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
charged in what not in respect or by reason of his or her Ancestors Recusancy And if at the decease of any such Recusant his heir shall happen to be a Recusant and after shall become conformable and obedient to the Laws and Ordinances of the Church of England and repair to the Church and continue there during the time of the Divine Service and Sermons according to the intent and true meaning of the said Statutes and Ordinances in that behalf made as is aforesaid and also shall take the Oath of Supremacy in such sort as that Oath is expressed in one Act of Parliament made in the first year of the Reign of our late Sovereign Lady Quéen Elizabeth before the Archbishop or Bishop of the Diocess that in every such Case every such heir shall be freed and discharged of all and singular the penalties charges and incumbrances happening upon him or her in respect or by reason of any of his or her Ancestors Recusancy Provided always and be it Enacted by Authority of this present Parliament That if the heir of any Recusant shall happen to be within the age of sixtéen years at the time of the decease of his or her Ancestor and shall after his or her said age of sixteen years become or be a Recusant that in every such Case any such heir shall not be freéd or discharged of all or any of the penalties charges and incumbrances happening upon him or her in respect or by reason of any of his or her Ancestors Recusancy until he or she shall submit or reform him or her self and become obedient to the Laws and Ordinances of the Church of England and repair to the Church and continue there during the time of the Divine Service and Sermons according to the intent and true meaning of the said Statutes and Ordinances in that behalf as is aforesaid and shall take the said Oath of Supremacy in manner and form afore expressed and yet nevertheless from and after such submission and Oath had and taken every such heir shall be fréed and discharged of all and singular the penalties charges and incumbrances happening upon him or her in respect or by reason of any of his or her Ancestors Recusancy If any Recusant shall hereafter die That is Convicted Recusant a Recusant either Convicted upon Proclamation and Default or Convicted by Verdict Confession c. and adjudged For in both those cases if the Recusant die the discharge of the heir depends upon his Conformity Of all and singular the penalties Judgment against Tenant in Tail charges and incumbrances If Judgment be had at the Kings Suit against a Recusant Tenant in Tail for Recusancy this is a charge and incumbrance within this Statute of which the heir in Tail shall not be discharged unless he conforms but must satisfie all the arrears incurred in the life time of his Ancestor For it being a Debt to the King upon a Judgment the intailed Lands are liable thereto by the Statute of 33 H. 8. cap. 39. Stat. 33 H. 8. 39 But these two Clauses discharge the arrears of the Twenty pounds per month incurred in the Recusants life time upon the conformity of the heir in such Cases only where the two parts of the Recusants Lands were not seized before his death Seisure in the Recusants life time for if they are seized in his life time and continue so till his death neither his Fee-simple Lands nor his Intailed Lands if a Judgment were had against him for his Recusancy at the Kings Suit shall be discharged upon the heirs conformity without payment of the arrears for which Vide postea Sect. 4. Stat. Sect. 4. The two parts of a Recusants Lands shall go towards satisfaction of the Twenty pounds per month And be it further Enacted by Authority of this present Parliament That where any seizure shall be had of the two parts of any Lands Tenements Hereditaments Leases or Farmes for the not payment of the Twenty pounds due and payable for each month according to the Statute in that Case lately made and provided That in every such Case every such two parts shall according to the extent thereof go towards the satisfaction and payment of the Twenty pounds due and payable for each month and unpaid by any such Recusant and that the third part thereof shall not be extended or seized by the Kings Majesty his Heirs or Successors for not-payment of the said Twenty pounds payable for each month forfeited or lost by any such Recusant And after his death shall remain in the Kings hands until the arrears be satisfied And where any such seizure shall be had of the two parts of the Lands Tenements Hereditaments Leases or Farmes of any such Recusant as is aforesaid and such Recusant shall die the debt or duty by reason of his Recusancy not paid satisfied or discharged that in every such Case the same two parts shall continue in his Majesties possession until the residue or remainder of the said debt or duty be thereby or otherwise paid satisfied or discharged And that his Majesty his Heirs or Successors shall not seize or extend any third part descending to any such heirs or any part thereof either by reason of the Recusancy of his or her Ancestors or the Recusancy of any such heir What seizure is here meant Where any seizure shall be had That is a seizure upon either a Judgment against the Recusant by Indictment on the Statute of 23 Eliz. cap. 1. Stat. 23 Eliz. 1 29 Eliz 6 or on Indictment and Conviction by Proclamation and default of appearance according to the Statute of 29 Eliz. cap. 6. For the seizure of two parts of the Recusants Lands was given the King by 29. upon default of payment of the Twenty pounds per month in either of those Cases as hath been said for which see that Statute Sect. 4. Go towards the satisfaction and payment of the Twenty pounds Stat. 29 Eliz 6 altered Hereby a principal branch of the Statute of 29 Eliz. cap. 6. is altered For whereas by 29. the Queen might for non-payment of the forfeiture have seized two parts of a convicted Recusants Lands nomine poenae and as a gage or penalty until the Twenty pounds per month had been paid and yet the profits should not have gone towards the satisfaction of the said Twenty pounds per month This Statute was made for the ease and benefit of the Recusant in that point The two parts satisfactory of the penalty so that now if two parts of his Lands be seized for default of payment of the forfeiture the profits received to the Kings use shall go towards satisfaction thereof and when the forfeiture is paid out of the profits the Recusant shall have his Land again unless in such Case where the King by force of the Statute of 3 Jac. cap. 4. Stat. 3 Jac. 4. makes his Election and seizes two parts in
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 understood of such an Estate as he may lawfully forfeit And the general words of the Statute of Praemunire Stat. 16 R. 2. 5. W. 2. 1. 16 R. 2. c. 5. scil Lands and Tenements shall not take away the force of the Statute de donis Conditionaelibus Co. 1. Inst 130. 391. Co. 11. 63. Godbolt 308. Lord Sheffeild and Ratcliffe And the person attainted in a Praemunire is disabled to be a Witness in any Cause Co. 1. Inst 6. or to Sue For Attainder in a Praemunire is a good plea in disability of the Plaintiff A person attainted in a Praemunire was out of the Kings Protection Sc. 25 E. 3. 22. according to Littleton 41. By the Statute of 25 E. 3. cap. 22. which saith That a man attainted in a Praemunire shall be out of the Kings Protection and it may be done with him as with the Kings Enemy It seemeth that any man might have lawfully slain such a person as was held 24 H. 8. Bro. Coron 196. Vide Bulstrode 2. 299. Sir Anthony Mildmay's Case And this Sir Edward Coke Co. 7. 14. Calvins Case Co. 12. 