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
she be an Offender within 3 Jac. 5. § 10. N. 1 and conform not within the year next before her Husband's death she shall forfeit the profits of two parts of both But otherwise it is where an Estate is given or limited by the Husband to the Wife and it 's neither expressed nor can be averred and proved to be given or limited for her Joynture or in recompense of her Dower and therefore if any of the Estates before-mentioned which are not within 27 H. 8.10 § 6. N. 1. be granted or limited to the Wife by the Husband or any other Estate for her life or otherwise which would be a good Joynture within the said Statute if it were intended for a Joynture as if a man before or after Marriage covenants to stand seised of Lands to the use of himself for life the remainder to his Wife for her life and it is neither expressed in the deed nor can be averred and proved that it was for her Joynture Or if a man devise Lands by his last Will to his Wife generally and there is no mention in the Will that 't is for her Joynture for in this Case an Averment that it was so intended will not serve unless there be express words in the will to that purpose These Estates so gained by the Wife as they do not barre her Dower out of the Residue of her Husband's Estate but that she shall enjoy both the one and the other 4 Co. 4. So they are not within the meaning of this Act 3 Jac. 5. § 10. N. 1. because not made for her Joynture and she shall not forfeit the Profits of two parts of them altho she may forfeit the Profits of two parts of her Dower which she hath out of the residue of her Husband's Estate If Lands be conveyed to the Wife before Marriage for part of her Joynture and other Lands are conveyed to her after Marriage in full satisfaction of her Joynture and she refuse those conveyed after Marriage in this Case she may retain those conveyed before marriage and yet be endowed of the residue of her Husband's Estate for that the Lands first settled on her were not for her whole Joynture 1 Inst 35. and 4 Co. 3. And if she be a Popish recusant convict and her Husband none and she conform not within the year next before his Death she shall forfeit the Profits of two parts both of such Dower and of the Estate so conveyed to her before her Marriage And as the Wife shall have her Joynture and Dower both in such Cases where the Joynture is not pursuant to 27 H. 8.10 § 6. N. 1. So in some Cases likewise where she hath a Joynture pursuant to that Statute as where she hath such a Joynture made to her by the Husband before Marriage and he afterwards endow her ad ostium Ecclesiae or if she hath a Joynture made by the Husband in his life-time and after his death his Heir or Feoffee assigne other Lands to her in Dower or the Heir plead to her in a Writt of Dower ne unques seisie que Dower c. or nient accouple in Loyal Matrimony or any other plea save Joynture in Barre of Dower and it be found against him in these Cases the Wife shall hold her Joynture and yet be endowed and if she be an Offender within 3 Jac. 5. § 10. N. 1. shall forfeit the profits of two parts of her Joynture and Dower both But if a Widow who is endowed of the Lands of her deceased Husband takes a second Husband who is no Popish Recusant convicted by whom she hath a Joynture and she becomes a Popish Recusant convict and the second Husband dyeth and the Wife is Offender within 3 Jac. 5. § 10. N. 1. In this Case she shall not by force thereof forfeit the profits of two parts of such Dower and Joynture both but only of her Joynture for that her Dower is not out of the Lands of her said Husband that is of the Husband in whose life-time she stood convicted and after such conviction forbore to conform c. within the year next before his death CCXXXIII Judgment Page 216. Convicted of Popish Recusaney 3 Jac. 5. § 11 N. 1. The conviction mentioned here and in the other Branches of this Statute seems to be intended not only of a Conviction according to 26 Eliz. 6 § 5. N 5. or 3 Jac. 4. § 7. N. 2. upon Proclamation and default of appearance but of a judgment likewise upon an Indictment or popular suit on 23 Eliz. 1. § 5. N. 1. and 11. N. 1. for Conviction in relation to these three last mentioned Remedies is to be taken for adjudged or attainted supra 63. N. 2. and the Popish Recusant who is either convicted upon proclamation and default of appearance or against whom Judgment is had upon an Indictment popular suit or action of debt c. at the King's suit is hereby disabled as an excommunicate person and liable to all other the penalties and incapacities inflicted by this Act 3 Jac. 5. on a Popish Recusant convicted CCXXXIV Excomgent Page 216 Reputed to all intents and purposes disabled as a person c. excommunicate 3 Jac. 5. § 11. N. 1. and not reputed to all intents as an excommunicate person as Wingate Coron 135 mis-recites for as it seems by the words of the Statute the Popish Recusant convicted is not to be reputed as a person excommunicate in any other respect or to any other intent but as to his Disability only infra 243. and yet 2 Bulstr 145.155 the opinion of the Court in B. R. Mich. 11. Jac. Griffith's Ca. seems to be to the contrary that a Popish Recusant convicted may by force of 3 Jac. 5. § 11. N. 1. be attached upon a Writ de excommunicato capeindo Tamen quaere whether this statute being a penal Law and speaking only of the point of disability shall be extended by equity to other Cases or the Recusant be attached upon an excommunicato capiendo unless he be first actually excommunicated A Popish Recusant convict is disabled as an excommunicate person to be a witness in any Cause between Party and Party by Coke Ch. Inst 2 Bulstr 155. Page 216 217 218. CCXXXV May plead the same in disabling of such Plaintiff 3 Jac. 5. § 11. N. 2. this disability in the Popish Recusant convicted is but Quousque c. untill he conform c. and take the Oath of Allegeance and the Defendant must in this Case plead the Conviction at large and must as in a plea of Excommengement demand if the plaintiff shall be answered Hetley 18. which is the Legal Conclusion of a Plea in disability of the person The Defendant in debt upon an Obligation pleads that the Plaintiff is a Popish Recusant convict who replyeth nul tiel record such plea in disability of the person is peremptory and nul tiel record is an issue and judgment shall be given