lieu of the Twenty pounds per month And therefore the Resolution or Judgment said to be given in the Case of one Gray Anno 1. or 2. Jac. and cited in Beckets Case 8 Jac. Lane 93. and by Sergeant Bridgman in his Argument of Parker and Webbs Case 16 Jac. Rolles 2. 25. and applied thereunto viz. That if a Recusant convicted fails of the payment of the Twenty pounds per month the King shall have his Lands as a gage or penalty and the profits shall not go towards satisfaction thereof However it were true as the Law stood upon 29 Eliz. and before the making of this Act of 1 Jac. yet 't is not Law at this day nor could be applicable to either of those Cases of Becket or Parker and Webb which came to be debated long after this Act was made and the Law of 29 Eliz. altered in that point Vide Stat. 29 Eliz. cap. 6. Sect. 7. Where any such seizure shall be had c. This Relative such takes in both the seizures beforementioned viz. a seizure upon Indictment and Judgment thereupon by force of the Statute of 23 Eliz. and a seizure upon Conviction on Proclamation and default according to the Statute of 29 Eliz. And What seizure is here meant Stat. 23 Eliz 1 29 Eliz. â— as in both those Cases the Recusant who fails of the payment of the Twenty pounds 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 Where this extends not to Intailed Lands Two parts of the Lands c. of any such Recusant This Clause 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 Twenty pounds 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 the nature of a Verdict only Conviction upon Proclamation no Judgment and not of a Judgment as was held in Doctor Fosters Case Rolles 1.94 C. 41. 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 charged by general words in the Statute which gives the forteiture or seizure An instance whereof we have in the Case of a Recusant Tenant in Tail Indicted Stat. 23 Eliz. 1 Convicted and Adjudged upon 23 Eliz. 1. for his Intailed Lands shall remain after his death in the Kings possession until the arrears be satisfied 29 Eliz. 6 33 H. 8. 39 and that by force of 29 Eliz. c. 6. and this Statute cooperating with the Statute of 33 H. 8. cap. 39. which charges the Lands of the heir in Tail with debts due to the King upon a Judgment had against the Ancestor Praemunire Stat. 16 R. 2. 5 But otherwise 't is in the Case of a Praemunire upon the Statute of 16 R. 2. cap. 5. which saith the Lands and Tenements of the Offender shall be forfeit to the King for there his Intailed 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 the Statute de donis conditionalibus Co. 1. Inst. 130. 391. Co. 11.63 Godbolt 308. Lord Sheffeild and Ratcliffe Treason Stat. 26 H. 8. 13 5 E. 6. 11 And therefore in the Statutes of 26 H. 8. cap. 13. and 5 E. 6. cap. 11. which make Intailed Lands forfeitable for Treason the word inheritance was added any Estate of Inheritance which expresly denotes Lands in Fee Tail as well as Feesimple Now there being neither in this Act or that of 29 Eliz. 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 charges the heir in Tail with the forfeiture due to the King upon Conviction by Proclamation and Default the general words here that his Lands Tenements c. shall continue in the Kings possession shall not inforce a construction in prejudice of the Heir in Tail who claims by the Statute de donis conditionalibus 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 intailed Lands upon the Statute of 29 Eliz. cap. 6. which speaks of the full satisfaction of Arrearages in Case of the death of the Recusant Arrears where to be paid by the Heir in Tail where not And the Arrears were to have been 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 in this last Case the Heir in Tail was not bound by the Statute of 33 H. 8. cap. 39. because 't is not a Debt by Judgment as that Statute requires Moore 523. C. 691. And thus the Opinion of the two Chief Justices Trin. 43 Eliz. is to be understood for they held That if intailed Lands had been seized for non-payment of the 20 l. per month and the Tenant in Tail had died the issue in Tail should not have had the Land out of the Queens hands before the Debt were satisfied but should have been charged with the said Debt Cro. Eliz. 846. At the end of which Case is added a Dubitatur But yet the Opinion there held stands good if it be intended only of a Conviction of the Ancestor by Judgment upon Trial or Confession and not of a Conviction upon Proclamation and default And be it further Enacted by the Authority of this present Parliament Stat. Sect. 2. None shall go or send any other to a Seminary c. That all and every person and persons under the Kings Obedience which at any time after the end of this Session of Parliament shall pass or go or shall send or cause to be sent any Child or any other person under their or any of their Government into any the parts beyond the Seas out of the Kings Obedience to the intent to enter into or be resident in any Colledge Seminary or House of Iesuits Priests or any other Popish Order
be a Popish Recusant convict at any time after his or her conviction shall exercise any publick Office or Charge in the Commonwealth but shall be utterly disabled to exercise the same by himself or by his Deputy except such Husband himself and his Children which shall be above the age of nine years abiding with him and his Servants in houshold shall once every month at the least not having any reasonable excuse to the contrary repair to some Church or Chappel usual for Divine Service and there hear Divine Service And the said Husband and such his Children and Servants as are of méet age receive the Sacrament of the Lords Supper at such times as are limited by the Laws of this Realm and do bring up his said Children in true Religion This Clause extends not to all sorts of Recusants who are convicted or have Wives who are Recusants convicted as is mistaken in the late additions to Dalton cap. 81. tit Recusants Sect. 46. To whom this clause extends But at this day only to the Popish Recusant convicted or having a Wife who is a Popish Recusant convicted To whom not A Popish Recusant not convicted hath a Wife who is convicted of Recusancy but is no Popish Recusant The Husband is not disabled by this Statute to exercise any publick Office or Charge for that neither the Husband is a convicted Recusant nor the Wife a Popish Recusant A person who is convicted of Recusancy but is no Popish Recusant hath a Wife who is a Popish Recusant but not convicted The Husband is out of this Branch of the Statute for that neither the Husband is a Popish Recusant nor the Wife convicted Stat. Sect. 11. A Married Woman being a Popish Recusant And be it also Enacted by the Authority aforesaid That every Married Woman being or that shall be a Popish Recusant convict her Husband not standing convicted of Popish Recusancy which shall not conform her self and remain conformed but shall forbear to repair to some Church or usual place of Common Prayer and there to hear Divine Service and Sermon if any then be and within the said year receive the Sacrament of the Lords Supper according to the Laws of this Realm by the space of one whole year next before the death of her said Husband shall forfeit and loose to the Kings Majesty his Heirs and Successors the issues and profits of two parts of her Ioynture and two parts of her Dower in thrée parts to be divided during her life of or out of any the Lands Tenements or Hereditaments which are or were her said Husbands and also be disabled to be Executrix or Administratrix of her said Husband and to have or demand any part or portion of her said late Husbands Goods or Chattels by any Law custom or usage whatsoever The issues and profits of two parts of her Ioynture and two parts of her Dower A Woman may have Joynture and Dower both And not of two parts of her Joynture or Dower as Wingate tit Crown numb 134. For there are divers Cases where notwithstanding the Statute of 27 H. 8. cap. 10. the Wife shall have her Dower and Joynture both And forfeit two parts of both And if she offend against this branch she shall forfeit the profits of two parts of both And that not only where the Joynture made to her is not warranted by that Statute but in some Cases where the Joynture is pursuant and according to the Statute she shall have her Dower and Joynture both Of the first sort are these Where the Joynture is not warranted by Stat. 27 H. 8. 10. If an Estate be made of Lands to the Wife for the life of another Co. 4. 3. Vernons Case Or for a thousand years or for a thousand years if she live so long Co. 1. Inst 36. Or if a Rent be granted to the Wife for the life of another or for years or any other way not pursuant to that Statute Vide Anderson 1. 288. c. 296. Bickley's Case Anderson 2. 30 31. c. 20. Wentworths Case Or if an Estate be made to others in fee or for the Wives life upon Trust for her benefit Co. 1. Inst 36. Or if a man Covenant to stand seized to the use of himself in Tail the Remainder to the use of his Wife for life Pasch 16. Jac. B. R. Woods Case Or if the Husband make a Feoffment in see to the use of himself for life the remainder to another for life or years the remainder to the Wife for her life Co. 4. 2. 