38. seemeth to allow for Law before this Statute of 5 Eliz. and positively affirms it to have been Law in his 1 Inst 130. and yet in the same Case of Calvin he saith that in that Statute of 25 E. 3. is intended only a legal Protection according to Littleton 41. and so likewise he expounds it in his 3d Inst. 126. But yet that the party attainted was still under that Protection which the Law of Nature giveth to the King which he explains to be such a Protection as a person attainted of Felony or Treason is under notwithstanding his Attainder so that if any man had killed him without Warrant he should have been punished by Law as a manslayer And this sort of Protection by the Law of Nature saith he is indelebilis immutabilis which the Parliament could not take away But yet under favour if a man attainted in a Praemunire were before this Act of 5 Eliz. under that indeleble and immutable Protection of the King given by the Law of Nature then the Opinion held in Brooke and allowed by himself was not Law But if that Opinion in Brooke were Law and any man might before this Statute have killed a man attainted in a Praemunire and that by force of the Statute of 25 E. 3. it follows that the Protection which the Law of Nature giveth is not indelebilis or immutabilis but that an Act of Parliament might in a particular Case take it away But there is now no further need of this Question in the Case of a Praemunire For if this Protection by the Law of Nature were taken away by 25 E. 3. it is now restored by this Statute and no man can lawfully slay a person attainted in a Praemunire no more than he can without Warrant a man attainted of Felony or Treason Provided always Stat. Sect. 15. Upon what proof only any person may be indicted and be it Enacted by the Authority aforesaid That no person or persons shall hereafter be Indicted for assisting aiding maintaining comforting or abetting of any person or persons for any the said Offences in extolling setting forth or defending of the usurped Power and Authority of the Bishop of Rome unless he or they be thereof lawfully accused by such good and sufficient testimony or proof as by the Iury by whom he shall so be Indicted shall be thought good lawful and sufficient to prove him or them guilty of the said Offences Stat. xiii Eliz. cap. ii An Act against the bringing in and putting in Execution of Bulls Writings or Instruments and other Superstitious things from the See of Rome Stat. Sect. 1. A rehearsal of the Stat. of 5 El. 1. touching the abolishing of the Authority of the Bishop and See of Rome WHere in the Parliament holden at Westminster in the fifth year of the Reign of our Sovereign Lady the Quéens Majesty that now is by one Act and Statute then and there made Intituled An Act for the Assurance of the Queens Majesties Royal Power over all States and Subjects within her Highness Dominions it is among other things very well ordained and provided for the abolishing of the usurped Power and Iurisdiction of the Bishop of Rome and of the See of Rome heretofore unlawfully claimed and usurped within this Realm and other the Dominions to the Quéens Majestie belonging That no person or persons shall hold or stand with to set forth maintain defend or extol the same usurped Power or attribute any manner of Iurisdiction Authority or Preheminence to the same to be had or used within this Realm or any the said Dominions upon pain to incur the danger penalties and forfeitures ordained and provided by the Statute of Provision and Praemunire made in the sixteenth year of the Reign of King Richard the second as by the same Act more at large it doth and may appear And yet nevertheless divers seditious and very evil disposed people without respect of their Duty to Almighty God or of the Faith and Allegiance which they ought to bear and have to our said Sovereign Lady the Quern and without all fear and regard had to the said good Law and Statute or the pains therein limited but minding as it should seem very seditiously and unnaturally not only to bring this Realm and the Imperial Crown thereof being in very deed of it self most free into the thraldom and subjection of that Forreign usurped and unlawful Iurisdiction Preheminence and Authority claimed by the said See of Rome but also to estrange and alienate the minds and hearts of sundry her Majesties Subjects from their dutiful obedience and to raise and stir Sedition and Rebellion within this Realm to the disturbance of the most happy peace thereof have lately procured and obtained to themselves from the said Bishop of Rome The effect of Bulls brought from Rome and his said Sée divers Bulls and Writings the effect whereof hath been and is to absolve and reconcile all those that will be contented to forsake their due obedience to our most gracious Sovereign Lady the Queens Majesty and to yield and subject themselves to the said fained unlawful and usurped Authority and by colour of the said Bulls and Writings the said wicked persons very secretly and most seditiously in such parts of this Realm where the people for want of good instruction are most weak simple and ignorant and thereby farthest from the good understanding of their Duties towards God and the Quéens Majesty have by their lewd and subtile practises and perswasion so far forth wrought that sundry simple and ignorant persons have been contented to be reconciled to the said usurped Authority of the See of Rome and to take absolution at the hands of the said naughty and subtile practicers whereby hath grown great dissobedience and boldness in many not only to withdraw and absent themselves from all
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
sue And as for Sir Edward Cokes Opinion that since the said Statute of 21 Jac. the Courts at Westminster cannot receive or hold Plea of any Information brought by a common Informer not only common Experience ever since that Statute is against it but the Judgments and Resolutions both of the Kings Bench Mich. 4 Car. 1. in the Case of Greene and Guy upon the Statute of 21 H. 8. cap. 13. of Non-residence Stat. 21 H. 8. 13. and of the Common Pleas. Trin. 4 Car. 1. in the Case of Farrington and Leymer upon the Statute of 23 H. 8. cap. 4. of Brewers 23 H. 8. 4. are directly in point contrary thereunto Cro. Car. 146. ibid. 112 113. Hutton 99. And so is the Opinion of Rolles upon the Statute of 7 E. 6. cap. 5. 7 E. 6. 5. of Selling Wines without Licence Styles 340. Buckstone against Shurlock and the Resolution in Jones 193. And yet although in penal Statutes any Court of Record shall be restrained to the ordinary Courts of Record at Westminster In what Statutes Courts of Record may be taken in a large sense possibly in other Statutes those words may admit of a larger Construction Vide Rolles 1. 51. C. 21. Floyde versus Beste By Action of Debt Bill Plaint or Information An Informer may sue upon this Statute by Bill Stat. 18 Eliz. 5. By the Statute of 18 Eliz. cap. 5. it is Enacted That none shall be admitted or received to pursue against any person upon any penal Statute but by way of Information or original Action and not otherwise Vide Co. 6. 19 20. Gregories Case Moore 412. C. 565. 600. C. 827. the same Case Cro. Hill 39 Eliz. 544. Gadley versus Whitecot And this seems to extend to as well penal Statutes made afterwards as to those which were in force when the said Act was made For 't is usual for a later Act of Parliament to be guided by a former of which see several Instances in Vernons Case Co. 4.4 But then that must be in such Cases where there are not express words in the later Act to controul the former And therefore although the words of 18 Eliz. be in the Negative that the Informer shall not pursue otherwise then by Information or original Action yet the Affirmative words of this subsequent Statute of 23 Eliz. that the Informer may Sue by Bill hath taken away the force of that Negative in 18 in relation to the Offences mentioned in 23. And the prosecutor Qui tam c. upon this Statute may Sue by Bill in the Kings-Bench as well as by Information which otherwise had there been no direct words here to that purpose he could not do as it seems by the resolution given in Woodson and Clarks Case in a Suit brought by Bill in the Kings-Bench 23 H. 6. 10. upon the Statute of 23 H. 6. cap. 10. of Sheriffs Co. 3. Inst 194. and in Vdeson and the Mayor of Nottinghams Case Moore 248. C. 390. contrary to the opinion in Styles 381. 382. Hill against Dechair Within threé months after Iudgment thereof given shall be committed to Prison Qui non habet in aere luet in corpore The Judgment shall be absolute And yet the Judgment in this Case shall be absolute that the King and Informer recover c. Anderson 1. 140. C. 190. Vachels Case A Feme Covert Feme Covert Recusant if the forfeiture be not paid within the time here limited may be imprisoned by force of this Statute until she pay or conform Co. 11. 