer the Recusant is to hold and enjoy all his Lands Tenements c. as if he had never been convicted and during that time there can be no distinction made between the two parts and the Recusants third part so that in this Case the recusant must either be enabled to sue and prosecute for all his Lands c. or none and and to think the latter of these were to render this Proviso 3 Jac. 5. § 12. N. 1. nugatory and vain But when once the King hath seized the two Thirds for Recusancy either by way of Election or for non-payment of the XX. lib. per Month penalty then the Recusant is enabled to sue only for the other Third part whether in the hands of the King or of a common person CCXXXVII Marriage Page 220 221. Every man being or which shall be a Popish Recusant convicted 3 Jac. 5 § 13. N. 2. A man who is no Popish recusant convicted marrieth a Woman who is a Popish recusant convicted in other form than is here
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
such Ministry or Office 5 Eliz. 1. § 5. N. 6. whether of the gift of the King or of a Subject are bound to take this oath of Supremacy 1 Eliz. 1. § 19. N. 4. and not only such as are preferred by the King as 't is restrained in the late Additions to Dalton 184 Cap. 81. Page 39. XXXVIII This 5 Eliz. 1. § 5. N. 6. takes in so much of the Canon and Civil Law as is here allowed but the Common Law as the peculiar Law of this Kingdom is here preferred and perticularly mentioned and not the Canon Law as is erroneously said in the late Additions to Dalton 184. cap. 81. Sect. 11. Page 39. XXXIX The Statute 5 Eliz. 1. § 5. N. 10. saith not that those who belong not to any Court shall take the Oath before those who are authorized by common use to give it as Wingate Crown 20. in fine mistakes for this being then new a Oath devised by the makers of 5 Eliz. 1. § 19. N. 4. no person could have authority by Common use to administer it and the act 5 Eliz. 1. § 5. N. 10 plainly enough speaks of those who have authority by common use to admit the party to the Office and not authority by common use to give the Oath Infra 66. XL. Ordinary Page 39. Upon 5 Eliz. 1. § 6. N. 1. If a man be Indicted for refusing this Oath of Supremacy before him who is reputed to be the Bishop of the Diocess and he plead to the Indictment not guilty he may upon that issue give in evidence quod non fuit Episcopus tempore oblationis Sacramenti Dyer 234. pl. Boners Case XLI Certificate Page 41. It is not necessary on 5 Eliz. 1. § 9. N. 1. that it be mentioned of Record in B. R. how or by whom the Certificate was brought in thither and in Bonners Case Dyer 234. pl. where the Bishop of Westminster certified the refusal of this Oath of Supremacy and Exception was taken that the Certificate was entred to be brought into Court per A. B. Cancellarium dicti Episcopi but not per mandatum Episcopi and the Exception was disallowed for that reason XLII Enquest Page 41. And on 5 Eliz. 1. § 9. N. 3. a Jury of the County where the Kings Bench is can do no more in this Case than inquire that is indict the party refusing the Oath unless where the refusul is in the same County 2. Horn Bishop of Winchester tendered this Oath in Surrey parcel of his Diocess to Bonner then late Bishop of London who refused to take it and this was certified by the Bishop of Winchester into B. R. then sitting at Westminster in the County of Middlesex where Bonner was Indicted by a Jury of that County according to this Act 5 Eliz. 1. § 9. N. 3. the question was by what County he should be tried whether by a Jury of Middlesex where the Indictment was taken or by a Jury of Surrey where the Offence was committed and it was resolved that he should be tryed by a Jury of Surrey for 5 Eliz. 1. § 9. N. 3. extendeth to the Indictment only and leaveth the tryal to the Common Law which appoints it to be where the Offence was committed for regularly by the Common Law debet quis Juri subjacere ubi deliquit 6 and 7 Edw. 6. Dyer 234. 3 Inst 34. 3. So that the Jury on 5 Eliz. 1. § 9. N. 4. is to indict and not the Sheriff as is mistaken in the late additions to Dalton 184. cap. 81. § 11. XLIII Treason Page 42. Savil. 46 47. pl. 99. Slade and Body were condemned in a Praemunire upon 5 Eliz. 1. § 2. N. 1. before Justices of Oyer and Terminer for the extolling the authority of the Bishop of Rome and remained in Prison for the space of two years and afterwards were brought to the Assizes and demanded whether they were still of the same opinion to which they answered that they were and one of them said that if they had a thousand lives they would lose them all in this Case upon which they were indicted and arraigned and convicted upon 5 Eliz. 1. § 10. N. 2. for High Treason and it was resolved by the greater part of the Justices that the words should be taken to be spoken advisedly and wittingly and were within the meaning of this second Branch XLIV Parliament Page 44. Upon 5 