out all the aforesaid qualifications 35 Eliz. 2. § 3. N. 1. required in him who hath a certain place of abode 2. And it clearly distinguishes between him who is convicted for not repairing to some Church c. which 35 Eliz. 2. § 3. N. 1. is required in those whose abode is certain and him who doth not usually repair to some Church which 35 Eliz. 2. § 4 N. 1. in those whose abode is uncertain it is sufficient to bring them with 〈◊〉 the danger and penalty of this Law if they repair not to the place appointed them by this Act or remove above five miles from thence 3. And 't is observable that in this Clause 35 Eliz. 2. § 4. N. 1. which speaks of the Popish Recusant who hath no certain place of abode there is no mention made of Forty days to be allowed him after his Conviction to repair to the place appointed him the reason ' whereof is because it takes in the whole kind of such Popish Recusants as well the not Convicted as the Convicted and makes no distinction between them if they have no certain place of abode Et ubi lex non distinguit nee nos distinguere debemus 4. Nor was it without great reason 35 Eliz. 2. § 4. N. 1. that ubiquitary Popish Recusants should be consined whether they were Convicted or not Convicted as for the other who have a certain place of abode it is to be presumed that the most considerable of them would be prosecuted and convicted for their Recusancy in the respective places where they dwell and de minimis non curat lex may in this Case be applyed to persons as well as in other cases to things but as for him who is fixed to no certain place as he is the more dangerous of the two so the more unlikely to be persecuted to a Conviction being here one day and gone the next and therefore the less taken notice of and had 35 Eliz. 2 § 4. N. 1. taken in only such as are convicted it would have been cluded and rendred inessectual for want of a Conviction of the greater part of such ubiquitary Recusants 5. The want of due consideration of 35 Eliz. 2. § 3. and 4. in each of these parts of it hath occasioned some mistakes and Wingate Crown 78. restrains both parts 〈◊〉 it to Recusants convicted and makes no mention that such as have no abode must â—e in England at the time of their Conviction And in the late Additions to Dalton cap. 81. Sect. 14. t is not only said that both sorts must be Convicted but that they must be in England at the time of their Conviction which two things are only requisite in such who have a certain place of abode and not in the other sort who have no abode who are within the meaning and danger of 35 Eliz. 2. § 4. N. 1. without any precedent Conviction for Recusancy CXXIX Lieu. Page 134. A Popish Recusant repairs to the place appointed him by this act 35 Eliz. 2. § 3. and 4. and keeps within his compass of five miles but doth not present himself or deliver in his name as 35 Eliz. 2. § 6. N. 2. he doth not forfeit his goods or Lands for there is no particular penalty inflicted in this part of the Act for that omission nor yet in the subsequent branch 35 Eliz. 2. § 8. N. 2. for him that hath 20 marks per annum in freehold or goods and Chattels worth forty pound But yet such person may be Indicted for such neglect and fined upon the general words 35 Eliz. 2. § 6. N. 1. which commands Indictment the thing to be done for where an Act of Parliament Commands any thing to be done and inflicts no penalty an Indictment lyeth against the person who ought to do it for his neglect or omission 2 Inst 55.163 3 Cro. 655. Crouthers Case CXXX Exile Page 135 136. If any such person or persons being a Popish Recusant 35 Eliz. 2. § 8. N. 2. that is any popish Recusant within the former branches of the Statute and none but such Dalton Cup. 45. tit Recusants applieth 35 Eliz. 2. § 8. N. 2. to Popish Recusants Convicted as if it concerned them and them only and so both at once extends and restrains the Stature contrary to its true meaning For these words any such person or persons neither extend to all that are Convicted nor are restrained to such only as are Convicted For the Popish Recusant who hath a certain place of abode within this Realm altho he be convicted is not within 35 Eliz. 2. § 3. and § 8. N. 2. unless he were a Popish Recusant and in England at the time of his Conviction And the Popish Recusant who hath no place of abode within this Realm is within 35 Eliz. 2. § 4. and 8. altho he were never convicted So that either of these sorts of Popish Recusants who have an Estate under value viz. he who hath no place of abode and he who having a certain place of abode was Convicted when a Popish Recusant and in England and no other are lyable by 35 Eliz. 2. § 8. N. 4. to abjuration CXXXI Estates Page 136. Of the clear yearly value of twenty marks above all charges 35 Eliz. 2. § 8. N. 2. A rent charge of forty pound per Annum is issuing out of lands worth C. l. per Annum A Popish Recusant lyable to be confined by this Statute purchaseth for his life or in Fee parcel of of the Lands of the clear yearly value of 20 Marks over and above what his proportion of the said Rent-charge comes to this is an Estate of the clear yearly value of 20 marks within the meaning of this Act and shall free him from abjuration For altho in strictness of Law his Estate be not clearly so much above all charges for that it is chargeable without yearly Rent of 40 l. yet in equity he shall pay no more then his proportion of it which the Land he purchased will discharge and yet yeild 20 marks per Annum clearly besides Page 136 137 CXXXII This Statute 35 Eliz. 2 § 8. N. 2. Or Goods and Chattels being in the disjunctive Lands or Goods an Estate partly of Lands and partly of goods will not satisfie the intent thereof and therefore if a Popish Recusant who offends aginst this Act hath 15 marks per Annum yearly in Lands and be worth 30 l. in goods altho this taken together be in truth an estate of more value then is here required yet it shall not free him from abjuration for 35 Eliz. 2. § 8. N. 2. doth not warrant any valuation of the goods and Lands together so as to supply the defect of the yearly value of the Lands by the Goods or the defect of the value of the goods by the Lands and therefore the Recusant must have such an Estate in the one or the other as will answer the Statute And