61. Dr. Fosters Case Hobart 97. Moore vesus Hussey And if she be convicted upon Indictment at the Kings Suit in which Case the Husband is not bound to pay the penalty she ought by the opinion of Manword to have hard and close Imprisonment Imprisoned and be sequestred from all Company until she conform or the forfeiture be paid Savile 25. C. 59. But if the Husband and Wife be Sued upon this Statute in a popular Action or Information for the Recusancy of the Wife Her Husband chargeable and Judgment be had against them and the forfeiture is not paid within the three months the Husband in that Case may be imprisoned likewise Savile 25. C. 59. Stat. Sect. 10. Service in a mans private House Provided also That every person which usually on the Sunday shall have in his or her house the Divine Service which is established by the Law of this Realm and be thereat himself or her self usually or most commonly present and shall not obstinately refuse to come to Church and there to do as is aforesaid and shall also four times in the year at the least be present at the Divine Service in the Church of the Parish where he or she shall be resident or in some other open Common Church or such Chappel of ease shall not incur any pain or penalty limited by this Act for not repairing to Church Stat. Sect. 11. Fraudulent Assurances to defeat forfeitures And be it likewise Enacted and Declared That every Grant Conveyance Bond Iudgment and Execution had or made since the beginning of this Session of Parliament or hereafter to be had or made of Covinous purpose to defraud any interest right or title that may or ought to grow to the Queén or to any other person by means of any Conviction or Iudgment by vertue of this Statute or of the said Statute of the said thirteenth year shall be and be adjudged to be utterly void against the Quéen and against such as shall Sue for any part of the said penalties in form aforesaid Since the beginning of this Session of Parliament And yet a Covenons Conveyance though made before that Session of Parliament should not have defeated the interest Fraudulent conveyances right or title which was given to the Queen by this Statute And therefore in the Case or Sir John Southwell who in An. 19 Eliz. conveyed his lands to certain Feoffees and their heirs in Trust for the maintenance of him and his Family marriage of his Daughters payment of his Debts c. and to answer to him the Surplusage of the mean profits with a Clause of Revocation after which he granted Trees took fines for Leases c. and then came this Statute 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 inquire what Lands he had were committed to the Fleet and fined each of them Fifty pounds for that they would not find those Lands to be his Leonard 3. 147. 148. By means of any Conviction or Iudgment Pauncefoot being Indicted of Recusancy A 〈◊〉 Outlawâ—â—â— made a Deed of Gift of all his Leases and Goods to a great value coloured over with fained considerations to defeat the Queen of what might accrew to her by his recusancy or flight and then went beyond Sea and afterwards was
Verdict pass against him these are Convictions in Law but yet by these Convictions he forfeits nothing until Judgment nor shall the penalty of 20 l. per month run on or be appropriated to the King until Judgment be given By Convicted therefore is here to be understood convicted by Proclamation and Default or convicted by Verdict Confession c. and adjudged for so the word is here to be taken viz. for adjudged or attainted unless it be in Case of Conviction upon Proclamation And in such a sense it is to be taken in divers other Cases Stat. 23 Eliz. 1 Vide Stat. 23 Eliz. cap. 1. Sect. 5. When the 20 l per month is to be paid In such of the Terms of Easter or Michaelmas That is the Term of Easter or Michaelmas which shall first happen and not the next Easter and Michaelmas Terms both For the Recusant ought to pay the whole penalty for the time contained in the Indictment in the very first of those Terms next after his Conviction See for this Stat. 3 Jac. 4. Stat. 3 Jac. 4. Sect. 6. From what time the said penalty shall run on Stat. 23 Eliz. 1. 3 Jac. 4. For every month after such Conviction For what time the penalty of 20 l. per month shall run on after the Recusant is indicted and convicted and in what Cases the Informer and all others but the King shall be barred after such Conviction Vide Stat. 23 Eliz. cap. 1. antea Stat. 3 Jac. cap. 4. Sect. 6. postea Office Take seize and enjoy But as to Lands and Tenements there must first be an Office found for the King for regularly before the finding of such Office Lands or Tenements cannot be seized into the Kings hands Co. 2. Inst 573. Co. 8. 169. Paris Stoughters Case Bro. tit Office 17. 55. Plowden 486. Nicholls Case By this Statute the Queen was to have and enjoy two parts of the Recusants Lands and Hereditaments nomine poenae or districtionis The two parts not satisfactory of the twenty pounds per month until he had in some other manner satisfied her of the whole forfeiture of the Twenty pounds per month incurred for his Recusancy And the profits of those two parts should not have been accompted to go to the payment of any part of the said debt or forfeiture For the Statute inflicted this forfeiture upon him meerly as a farther penalty for his neglect of payment of the Twenty pounds per month as was resolved by the two Chief Justices and Chief Baron Trin. 43 Eliz. in Gages Case Cro. Eliz. 845. 846. and by all the Judges The Law now altered in that point 3 Jac. at Russell House Jones 24. Standen versus Vniversity d'Oxon Whitton But now the Law is altered in this point by the Statute of 1 Jac. cap. 4. Vide the Stat. infra Sect. 4. Stat. 1 Jac. 4 All the goods A Recusant is Indicted and Convicted Recusants goods when forfeited and then fails of payment of the Twenty pounds per month yet his goods are not forfeited to the King by this Statute before seizure For the King hath his Election whether he will seize them or no. By Coke Chief Justice B. R. 12. Jac. Rolles 1. 7. C. 8. Cullom versus Sherman A Recusant lends money Recognizance forfeited and for security hath a Rent-charge granted him in Fee by Deed indented with condition of redemption and takes likewise a Recognizance for performance of Covenants in the said Indenture The Recognizance is forfeited and afterwards he is Indicted and Convicted of Recusancy and fails of payment of the Twenty pounds per month In this case the King shall have the Recognizance by force of this Act for when forfeited to the Recusant it is but a chattel personal What is given to the King by this word Goods and shall pass to the King by this word goods For in an Act of Parliament where the Offenders goods are given to the King all debts and personal Chattels and Actions are thereby given him as well as goods in possession And here in this Act as take and seize refer to two parts of the Recusants Lands and Tenements so enjoy refers to goods And the King shall enjoy the debt due by the Recognizance Nor doth it alter the Case for that the Recognizance was acknowledged for performance of Covenants in an Indenture concerning a Rent-charge in fee which seems to savour of the realty for it was originally for the loan and forbearance of money which is personal Co. 12. 1. 2. Ford and Sheldons Case If a man who is a Recusant take such a Recognizance in the name of another Recognizance taken in anothers name forfeited the King upon his Conviction shall have the Recognizance for when the Recusant was such at the time of taking the Recognizance and so continued until the time of his Conviction it shall be intended that it was done by Covin and that he took it in the name of another with an intent to prevent the King of the levying of the forfeiture and such Covin shall not bar the King Co. 12. 2. 3. the same Case The Kings grant If a Recognizance or Obligation be forfeited to the King by force of this Act he may grant it over as he may any other Chattel in Action under his private Seal Rolles 1. 7. C. 8. Cullom versus Sherman Hereditaments Rent Advowson in gross Hereditaments A Rent of Inheritance and an Advowson in gross are comprehended under this word But whether the King may seize such an Advowson as part of his two parts and present by vertue thereof since the Stat. of 3 Jac. c. 5. which gives the Presentation to the Universities Stat. 3 Jac. 5 Vide that Stat. infra Sect. 19. All other the Lands Tenements and Hereditaments liable to such seisure or to the penalties aforesaid It hath been much disputed whether Copyhold Lands are within this Branch of the Statute Copyhold Lands if seizable for regularly in Acts of Parliament which are Enacted for forfeiture of Lands Tenements and Hereditaments Copyholds shall not be forfeited but only Lands Tenements and Hereditaments which are such at the Common Law and not those which are such by custom only as Copyholds are And it was agreed in Heydons Case Co. 3. 8. That where an Act of Parliament alters the service or tenure or other thing in prejudice of the Lord there general words in the Act shall not extend to Copyholds Vide Savile 67. C. 138. And if the King should seize them by force of the general words here viz. Lands Tenements and Hereditaments the Lord would during the time they are in the Kings hands lose his Seigniory Customs and Services But yet it was held by Manwood Chief Baron and Baron Clark in the Case of Sulherd and Everet Mich. 30 Eliz. That Copyholds are within this Act and although Manwood seemed to grant that they are not within