Eliz. 1. § 16. N. 2. the King cannot dispence with any Member of the Commons House from taking this Oath of Supremacy for the reason in Vaughan 355. Thomas and Sorrels Case because by this Statute he is persona inhabilis until he hath taken it Infra 258. XLV Priviledge Page 44. Altho by this Act 5 Eliz. 1. § 17. N. 1. no temporal person of or above the degree of a Baron is compellable to take this Oath yet if he be made a Justice of Peace he ought to take it by force of 1 Eliz. 1. § 19. N. 1. Jones 152 153. the Earl of Lincolnes Case Page 44. XLVI By these words temporal person in 5 Eliz. 2. § 14. N. 1. and the Preamble forasmuch c. Arch-Bishops and Bishops altho their possessions be temporalties are excluded out of this Proviso and therefore are to take the Oath for every person who is of the degree of a Baron is not excused as Wingate Crown 29 mistakes but only the temporal Lords of Parliament XLVII Incumbent Page 45. So that every Clergy man or Person in Orders is not within the danger of this Law of 5 Eliz. 1. § 20. N. 1. upon the second tender and refusal of the Oath of Supremacy as Wingate Crown 30. mistakes for every Priest or Minister is Clericus 3 Eliz. Dyer 203. pl. and yet shall not incur the penalty of High Treason upon the second refusal unless he be a local Minister or have some charge Cure or Office in the Church XLVIII Ordinary Page 45. Upon 5 Eliz. 1. § 20. N. 3. Ordinary in the Common Law is properly taken for the Bishop of the Diocess but yet usually in the Common Law and in Statutes for every Commissary and Official of the Bishop or other Judge that hath ordinary Jurisdiction within his limits in Causes Ecclesiastical W. 2. cap. 19. and 31. Edw. 3.11 Termes de la Ley 212. verbo Ordinary 1 Inst 344 and 8 H. 6.3 XLIX Religion Page 45. Upon 5 Eliz. 1. § 20. N. 5. if a man once in his life time heareth private Mass it seems he is within this qualification and incurs High Treason upon the second refusal of the Oath and not only if he used to hear it as Wingate Crown 30. interprets the Statute L. Corn. Page 46 47. The Judgment in a Praemunire is to be out of the Kings protection his Lands Tenements Goods and Chattels to be forfeited to the King and that his body shall remain in Prison at the Kings
pleasure 1 Inst 129 130. Rast Entr. 466. Tit. Judgment 3. Inst 218. 2. But his intalled Lands he shall forfeit only during his life for this forfeiture must be understood of such an Estate as he may lawfully forfeit and the general words of the Statute of Praemunire 16 Rich. 2. § 2. N. 7. scil Lands and Tenements shall not take away the force of the Statute de donis conditionalibus 13 Ed. 1. W. 2. cap. 1. § N. 1 Inst 130 131. Godbolt 308. pl. Lord Sheffeild and Ratcliffe 11 Cook 63. 3. And the person Attainted in a Praemunire is disabled to be a witness in any Cause 1 Inst 6. or to sue for Attainder in a Praemunire is a good Plea in disability of the Plaintiff according to Littleton 41. 4. By the Statute of 25 Ed. 3. St. 5. cap. 22. § 1. N. 2. which saith that a man attainted in a Praemunire shall be out of the Kings Protection and 25 Ed. 3. St. 5. § 1. N. 3. It may be done with him as with the Kings Enemy It seemeth that any man might have lawfully slain such a person as was held 24 H. 8. Coron Br. 196 2 Bulstrode 299. Sir Anthony Mildmayes Case and this Sir Edw. Cook 7 Cook 14 in Calvine's Case and 12 Cook 38. seemeth to allow for Law before this Statute of 5 Eliz. 1. § 21. N. 1. and positively affirms it to have been the Law in 1 Inst 130. and yet in the same Case of Calvin 7 Co. he saith that 25 Ed. 3. St. 5. cap. 22. § 1. N. 2. is intended only a legal Protection according to Littleton 41 and so likewise he expounds it in 3 3 Inst 126. But yet that the Party attainted was still under that Protection which the Law of Nature giveth to the King which he explains to be such a Protection as a Person attainted of Felony or Treason is under notwithstanding his Attainder so that if any man had kill'd him without warrant he should have been punished by Law as a man slayer and this sort of Protection by the Law of Nature saith he is indelibilis immutabilis which the person could not take away but yet under favour if a man attainted in a Praemunire were before 5 Eliz. 1. § 21. N. 1. under that indelible and immutable protection of the King given by the Law of nature then the opinion Coron Brook 196. and allowed by himself was not Law but if that opinion Coron Brook 196. were Law and any man might before 5 Eliz. 1. § 21. N. 1. have killed a man attainted in a Praemunire and that by force of 25 Ed. 3. Sta. 5. cap. 22. § 1. N. 3. It followeth that the Protection which the Law of Nature giveth is not Indelebilis or Immutabilis but that an Act of Parliament might in a particular Case take it away but there is now no further need of this question in the Case of a Praemunire for if this protection by the Law of Nature were taken