3. Hutton 51. Sherwells Case In all these Cases although the Lands or Rent were conveyed to the Wife for her Joynture yet the Estate not being within the Statute of 27 H. 8. her acceptance thereof shall not bar her Dower but she shall have such Joynture and her Dower also And the reason why in the two last Cases the Wife shall not be barred of her Dower although there be an Estate limited to her for her life is because the Estate is not in its first Creation appointed to take immediately after the death of the Husband And no matter which arises ex post facto can salve this or make it a Joynture within that Statute to bar her Dower And therefore if in the first of those two Cases the Husband Tenant in Tail dies without issue or if in the last Case he in the remainder die before the Husband or the term for years determines in the Husbands life time so that the Wife may enter presently after his death yet because the Estate to the Wife for her life was not originally limited to take immediately after his death it shall not bar her Dower For quod ab initio non valet in tractu temporis non convalescet Co. 4. 2 3. Hutton 51. And as in all the Cases before mentioned if the Estate were made for her Joynture the Wife shall have such Joynture and her Dower both so if she be an Offender within this branch of the Act and conform not within the year next before her Husbands death she shall forfeit the profits of two parts of both Of what Lands she shall not forfeit the profits 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 recompence of her Dower And therefore if any of the Estates before mentioned which are not within the Statute of 27 H. 8. 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 seized 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
Sunday be not dies Juridicus so as to award a Judicial Process or enter a Judgment of Record on that day yet an Information may be exhibited in Court on that day and good Jones 156. 157. Bedoe versus Alpe Information delivered In the Common-Pleas an Information may by the course of that Court be brought in and delivered to one of the Judges there out of Term No antedate Stat. 18 Eliz. 5. and shall be dated then For the Statute of 18 Eliz. cap. 5. forbids all antedates Rolls 2.33 Smith versus Carter Conviction on Indictment pending the Information An Information is brought by an Informer Qui tam c. upon this Statute for Recusancy and pending the Information the Recusant is convicted at the Kings Suit upon an Indictment for the same absence the Question is what remedy the Recusant hath in this Case that he may not Bis puniri pro uno delicto And to this it was Answered by Coke Chief Justice B. R. in the Case of Dr. Foster that he may plead this Conviction puis le darreine continuance to discharge himself of the Information Rolles 1. 95. C 41. But as the Reporter there well observes the Informer when he hath begun his popular Action hath appropriated the Action to himself And if it shall be admitted that the King can devest him of this Action when he pleases Action appropriated by Indictment at his own Suit this would prove very mischievous to Informers Quaere therefore how in this Case the Recusant shall defend himself from being doubly punished for one and the same Offence But if the Recusant be once convicted at the Kings Suit either by Indictment upon this Statute or according to the Statutes of 29 Eliz. cap. 6. Stat. 29 Eliz. 6 3 Jac. 4. or 3 Jac. cap. 4. upon Proclamation the Informer Qui tam c. cannot afterwards charge him but is barred for ever after Informer barred For the intention of this Statute is that the Informer may exhibit Informations against such only as are concealed or not charged at the Kings Suit so that the Informer is neque falcator neque messor but spicelegus a gleaner And that in such Cases only where the King doth not prosecute pardon or release before the Informers Action is commenced Co. 11. 65. Dr. Fosters Case Bridgman 121.122 Parker against Sir John Webb and his Wife Lane 60. But whether this Rule be general and will not admit of an exception in the Case of a Feme Covert Feme Covert is a Question for by some Opinions if a Feme Covert be Indicted and Convicted of Recusancy that shall not Bar the Informer of his popular Action upon this Statute against her and her Husband for the Recusancy of the Wife Because upon the Conviction by Indictment she cannot be compelled to pay the forfeiture of Twenty pounds per month while her Husband lives nor can it be levied of her goods and lands For that during the Coverture she hath nothing of her own to forfeit but all is her Husbands Vide Bridgman 122. 123. Parker versus Sir John Webb and his Wife Vide Stat. 3 Jac. cap. 4. Sect. 6. The Condemnation or Acquittal of the party at the Suit of the Informer is a good Barr against the King and all others Bar. Co. 11. 66. Before the Statute of 4 H. 7. cap. 20. Popular Action by Covin it seems that if a popular Action had been brought by Covin and with the consent of the Defendant and the Defendant was for want of Evidence or other Cause found not guilty and the Covin appeared to the Court yet Judgment should have been given thereupon against the King and it should have been a good Barr against all others 9 E. 4. 4. But now by that Statute of H. 7. Stat. 4 H. 7. 20 If any person sue with good Faith any Action popular and the Defendant plead a Recovery in an Action popular in Barr or that before that time he had barred the Plaintiff in such Action the Plaintiff may aver such Recovery or Bar was by Covin and upon such Covin found the Plaintiff shall have Judgment and the Defendant so attainted or condemned of Covin shall have Imprisonment for two years by process of Capias or Outlawry as well at the Kings suit as any other and the Release of the party shall not avail the Defendant which Covin may be averred generally Vide Wymbishe and Talbois Case Plowden 49 50 54 55. If a man bring upon a penal Statute an Action of Debt tam pro Domino Rege quam pro seipso Who is to reply in a popular Action of debt and the Defendant pleads thereunto the party Plaintiff may reply without the Kings Attorney And in Princes Case in an Action of Debt upon this Statute the Defendants demurred and the Plaintiff qui tam c. joined in Demurrer without the Kings Attorney and held to be good Cro. Trin. 1 Car. 10 11. Lionel Farringtons Case But in an Information tam c. quam And who in a popular Information c. the Kings Attorney ought to reply Rolles 2.33 Smith versus Carter And this difference between an Action of Debt and an Information was taken in the aforesaid Case of Farrington versus Arundell Hutton 82. But yet if in an Information the Defendant plead a special Plea and the Kings Attorney will not reply and prosecute for the Kings part the Informer shall be admitted to reply and prosecute for his part as was adjudged in the Case of Stretton and Taylor Co. 11.65 Dr. Fosters Case Co. 3. Inst 194. Where the King may pardon or release the penalty The King before any Information or other popular Suit commenced may pardon or release the whole penalty incurred and it shall be a good Bar against all men Co. 11.65 66. Dr. Fosters Case Co. 3. Inst. 194 195. 37 H. 6. 4. 2 R. 3. 12. Termes de la Ley 102. Decies tantum 1 H. 7. 3. And if the Defendant in the Information do not take advantage of such pardon or release by his Plea but is condemned in the Suit and the Kings share of the penalty be put in the Pipe in magno rotulo yet he may then discharge himself thereof upon a Compertum fuit in magno rotulo by shewing forth the whole matter by way of Plea and shall not lose the effect of his pardon or release Vide Savile 23. C. 56. Tirringhams Case And where not But when once the Informer hath brought his popular Suit the King cannot discharge it and if he then pardon or release or his Attorney enter an ulterius non vult prosequi this is good for the Kings part only but is no Bar quoad the Informer who may proceed notwithstanding for his part of the penalty And therefore neither can the Kings Attorney discharge the Jury when they come to deliver their Verdict Hutton 82. Vaughan 343. Thomas versus