it directly by express words yet they both conceived they were within the intent of the Act by reason as Manwood said of these words all other the Lands c. liable to such seizure or to the penalties aforesaid But it was granted on all hands that by these general words here the King hath not any estate given him in the Recusants Copyhold Lands but only a right or title to two thirds of the profits By the Kings receiving of which the Lord cannot be impeached of his Customs and Services as he would be if the King should seize the Land it self And a difference was there taken between an Act of Parliament which transfers an Estate to the King and an Act of Parliament which gives him only the profits of the Estate For in the first Case the Rule in Heydons Case that Copyhold Lands shall not pass by general words shall stand good for the prejudice that may otherwise accrew to the Lord But where the Lords Seigniory Customs and Services are not to be Impeached or taken away as here they will not by the Kings bare receiving of the profits there it was said Copyholds shall be included within the general words of Lands Tenements and Hereditaments Leonard 1. 97. C. 126. And yet Vide Owen 37. where this Case is otherwise reported and that it was at length after great debate adjudged that Copyhold Lands are not within this Statute nor are seizable for the Kings two parts And according to this Judgment I take the modern practice of the Exchequer to have been that neither the Land it self nor the profits of Copyhold Lands are liable to such seizure And for the more spéedy conviction of such Offender Stat. Sect. 5. The Indictment sufficient though it be not mentioned that the party is within the Realm in not repairing to Divine Service but forbearing the same contrary to the said Estatute Be it Enacted by the Authority aforesaid That the Indictment of every such Offender mentioning the not coming of such Offender to the Church of the Parish where such person at any time before such Indictment was or did keép House or Residence nor to any other Church Chappel or usual place of Common Prayer shall be sufficient in the Law And that it shall not be neédful to mention in any such Indictment that the party Offender was or is inhabiting within this Realm of England or any other the Queens Majestis Dominions But if it shall happen any such Offender then not to be within this Realm or other her Majesties Dominions that in such case the party shall be relieved by Plea to be put in in that behalf and not otherwise And that upon the Indictment of such Offender Stat. Sect. 6. A Proclamation that the party Indicted shall render his Body to the Sheriff a Proclamation shall be made at the same Assizes or Goal delivery in which the Indictment shall be taken if the same be taken at any Assize or Goal delivery by which it shall be commanded that the body of such Offender shall de rendred to the Sheriff of the same County before the said next Assizes or general Goal delivery to be holden in the same County And if at the said next Assizes or Goal delivery the same Offender so proclaimed shall not make appearance of Record that then upon such default Recorded the same shall be as sufficient a conviction in Law of the said Offence whereof the party so standeth Indicted as is aforesaid as if upon the same Indictment a Trial by Verdict thereupon had proceeded and been recorded If the same be taken at any Assize or Goal delivery For if the Indictment had been taken before Justices of Peace Proclamation by whom to be made no Proclamation thereupon could have been made upon this Statute by the Justices of Assize or Goal delivery as was resolved in the Case of Edward Plowden And therefore upon such an Indictment for Recusancy taken before Justices of Peace the Court was to remove the Indictment into the Kings-Bench And there process might have been made out against the Recusant and he convicted For the Justices of Peace could do no more then Indict all other proceedings being taken away from them by this Statute Co. 11. 63. Dr. Fosters Case Rolles 1. 94. C. 41. the same Case But now by the Statute of 3 Jac. cap. 4. the Law is altered in this point Stat. 3 Jac. 4. and the Justices of Peace upon Indictments taken before them may proceed to proclaim and convict the Recusant as well as Justices of Assize and Goal delivery Shall be rendred to the Sheriff Vide Stat. 3 Jac. cap. 4. Sect. 5. Before the said next Assizes or general Gaol delivery Vide Stat. 3 Jac. cap. 4. Sect. 5. Appearance Make appearance of Record What appearance will serve in this Case Vide Stat. 3 Jac. cap. 4. Sect. 5. Vpon such default That is upon his default of appearance of Record at the next Assizes or Goal delivery For if he makes such appearance Default saved that shall save his default of not rendring his Body to the Sheriff and the not rendring himself to the Sheriff shall be no conviction as Wingate would make it to be Tit. Crowne numb 66. As sufficient a Conviction in Law That is as if he were convicted by Verdict Conviction upon Proclamation no Judgment but not as sufficient as if a Judgment were had against the Recusant For although by force of this and other Statutes the conviction upon Proclamation and default of appearance make the Recusant liable to divers penalties and incapacities and is in those respects as forceable as a Judgment yet it shall not in other Cases have the force or effect of a Judgment And therefore it was resolved 37 38 Eliz. in the Case of the general pardon Anno 35 Eliz. where there is an exception of all penalties and forfeitures due to the Queen and converted to a debt by Judgment that notwithstanding that exception a Recusant convicted upon Proclamation was within the pardon and the forfeitures due upon such conviction were thereby pardoned For the debt was not due to the Queen by Judgment but upon conviction only But otherwise it had been if he had been convicted according to the Statute of 23 Eliz. cap. 1. Stat. 23 Eliz. 1 without Proclamation and Judgment had been given thereupon Vide Co. 11. 65. Dr. Fosters Case Stat. Sect. 7. Provided always That whensoever any such Offender as is aforesaid shall make submission and become conformable according to the form limited by the same Estatute made in the thrée and twentieth year of the Quéens Majesties Reign The Offender submitting or dying no forfeiture shall ensue or be continued or shall fortune to die that then no forfeiture of twenty pounds for any month or seizure of the Lands of the same Offender from and after such Submission and Conformity or Death and full satisfaction of all
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
Curate of the Parish That in every such Case every such Offender being thereunto warned or required by any two Iustices of the Peace or Coroner of the same County where such offender shall then be shall upon his or their corporal Oath Abjuration before any two Iustices of the Peace or Coroner of the same County abjure this Realm of England and all other the Queéns Majesties Dominions forever And thereupon shall depart out of this Realm at such Haven and Port and within such time as shall in that behalf be assigned and appointed by the said Iustices of Peace or Coroner before whom such abjuration shall be made unless the same Offenders be letted or stayed by such lawful and reasonable means or causes as by the Common Laws of this Realm are permitted and allowed in Cases of abjuration for felony And in such Cases of let or stay then within such reasonable and convenient time after as the Common Law requireth in Case of abjuration for felony as is aforesaid Abjuration to be entred of Record and certified And that every Iustice of Peace and Coroner before whom any such abjuration shall happen to be made as is aforesaid shall cause the same presently to be entred of Record before them and shall certifie the same to the Iustices of Assizes or Goal delivery of the said County at the next Assizes or Goal delivery to be holden in the