away by 25 Ed. 3. Stat. 5. cap. 22. § 1. N. 3. It is now restored by this Statute 5 Eliz. 1. § 21. N. 1. And no man can lawfully slay a person attainted in a Praemunire no more than he can without Warrant a man attainted of Felony or of Treason 13 Eliz. 2. Of BVLLS PAge 50. LI. Upon 13 Eliz 2. § 2. N. 1. a man absolves or reconciles or is absolved or reconciled to the Pope or See of Rome without any Bull writing or Instrument to that purpose This Case seemeth not to be within the meaning of this Statute for there must be some Bull Writing or Instrument to Authorize such Absolution or Reconciliation or the person who gives or receives it is not punishable by this act altho he may be by 23 Eliz. 1. § 2. N. 1. and 3 Jac. 4. § 22. N. 1. LII Accessary Page 51. Note all concealers of this offence are not within the danger of this Law 13 Eliz. 2. § 5. N. 1. as Wingate Crown 35. misrecites and therefore if a man be present at such offer motion or perswasion and conceal it he shall not incur Misprision of Treason unless he be the party to whom any such Bull c. or Absolution c. was ofered LIII Ouster le mere Page 52. Upon 13 Eliz. 2. § 7. N. 1. A man brings into the Kings Dominions such Agnus Dei or other like superstitious things and another offers and delivers them It seemeth that neither he that brings them in nor he that offers or delivers them is within this Act or lyable to the penalty for 13 Eliz. 2. § 7. N. 2. By the express words it must be the same person So that neither the bringer in unless he offer and deliver them or Cause them to be delivered nor he who delivers them or offereth them to be delivered unless he be the person who brought them in is an offender within this Act. LIV. Alien Page 52. Vpon 13 Eliz. 2. § 7. N. 2. The offer or delivery of such Agnus Dei or other superstitious things to any sort of person is not an offence within this act as Wingate Crown 37. supposeth it to be but to make it an offence it must be delivered or offered to a subject of this Realm or of the Dominions of the same LV. Intendment Page 52.53 Upon 13 Eliz. 2. § 7. N. 3. The intent is material in this Case and therefore if a man be indicted upon the Statute for bringing in and offering or delivering such Agnus Dei c. or receiving the same the intent must be mentioned in the Indictment as it must be in Indictments upon all Statutes where the intent as here is made part of the offence so in an Indictment upon 5 6 Ed 6.4 § 3. N. 1. It is not enough to say the party drew his Dagger in the Church against I. S. but it must be averred that he did it with an intent to strike him as was resolved by the Court of B. R. 33 Eliz. in Penhalls Case 4 Leonard 49. pl. 127. It seemeth by the words of 13 Eliz. 2. § 7. N. 3. That to make the Receiver of such superstitious things an offendor within it there must be a Concurrence of intentions for the using or wearing them both in the giver and receiver and that therefore if a person coming from beyond the Seas brings into this Realm any such superstitious things but with no intent they should be worn or used and gives them to his friend at his request who receives them with an intent to wear or use them this is penal to neither Not to the giver for he had no superstitious intent and the intent is material nor to the receiver for that the offering or delivering them to be worn or used is expresly made in the Statute 13 Eliz. 2. § 7. N. 2. a condition precedent to the obliquity of the fact in receiving them for the Statute 13 Eliz. 2. §
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
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
against them the Husband shall not only pay for the Time contained in the Information or Count but the Wise shall be imprisoned ever afterwards unless she conform or the Huband pay ten Pounds per Month or yield the third part of his Lands to the King And yet this Statute 7 Jac. 6. § 28. N. 1. doth not after such Conviction of the Wise in a Popular Suit or Action of Debt c. at the King's Suit take away the Popular Action or Information from the Informer or the Action of Debt c. from the King for the time to come but that they may be brought against the Husband and Wise for the Recusancy of the Wise for any Month or Months wherein she is absent from Church after such Conviction for 7 Jac. 6. § 28. N. 1. and 23 Eliz. 1. § 11. N. 1. and 35 Eliz. 1. § 10. N. 2. are all Affirmative Laws and may well stand together So that any of the three Remedies given by these Statutes may be pursued 7 Jac. 6. § 28. N. 1. not abrogating any former Law but only providing another way of Punishment for the Wife after she is once Convicted howbeit she shall not be punished by any more than one of these three wayes 11 Co. 63. 