the arrearages of twenty pounds monthly before such seizure due or payable shall ensue or be continued against such Offender so long as the same person shall continue in coming to Divine Service according to the intent of the said Estatute It was resolved by all the Judges Mich. 37 38 Eliz. That if a man had been convicted according to this Statute by Proclamation upon default and afterwards conformed himself Where Conformity discharges the penalty he should be discharged of the penalty due upon his Conviction notwithstanding these words and full satisfaction of all the Arrearages And the reason of this given by Coke Chief Justice B. R. in Dr. Fosters Case is for that this Statute 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 penalties are discharged upon Conformity unless such as are converted into a Debt But otherwise it would have been if there had been a Judgment against the Recusant upon Trial or Confession on the Statute of 23 Eliz. cap. 1. Stat. 23 Eliz. 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 Rolles 1. 94. C. 41. Quaere tamen Whether these words here due and payable are to be understood due and payable upon a Judgment only However now by the Statute of 1 Jac. cap. 4. 1 Jac. 4. if the Recusant conform either before or after Judgment he shall be discharged of all penalties But the profits of the Recusants Lands taken before his Conformity shall never be restored Savile 130. C. 201. The profits not to be restored It hath been questioned upon this Statute Where the penalty is discharged upon the death of the Recusant where not if a Recusant convicted by Proclamation upon default had died before seizure of two parts of his Lands whether 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 whether 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 principally grounded upon the aforesaid construction of this Statute viz. 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 Arrearages due in the sense of this Statute for the heir to pay And yet that by such Offender here is generally intended all Recusants convicted as well by Proclamation upon default as upon 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 But there seems now to be no further need of this Question for the Statute of 1 Jac. cap. 4. Stat. 1 Jac. 4. 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 a seizure the two parts shall continue in his Majesties possession till the Arrears are paid and satisfied Intailed Lands when discharged and when not But this is not intended of intailed Lands For without any aid of this Proviso if a Recusant Tenant in Tail be convicted by Proclamation upon default and dies 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 of which see farther in Stat. 1 Jac. cap. 4. Sect. 4. If a Judgment was had against the Recusant before the said Statute of 1 Jac. and he had died before seizure of the two parts of his Lands The question was whether after his death they might have been seized by force of this Statute of 29. for the Arrears of the penalty incurred in his life time For that the seizure here given is meerly in nature of a nomine poenae 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 Vide Lane 92 93. Beckets Case Ibid. 107. Halseys Case Stat. 1 Jac. 4. But now by the Statute of 1 Jac. 4. the seizure is not as a meer penalty for the contempt of non-payment but for the satisfying of the King of the Arrears of the 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 Seizure after the Recusants death unless the Heir discharge himself by his Conformity Note Discharge upon Affidavit in all these Cases of seizure where the Land is to be discharged upon the death of the Recusant although an Affidavit be made of his death and a discharge obtained thereupon yet 't is a Rule in the Court of Exchequer Commission to enquire That a Commission shall be awarded first to enquire Savile 130. Case 201. And where by the said former Estatute Stat. Sect. 8. The third part of the forfeiture how to be disposed of the third part of the forfeitures for not coming to Divine Service is limited to the Poor Be it further Enacted by the Authority aforesaid That it shall and may be lawful to and for the Lord Treasurer of England Chancellor and Chief Baron of the Exchequer for the time being or two of them to assign and dispose of the full third part of the twenty pounds for every month paid or to be paid into the Receipt of the Exchequer as is aforesaid for the relief and maintenance as well of the Poor and of the Houses of Correction as of impotent and maimed Soldiers as the same Lord Treasurer Chancellor and Chief Baron or any two of them shall order or appoint Any thing in the said Estatute made in the said thrée and twentieth year of her Majesties Reign mentioned to
cap. 1. Sect. 9. in that part touching the Informer and the Cases there cited to prove that no other Suits are restrained by that Statute to a year and a day but only Suits by Indictment By Action of Debt Bill Plaint Information If the King sue by any of these ways no Proclamation Proclamation can be made thereupon For the Proclamation given by the Statutes of 29 Eliz. 6. 3 Jac. 4. Stat. 29 Eliz. 6 3 Jac. 4 in Case of Recusancy at the Kings Suit is upon Indictment only Co. 11. 62. Dr. Fosters Case The Kings-Bench Common-Pleas or Exchequer This Statute adds two other Courts where the King may sue for Recusancy Two Courts added where the King may sue Stat. 29 Eliz. 6 or for saying or hearing of Mass For by 29 Eliz. cap. 6. the Queen was limited to the Kings-Bench the Assizes or general Goal delivery and that only by way of Indictment but now by this Statute she might sue not only in those Courts by Indictment but in the Kings-Bench Common-Pleas or Exchequer by Action of Debt Bill Plaint or Information Co. 11. 61. Dr. Fosters Case But whereas 't is there said that this Statute of 35 takes not off the restriction of the Informer Qui tam c. by the Statute of 29 Eliz. cap. 6. to the Courts there mentioned viz. the Kings-Bench Assizes and general Goal delivery This passage was occasioned by an opinion there held in the said Case of Dr. Foster that the Informer Qui tam c. was restrained by 29. to those Courts The Informer not restrained by 29 Eliz. 6. But that opinion is not Law nor was there ever any such restriction of the Informer for the Statute of 29 Eliz. intends only Suits by Indictment but touches not the popular Action or Information Vide Stat. 29 Eliz. cap. 6. Sect. 2. As c. any other Debt c. should or may be recovered Before this Statute the Queen had no way to recover of the Husband the intire forfeiture for the Recusancy of his Wife For if the Wife had been Indicted of Recusancy at the Queens Suit and convicted thereupon this had not affected the Husband who shall never be charged for the Act or default of his Wife but where he may be made party to the Action or Suit as in an Action of Debt Trespass Action of the Case for scandalous words by the Wife c. but not upon an Indictment And in this respect the Queen having before this Statute no remedy for recovery of the forfeiture but by Indictment where the Husband could not be charged for his Wife the Informer was then in better Case then the Queen For he may charge the Husband and Wife both for the Recusancy of the Wife and shall recover the forfeiture of him by force of the Statute of 23 Eliz. cap. 1. Stat. 23 Eliz. 1 Vide that Stat. Sect. 9. But upon the Conviction of the Wife upon Indictment the Queen must have staid till the death of the Husband before she could have levied the forfeiture and if the Wife had died before her Husband it was utterly lost in most Cases Baron and Feme may be charged for Recusancy of the feme But by this Act the Queen might and the King may at this day charge the Husband and Wife joyntly by Action of Debt Bill Plaint or Information for the Recusancy of the Wife in such sort as he may be charged in any other Action at Common Law for the Debt or Trespass of his Wife and the forfeiture for her Recusancy shall be recovered of him And this was the principal end and scope of making this Branch of the Statute and to this purpose were these words added here In such sort and in all respects as by the ordinary course of the Common Laws of this Realm any other Debt due by any such person in any other Case should or may be recovered Co. 11. 61 62. Dr. Fosters Case Rolles 1. 233 234. Roy versus Law son feme Savile 25. C. 59. Provided always Stat. Sect. 9. How the third part of the Penalties shall be imployed That the third part of the penalties to be had or received by vertue of this Act shall be imployed and bestowed to such good and charitable uses and in such manner and form as is limited and appointed in the Statute made in the 28. year of her Majesties Reign touching Recusants The Statute here mentioned Stat. 29 Eliz. 6 and called the Statute of 28 Eliz. is the same with 29 Eliz. cap. 6. before recited It being in some Books called the Statute of 28 in others of 29 but as it seems more properly 29. For the Session wherein it was made was by Prorogation held the 15 of February 29. Eliz. Provided also That no Popish Recusant Stat. Sect. 10. Popish Recusant or Feme Covert not to abjure Popish recusant or Feme Covert shall be compelled or bound to abjure by vertue of this Act. No Popish Recusant Here Wingate tit Crowne n. 77. leads his Reader into a great mistake for he mentions only a Feme Covert leaving out the Popish Recusant Feme Covert not here excepted in all Cases Or Feme Covert In the late additions to Dalton cap. 81. tit Recusants Sect. 7. 't is said that no married Woman is punishable by this Statute but are thereout excepted whereas in truth they are no where excepted throughout this Statute save only that they shall not be compelled or bound to abjure For if a married Woman comes not to Church but forbears for a month and goes to Conventicles or any other Meetings or Assemblies under colour or pretence of the exercise of Religion 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 until she conform and submit her self but she cannot be further proceeded against so as to require her to abjure A married Woman with her Husband is likewise punishable by this Act for her Recusancy by Action 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 Stat. Sect. 11. The forfeiture of him that abjures or refuses to abjure The Wise shall lose no Dower nor the heir any Land for these Offences Provided also That every person that shall abjure by force of this Act or refuse to abjure being thereunto required as aforesaid shall forfeit and lose to her Majesty all his goods and chattels forever and shall further lose all his Lands Tenements and Hereditaments for and during the life only of such offender and no longer and that the Wife of any Offender by force of this Act shall not lose her dower nor that any corruption of Blood shall grow or be by reason of any offence