same County If any such person or persons being a Popish Recusant That is any Popish Recusant within the former Branches of the Statute and none but such What Popish Recusants are within this Branch and which not Dalton V. cap. 45. tit Recusants applies this Clause to Popish Recusants convicted as if it concerned them and them only and so both at once extends and restrains the Statute 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 aboad within this Realm although he be convicted is not within this Statute unless he were a Popish Recusant and in England at the time of his Conviction And the Popish Recusant who hath no certain place of aboad within this Realm is within this Statute although he were never convicted so that either of these sorts of Popish Recusants who have an Estate under value viz. he who hath no certain place of aboad and he who having a certain place of aboad was convicted when a Popish Recusant and in England and no other are liable by this Act to Abjuration Of the clear yearly value Clear yearly value of Twenty marks above all Charges A Rent-charge of 40 l. per Annum is issuing out of Lands worth 100 l. per Annum a Popish Recusant liable to be confined by this Statute purchases for his Life or in Fee parcel of the Lands of the clear yearly value of Twenty marks over and above what his proportion of the said Rent-charge comes to This is an Estate of the clear yearly value of Twenty marks within the meaning of this Act and shall free him from abjuration For although in strictness of Law his Estate be not clearly so much above all charges For that 't is chargeable with an yearly Rent of Forty pounds yet in equity he shall pay no more then his proportion of it which the Land he purchased will discharge and yet yield Twenty marks per Annum clearly besides Or Goods and Chattels This Statute being in the disjunctive Lands or Goods an Estate partly of Lands Goods and Lands not to be valued together and partly of Goods will not satisfie the intent thereof And therefore if a Popish Recusant who offends against this Act hath fifteen Marks per Annum clearly in Lands and be worth Thirty pounds in goods although this taken together be in truth an Estate of more value then is here required yet it shall not free him from Abjuration For the Statute doth not warrant any valuation of the Lands and Goods 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 the Statute of 2 H. 5. Stat. 2 H. 5. 3. cap. 3. where 't is said That the Iuror shall have Lands of the clear yearly value of Forty shillings if the Debt or Damage declared amount to Forty marks in which Case although it be in the disjunctive debt or damage yet it hath been adjudged that where the debt and damages both amount to Forty marks it is sufficient and the Juror must have Forty shillings per Annum Co. 1. Inst 272. For in that Case the word or is cumulative and debt or damage both amount to no more then 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 that no Cause declared to be of the value of Forty marks shall be tried by Jurors of a less Estate but in our Case the Lands and Goods are things of different nature one real the other personal and cannot be regularly reduced under one and the same head and therefore shall not be valued together unless the Act had expresly appointed such a Valuation But yet if a Popish Recusant hath a Lease for years But leases for years and personal goods may and personal Goods and both do amount in value to above Forty pounds he shall be out of the danger of Abjuration For although 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 the Statute expresly so appoints without distinguishing between the values of either but makes it sufficient if both of them be of that value Money secured upon a Mortgage Mortgage of Lands is within the meaning of these words Goods and Chattels And if the Popish Recusant hath above Forty pounds owing to him upon such Mortgage he cannot be required to abjure Within three months next after such person shall be apprehended or taken Wingate in abridging this Clause tit Crowne numb 80. clearly mistakes the meaning of it 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 aboad which is a complicated Error For he quite leaves out him who is to repair to the place where he was born or his Father or Mother dwels He makes the party liable to such submission before he becomes an offender by not repairing or not presenting himself and giving in his true name or travelling above five miles He speaks nothing of his being
apprehended The three months relate to the time of the Offenders 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 Required to submit within what time Being thereunto required by the Bishop c. If the Offender be not before the end of the three months next after his apprehension 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 Vide Stat. 35 Eliz. cap. 1. Sect. 2. Abjure this Realm of England c. The Oath of Abjuration may be in this form or to this effect Oath of Abjuration 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 Sovereign Lord the King or of his Heirs So help you God Stamford 119. 120. Co. 3. Inst 217. Wilkinson P. 66. hath set down another form upon this Statute much resembling that heretofore used at the Abjuration of a Felon mutatis mutandis in these words This hear you Sir Coronor that I J. M. of H. in the County of S. am a Popish Recusant and in 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 the Statute made in the 35th year of Queen Elizabeth late Queen of this Realm of England 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 highway leading thither nor return back again and if I do I will that I be taken as a Felon of our said Lord the King And that at P. I will diligently seek for passage and I will tarry 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 in Case of abjuration for Felony which began with the Confession of the particular offence for which the Felon was abjured as Ego A. B. sum latro unius Equi vel homicida unius hominis or the like as the Case was Wilkinson is mistaken in the very offence for which the Popish Recusant is to abjure by force of this Statute for the offence is not his refusal to hear Divine Service for that is but only 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 although 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 the Act 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 He that abjures yet oweth the King his Ligeance Qui abjurat Regnum amittit regnum sed non Regem amittit Patriam sed non patrem patriae Co. 7. 9. Calvins Case And if any such Offender Stat. Sect. 7. The punishment for refusing to abjure not departing or returning without Licence which by the tenour and intent of this Act is to be abjured as is aforesaid shall refuse to make such Abjuration as is aforesaid or after such Abjuration made shall not go to such Haven and within such time as is before appointed and from thence depart out of this Realm according to this present Act or after such his departure shall return or come again into any her Majesties Realms or Dominions without her Majesties special Licence in that behalf first had and obtained That then in every such Case the person so offending shall be adjudged a Felon and shall suffer and lose as in Case of Felony without benefit of Clergy And within such time c. and from thence depart When and whence the Offender must depart The Offender is strictly tied to depart from the same Haven assigned him and within the time appointed him by the Justices of Peace or Coroner so that if he depart the Realm from any other Haven or Port or over stay his time and depart afterwards yet he is a Felon within this Act. Or return or come again into any her Majesties Realms or Dominions An Offender within this Act abjures in form aforesaid and departs this Realm and afterwards goes into Ireland without Licence Return and then returns into England with Licence such going into Ireland seems to be Felony by this Act. But quaere how the offence shall be tried How triable not in Ireland for this Statute binds not that Kingdom nor can be taken notice of there nor yet can it be tried in England for that the offence was done elsewhere So that this is casus omissus and cannot be punished for that no way of Trial is appointed Stat. Sect. 8. A Jesuit or Priest refusing to answer shall be imprisoned And be it further Enacted and Ordained by the Authority aforesaid That if any person which shall be suspected to be a Iesuit Seminary or Massing Priest being examined by any person having lawful Authority in that behalf to examine such