this is not like the Case of Jurors upon 2 H. 5. § 2. cap. 3. § 1. N. 2. where t is said that the Juror shall have Lands of the clear yearly value of 40 s. if the debt or damage declared amount to 40 marks in which Case altho it be in the disjunctive debt or damage yet it hath been adjudged that where the debt and damages doth amount to 40 marks it is sufficient and the Juror must have 40 s. per Annum 1 Inst 272. For in that Case the word or is cumulative and debt or damage both amount to no more than one intire thing viz. The value of the Cause or Action depending And it appears plainly to be the intent of the makers of the Law 2 H. 5. Sect. 2. Cap. 3. § 1. N. 2. that no Cause declared to be of the value of 40 Marks shall be tryed by Jurors of a less Estate But in our Case the Lands and Goods are things of different natures one real and the other personal and cannot be regularly reduced under one and the same head and therefore shall not be valued together unless 35 Eliz. 2. § 8. N. 2. had expresly appointed such a valuation 2. But yet if a Popish Recusant hath a lease for years and personal Goods and both do amount in value to above 40. l. he shall be out of the danger of abjuration for altho the lease is in the realty and the goods are personal yet they shall in this Case be valued together For that by this Copulative and 35 Eliz. 2. § 8. N. 2. expresly so appoints without distinguishing between the values of either but makes it sufficient if both of them be of that value 3. Mony secured upon a Mortgage of Lands is within the meaning of these words Goods and Chattels 35 Eliz. 2. § 8. N. 2. And if the Popish Recusant hath above 40. l. owing to him upon such Mortgage he cannot be required to abjure CXXXIII Days Page 137. Within three months next after such person shall be apprehended or taken 35 Eliz. 2. § 8. N. 3. Wingate Crown 80. clearly mistakes the meaning for he saith that a Popish Recusant whose Estate is under value must make the submission prescribed by this Act within three months next after his arrival at his place of abode which is a complicated Error for he quites leaves out him who is to repair to the place where he was born or his Father or Mother dwells he makes the party lyable to such submission before he becomes an offendor by not repairing or not presenting himself and giving in his true name or Travelling above five Miles He speakes nothing of his being apprehended whereas by the Act he cannot be required to abjure until three months after his apprehension and he turns the three months after his apprehension into three months after his arrival all great mistakes and fit to be taken notice of by Justices of Peace whose part it is to require the submission and abjuration that they may not be misled in the Execution of this part of their office by trusting to that abridgment Page 138. CXXXIV Being thereunto required by the Bishop c. 35 Eliz. 2. § 8. N. 3. If the offendor be not before the end of the three months next after his appreliension required by the Bishop a Justice of Peace or the Minister or Curate to make such submission he cannot be required afterwards nor be compelled to abjure by force of this Act but if he be required within the three months to make submission and refuse he may be at any time afterwards warned or required to abjure CXXXV Exile Page 138 139. The Oath of abjuration 35 Eliz. 2. § 8. N. 4. may be in this form or to this effect You shall Swear that you shall depart out of this Realm of England and out of all other the Kings Majesties Dominions and that you shall not return hither or come again into any of his Majesties Dominions but by the licence of our said Soveraign Lord the King or of his heirs So help you God 3 Inst 217. Stamford 119.120 Wilkinson 66. hath set down another form c. resembling that of a Felon c. This hear you Sir Coroner that I J M. of H. in the County of S. am a Popish Recusant and in the contempt of the Laws and Statutes of this Realm of England I have and do refuse to come to hear Divine Service there read and exercised I do therefore according to the intent and meaning of 35 Eliz. 2. § 8. N. 4. c. abjure the Land and Realm of King Charles now King of England Scotland France and Ireland and I shall hast me towards the Port of P. which you have given and assigned to me and that I shall not go out of the high-way leading thither nor return back again c. If I do I will that I be taken as a Felon of our laid Lord the King and that at P. I will diligently seek for passage and I will stay there but one flood and Ebb if I can have passage and unless I can have it in such space I will go every day into the Sea up to my knees assaying to pass over So God me help and his holy Judgment But in alluding to the old Oath for Felony c. Wilkinson is mistaken in the very Offence for which the Popish Recusant is to abjure by force of 35 Eliz. 2. § 8. N. 4. For the Offence is not his Refusal to hear Divine Service for that is but one of the precedent qualifications of the person but the Offence it self is of another nature viz. his not repairing to the place the Statute appoints him or his removal from thence contrary to the Statute or his not presenting himself and delivering his true name as aforesaid Either of these if he be a Popish Recusant within the meaning of this Act is a Crime for which he ought to abjure unless he prevents his abjuration by a timely Submission Nor is the Popish Recusant bound to swear that he will not go out of the high way or return back or will tarry but one Flood and Ebb or go into the Sea up to his knees Nor ought the Coroner or Justices of Peace to require any such Oath of him for this is a new Offence made by a Statute Law which doth not require the strict form of Abjuration as in Case of Felony and altho the Felon were tied to these Circumstances yet the Recusant is not nor shall be a Felon for omitting them but 't is sufficient if he simply abjure as 35 Eliz. 2. § 8. N. 4. directs and go from the appointed Port within the time limited and not return without Licence into any of the Kings Dominions He that thus abjures the Realm doth yet owe the King his Ligeance and remaineth within the Kings Protection Qui abjurat Regnum amittit regnum sed non Regem amittit Patriam sed