mentioned in this Act but that the heir of every such Offender by force of this Act shall and may after the death of every Offender have and enjoy the Lands Tenements and Hereditaments of such Offender as if this Act had not beén made Every Abjuration 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 forever might sue or be sued without her Husband Suit as was ruled in the Case of the Lady Maltravers 10 E. 3. and of the Lady Belknap 1 H. 4. 1. 2 H. 4. 7. And if a man be perpetually banished by Authority of Parliament unless is be for Felony or by force of this Act his Wife shall be endowed living the Husband And if he had been perpetually banished or abjured for Felony the Wife should have had her joynture Jointure presently although not her Dower Dower as was resolved in Weylands Case 19 E. 1. and the reason is because though the Husband be naturally living yet he is civilly and in the Eye of the Law as a dead man But yet these Cases are to be understood of a Banishment or abjuration forever 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 Co. 1. Inst 132. 133. Co. 2. Inst 47. Bulstrode 3. 188. Rolles 1. 400. C. 27. Wilmores Case Moore 851. C. 1159. Wilmots Case But if a man be abjured by force of this Act What dower is here saved the Wife shall not have her Dower or Joynture during the natural life of her Husband although he be abjured forever but she is in worse Case then the Wife of a person perpetually banished was at the Common Law For this Act 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 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 is only the usual Provision made in Acts 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 is that if the Husband refuse to abjure or abjure and refuse to depart according to this Act or return without lieence yet the Wife shall be endowed and the heir inherit his Lands after he is naturally dead And this Act to continue no longer than to the end of the next Session of Parliament Stat. Sect. 12. Note this Act being at first but temporary This Act at first but temporary was afterwards discontinued Hutton 61. 62. but is since revived by the Statute of 3 Car. 1. c. 4. and is in full force at this day And in such Case it hath been questioned if a Statute be discontinued and afterwards revived how an Indictment thereupon shall conclude whether contra formam Statuti or Statutorum Where if a Statute be discontinued and revived it shall be contra formam Statuti and where contra formam 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 Palmers Case 9 Eliz. 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 the conclusion shall be contra 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 later opinion hath the practice been in Informations upon the Statute of 5 Eliz. cap. 9. of Perjury Stat. 5 Eliz. 9 which determined 14 Eliz. and was revived 29 Eliz. And yet all Informations thereupon conclude Contra formam Statuti And so as it seems ought all Indictments upon this Statute of 35. notwithstanding its discontinuance and reviver Vide Owen 135. Wests Case Stat. xxxv Eliz. cap. ii An Act for the restraining of Popish Recusants to some certain place of abode FOr the better discovering and avoiding of such Traiterous and most dangerous Conspiracies and Attempts as are daily devised and practiced against our most gracious Soveraign Lady the Queéns Majesty Stat. Sect. 1. and the happy estate of this Common-weal by sundry wicked and seditious persons who terming themselves Catholicks and being indéed spies and intelligencers not only for her Majesties forreign Enemies but also for Rebellious and Traiterous Subjects born within her Highness Realms and Dominions and hiding their most detestable and divellish purposes under a false pretext of Religion and Conscience do secretly wander and shift from place to place within this Realm to corrupt and seduce her Majesties Subjects and to stir them to Sedition and Rebellion Be it Ordained and Enacted by our Soveraign Lady the Quéens Majesty and the Lords Spiritual and Temporal A Popish Recusant convicted and the Commons in this present Parliament assembled and by the Authority of the same That every person above the age of sixtéen years born within any of the Quéens Majesties Realms and Dominions or made Denizen being a Popish Recusant and before the end of this Session of Parliament convicted for not repairing to some Church Chappel or usual place of Common Prayer to hear Divine Service there but forbearing the same contrary to the tenor of the Laws and Statutes heretofore made and provided in that behalf and having any certain place of dwelling and abode within this Realm shall within forty days next after the end of this Session of Parliament if they be within this Realm and not restrained or stayed either by Imprisonment or by her Majesties Commandment or by order or direction of some six or more of the Privy Council or by such sickness and infirmity of body as they shall not be able to Travel without imminent danger of Life and in such Cases of absence out of the Realm restraint or stay then within 20 days next after they shall return into the Realm and be
she should not be doubly punished both that way and at the Suit of the Informer And for the same reason it was urged that this Information would not lye against the Husband and Wife for after the Husbands death she would be liable to pay into the Exchequer all the arrears after the rate of Twenty pounds per month from the time of her Conviction and her goods and two parts of her Lands might be then seized for non-payment thereof And if the Husband and Wife should in the mean time at the Suit of the Informer pay Twenty pounds per month for part of the same time for which the Wife was liable to pay after the Husbands death this would be a double punishment for one and the same offence and it was further said that it was usual where the Wife was Indicted and Convicted for Recusancy Seizure of the Wives Lands and Leases to seize by Exchequer Process the Lands and Leases which the Husband had in her right and one Woods Case was cited to this purpose which proves that a Feme Covert is within the meaning of the Act and therefore after she is once Convicted upon Indictment shall be no more subject to the Informers popular Suit then a Feme sole Cro. Pasch 16 Jac. 481.482 But this last point is much to be questioned for the Lands and Leases of the Wife are the Husbands during the Coverture and 't is a general rule that his Goods or Lands cannot be seized for the forfeiture or penalty where the Wife only is Indicted and Convicted of the Offence See more of this matter antea Stat. 23 Eliz. cap. 1. Stat. 23 Eliz 1 Sect. 9. A Recusant is Indicted for absenting himself from Church for 12 months and afterwards is Convicted upon that Indictment Where an Informer may sue after Conviction upon Indictment Quaere whether nevertheless the Informer Qui tam c. may not sue him for his absence for the months intervening between the time laid in the Indictment and the time of his Conviction For these words here viz. after such Conviction seem to relate to the proximum antecedens every month and to imply that the penalty here appropriated to the King is only the penalty due for the months which incur after such Conviction upon Indictment at the Kings Suit but not to hinder the Informer after Conviction from suing for the months incurred before Conviction Except in such Cases where the King shall c. refuse the same The King may seize two parts presently after Conviction If a man be Indicted and Convicted of Recusancy the King is not bound to stay till the next Easter or Michaelmas Term to see whether the Recusant will tender twenty pounds for every month contained in the Indictment and incurred after such Conviction for the King having his Election whether he will accept thereof or seize two parts of the Recusants Lands A Commission for seizure of the Lands may issue out presently if the King will wave the twenty pounds per month For he may take his Election as soon as he will after Conviction By Jones Justice in the Case of Standen and the University of Oxford Jones 24. Stat. Sect. 7. Every Conviction shall be certified into the Exchequer And that every Conviction recorded for any Offence before-mentioned shall from the Iustices before whom the Record of such Conviction shall be remaining be certified into the Kings Majesties Court of Exchequer before the end of the Term following such Conviction in such convenient certainty for the time and other circumstances as the Court of Exchequer may thereupon award out Process for the seizure of the Lands and Goods of every such Offender as the Cause shall require And if default shall be made in any part of any payment aforesaid