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
but forbear the same contrary to the tenor of a Statute made in the first year of the Reign of the said late Quéen for Vniformity of Common Prayer and being thereof lawfully convicted should forfeit to the said Quéen for every month after the end of the said Session of Parliament which he or she should so forbear twenty pounds of lawful English money as in and by the said Act of Parliament more at large appeareth And whereas afterward by another Act of Parliament of the said Quéen It was further Enacted by the Authority of the said Parliament amongst other things how and when the said payments of the said 20 l. should be made and that if default should be made in any part of any payment of the said twenty pounds contrary to the form in the said last specified Statute limited that then and so often the said Quéen should and might by Process out of her Highness 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 the said Act of Parliament 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 as in and by the last specified Statute more at large also may appear Now forasmuch as the said penalty of twenty pounds monthly is a greater burden unto men of small living then unto such as are of better ability and do refuse to come unto Divine Service as aforesaid who rather then they will have two parts of their Lands to be seized will be ready always to pay the said twenty pounds according to the limitation of the said Statutes and yet retain the residue of their livings and Inheritance in their own hands being of great yearly value which they do for the most part imploy as experience hath taught to the maintenance of Superstition and Popish Religion and to the relief of Iesuits Seminaries Popish Priests and other dangerous persons to the State Therefore to the intent that hereafter the penalty for not repairing to Divine Service might be inflicted in better proportion upon men of great ability Be it Enacted by the Authority of this present Parliament The King may refuse 20 l. a month and take two parts of a Recusants Lands That the Kings Majesty his Heirs and Successors shall from and after the Feast of St. Michael the Archangel next coming after the end of this Session of Parliament have full power and liberty to refuse the penalty of twenty pounds a month though it be tendred ready to be paid according to the Law and thereupon to seize and take to his own use and the uses intents and purposes hereafter limited two parts in threé to be divided as well of all the Lands Tenements and Hereditaments Leases and Farms that at the time of such seizure shall be or afterward shall come to any the said Offenders in not coming to Church or any other to his or her use or in trust for him or her or at his or her disposition or whereby or wherewith or in consideration whereof such Offender or his Family or any of them shall be relieved maintained or kept as of all other Lands Tenements and Hereditaments in any wise or at any time liable to such seizure or to the penalties aforesaid and the same to retain to his own and other uses intents and purposes hereafter in this Act appointed till every such Offender shall conform him or her self respectively as aforesaid in lieu and full recompence of the twenty pounds monthly that during his such seizure and retainer shall incur any thing in the said Statutes or any of them or any other Statute to the contrary in any wise notwithstanding saving to our Soveraign Lord the Kings Majesty his Heirs and Successors and all and every person and persons Saving the Right of others bodies politick and corporate their Heirs and Successors other then the said Offender his or her Heirs and all claiming to his or their use or in trust for him or them or at his or their will or disposition all and all manner of Leases Rents Conditions and other Rights and Titles whatsoever had made and done bona fide and without fraud and covin before such seizure Though it be tendred or ready to be paid By this Branch of the Act a new advantage is given to the King against the Recusant For whereas by the Statute of 29 Eliz. cap. 6. Stat. 29 Eliz. 6. the convicted Recusant had his Election to pay the King twenty pounds per month and so prevent the seizure of the two third parts of his Lands now by this Statute that Election is taken away Election taken from the Recusant and given to the King and the choice is given to the King whether he will accept of the twenty pounds per month or refuse it and seize two third parts of the Recusants Lands in lieu thereof and if the King chooses the Lands the tender of the twenty pounds per month at the Exchequer will not save the seizure but the King shall enjoy the Lands notwithstanding Jones 24 25. Standen versus University of Oxford Hereditaments An Advowson is an Hereditament Hereditament Advowson and passes by that word 18 Eliz. Dyer 351. and is devisable by the Statute of 32 H. 8. cap. 1. of Wills as an Hereditament and if it be an Advowson in gross yet it may be seized by the King by force of this Act as part of his two parts of the Recusants Hereditaments Jones 23 24. Standen versus University of Oxford 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 Advowson there shall be a Recovery in value scil for every mark twelve pence Fitzh Recovery in value 9. 11. Hobart 304. London versus the Chapter of Southwell Co. 1. Inst 374. Britton 185. In the late Additions to Dalton cap. 81. tit Recusants Sect. 23. 't is said That the King may refuse the twenty pounds per month and take to two parts of the Recusants Lands and all the Goods c. And an Advowson is without that Clause and the said Case of Standen and the University of Oxon is there cited for Authority 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 refusal of the twenty pounds per month should take the Recusants Goods For the seizure of the Goods is given where the Offender fails of payment of the twenty pounds per month Where a Recusants Goods cannot be seized but not
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
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
as the person so sent or gone beyond the Seas shall conform him or her self and take the aforesaid Oath and receive the Sacrament of the Lords Supper And after such Oath taken and conforming of himself and receiving the Sacrament of the Supper of the Lord he or they which have so received the profits of the said Lands Tenements Hereditaments Goods and Chattels or any of them shall make account of the profits so received and in reasonable time make payment thereof and restore the value of the said Goods to such person as shall so conform him or her self as aforesaid And of him that sendeth them And that all such persons as shall send the said Child or Children over Seas without Licence as aforesaid unless the said Child or Children be Merchants or their Apprentices or Factors Marriners or Soldiers shall forfeit one hundred pounds to be divided had and recovered in thrée equal parts whereof the one third part shall be to the King his Heirs and Successors the other third part to such as shall sue for the same and the other third part to the Poor of such Parish where such Offender doth inhabit or remain by Action of Debt Bill Plaint or Information in any the Kings Majesties Courts of Record wherein no Essoign Protection or Wager of Law shall be admitted or allowed Next of kin who The next of his or her kin It hath been a great Question formerly whether the Mother can be said to be of kin to the Child and it hath been held in the negative as well by the Common Lawyers as Civilians as appears by the Case in 5 E. 6. called the Duke of Suffolks Case and that of Browne and Shelton Bro. tit Administr ' 47. But the Law is now held to be otherwise viz. That the Mother shall be taken to be of kin to the Child and that in a nearer degree then is the Brother or Sister And that she shall be preferred in the Case of an Administration upon the Statute of 21 H. 8. cap. 5. and of Guardianship by the Statute of Marlebridge where a man dies seized of Lands holden in Socage Which later Opinion agreeth with that of Littleton in his tenures fo 1. where he saith That the Parent is nearer of blood to the Child then the Uncle vide Co. 1. Inst 88. And in Ratcliffes Case Co. 3.40 the Duke of Suffolks Case is denied to be Law So that if any Child be sent or go beyond the Seas contrary to this Act his Mother shall be