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 11 Co. 65. Dr. Fosters Case Bridgman 121.122 Parker against Sir J. Webb and uxor Lane 60. But whither this rule be general Bar. Fe◠and will not admit of an Exception in the Case of a Feme Covert is a Question For by some opinions if a Feme Covert be Indicted and convicted of Recusancy that shall not barr the Informer of his popular Action upon 23 Eliz. 1. § 11. N. 1. against her and her Husband for the Recusancy of the Wife because upon the Conviction by Indictment the cannot be compelled to pay the forfeiture of twenty pound 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 Bridgman 122. Infra 270. N 9. The Condemnation or acquittal of the party at the suit of the Informer is a good Bar against the King and all others 11 Co. 66. 18. Before 4 H. 7.20 § 1. N. 7. Collusion It seems that if a popular Action had been brought by Covin and with the consent of the defendent and the defendent 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 Bar against all others 9 Ed. 4.4 pl. but now by 4 H. 7.20 § 1. N. 7. If any person sue with good Faith any Action popular and the defendent Plead a Recovery in an Action popular in Bar or that before that time he had Barred the Plantiff in such Action the Plantiff may aver such recovery or Bar was by Covin and upon such Covin found the Plantiff shall have Judgment and the defendent attainted or condemned of Covin shall shave Imprisonment of 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 defendent which Covin may be averred generally Com. 49.50 54 55. Wymbishe and Talbois If a man bring upon a penal Statute debt tam c. quam c. and the defendent pleads thereunto the Plantiff may reply without the Kings Attorny c. Princes Case In debt upon 23 Eliz. 1. § 11. N. 1. the defendents demurred and the Plantiff qui tam c. Joyned in demurrer without the Kings Attorny and held to be good 1 Cro. 10.11 Farringtons Case Trin. 1. Car. 1. but in an Information tam c. quam c. the Kings Attorny ought to reply 2 Rol. 33. Smith and Catter And this difference between debt and an Information was taken Hutton 82. in the said Farringtons Case but yet if in an Information the defendent plead a special plea and the Kings Attorny 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 Stretton and Taylors Case 1 Leonard 119. pl. 161. and 11 Co. 65. Dr. Fosters Case 3 Inst 194. 19. The King before any Information or other popular suit commenced may pardon or release the whole penalty incurred Priory and it shall be a good bar against all men 11 Co. 65.66 Dr. Fosters Case 3 Inst 194.195.37 H. 6.4 _____ 2 R. 312. _____ _____ 1 H. 7.3 _____ Termes de ley 102. Decies tantum And if the defendent 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 suit in magno rotulo by shewing forth the whole matter by way of Plea and shall not loose the effect of his pardon or release Savile 23. pl. 56. Tirringhams Case But when once the Informer hath brought his popular Suit the King cannot discharge it and if he then pardon or release or his Attorny 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 Attorny discharge the Jury when they come to deliver their Verdict Hutton 82. Vaughan 343. Thomas and Sorrel 1 Leonard 119. pl. 161. and 3 Cro. 138. Stretton and Taylor 3 Cro. 583. Hammon and Grissith 3 Inst 194. 1 H. 7.3 Such Entry of a non vult prosequi by the Attorny General hath the same effect with a Nonsuit of a Private person but the King cannot be said properly to be Nonsuit because he is in Judgment of Law ever present in Court 1 Inst 139.227 Hutton 82. Goldsborough 53. pl. Leighs Case Savile 56. pl. 119. Weare against Adamson Upon the Death of Queen Elizabeth it was resolved by the Judges that where an Information tam pro Domina Regina quam c. was brought upon a penal Statute and pending the same and before Judgment the Queen dyed the Information it self should stand for that otherwise the Suit might be lost there being a time limited for the bringing of it but all the proceedings thereupon were lost and void and the defendent should plead de novo 2 Cro. 14. and 7 Co. 30.31 Of discontinuance of Process And to that purpose 5 Ed. 6. Rot. 38. is there cited where in a popular action the King dyed after demurrer upon the Evidence and before Judgment and the defendent pleaded de novo But yet 1 Cro. 10.11 and Hob. 82. Farringtons Case in a popular action of debt upon 23 Eliz. 1. § 11. N. 1. against Prince and his Wife where the defendent demurred upon the declaration and the Plantiff qui tam c. Joyned demurrer in Hillary Term and King James died the Vacation following It was resolved that not only the Writ and declaration but all the other proceedings thereupon should stand notwithstanding the demise of the King for that in such Case it is meerly the Suit of the party and is aided by 1 Ed. 6.7 § 1. N. 4. of Discontinuances and he only Joyned in demurrer Which Resolutions are in appearance flatly contrary each to other for 2 Cro. 14. seems to take in all popular Suits whatsoever and as well a popular Action of debt as an Information but yet t is observable that in 1 Cro. 10. the Plantiff only joyned in demurrer and not the Kings Attorny And this seems to be the reason why in that Case the proceedings should stand notwithstanding the demise of the King for where the party alone joyns in demurrer or replies and not the Kings Attorny there the Suit may properly be said to be depending between party and party and within the express words of 1 Ed. 6.7 § 1. N. 4. which provides that altho the
came 23 Eliz. 11 § 13. N. 1. upon which he was Indicted and convicted It was resolved by all the Judges of England that the said lands were liable to this Statute and the Jurors charged to enquire what lands he had and were committed to the Fleet and fined each of them fifty pounds for that yet they would not find those Lands to be his 2. By means of any Conviction or Judgment 23 Eliz. 1. § 13. N. 1. Pauncefoot being Indicted of Recusancy made a deed of gift of all his leases and goods to a great Value coloured over with feined considerations to defeat the Queen of what might accrew to her by his Recusancy or flight and then went beyond Sea and afterwards was outlawed upon the said Indictment and it was resolved 36 Eliz. by the whole Court of Exchequer that this was a fraudulent Conveyanc within 13 Eliz. 5. § 2. N. 3. which was made for the relief of the Queen and otherpersons as well as Creditors But as this Case is related in 3 Co. 82. Twines Case t is observable that altho it was debated whither the Queen should avoid this Conveiance by force of 50 Ed. 3. 