contrary to the form herein before limited that then and so often the Kings Majesty his Heirs and Successors shall and may by process out of the said Exchequer take seize and enjoy all the Goods and two parts as well of all the Lands Tenements and Hereditaments Leases and Farms of such Offender as of all other the Lands Tenements and Hereditaments liable to such seizure or to the penalties aforesaid by the true meaning of this Act leaving the third part only of the same Lands Tenements and Hereditaments Leases and Farms to and for the maintenance and relief of the same Offender his Wife Children and Family Timber Trees All the Goods A Recusant convicted is Tenant for Life the Remainder to a Stranger in Fee He in the Remainder with the Recusants assent cuts down Timber Trees and sells them In this Case the King can be no ways intitled to the Trees Bulstrode 1.133 Vide Stat. 29 Eliz. cap. 6. Sect. 4. Aswell of all the Lands c. Leases and Farms of such Offender Lease in trust for another Elizabeth Bowes was convicted of Recusancy and she standing so Convicted a Lease was made to her in trust which she conveyed over according to the trust The question was whether the King might seize this Lease And the reason given in Lane 39. why the King should have the Term is because the Recusant after she was Convicted was not capable of any trust and therefore the Conveyance made by her was as if it had been voluntary without relation to the Trust Tamen quaere by what Law a Recusant meerly for the matter of Recusancy is incapable of any Trust although Convicted All other the Lands c. liable to such seizure Copyhold Lands Stat. 29 Eliz. 6. or to the penalties aforesaid Whether Copyholds be liable to such seizure vide Stat. 29 Eliz. cap. 6. Sect. 4. Lands are conveyed to A. in trust for B. a convicted Recusant Lands in trust for a Recusant Quaere whether the King may seize such Lands for the Recusants non-payment of the twenty pounds per month for if he make his Election and accepts of two thirds in lieu of the twenty pounds per month there is no question but such Lands are liable to seizure For the words of the subsequent Clause are That the King may seize two parts of all Lands that shall come to any other person to the use of or in Trust for such Recusant But in this Clause which relates to the seizure of two parts for non-payment the words seem to be more restrictive Vide Lane 105. 106. Halseys Case And whereas by an Act made in the Session of Parliament holden by Prorogation at Westminster in the thrée and twentieth year of the Reign of the late Queén Elizabeth entituled Stat. Sect. 8. The Stat. of 23 Eliz. 1. touching a Recusants monthly forfeiture An Act to retain the Subjects of the said late Quéen in their due Obedience It was amongst other things Enacted by Authority of the said Parliament That every person above the age of sixtéen years which should not repair to some Church Chappel or usual place of Common Prayer
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 bar her Dower out of the residue of her Husbands Estate but that she shall enjoy both the one and the other Co. 4. 4. so they are not within the meaning of this Act because not made for her Joynture And she shall not forfeit the profits of two parts of them although she may forfeit the profits of 2 parts of her Dower which she hath out of the residue of her Husbands 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 Jointure 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 Husbands Estate For that the Lands first setled on her were not for her whole Joynture Co. 1. Inst 35. Co. 4. 3. Forfeiture of the profits of part of her Jointure 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 Where the Jointure is pursuant to the Statute in such Cases where the Joynture is not pursuant to the Statute of 27 H. 8. 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 assign other Lands to her in Dower or the Heir plead to her in a Writ of Dower ne unque seisi que Dower c. or nient accouple in Loyal Matrimony or any other Plea save Joynture in bar 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 this branch of the Act shall forfeit the profits of two parts of her Joynture and Dower both But if a Widow Dower not forfeited who is indowed of the Lands of her deceased Husband takes a second Husband who is no Popish Recusant Convicted by whom she hath a Jointure and she becomes a Popish Recusant Convict and the second Husband dies and the Wife is an Offender within this Act In this Case she shall not by force thereof forfeit the profits of two parts of such Dower and Jointure both but only of her Jointure 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 And be it further Enacted by the Authority aforesaid Stat. Sect. 12. A Popish Recusant shall be disabled as an Excommunicate person That every Popish Recusant which is or shall be convicted of Popish Recusancy shall stand and be reputed to all intents and purposes disabled as a person lawfully and duly Excommunicated and as if he or she had béen so denounced and excommunicated according to the Laws of this Realm until he or she so disabled shall conform him or her self and come to Church and hear Divine Service and receive the Sacrament of the Lords Supper according to the Laws of this Realm and also take the Oath appointed and prescribed in one other Act made this present Session of Parliament Intituled An Act for the better discovering and repressing of Popish Recusants And that every person or persons sued or to be sued by such person so disabled shall and may plead the same in disabling of such Plaintiff as if he or she were Excommunicated by Sentence in the Ecclesiastical Court What Conviction disables him Convicted of Popish Recusancy The Conviction mentioned here and in the other branches of this Statute seems to be intended not only of a Conviction according to the Statute of 29 Eliz. 6. or 3 Jac. 4. Stat. 29 Eliz. 6. 3 Jac. 4. upon Proclamation and default of appearance but of a Judgment likewise upon an Indictment or popular Suit on the Statute of 23 Eliz. 1. or an Action of Debt c. by the King alone by force of the Statute of 35 Eliz. 1. 35 Eliz. 1. For Convicted in relation to these three last mentioned remedies is to be taken for adjudged or attainted Vide for this the Statute of 23 Eliz. 1. Sect. 5. 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 Kings Suit is hereby disabled as an Excommunicate person and liable to all other the penalties and incapacities inflicted by this Act on a Popish Recusant convicted To what intent as excommunicate Reputed to all intents and purposes disabled as a person c. Excommunicated And not reputed to all intents as an Excommunicate person as Wingate tit Crown numb 135. misrecites the Statute 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 And yet the Opinion of the Court of Kings Bench Mich. 11 Jac. in the Case of Griffith and others seems to be to the contrary and that a Popish Recusant convicted may by force hereof be attached upon a Writ of Excommunicato capiendo Excommmnicato capiendo Bulstrode 2. 155. 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 Witness to be a Witness in any Cause between party and party By Coke Chief Justice Bulstrode 2. 155. This disability but quousque May plead the same in disabling of such Plaintiff This disability in the Popish Recusant convicted is but quousque c. until he Conform c. and take the Oath of Allegiance 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
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 Kings Suit alone in which Cases the penalty of Twenty pounds per month is not appropriated to the King for the time to come and he pays the penalty recovered or if he be Convicted upon Indictment and after such Conviction duly pays the Twenty pounds 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 in either of those Cases Sue or Prosecute for any of his Lands Tenements Leases Rents Annuities or Hereditaments whatsoever notwithstanding his Conviction For when the penalty recovered is satisfied or the forfeiture appropriated to the King is duly 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 until that Election they cannot in the sense of this Proviso be said to be Lands to be seized or taken into the Kings hands for that the King cannot have the two parts and the Twenty pounds per month both But if the King make no such Election and the Twenty pounds per month be duly 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 Recusant's 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 to think the latter of these were to render this Proviso nugatory and vain But when once the King hath seized the two thirds for recusancy either by way of Election or for nonpayment of the 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 Stat. Sect. 14. And for that Popish Recusants are not usually Married nor their Children Christned nor themselves Buried according to the Law of the Church of England but the same are done superstitiously by Popish Persons in secret whereby the days of their Marriages Births and Burials cannot be certainly known Stat. Sect. 15. Marriages of Popish Recusants Be it further Enacted by Authority of this present Parliament That every man being or