preferred before his Brother or Sister and as next of kin may have and enjoy his Lands c. unless she be a Popish Recusant For next of kin And who not or next of blood shall not be accounted here by course of descent but as in the Case of a purchase where a Remainder is limited to the next of blood or kin And therefore if a man hath issue three Sons A. B. and C. and dieth A. and B. have issue each of them a Son and die The Son of B. goeth beyond the Seas contrary to this Act In this Case C. the youngest Uncle shall by force of this Act have and enjoy the Lands of the Offender until his Conformity and not the Son of A. the elder Uncle For that C. hath in him jus propinquitatis as being the Uncle and so nearer of kin then the Cousin german And yet the Son of A. is heir at Law jure representationis as being the Son of the eldest Brother Vide Co. 1. Inst 10. Palmer 304 305. Periman versus Pierce Shall have and enjoy the said Lands c. What is forfeited It was held by Montague and Hobart Chief Justices Pasch 15 Jac. in Tredway's Case That if a person goes beyond the Seas contrary to this Act yet the State of the Land is not forfeited nor setled in the next of kin but vests in the heir himself who is the Offender For the Statute saith not that he shall not take by descent but only that he shall take no benefit by descent and that therefore this Statute differs from those of 5 R. 2. of consenting to Ravishment Stat. 5 R. 2. 11 H. 7. Sale by the heir and 11 H. 7. of discontinuances by Women And Hobart said That if the Heir beyond Sea bargain and sell the Land descended to him he shall prevent the next of kin if he hath not entred And if he hath entred the Land shall be taken from him Quaere of this for Tanfeild Chief Baron seemed to be of a contrary Opinion in the main point and held that the State of the Land is setled by this Act in the next of kin Ley 59. Note in the Report of this Case of Tredway it s said to be the meaning of this Act that the profits of the Land should be received by the next of kin during the Offenders Non-conformity But these words have and enjoy seem to imply some what more and that the next of kin shall have the Land it self All such persons as shall send the said Child or Children c. Here Wingate tit Crown numb 139. mistakes the person who shall forfeit the hundred pounds Forfeiture of 100 l. applying it to the Child who goes beyond Sea and not to the person who sends him Stat. Sect. 19. The forfeiture of those already gone beyond the Seas And for that many Subjects of this Realm being neither Merchants nor their Factors nor Apprentices Soldiers nor Marriners are of late gone beyond the Seas without Licence and are not as yet returned Be it further Enacted by the Authority of this present Parliament That if any of the said persons so gone beyond the Seas without Licence which are not yet returned shall not within six months next after their return into this Realm then being of the age of Eighteén years or more take the Oath above specified before some Iustice of Peace of the County Liberty or Limit where such person shall inhabit or remain that then every such Offender shall take no benefit by any gift conveyance descent devise or otherwise of or to any Lands Tenements Hereditaments Goods or Chattels until he or they being of the said age of Eightéen years or above take the said Oath and that likewise in the mean time the next of kin to the person so offending which shall be no Popish Recusant shall have and enjoy the said Lands Tenements Hereditaments Goods and Chattels so given conveyed descended or devised until such time as the person so offending shall conform himself and take the aforesaid Oath and receive the said Sacrament of the Lords Supper And after such conforming taking of the said Oath and receiving of the said Sacrament he or they that shall have so received the profits of the said Lands Tenements Hereditaments Goods and Chattels shall make account of the profits so received and in reasonable time make payment thereof and of the value of such Goods and Chattels to
and really in him who hath the right of nomination as is held in 14 H. 4. 11. Chancellor and Schollers of the Vniversity Chancellor and Schollers a good description Although the University be incorporated by the name of Chancellor Masters and Schollers yet the description here made of them by the name of Chancellor and Schollers is well enough and sufficiently denotes the persons intended And the University shall have the presentation c. as if the true name of the Incorporation had been expressed For Acts of Parliament as well as Wills are to be taken according to the intent of the Makers and not according to the strict Letter Co. 10. 57. Shall have the presentation c. What is given the University It hath been made a Question what is given the University by these words whether only a bare power or liberty to present or a setled estate and interest in the Partronage or Advowson See the before cited Case of Standen versus University d'Oxon Jones 22 23 25 26. where two Justices Hutton and Jones were divided in opinion upon this point For Hutton held that that which is given to the University by this Act is a setled estate and interest and compared it to the interest or estate of the Lord who was to hold the Land until he was satisfied the value of the marriage of the Heir and to that of the Conusee by the Statute of Acton Burnell and to an estate given to a Man until a hundred pounds be paid In all which Cases the party hath a setled estate and interest in the Land But Jones held the contrary and that the University hath by this Act only a power or liberty to Present when the Church becomes void and compared it to the power given to the Bishop to Present by lapse after the six months and to that given by the Statute of Proviso's 25 E. 3. where the Pope provides Stat. 25 E. 3. 31 Eliz. 6 and to that given the King by the Statute of 31 Eliz. of Simony In which Cases no Estate or Interest is transferred but only a power or liberty granted to Present For this Act doth not remove the Patronage from the Popish Recusant The Recusant is still Patron but that continues still in him and he is Patron notwithstanding his Conviction and as Patron shall confirm a Lease made by the Incumbent as he might have done before his Conviction which proves that the Interest of the Patronage is not devested out of him nor consequently setled in the University Private clause Note Although this be a general Statute and that part of it which disables the Recusant to Present c. or to grant any Avoidance be general of which the Judges ought to take notice yet this part of it which gives the Presentation c. to the Universities is special and private for that it concerns only particular persons and must be pleaded or specially found or otherwise the Judges cannot take notice of it Hobart 227. Anne Needler versus the Bishop of Winchester Co. 10. 57. See the Rules touching publick and private Acts of Parliament and touching special or private Clauses in general Acts of Parliament 13 E. 4. 8. Co. 4. 76 77. Hollands Case During such time as the Patron thereof shall be and remain a Recusant Convict Conviction when requisite If the University bring a Quare Impedit upon this Statute they must averr that the Popish Recusant Convict was and remained such at the time when the Church became void For without that they do not enable themselves to Present But they need not averr that he remains a Popish Recusant Convict at the time of the bringing of the Quare Impedit for when the Presentment hac vice is once vested in the University although the Recusant conform or die yet the University shall Present Co. 10.57 58. University hath a limited power These words are words of restraint and the Statute gives only a limited power to the University scil so long as the Recusant shall be Patron or the Patron shall be a Recusant So that if before the Church becomes void the Recusancy be removed from the Patron by his Conformity or the Patronage be removed from the Recusant although he continues a Recusant the University have lost their power to Present Jones 19. And therefore if the Patron grant the Advowson in Fee or in Tail Grants which bar the University or for life or years these Cases are out of the Statute And although after the Grant he becomes a Popish Recusant Convict and then the Church becomes void yet the University shall not Present And it seems that although the Patron make such Grant of the Advowson after his Conviction and before the Church is void yet this shall bar the University For the Patronage was before the Avoidance removed from the Recusant Jones 19. Co. 10. 