6. § 1. N. 2. or that of 3 H. 7.4 § 1. N. 2. or that of 13. Eliz. 5. § 2. N. 3. yet there is no mention made of this branch of 23 Eliz. 1. § 13. N. 1. for t is clear that the Queen could not avoid such a fraudulent Conveyance by force of 23 Eliz. 1. § 13. N. 1. unless Judgment had been first given against the Recusant or he had been convicted and Pauncefoot was neither Convicted or adjudged to be a Recusant but the Queens interest accrewed to her by means of the outlawry only LXXXIV Priviledge Page 88. Upon 23 Eliz. 1. § 14. N. 1. altho a Peer shall be tryed per pares yet he is to be indicted by an inquest under the degree of Nobility and may be Indicted before Commissioners of Oyer and Terminer or in B. R. if the offence be Committed in the County where the Kings bench is 2 Co. 49. 27 Eliz. 2. Of JESVITS LXXXV Alien PAge 90. And his Being born within this Realm c. 27 Eliz. 2. § 3. N. 1. must be comprised in the Indictment but it need not be shown in what particular place he was born but generally Quod J. S. natus infra hoc regnum Angliae c. And so it must be alledged in the Indictment on 27 Eliz. 2. § 3. N. 1. that he was made a Jesuit or Priest c. by authority Challenged or pretended from the See of Rome But it needed not be shewed where he was made a Jesuit or Priest c. whither beyond the Sea or within the Realm for wheresoever it was it is within this Law if he were made so by the pretended Authority of the See of Rome Popham 94. Southwells Case LXXXVI Seminary Page 91. In the late additions to Dalt Cap. 140. § 13. tit high Treason 'T is said that 27 Eliz. 2. § 4. N. 1. relates only to such as had before that time taken Orders which conceit I suppose is grounded on these words viz. who at the end of the said forty days and after such time of departure as aforesaid shall receive c. as if no Jesuit or Priest were here intended but such a one as was then a Priest or Jesuit and had fourty days given him for his departure and no person a Felon by 27 Eliz 2. § 4. N. 1. who receives or releives any other 2. But the words here such Iesuit c. seem to be more Extensive and to relate as well to the Receivers or Releivers of a Jesuit or Priest in Orders at this day as to those who were in Orders at the time of making this Stature and if we weigh the Gramatical Construction of the words with much more reason the former than the latter For the Proximum Antecedens to such is the Jesuit or Priest 27 Eliz. 2. § 2. N. 1. who was to be made ordained or professed and not he that was then ordayned or professed already And those words in 27 Eliz. 2. § 4. N. 1. Every Parson which after the end of the same XL. dayes c. shall receive c. that is fourty days next after the end of that Session of Parliament may well be construed to Extend to all Cases as well of receiving or relieving such who should be afterwards in Orders and should be found within the Realm for the time to come at any time after those fourty days as of such who were then in Orders and were to depart before the XL. days were expired 3. So that the receiving releiving or maintaining of a Jesuit Popish Priest or other Popish Ecclesiastical person at liberty and known by the party to be such is Felony at this day by this Act 27 Eliz. 2. § 4. N. 1. and the Offender shall lose the benefit of his Clergy and so hath the Law been taken upon Actions upon the Case for saying the Plaintiff kept a Seminary-Priest or Jesuit in his house knowing him to be such 2 Cro. 300. Pasch 10 Jac. Smith versus Flynt and Palmer 410. Clerk and Logins Case Lamb. 225. Infra 275. Page 92. By this word Return 27 Eliz. 2. § 5. N. 1. It seems that none are intended here but such as were sent out of this Realm for others born and resident in some other parts of the Kings Dominions untill their Entry into such Colledg or Seminary cannot be properly said to return hither LXXVII Ouster le M◠Page 92 93. Or any other her Highness Dominions 27 Eliz. 2. § 5. N. 1. a Subject of the Kings sent out of England to a Popish Colledg or Seminary is Commanded by Proclamation made in London to return into this Realm and within the six months here limited first goeth into Ireland and then comes into England and within two days submits himself and takes the Oath of Supremacy in this Case notwithstanding his return into England within the six months he shall be guilty of High Treason for after such Proclamation he ought to have come directly into England and into no other of the late Queens Dominions before he had been in England and if he doth he comes into the said Domininions otherwise then is appointed by this Act 27 Eliz. 2. § 5. N. 1. For the intent of 27 Eliz. 2. § 5. N. 1. Seems to be that he should not remain in any of the said Dominions untill he submits and takes the Oath which submission must be made by Oath taken in England within two days after his Arrival here and not elsewhere and altho the Oath of Supremacy be in force in Ireland yet his taking it here will not serve nor yet his submission there for he is to submit to the King and his Laws by which are intended the Laws of England and no other But a submission in Ireland to the Kings Laws
33 H. 8.39 § 68. 26 N. 1. because it is not a debt by Judgment as that Statute requires Moor 523. pl. 691. And thus the opinion Trin 43 Eliz. of the two Chief Justices 3 Cro. 846. is to be understood for they held that if intailed Lands had been seized for non-payment of the twenty pound per month and the Tenant in Tail had died the issue in Tail should not have had the Land out of the Queens hands before the debt were satisfied but should have been charged with the said debt At the end of 3 Cro. 846. pl. is added a Dubitatur But yet the opinion there held stands good if it be intended only of a Conviction of the Ancestor by Judgment upon Trial or Confession and not of a Conviction upon Proclamation and default Page 154. CLVI To any Colledge c. 1 Jac. 4. § 6 N. 1. extends only to publick houses or Colledges but not to such as are bred beyond the Seas in any private Popish Family and therefore 3 Car. 1. cap. 2 3 § 1. N. 2. was made to supply that defect CLVII Scholars Page 155. Note all Grammar Schools are not here 1 Jac. 4. § 9. N. 1. excepted but only publick or free Grammar Schools nor yet all Gentlemens Houses but only of such as are not Recusants in both which respects this Statute is defectively recited in the late additions to Dalt cap. 87. Sect. 1. 