which shall be a Popish Recusant convicted and who shall be hereafter Married otherwise then in some open Church or Chappel and otherwise then according to the Orders of the Church of England by a Minister lawfully Authorized shall be utterly disabled and excluded to have any Estate of Fréehold into any the Lands Tenements and Hereditaments of his Wife as Tenant by the Courtesie of England And that every Woman being or which shall be a Popish Recusant convicted and who shall be hereafter Married in other form then as aforesaid shall be utterly excluded and disabled not only to claim any Dower of the Inheritance of her Husband whereof she may be endowable or any Iointure of the Lands and Hereditaments of her Husband or any of his Ancestors but also of her Widows Estate and Frank-bank in any Customary Lands whereof her Husband died seized and likewise be disabled and excluded to have or enjoy any part or portion of the goods of her said Husband by vertue of any custom of any County City or Place where the same shall lie or be And if any such man shall be Married with any Woman contrary to the intent and true meaning of this Act which Woman hath or shall have no Lands Tenements or Hereditaments whereof he may be intituled to be Tenant by the Curtesie Then such man so Marrying as aforesaid shall forfeit and lose One hundred pounds the one half thereof to be to the Kings Majesty his Heirs and Successors and the other moiety to such person or persons as shall Sue for the same by Action of Debt Bill Plaint or Information in any of the Kings Majesties Courts of Record wherein no Essoin Protection or Wager of Law shall be admitted or allowed Where the Husband is no offender Every man being or which shall be a Popish Recusant Convicted A Man who is no Popish Recusant Convicted marries a Woman who is a Popish Recusant Convicted in other form then is here appointed He shall not forfeit any thing or be disabled by this Act. By a Minister lawfully Authorized Minister lawfully Authorized In an Information upon this Statute for being married otherwise then 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 Traverse come of the other side then the Defendant is in his Rejoynder to shew the time and place Vide Bulstrode 2. 50. 52. Creswich against Rookesby Every Woman being or which shall be a Popish Recusant Convicted A Woman who is no Popish Recusant Convicted Where the Wife is no offender marries 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 recited the Woman only shall be disabled so in this Case the Man only shall forfeit or be disabled Or any Ioynture of the Lands and Hereditaments of her Husband or any of his Ancestors Joynture A Feme who is a Popish Recusant Convicted and married otherwise then is appointed by this Act is not therefore disabled to have any sort of Joynture as Wingate tit Crowne n. 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 setled 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 nor shall the Wife although a Popish Recusant Convicted and married otherwise c. be disabled by any strained construction of this Law to enjoy the Lands after her Husbands death For a penal Law shall be taken strictly and not by equity or intendment especially where the intent of the Lawmakers doth not appear to the contrary and the Case such as doth but rarely happen And 't is a good Rule in the construction of Statute Laws which the late Lord Chief Justice Vaughan hath laid down in his Argument of Bole and Hortons Case Mich. 25. Car. 2. viz. 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 farther then they reach but to say it is casus omissus and that the Law intended quae frequentius accidunt Vaughan 373. And yet there is no question but such Lands are a Joynture The extent of the word and if made with the Wives assent before marriage shall bar her Dower by the Statute of 27 H. 8. cap. 10. which speaks of an Estate or purchase made to the Wife for her Joynture generally not saying by whom Mr. Sheapard therefore in his Epitome p. 523. falls very short of the full description of a Joynture when he limits it only to be of the Franktenement of her Husband which restriction dayly experience confutes For that it is commonly made by the Ancestor of the Husband of Lands in which the Husband never had any Franktenement nor perhaps ever shall have Custom By vertue of any custom of any County City or Place And not of Cities only as 't is restrained in the late additions to Dalton cap. 85. tit Recusants Sect. 48. Where in force The Custom here mentioned viz. that the Wife shall have a certain portion of her Husbands goods after his decease is of force throughout the whole Province of York and in divers other places of England and if he gives them away from her by his Will the bequest is void Vide Swinburne Part 3. cap. 14. p. 151. 152. What goods are not within the Act. A Woman is an offender within this Branch 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 Where not Tenant by Curtesie not One hundred pounds forfeited Whereof he may be intituled to be Tenant by the Curtesie A Popish Recusant convicted marries an Inheritrix in other form then is appointed by this Act The Wife dies without issue born alive of the marriage In this Case although the Husband is not intituled to be Tenant by the Courtesie yet the possibility which he once had to be so intituled seems to satisfie the intent of the Act and he shall not forfeit the hundred pounds So that here is another Casus omissus For it may so happen that a Popish Recusant Convict may have a great Portion in money 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 the Lands for that he may be intituled to be Tenant of them by the Courtesie shall save his hundred pounds and if his Wife die having had no issue born alive he is wholly exempted out of the Act and cannot be punished either way Stat. Sect. 16. Baptism of Popish Recusants Children And that every Popish Recusant which shall hereafter have any Child born shall within one month next after the Birth thereof cause the same Child to be baptized by a lawful Minister according to the Laws of this Realm in the open Church of the same Parish where the Child shall be born or in some other Church near adjoyning or Chappel where Baptism is usually administred or if by infirmity of the Child it cannot be brought co such place then the same shall within the time aforesaid be baptized by the lawful Minister of any of the said Parishes or places aforesaid upon pain that the Father of such Child if he be living by the space of one month next after the Birth of such Child or if he be dead within the said month then the Mother of such Child shall for every such Offence forfeit one hundred pounds of lawful money of England one third part whereof to be to the Kings Majesty his Heirs and Successors one other third part to the Informer or him that will sue for the same and the other third part to the Poor of the said Parish to be recovered by Action of Debt Bill Plaint or Information in any of the Kings Majesties Courts of Record wherein no Essoign Protection or Wager of Law shall be admitted or allowed And if any Popish Recusant man or woman Stat. Sect. 17. Burial of Popish Recusants not excommunicate not being Excommunicate shall be buried in any place other than in the Church or Churchyard or not according to the Ecclesiastical Laws of this Realm That the Executors or Administrators of every such person so buried knowing the same or the party that causeth him to be so buried shall forfeit the sum of twenty pounds the one third part whereof shall be to our Soveraign Lord the King the other third part to the Informer or him or them that will sue for the same and the other third part to the Poor of the Parish where such person died to be recovered by Action of Debt Bill Plaint or Information in any of the Kings Majesties Courts of Record wherein no Essoign Protection or Wager of Law shall be admitted or allowed The Exception here of a Popish Recusant Excommunicate That is not actually Excommunicate is intended only of one actually Excommunicated and not of him who is a Popish Recusant convicted who shall not be reputed as a person Excommunicate to this intent but only as to the point of a disability as hath been said Sect. 12. So that if any Popish Recusant not actually Excommunicate be buried elsewhere or otherwise then is here mentioned although he were convicted yet 't is an Offence punishable by this Law And be it further Enacted by this present Parliament Stat. Sect. 18. Children departing the Realm That if the Children of any Subject within this Realm the said Children not being Soldiers Mariners Merchants or their Apprentices or Factors to prevent their good Education in England or for any other cause shall hereafter be sent or go beyond Seas without Licence of the Kings Majesty or six of his Honourable Privy Council whereof the principal Secretary to be one under their Hands and Seals The forfeiture of such as depart That then all and every such Child and Children so sent or which shall so go beyond the Seas shall take no benefit by any gift conveyance descent devise or otherwise of or to any Lands Tenements Hereditaments Leases Goods or Chattels until he or they being of the age of eighteén years or above take the Oath mentioned in an Act of Parliament made this present Session Intituled An Act for the better discovering and repressing of Popish Recusants before some Iustice of Peace of the County Liberty or Limit where such Parents of such Children as shall be so sent did or shall inherit and dwell And that in the mean time the next of his or her kin which shall be no Popish Recusant shall have and enjoy the said Lands Tenements Hereditaments Leases Goods and Chattels so given conveyed descended or devised until such time