1 Roll 94. Doctor Foster's Case 2 Co. 529. Parker vers Lawson Crompt 14. And therefore if the King bring an Action of Debt c. upon 35 Eliz. 1. § 10 N. 2. against the Husband and Wife or the Informer sue them upon 23 Eliz. 1. § 11. N. 1. for any absence of the Wise from the Church after she is once Convicted by either of those wayes and recover the Privy Counsellour Bishop or Justices of Peace here mentioned 7 Jac. 6. § 28. N. 1. cannot imprison her by force of this Act for the non-payment of the ten Pounds per Month by the Husband for those Months for which the King or Informer hath recovered or for his not yielding the Thirds of his Lands to the King And the Reason is for that when the Husband stands charged with the Penalty of XX. lib. per Month for the absence of the Wife the Intent is satisfied in respect of those Months of her absence for which he stands so charged for if he pay not the XX lib. per Month so recovered the King or Informer hath the ordinary Remedy after Judgment by Process or Capias against them both and the Intent of the Act. 7 Jac. 6. § 28. N. 1. was no more than that the Husband should pay for the Recusancy of his Wife or the Wife be imprisoned And if in this Case the Privy Counsellour Bishop or Justices of Peace should have power to inform the Wife unless the Husband would pay ten lib. for the Months for which the King or Informer hath recovered it would follow that the Husband hath his Election whether he will pay ten Pounds per Month to the King by force of this Act 7 Jac. 6. § 26. N. 1. or the twenty Pound per Month so recovered against him by the King or Informer for he shall not pay both the one and the other for that were by his puniri pro uno delicto and if he shall have his Election the King or Informer might by this device be eluded of the Penalty of twenty lib. per Month so recovered which could not be the intent of the Makers of this Law But if the Wise be after such Conviction imprisoned by force of this Act 7 Jac. 6. § 28. N. 1. neither the King or Informer can so sue the Husband and Wife for the Recusancy of the Wife for she is already punished by this Act and must remain in prison until the Husband pay the ten lib. for every Month or yield the Thirds of his Lands to the King or the Wife conforms So if the Husband yields the Thirds of his Lands to save his Wifes imprisonment he is already punished by this Act 7 Jac. 6. § 28. N. 1. and shall not again be punished or sued by the King or Informer either upon 23 Eliz. 1. § 11. N. 1. or 35 Elez. 1. § 10. N. 1. And if after such Conviction of the Wife he pay ten lib. per Month to save her imprisonment he cannot be sued with his Wife for the twenty lib. per Month upon either of those Statutes by the King or Informer for these Months of her absence from Church incurred after her Conviction for which he hath paid the twenty lib. monthly to the King for he shall not bis puniri pro uno delicto Hitherto hath been spoken of the Conviction of the Wife at the King's Suit alone by Action of Debt c. or by the Informer Qui cam c. which doth not appropriate the Penalty to the King by 29 29 Eliz. 6. § 4. N. 1. or 3 Jac. 4. § 8. N. 2. If the Wife be Convicted of Recusancy upon an Indictment it hath been much debated whether that doth not appropriate the Penalty of twenty lib. per Month to the King for the time to come by 29 Eliz. 6. § 4. N. 1. and 3 Jac. 4. § 1. N. 2. that the King cannot bring an Action of Debt or the Informer any Popular Suit against the Husband and Wife for any Offence of Recusancy committed by the Wife after such Conviction supra 79. N. 17. and 173. N. 2. However admitting they may yet now if the King take advantage of this Statute 7 Jac. 6. § 28. N. 1. and the Wife be either imprisoned or the Husband yields the third part of his Lands to the King there is no question but the King and the Informer are both barred to sue for the twenty lib. per Month for any time incurred after her Conviction for the King hath made his Election to punish her this way and the Informer cannot sue her for she is punished already at the Suit of the King And if the Husband pay the ten lib. per Month the King and Informer are likewise barred for those Months of her absence from Church incurred after her Conviction for which the Husband hath paid the ten lib. monthly to the King for he shall not be twice punished for the same Offence Page 255. CCLXXI. Of all his Lands and Tenements 7 Jac. 6. § 28. N. 1. By Tenements are to be understood Offices Rents Commons Profits Apprendre out of Lands Advowsons and the like wherein a man hath any Frank-Tenement and whereof he is seized ut de libeto tenemento for all these are included under the word Tonement as well as Lands and other Inheritances which are holden 1 Iust 6.11 H. 6.22 Grants Br. 143. Perkins Sect. 114 115. Finch 130. 2 Anderson 4 the Womans Lawyer 3. P. 188. But Tenement extends not to a Chattel or Lease for Years Done Br. 41. grants Br. 87. 1 Bulstr 101. Turpine against Farryer So that the Husband need not yield to the King the third part of his Leases for years for the Recusancy