3 Jac. 4. of convictions PAge 158 159. CLVIII Every Popish Recusant Convicted 3 Jac. 4. § 2. N. 2. Wingate Crown 98. Speaks Indefinitely as if this extended to all Recusants whatsoever which is contrary to the express words of the Statute 2. In an Information upon 3 Jac. 4. § 2. N. 2. for not receiving the Sacrament Information the Conviction of the party for Recusancy ought to be shewed in certain before whom in what Court c. for before he is Convicted of Recusancy he is not lyable to the penalty Inflicted by 3 Jac. 4. § 2. N. 2. for not receiving And yet if it be only generally shewed in the Information that the defendant was Convicted in due form of Law and the defendant doth not demur thereto but pleads not guilty and it be found against him there Judgment shall not be staid for this defect for he hath lost his advantage and by his plea hath admitted the point of Conviction and at the trial the only thing in issue was whether he had received the Sacrament and not whether he was Convicted 2 Gro. 365 366. Sivedal and Lenthal CLIX. Conformity Page 159. This Conformity 3 Jac. 4. § 2. N. 2. need not be set forth in the Information in every particular Circumstance as when or before whom the Popish Recusant Conformed himself For it is sufficient if it be said that he went to Church and continued there dureing Divine Service and afterwards neglected to receive the Sacrament c. and upon such Conformity and neglect he is liable to the Penalty inflicted by this Act altho he never went before the Ordinary 2 Cro. 366. CLX Forfeiture Page 159 160. And for every year after such not receiving forty pound 3 Jac. 4. § 3. N. 2. Note the Statute saith not that the Offender shall forfeit for the first second and third Offence but for the first and second year and for every year after For if it had been said he should have forfeited twenty pound for the first Offence forty pound for the second and sixty pound for the third he must have been Convicted and have had Judgment of the first Offence before he could have incurred the penalty for the second and of the second before he could have incurred the penalty for the third and every one of these Offences must have appeared Judicialiter which could not be ante Judicinum But here 3. Jac 4. § 3. N. 2. where 't is said he shall forfeit twenty pound for the first year forty pound for the second and sixty pound for every year after it is otherwise and the Offender shall forfeit sixty pound for the third year altho he was never Convicted for the first or second 2. And therefore in an Information upon 3 Jac. 4. § 3. N. 2. for sixty pound against a Popish Recusant Convicted for Recusancy who hath conformed and neglected to receive the Sacrament the third year after his Conformity its sufficient to set forth that he was a Popish Recusant and was convicted and conformed himself and went to Church c. two years before such a day and that after the said day he sailed for a whole year to receive the Sacrament without mentioning what he did the first or second year after his Conformity and so was 2 Cro. 365. Page 160. CLXI Shall for every such Offence lose and forfeit threescore pounds 3 Jac. 4. § 3. N. 3. If a Popish Recusant once receive the Sacrament after his Conformity and after neglect so to do within the time prescribed by this Act 3 Jac. 4 § 1. N. 2. and is guilty of such neglect for two years together altho he was never convicted for the first year yet an Information lieth against him and he shall forfeit threescore pound for the second year for 3 Jac. 4. § 3. N. 3. he is liable to pay so much for every Offence that is for every year wherein he neglects to receive the Sacrament after he hath once received it and the Informer is at his liberty for which Offence or year he will inform whether for the first second c. and the reason of this is because here are no steps or gradations to encrease the penalty for the second or third Offence but the penalty is equal and alike in this Case for every Offence 2 It is observable that the Popish Recusant who after his Conformity receives the Sacrament and afterwards neglects so to do for the space of one or more years is in worse Condition than he who conforms and receives it not at all for in this last Case he shall forfeit but twenty pound for the first and forty pound for the second year but if he once receive the Sacrament and afterwards neglect it for the space of two years he shall forfeit for each of those years threescore pound Page 160. CLXII To him that will sue for the same 3 Jac. 4. § 3. N. 4 An Information upon this Branch must be brought by an Informer Qui tam c. within a year after the Offence or neglect or he can take no advantage thereof for such an Information is within 31 Eliz. 5. § N. 2. Cro. 366. Page 160. CLXIII Justices Or before Justices of Assize c. 3 Jac. 4. § N. 3 5. Note that notwithstanding these words an Information upon this Statute by an Informer Qui tam c. for not receiving the Sacrament cannot be brought before Justices of Assize or Goal-delivery or Justices of Peace for no Common Informer can sue
sufficient ground to record his appearance nor shall save his default for altho he be there personally present and openly confess himself to be the same person who was Indicted and against whom the Proclamation issued yet if he deny to appear upon the Proclamation or to consent that his appearance be entred of Record it seems that his appearance cannot be recorded but his default shall and he shall stand Convicted thereupon And this is no more an appearance than where a Prisoner is brought to Common pleas Bar by Habeas Corpus to the intent to have him appear to an Original brought against him and he denies to appear to the Action in which Case his appearance cannot be recorded as was resolved 43 Eliz. in Ascoughs Case Gouldsborough 118. pl. CLXX Process Page 165. Shall be as sufficient a Conviction in Law 3 Jac. 4. § 7. N. 3. That is a Recusant thus Convicted upon Proclamation and default of appearance shall be in the same condition as if he were Convicted by Verdict but no Judgment is given Bridgman 122. Parker versus Web. But this Conviction upon Proclamation is no Judgment as was resolved 11 Co. 65. in Dr. Fosters Case and altho it shall make the Recusant lyable to the several forfeitures penalties and incapacities inflicted on Recusants convict yet it shall not operate as a Judgment as hath been already shewed in divers instances For this reason it hath been questioned whither if a Recusant be Convicted upon Indictment and Proclamation the King may not waive his advantage of this Conviction and bring his Action of debt given him by 35 Eliz. 1. § 10. N. 1. for that such Conviction is no Judgment and consequently ought not to bind the King as a Judgment against the Recusant should have done Palmer 40.41 Sir John Webbs Case Worsley obtained a Patent to have all the penalties of Recusants