Privy Council of your Highness your Heirs or Successors or by the Bishop of the Diocess if she be a Baroness or if she be under that Degrée by two Iustices of the Peace of the same County whereof one to be of the Quorum there to remain without Ball or Mainprize until she shall conform her self and come to Church and receive the Sacrament of the Lords Supper unless the Husband of such Wife shall pay to the Kings Majesty his Heirs or Successors for the Offence of his said Wife for every month ten pounds of lawful money of England or else the third part in thrée parts to be divided of all his Lands and Tenements at the choice of the Husband whose Wife is so convicted as aforesaid for and during so long time as she remaining a Recusant convicted shall continue out of Prison during which time and no longer she may be at liberty What Conviction is here meant Stat. 23 Eliz. 1. Being lawfully convicted as a Popish Recusant That is upon Indictment at the Kings Suit or a popular Action or Information on the Statute of 23 Eliz. 1. or an Action of Debt at the Kings Suit alone according to the Statute of 35 Eliz. 1. 35 Eliz. 1. In which two last Cases the former Laws are somewhat altered by this Statute For by the former Laws if a person had been convicted of Recusancy any other way then by Indictment no more could have been demanded either by the King or Informer then for the months mentioned in the Information or Count And the penalty should not have run on in such Case For that the Statutes of 29 Eliz. 6. and 3 Jac. 4. 29 Eliz. 6. 3 Jac. 4. which appropriate the penalty to the King after Conviction intend no other Conviction then by Indictment as hath been there said Baron and seme But by this Statute if a popular Action or Information or an Action of Debt c. at the Kings Suit alone be brought against the Husband and Wife for the Recusancy of the Wife and Judgment be had against them the Husband shall not only pay for the time contained in the Information or Count but the Wife shall be imprisoned ever afterwards unless she conform or the Husband pay ten pounds per month or yield the third part of his Lands to the King And yet this Statute doth not after such Conviction of the Wife in a popular Suit Suits upon former Statutes not taken away or Action of Debt c. at the Kings 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 Wife for the Recusancy of the Wife for any month or months wherein she is absent from Church after such Conviction For this Statute and 23 Eliz. 1. and 35 Eliz. 1. Stat. 23 Eliz. 1 35 Eliz. 1 are all affirmative Laws and may well stand together so that any of the three remedies given by these Statutes may be pursued This Statute 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 then one of these three ways Co. 11. 63 64. Rolles 1. 94. Doctor Fosters Case Cro. Pasch 17 Jac. 529. Parker versus Curson And therefore if the King bring an Action of Debt c. upon 35 Eliz. against the Husband and Wife Where the Wife shall not be imprisoned or the Informer sue them upon 23 Eliz. for any absence of the Wife from Church after she is once convicted by either of those ways and recover the Privy Counsellor Bishop or Justices of Peace here mentioned 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 twenty pounds per month for the absence of the Wife the intent of the Act is satisfied in respect of those months of her absence for which he stands so charged For if he pay not the twenty pounds per month so recovered the King or Informer hath the ordinary remedy after Judgment by Process of Capias against them both both And the intent of the Act was no more then that the Husband should pay for the Recusancy of his Wife or the Wife be imprisoned And if in this Case the Privy Counsellor Bishop or Justices of Peace should have power to imprison the Wife unless the Husband would pay ten pounds 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 or the twenty pounds 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 bis 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 pounds per month so recovered which could not be the intent of the makers of this Law The King and Informer barred by her Imprisonment But if the Wife be after such Conviction imprisoned by force of this Act 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 pounds for every month or yield the thirds of his Lands to the King or the Wife conforms Or if the Husband yields the thirds So if the Husband yields the thirds of his Lands to save his Wives imprisonment he is already punished by this Act and shall not again be punished or Sued by the King or Informer either upon 23 Eliz. or 35 Eliz. Or pay Ten pounds per month And if after such conviction of the Wife he pay Ten pounds per month to save her imprisonment he cannot be sued with his Wife for the Twenty pounds per month upon either of those Statutes by the King or Informer for those months of her absence from Church incurred after her conviction for which he hath paid the Ten pounds 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 Suit of the King alone by Action of Debt c. or by the Informer Qui tam c. which doth not appropriate the penalty to the King by 29 Eliz. 6. or 3 Jac. 4. Conviction upon Indictment If the Wife be convicted of Recusancy upon an Indictment it hath been much debated whether that doth not so appropriate the
penalty of Twenty pounds per month to the King for the time to come by the said Statute of 29 Eliz. 6. and 3 Jac. 4. Stat. 29 Eliz. 6 3 Jac. 4. 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 see for this Stat. 23 Eliz. cap. 1. 23 Eliz. 1 Sect. 9. and 3 Jac. cap. 4. Sect. 6. However admitting they may yet now if the King take advantage of this Statute 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 Informer are both barred The King and Informer barred to sue for the Twenty pounds 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 pounds 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 pounds monthly to the King for he shall not be twice punished for the same offence Of all his Lands and Tenements By Tenements Tenements what are to be understood Offices Rents Commons Profits apprender out of Lands Advowsons and the like wherein a man hath any Franktenement and whereof he is seized ut de libero tenemento for all these are included under the word Tenement as well as Lands and other Inheritances which are holden Co. 1. inst 6. Perkins Sect. 114 115. 11 H. 6. 22 Bro. Grant 143. Finch 130. Womans Lawyer lib. 3. 188. Anderson 2. 4. But Tenement extends not to a Chattel or Lease for years Bro. Done 41. Grant 87. Bulstrode 1. 101. Turpine against Forreyner So that the Husband need not yield to the King the third part of his Leases for years for the Recusancy of his Wife Shall continue out of Prison A married Woman Imprisonment of the Wife for other cause convicted as a Popish Recusant is after her Conviction and before any further prosecution or any Election made by the Husband whether he will pay the Ten pounds per month or yield the third part of his Lands imprisoned by process of Law or for some other Cause not relating to such Conviction and afterwards is set at Liberty It seems that the Husband shall not pay the Ten pounds per month for the time she was in Prison for the Act speaks only of the time during which she continues out of Prison and although she were not imprisoned for her Recusancy yet seeing she had not during such her Imprisonment the benefit intended to her in consideration of the Ten pounds per month or third part viz. her Liberty the Husband shall not for that time pay the penalty here appointed to save her Imprisonment but if he pay it for the time after she is set at Liberty that is sufficient to satisfie the intent of this Act. But if after such Conviction Covinous Imprisonment the Wife be imprisoned by Covin upon some pretence not relating to such Conviction that shall not save the Husbands payment of the Ten pounds per month for the time she was imprisoned but after she is set at Liberty she may be again Imprisoned by force of this Act unless the Husband pay the Ten pounds per month or satisfie to the King the third part of the profits of his Lands as well for the time of such covinous Imprisonment as for the future for the covinous Imprisonment was upon the matter her own Act and no person shall take advantage of an Imprisonment covinously caused by him or her self 16 E. 4. 5. And here she continued out of Prison in the sence of this Act because her Imprisonment was not by Process of Law in invitam Outlawry by Covin And so if a Man be Outlawed while he is in Prison yet the Outlawry shall not be avoided for that Cause if the Imprisonment were by Covin or consent of the party Outlawed Co. 1. Inst. 259. 