56. contrary to the Opinion of Hutton who held that if a man make a Lease for years of an Advowson yet if afterwards he becomes a Popish Recusant Convict the University shall have the Presentation as a future interest given to them by this Act notwithstanding such Lease Jones 26. And the reason why by such Grants the University shall be barred is for that the disability here inflicted on the Recusant is only a disability to Present or to grant the next Avoidance which extends not to any of the Grants beforementioned nor severs the Patronage from the Patron as those other Grants do And the intent of the Statute is to prevent a Presentation by the Recusant or by him to whom he should grant the next Avoidance Intent of the Statute who it was presumed would Present such an one as the Recusant should appoint But now when he grants the Advowson it self away that mischief is prevented and the Statute intended not in that Case to give away the Presentation from the Grantee to the University Jones 19 20. And yet if the Recusants Grant of the Advowson in Fee Covinous Grant or in Tail or for life or years were by Covin or in Trust on purpose to avoid this Statute and be averred and found so to be such Grant shall not bar the University Jones 20. Co. 10. 56. Vide Godbolt 216. C. 309. But then the Averment Averment in such Case must not be of Covin or Fraud to any other intent only but it must be averred to be to the particular intent to avoid this Statute and defeat the University of the Presentment and so it must be found by the Jury Verdict For if it be averred or the Jury find that the Recusant granted away the Advowson for any other Covinous purpose Intent as to deceive Creditors or the like and not to avoid this Act this will not help the University nor shall they take advantage thereof so as to devest or impeach the Interest or Estate of the Grantee in the Advowson And this
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
to any person or capable of any Legacy or Deéd of Gift or to bear any Office within the Realm and shall lose and forfeit all his Goods and Chattels and shall forfeit all his Lands Tenements and Hereditaments Rents Annuities Offices and Estates of Fréehold for and during his natural Life Stat. Sect. 2. He that conforms shall not incur the penalties aforesaid Provided always That no person sent or conveyed as aforesaid that shall within Six months after his Return into this Realm conform himself unto the present Religion established in this Church of England and receive the Sacrament of the Lords Supper according to the Statutes made concerning conformity in other Cases required from Popish Recusants shall incur any the penalties aforesaid Within Six months after his return And not within Six weeks as Wingate tit Crowne numb 157. erroneously Stat. Sect. 3. What Justices shall hear and determine these offences And it is Enacted That all and every of the offences against this Statute may be inquired heard and determined before the Iustices of the Kings Bench or Iustices of Assize or Goal delivery or of Oyer and Terminer of such Counties where the Offenders did last dwell or abide or whence they departed out of this Kingdom or where they were taken Or of Oyer and Terminer Justices of Peace Justices of Peace here excluded cannot take an Indictment upon this Statute for no inferior Court shall take Authority by any Statute unless it be specially named Savile 135. C. 212. Agard and Candish And although Justices of Peace have in their Commission an express Clause ad audiendum terminandum and by that are Justices of Oyer and Terminer 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 Hill 30 Eliz. B. R. in the Case of Richard Smith who was Indicted at the Sessions of the Peace in the County of Oxon upon the Statute of 5 Eliz. cap. 14. Stat. 5 Eliz. 14 of forging Deeds which impowers the Justices of Oyer and Terminer to inquire of hear and determine that offence and yet the Indictment before the Justices of Peace was quashed as taken coram non Judice Co. 9.118 Co. 3. Inst. 103. Cro. Eliz. 87. vide Cro. Mich. 39 40 Eliz. 601. Wilsons Case Ibid. Mich. 41 42 Eliz. 697. Hunts Case Or where they were taken Vide Stat. 3 Jac. cap. 4. 3 Jac. 4. Sect. 21. Provided also That if any person or Child Stat. Sect. 4. In what Case the offenders Lands shall be restored again so passing or sent or now being beyond the Seas shall after his return into this Realm conform himself to the present Religion established in this Church of England and receive the Sacrament of the Lords Supper according to the Statutes made for or concerning conformity in other Cases required from Popish Recusants for and during such time as he or she shall so continue in such conformity and obedience occording to the true intent and meaning of the said Laws and Statutes shall have his or her Lands restored to them again Addendum Stat. xxv Car. ii c. ii An Act for Preventing Dangers which may happen from Popish Recusants FOR preventing Dangers which may happen from Popish Recusants and quieting the minds of His Majesties good Subjects Be it Enacted by the Kings most Excellent Majesty by and with the Advice and Consent of the Lords Spiritual and Temporal and the Commons in this present Parliament assembled and by Authority of the same That all and every person or persons as well Péers as Commoners that shall bear any Office or Offices Civil or Military or shall receive any Pay Salary Fée or Wages by reason of any Patent or Grant from His Majesty or shall have Command or Place of Trust from or under His Majesty or from any of His Majesties Predecessors or by His or their Authority or by Authority derived from Him or them within the Realm of England Dominion of Wales or Town of Berwick upon Tweed or in His Majesties Navy or in the several Islands of Jersey and Guernsey or shall be of the Houshold or in the Service or Imployment of His Majesty or of his Royal Highness the Duke of York who shall inhabit reside or be within the City of London or Westminster or within Thirty miles distant from the same on the first day of Easter Term that shall be in the year of our Lord One thousand six hundred seventy threé or at any time during the said Term all and every the said person and persons shall personally appear before the end of the said Term or of Trinity Term next following in His Majesties high Court of Chancery or in His Majesties Court of Kings Bench and there in publick and open Court between the hours of Nine of the Clock and Twelve in the Forenoon take the several Oaths of Supremacy and Allegiance which Oath of Allegiance is contained in the Statute made in the third Year of King James by Law established and during the time of the taking thereof by the said person and persons all Pleas and Procéedings in the said respective Courts shall cease And that all and every of the said respective persons and Officers not having taken the said Oaths in the said respective Courts aforesaid shall on or before the First day of August One thousand six hundred seventy thrée at the Quarter Sessions for that County or place where he or they shall be inhabit or reside on the Twentieth day of May take the said Oaths in open Court betwéen the said hours of Nine and Twelve of the Clock in the Forenoon And the said respective Officers aforesaid shall also receive the Sacrament of the Lords Supper according to the Vsage of the Church of England at or before the First day of August in the year of our Lord One thousand six hundred and seventy thrée in some Parish Church upon some Lords day commonly called Sunday immediately after Divine Service and Sermon And be it further Enacted by the Authority aforesaid That all and every person or persons that shall be admitted entred placed or taken into any Office or Offices Civil or Military or shall receive any Pay Salary Fée or Wages by reason of any Patent or Grant of his Majesty or shall have Command or Place of Trust from or under his Majesty his Heirs or Successors or by his or their Authority or by Authority derived from him or them within this Realm of England Dominion of Wales or Town of Berwick upon Tweed or in his Majesties Navy or in the several Islands of Jersey and Gernsey or that shall be admitted into any Service or Imployment in his Majesties or Royal Highnesses Houshold or Family after the First day of Easter Term aforesaid and shall inhabit be