Convict Altho such a Patent was illegal for that the King cannot grant the penalty of a penal Law to a Subject 1 Rol. 10 pl. 10. Roy versus Tollin Hob. 155. Colt and Glover c. Hob. 183. Davison versus Barber Yet admitting the Patent to be good it was resolved that the penalties of Recusants Convicted by Proclamation should not pass by those general words 1 Rol. 94.95 Dr. Fosters Case Page 166. Once Convicted 3 Jac. 4. § 8. N. 1. This extends to all Convictions whatsoever upon Indictment whither by Verdict Confession c. Whereupon Judgment is given as well as to Convictions upon Proclamation and default And the penalty of twenty pound per month shall in any of the said Cases run on forever after and be appropriated to the King CLXXII Days Page 166. Here 3 Jac. 4. § 8. N. 1. Easter and Michaelmas Is to be taken disjunctively for Easter or Michaelmas as it is in 29 Eliz. 6. § 4. N. 1. supra 97. for the meaning is not that the Recusant shall have both of the terms of Easter and Michaelmas next after his Conviction wherein to pay the forfeiture of twenty pound for every month contained in the Indictment but he ought to pay the whole into the Exchequer the next Easter or Michaelmas Term which shall first happen after his Conviction and therefore if he be Convicted in February he ought to pay the whole the next Easter Term unless where the King chuses to seize the two thirds of his Lands by force of 3 Jac. 4. § 11. N. 4. as was admitted Jones 24 25. in Standens Case Hil. 20. Jac. and Pasch 16. Jac. in the Lady Webbs Case Bridgman 121. who was Convicted in March the pleading was that in the Easter Term then next following the said Katherine did not pay into the Exchequer according to the rate of twenty pound per month without any mention of Michaelmas Term. Page 166 CLXXIII 167 168. For every month after such Conviction 3 Jac. 4. § 8. N. 2. by this Clause and 29 Eliz. 6. § 4. N 1. supra 96. N. 4. to the same purpose after the Recusant is once Convicted the penalty of twenty pound per month shall run on without any new Indictment or Conviction and shall be for ever afterwards appropriated to the King alone and paid into the Exchequer so that the Informer cannot bring any popular Action or Information for the twenty pound per month for any time incurred after such Conviction but is utterly barred 11 Co. 61. and 1 Rol. 93. Dr. Fosters Case Owen 37. Sulherd and Eveterds Bar Feme 2. 2 Cr. 481 482. The Lady Webb Pasch 16 Jac. was Indicted and Convicted of Recusancy upon Proclamation and default of appearance and afterwards an Informer Qui tam c. sued her and her Husband for a new offence of Recusancy in the Wife subsequent to such Conviction to which they both pleaded the said Conviction at the Kings suit the Question was whether the Informer should be barred by this plea or whether the Information was maintainable notwithstanding such former Conviction of the Wife for that the Wife seems not to be such an offender as is here intended 3 Jac. 4. § 8. N. 2. because she can have no Goods nor Lands during the Husbands life which may be seized for non-payment of the penalty but it was granted on all hands that if she had been a Feme sole this had been a good plea in Bar of the Informers popular suit for then she had been bound to pay the twenty pound per month into the Exchequer and 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 lie against the Husband and Wife for after the Husbands death she would be lyable to pay into the Exchequer all the Arrears after the rate of twenty pound 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 lyable to pay after the Husbands death this would be a double punishment for one and the same offence suprà 79. N. 10.17 Infra 270. N. 9. 3. And it was further said 2 Cro. 482. That it was usual where the Wife was Indicted and Convicted for Recusancy 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 3 Jac. 4. § 8. N. 2. and therefore after she is once Convicted upon Indictment shall be no more Subject to the Informers popular suit than a Feme Sole 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 4. A Recusant is Indicted for absenting himself from Church for twelve months and afterwards is Convicted upon that Indictment Quaere whither nevertheless the Informer Qui tam c. may not sue him for his absence for the months intervening between the time laid in the Indictment and the time of Conviction For these words here 3 Jac. 4. § 8. N. 2. viz. after such Conviction seem to relate to the proximum antecedens Every month and to imply that the penalty here appropriated to the King is only the penalty due for the months which Incurre after such Conviction upon Indictment at the Kings suit but not to hinder the Informer after Conviction from suing for the months incurred before Conviction CLXXIV Forfeitures Page 168. Except in such Cases where the King shall c. Refuse the same 3 Jac. 4. § 8. N. 3. Jenes 24. in Standens Case if a man be Indicted and Convicted of Recusancy the King is not bound to stay till next Easter or Michaelmas Term to see whither the Recusant will tender twenty pound for every month contained in the Indictment and incurred after such Conviction for the King by 3 Jac. 4. § 11. N. 4. having his Election whither he will accept thereof or seize two parts of the Recusants Lands a Commission for seizure of the Lands may Issue out presently if the King will waive the twenty pound per mouth for he may take his Election as soon as he will after Conviction by Jones Justice Page 168 CLXXV 169. All the Goods 3 Jac. 4. § 9. N. 2. A Recusant Convicted is Tenant for life the remainder to a stranger in Fee he in Remainder with the Recusants Assent cuts down Timber Trees and sells them in this Case the King can be no wayes entitled to the Trees 1 Bulstrode 133. Page 169. CLXXVI All other the lands c. lyable to such seizure or to the penalties aforesaid 3 Jac. 4. § 9. N. 2. Lane 105 106. Halseyes Case Lands are Conveyed to a trust for B. a Convicted Recusant Quaere whither the King may seize such Lands for the Recusants non-payment of the twenty pound per month for if he make his Election and accepts of two thirds in lieu of the twenty pound per month there is no question but such Lands are lyable to seizure for the words of 3 Jac. 4. § 11. N. 4. are that the King may seize two parts of all Lands that shall come to any other person to the use of or in trust for such Recusants but in 3 Jac. 4. § 9. N. 2. which relates to the seizure of two parts for non-payment