38. Assiz Pl. 17. Stat. iii Car. i. cap. ii An Act to restrain the passing or sending of any to be Popishly bred beyond the Seas FOrasmuch as divers ill affected persons to the true Religion established within this Realm Stat. Sect. 1. have sent their Children into Forreign parts to be bred up in Popery notwithstanding the restraint thereof by the Statute made in the first year of the Reign of our late Soveraign Lord King James of famous memory Be it Enacted that the said Statute shall be put in due execution And be it further Enacted by the Kings most Excellent Majesty and the Lords Spiritual and Temporal and Commons in this present Parliament assembled and by the Authority of the same that in Case any person or persons under the Obedience of the King his Heirs and Successors He that goes himself or sends any other beyond the Seas to be trained up in Popery c. shall be disabled to sue c. and shall lose all his Goods and shall forfeit all his Lands c. for life at any time after the end of this Session of Parliament shall pass or go or shall convey or send or cause to be sent or conveyed any Child or other person out of any of the Kings Dominions into any the parts beyond the Seas out of the Kings Obedience to the intent and purpose to enter into or be resident or trained up in any Priory Abbey Nunnery Popish Vniversity Colledge or School or House of Iesuites Priests or in any private Popish Family and shall be there by any Iesuite Seminary Priest Friar Monk or other Popish Person instructed perswaded or strengthned in the Popish Religion in any sort to profess the same or shall convey or send or cause to be conveyed or sent by the hands or means of any person whatsoever any sum or sums of money or other thing for or towards the maintenance of any Child or other person already gone or sent or to go or to be sent and trained and instructed as is aforesaid or under the the name or colour of any Charity Benevolence or Alms towards the relief of any Priory Abbey Nunnery Colledge School or any Religious House whatsoever Every person so sending conveying or causing to be sent and conveyed as well any such Child or other person as any sum or sums of money or other thing and every person passing or being sent beyond the Seas being thereof Lawfully Convicted in or upon any Information Presentment or Indictment as is aforesaid shall be disabled from thenceforth to sue or use any Action Bill Plaint or Information in course of Law or to prosecute any Suit in any Court of Equity or to be Committée of any Ward or Executor or Administrator
185. Actions Popular see Informations Acts of Parliament See Statutes Administration and Administrators See Excommengement Executor Probate Recusants Who is disabled to be an Administrator 212. 234 235. 258. 263. The Mother shall administer before the Brother or Sister 225. Advowson See Covin Recusants Vniversity An Advowson is comprehended under the word Hereditament 106. 171. 172. It may be seized for Recusancy 106. 171 172. Where the King hath seized the Advowson of a Popish Recusant whether the King or University shall present 172. 231 232. By the Kings seizure of two parts of a mannor two parts of an Advowson appendant are seized by consequence 172. 233. In such case the King shall present alone by his Prerogative 172. 233. His two parts shall not pass from him by general words 173. Where upon reversal of an utlawry the Patron of an Advowson shall be restored to his Presentment and where not 180. Age 198. Agnus Dei c. Where the bringing in offering delivering or receiving of an Aguns Dei c. is a Praemunire and where not 51 52 53. Where the offender must be apprehended or his name disclosed and to whom 53 54. The Penalty for concealing the offenders name 55 56. Aid see Notice Aiders Maintainers Relievers c. of offenders where and how punishable 12. 17. 34 35. 42. 47. 50 51. 59. 90 91. 93 94. 184 185. Alien An Information lies against an Alien and a Writ of Error for him 76. An Alien though indenized or naturalized is no natural Subject 185. Indictment of High Treason against an Alien by birth 185. It shall not be contra naturalem Dominum 185. An Alien indenized or naturalized in Scotland or Ireland is still an Alien here 189. Where an Alien shall forfeit 12 d. per Sunday or Holiday for not coming to Church and where not 190. Allegiance see Oath of Allegiance Appearance See Baron Feme What appearance upon Proclamation shall save the Recusants default and what not 108. 164 165. Where he cannot appear by Attorney 164. His Remedy if his Appearnce be not recorded 164. Appropriation Where the King may make an Appropriation 7. Archbishop See Bishop Archbishop of Canterburies concurrent jurisdiction abrogated 5. Armour See Iustices of Peace Where the Arms of a Popish Recusant convict may be seized by force of 3 Jac. 5. and where not 237 238. The penalty for refusing to discover or hindring the delivery of such Arms 237. A Popish Recusant Convict shall maintain his Armour 239. Arraignment See Witnesses The party must be first arraigned and convicted before he can be fined and imprisoned at the Kings pleasure 97. Assent see Licence Attainder see Vniversity Attorney see Appearance Audita Querela Audita Quaerela against the Informer 148. It lies not against the King 148. Averment See Covin Indictment Iointure Licence Quare Impedit Bail SPecial Bail where not necessary 75. Baptism The penalty where the child of a Popish Recusant convict is baptized contrary to 3 Jac. 5.222 223. Baron Feme See Conformity Covin Custom Oath Plea Sacrament A married woman is liable to the Penalties for Recusancy 26. 68. And may 〈◊〉 imprisoned for non-payment thereof 86. 252 253. She ought in such case to have hard and close imprisonment 86. Where the Husband may save her imprisonment by paying 10 l. per month or yielding the thirds of his Lands to the King 252 253 254 255 256. Where the Husband is chargeable for the Wives Recusancy and where not 68. 75 76. 79. 122 123. 167. And may be imprisoned for non-payment of the Forfeiture 86. 253. Where the Wife cannot appear or plead without her Husband 75. The penalty by 7 Jac. 6. of a married woman convicted as a Popish Recusant if she conforms not 252. Where she shall forfeit the profits of two thirds of her Jointure and Dower and be otherwise disabled if she conform not in her Husbands life time 212 213. 214. Of what Dower she shall not forfeit any profits 215. Where a Woman may have Jointure and Dower both 213 214 215. Whether the Conviction of the Wife on an Indictment of Recusancy shall bar the King of his action of Debt and the Informer of his popular suit 79. 167. 254. A Feme Covert is within 1 Eliz. 2. of depraving c. the Common Prayer 24. And punishable by 35 Eliz. 1. of Conventicles and by 35 Eliz. 2. of Popish Recusants save as to Abjuration 123 124. 146. In what cases she may be punished upon 3 Jac. 4. and in what cases not 195. Where the Wife of a man abjured may sue without her Husband and shall have her Dower or Jointure in his life time and where not 124 125. Where the Husband of a Popish Recusant convict shall not bear any office 111 112. The penalty on a Popish Recusant convict who is married contrary to 3 Jac. 5. 220 221 222. In what case the Recusant so married cannot be punished by 3 Jac. 5. 222. Bar. See Baron Feme Informers King Good Behaviour see Recusants Benefice See Cura animatum Nomination Recusants Birth Birthright is Character indelebilis 247. Bishop See Archbishop Conformity Ecclesiastical Iurisdiction Excommengement Ordinary Before whom Archbishops and Bishops shall take the Oath of Supremacy 8. And the Oath of Allegiance 241 242. To whom an Archbishop or Bishop may tender or minister the Oath of Supremacy 39. 186. Where an Archbishop or Bishop may associate himself to the Justices of Over and Determiner or of Assise 29. But they 〈◊〉 associate themselves to Head-officers of Corporations 30. Where a Schoolmaster may be license◠〈◊〉 allowed by the Archbishop or Bishop 64 65 1â—5â— Submission to an Archbishop or Bishop in what case 95. Submission and Conformity before the Bishop of the Diocess in what cases 69. 92. 186. The Penalty on an offender who is required by the Bishop of the Diocess and yet refuses to conform and submit himself 118 135 138. Where 〈…〉 and Conformity must be certified to the Bishop 119. 145. Where the Bishop of the Diocess nay 〈◊〉 and â—â—â—â—â—ter the Oath of Allegiance and to whom 174 175. 186. 196 197 198. 242 243 244 245. And may commit the Party refusing it 174. 250. Where he may imprison a married woman convicted as a Popish Recusant and where not 252 253 254. Where his assent to a licence for a Popish Recusant to travel out of his compass of five miles is good and where not 206. 208 209 210. Blood See Corruption of Blood 〈◊〉 What they ought to do who are to be restored in Blood â—40 Books Books maintaining the Authority of the Bishop or See of Rome 34. Popish Books prohibited and the penalty for bringing them in c. 236. Bulls The effect of Bulls brought from Rome 49. Getting â—â— putting them iniure is High Treason 49 50. Bull why so called â—◠〈◊〉 The Penalty if a Popish Recusant be buried contrary to â— Jac. 5.223 Ceremonies Who may ordain Ceremonies and Rites of the Church 31