the words seem to be more restrictive Page 171. CLXXVII Tho it be tendered or ready to be paid 3 Jac. 4. § 11. N. 4. by this branch of the Act a new advantage is given to the King against the Recusant for whereas by 29 Eliz 6. § 4. N. 2. the Convicted Recusant had his Election to pay the King twenty pound per month and so prevent the Seizure of the two third parts of his Lands now by 3 Jac. 4. § 11. N. 4. that Election is taken away and the choice is given to the King whether he will accept of the twenty pound per month or refuse it and seize two third parts of the Recusants Lands in lieu thereof and if the King chuseth the Lands the tender of the twenty pound per month at the Exchequer will not save the Seizure but the King shall enjoy the Lands notwithstanding Jones 24 25. Standens Case Page 171 172 173. CLXXVIII Hereditaments 3 Jac. 4. § 11. N. 4. An advowson is an Hereditament and passeth by that word 18 Eliz. Dyer 351. and is demisable by 32 H. 8.1 § N. as an Hereditament And if it be an Advowson in gross yet it may be seized by the King by 3 Jac. 4. § 11. N. 4. as part of his two parts of the Recusants Hereditaments Jones 23 24. for t is a thing valuable and shall be Assets and is extendable for the Kings debt and upon a writ of right of an Adowson there shall be a Recovery in value 9. 11. scil for every mark twelve pence Hob. 304. Britton 185. 1 Inst 185. 2. In the late additions to Dalt cap. 81. Sect. 23. 't is said that the King may refuse the twenty pound per month and take to two parts of the Recusants Lands and all the goods c. And an Advowson is not of 3 Jac. 4. § 11. N. 4. and Standens Case cited But this is a mistake as to the Clause it self and as to the point in Law and the Authority brought for it for in truth there is no such Clause in this Statute nor in any other that the King upon the refusal of the twenty pound per month should take the Recusants goods for the seizure of the Goods is given 3 Jac. 4. § 9. N. 2. where the offendor failes of payment of the twenty pound per month but not where the King dischargeth him of that payment by refusing it so that where the King refuseth the twenty pound per month the Recusants Goods cannot be seized but only two parts of his Lands The Law likewise is mistaken for if the King refuseth the twenty pound per month he may seize an Advowson as part of his two parts as hath been said so that an Advowson is within 3 Jac. 4. § 11. N. 4. and not without it And the Case of Standen is quite contrary to that opinion in the late Additions to Dalt cap. 81. Sect. 23. for Justice Jones held strongly that an Advowson was within 3 Jac. 4. § 11 N. 4 and Hobart Chief Justice and Winch declared themselves to be of the same mind and Justice Hutton denyed not that an Advowson was within it only held that the force of 3 Jac. 4. § 11. N. 4. as to an Advowson in gross is taken away by 3 Jac. 5. § 19. N. 1. which gives the presentation to the University but the three other Justices were against him and held that where the King had seized it as part of his two parts and the Incumbent dyed the King should present and not the University Infrà 250. N. 5. 3. If the King seize by Inquisition two parts of a Mannor belonging to a Recusant Convict to which an Advowson is appendant by such seizure two parts of the Advowson are likewise seized by consequence altho it be not named in the Inquisition as was resolved in the Case of the Chancellor of Cambridg and Walgrave Hob. 126.127 Moor 872. pl. 1214. And there altho the King hath title but to two parts of the Advowson yet he shall present alone by his Prerogative and so he should have done where there were three Coparceners of an Advowson two of full age and one under age and in ward to
the King the King only should by his Prerogative have presented during the Wardship 47 Ed. 3.14 and 38 H. 6.9 But yet altho two parts of an Advowson shall pass to the King by the word Hereditaments and the Seizure of the Mannor shall draw with it the Seizure of the Advowson yet the Kings two parts of the Advowson shall not pass from him by such General words and therefore if the King seizeth two parts of a Mannor belonging to a Recusant Convict to which an Advowson is appendent and grants over his two parts of the Mannor to a Subject with all Hereditaments appurtenances c. yet two parts of the Advoswon will not pass unless specially named or the grant be adeo plene integre in tam amplis modo forma prout c. The Recusant had the Manor Hob. 126. Moor 872. Page 173. CLXXIX In lieu and full recompence of the twenty pound per month 3 Jac. 4. § 11. N. 4. So that if the King makes his Election to seize the two parts the Recusant is no longer lyable to pay the twenty pound per month but the two parts of his Lands shall go in lieu and full recompence thereof Jones 24. Standens Case Page 173. CLXXX Mansion-house is in Law most commonly taken for the Chief messuage or habitation of the Lord of a Mannor or the Mannor-house where he most remains or continues Termes de la Ley 199. But it is to be taken here 3 Jac. 4. § 12. N. 1. in a larger sense for any other house which is the Recusants chief dwelling house Page 174. CLXXXI These words passing c. and unknown 3 Jac. 4. § 13. N. 4. being in the Conjunctive it seems that the Bishop or two Justices ought not to examine upon Oath or tender this Oath to any passenger or Traveller quatenus such unless he be unknown viz such an one as conceals his true name or quality for so it must be reasonable intended and not of all Travellers through the Country as Wingate Crown 106. mistakes for it appears by the other qualifications here enumerated that the intent of the Act is that it shall be offered by the Bishop or two Justices to such only of whom there is any just Cause of suspition 7 Jac. 6. § 26. N. 2. Infra 260. CLXXXIL Imprisonment Page 175. there to remain without Bayl or maynprise 3 Jac. 4. § 14. N. 1. The Bishop or two Justices can not take Suretyes of him who refuseth the Oath for his appearance at the Assizes or Sessions as Wingate Coton 107. mistakes but must commit him immediatly to Goal nor can any other Court or Justices Bail him in this Case CLXXXIII Justices Page 175 Until the next Assises or General or Quarter Sessions 3 Jac. 4. § 14. N. 1. This being in the disjunctive the Bishop or two Justices have their Election to commit the Party refusing the Oath either until the next Assizes or until the next Sessions as they shall think fit for some may be more aptly committed untill the next Assises and some untill the next Sessions 12. to 131. Page 175 176. CLXXXIV These words any other Person whatsoever 3 Jac. 4. § 14. N. 3. are Exclusive of the said Person or Persons who are committed for refusal for 't is here in the disjunctive so that it seems that if any person whatsoever of the age of 18 years or above and under the degree of a Nobleman or Noblewoman be at the Assizes or General Quarter Sessions of the peace whether voluntarily or brought in upon process on an Indictment of recusancy or for any other matter and be there tendered this Oath and refuse to take it altho it were never tendered to him before yet upon his refusal there he incurs a praemunire and in this respect this Statute 3 Jac. 4. § 14. N. 3. is more Exclusive than 7 Jac. 6. § 26. N. 6. where there must be a prior tender and refusal of this oath otherwise a refusal of it at the Assizes or Sessions doth not make a praemunire by that act 12 Co. 131 infra 265. CLXXXV Corent Page 176. shall incurre the danger and penalty of premunire 3 Jac. 4. § 14. N. 3. If a man be committed by the Bishop or two Justices of peace for the refusal of this oath and the tender and refusal be expressed in the Mittimus the Justices of Assize or Justices of Peace in their Sessions are bound to take notice of this tender and refusal Indictment And after they have there made the party a second tender of the oath and he refuseth it by which he incurrs a praemunire the indictment against him to convict and attaint him of praemunire must contain all the special matter viz that he stood convicted or indicted of recusancy or that he had not received the Sacrament twice within the year next before or that passing through the countrey and unknown being examined upon oath he confessed or denyed not c. as the case is and that the oath was tendered to him by the Bishop or two Justices of peace Quorum â—â—us c. and he refused it and that it was again tendred to him in open Court and he again refused it for in this case the Mittimus is the ground upon which he must be proceeded against at the Assizes or Sessions But if the first tender and refusal be not expressed in the Mittimus or warrant of Commitment there altho there was a tender and refusal of the oath before the Bishop or two Justices yet the Justices of assize or Justices of peace in their Sessions can take no notice of it but they must there tender him the oath without reference to any prior tender which they may do by such of the General words any other person whatsoever 3 Jac. § 14. N. 3. and if he refuse he incurrs a praemunire and in this case the Indictment may be short and General scilicet that he was tendred the oath in the open Court and refused it c. and so it must be in all cases where in truth there was never any prior tender and refusal See 7 Jac. 6. § 26. N. 2. Whereby the power of the Justices of Peace is in some particular cases enlarged in reference to this oath of Allegiance infra 266. CLXXXVI Oath Page 179. unto which Oath so taken the said person shall subscribe his or her name or mark 3 Jac. 4. § 15. N. 6. if a man refuse to take any word of this oath 't is a refusal of the whole 1 Bulstr 198. Lord Vauxes Ca CLXXXVII Vilary Page 179. 180. Outlary 3 Jac. 4. § 16. N. 1. a Termor for years was utlawed upon an indictment of Recusancy the term was sold by the Lord Treasurer and Barons of the Exchequer and afterwards the utlary was reversed The Question was whether upon reversal of the utlary the recusant should have restitution of term again 3 Cro.
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
of his Wife Page 255 CCLXXII 256. Shall continue out of Prison 7 Jac. 6. § 28. N. 1. A married Woman 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 pound per Month or yield the third part of his Lands imprisoned by Process of Law or for some other Clause not relating to such Conviction and afterwards is set at liberty it seems that the Husband shall not pay the ten lib. per Month for the time she was in Prison For the Act 7 Jac. 6. § 28. N. 1. speaks only of the time during which she continueth out of Prison and altho 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 lib. 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 satisfy the intent of this Act. But if after such Conviction the Wife be imprisoned by Covin upon some pretence not relating to such Conviction that shall not save the Husband's payment of the ten lib 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 7 Jac. 6. § 28. N. 2. unless the Husband pay the ten pound per Month or satisfy to the King the third part of the Profits of his Lands as well for the time of such Covenous Imprisonment as for the future for the Covenous Imprisonment was upon the matter her own act and no person shall take advantage of an Imprisonment covenously caused by him or her self 16 Ed. 45. and here she continued out of Prison in the sense of this Act 7 Jac. 6. § 28. N. 1. because her Imprisonment was not by process of Law in invitam And so if a man be outlawed while he is in Prison yet the Oatlary shall not be avoided for that cause if the Imprisonment were by Coven or consent of the party outlawed 1 Inst 259.38 Ass 17. 3 Car. 1 2. 3 Of Ouster le Mere. PAge 258 259. Or of Oyer and Terminer 3 Car. 1. Cap. 2. 3 § 3. N. 1. Justices of Peace cannot take an Indictment upon this Statute for no inferior Court shall take authority by any Statute unless it be specially named Savill 135. pl. 212. Agard and Sandish And altho Justices of Peace have in their Commission § 14. an express Clause ad audiendum terminandum yet forasmuch as there is a Commission of Oyer and Terminer known distinctly by that name and the Commission of peace is known distinctly by another Name they shall not be included under the general words of Justices of Oyer and Terminer as was adjudged 3 Co. 87. Hill 30 Eliz B. R. in Smyth's Case who was Indicter at the Sessions of the Peace in the County of Oxford on 5 Eliz. 14. of Forging Deeds which impowers Justices of Oyer and Terminer to inquire of hear and determine that Offence and yet the Indictment before the Justices of Peace was quasht as taken coram non judice 9 Co. 118 3 Inst 103. and 3 Co. 60. 1. Wilson's Case and 3 Co. 697. Hunts Case See Justices FINIS KNowing the Learning and Industry of the Author of this Work who hath therein very seasonably bestowed his Pains upon Explaining the Antient Laws made against Recusants I do Recommend the same to the Publick Fra. NORTH May the 7. 1681