out all the aforesaid qualifications 35 Eliz. 2. § 3. N. 1. required in him who hath a certain place of abode 2. And it clearly distinguishes between him who is convicted for not repairing to some Church c. which 35 Eliz. 2. § 3. N. 1. is required in those whose abode is certain and him who doth not usually repair to some Church which 35 Eliz. 2. § 4 N. 1. in those whose abode is uncertain it is sufficient to bring them with 〈◊〉 the danger and penalty of this Law if they repair not to the place appointed them by this Act or remove above five miles from thence 3. And 't is observable that in this Clause 35 Eliz. 2. § 4. N. 1. which speaks of the Popish Recusant who hath no certain place of abode there is no mention made of Forty days to be allowed him after his Conviction to repair to the place appointed him the reason ' whereof is because it takes in the whole kind of such Popish Recusants as well the not Convicted as the Convicted and makes no distinction between them if they have no certain place of abode Et ubi lex non distinguit nee nos distinguere debemus 4. Nor was it without great reason 35 Eliz. 2. § 4. N. 1. that ubiquitary Popish Recusants should be consined whether they were Convicted or not Convicted as for the other who have a certain place of abode it is to be presumed that the most considerable of them would be prosecuted and convicted for their Recusancy in the respective places where they dwell and de minimis non curat lex may in this Case be applyed to persons as well as in other cases to things but as for him who is fixed to no certain place as he is the more dangerous of the two so the more unlikely to be persecuted to a Conviction being here one day and gone the next and therefore the less taken notice of and had 35 Eliz. 2 § 4. N. 1. taken in only such as are convicted it would have been cluded and rendred inessectual for want of a Conviction of the greater part of such ubiquitary Recusants 5. The want of due consideration of 35 Eliz. 2. § 3. and 4. in each of these parts of it hath occasioned some mistakes and Wingate Crown 78. restrains both parts 〈◊〉 it to Recusants convicted and makes no mention that such as have no abode must â—e in England at the time of their Conviction And in the late Additions to Dalton cap. 81. Sect. 14. t is not only said that both sorts must be Convicted but that they must be in England at the time of their Conviction which two things are only requisite in such who have a certain place of abode and not in the other sort who have no abode who are within the meaning and danger of 35 Eliz. 2. § 4. N. 1. without any precedent Conviction for Recusancy CXXIX Lieu. Page 134. A Popish Recusant repairs to the place appointed him by this act 35 Eliz. 2. § 3. and 4. and keeps within his compass of five miles but doth not present himself or deliver in his name as 35 Eliz. 2. § 6. N. 2. he doth not forfeit his goods or Lands for there is no particular penalty inflicted in this part of the Act for that omission nor yet in the subsequent branch 35 Eliz. 2. § 8. N. 2. for him that hath 20 marks per annum in freehold or goods and Chattels worth forty pound But yet such person may be Indicted for such neglect and fined upon the general words 35 Eliz. 2. § 6. N. 1. which commands Indictment the thing to be done for where an Act of Parliament Commands any thing to be done and inflicts no penalty an Indictment lyeth against the person who ought to do it for his neglect or omission 2 Inst 55.163 3 Cro. 655. Crouthers Case CXXX Exile Page 135 136. If any such person or persons being a Popish Recusant 35 Eliz. 2. § 8. N. 2. that is any popish Recusant within the former branches of the Statute and none but such Dalton Cup. 45. tit Recusants applieth 35 Eliz. 2. § 8. N. 2. to Popish Recusants Convicted as if it concerned them and them only and so both at once extends and restrains the Stature contrary to its true meaning For these words any such person or persons neither extend to all that are Convicted nor are restrained to such only as are Convicted For the Popish Recusant who hath a certain place of abode within this Realm altho he be convicted is not within 35 Eliz. 2. § 3. and § 8. N. 2. unless he were a Popish Recusant and in England at the time of his Conviction And the Popish Recusant who hath no place of abode within this Realm is within 35 Eliz. 2. § 4. and 8. altho he were never convicted So that either of these sorts of Popish Recusants who have an Estate under value viz. he who hath no place of abode and he who having a certain place of abode was Convicted when a Popish Recusant and in England and no other are lyable by 35 Eliz. 2. § 8. N. 4. to abjuration CXXXI Estates Page 136. Of the clear yearly value of twenty marks above all charges 35 Eliz. 2. § 8. N. 2. A rent charge of forty pound per Annum is issuing out of lands worth C. l. per Annum A Popish Recusant lyable to be confined by this Statute purchaseth for his life or in Fee parcel of of the Lands of the clear yearly value of 20 Marks over and above what his proportion of the said Rent-charge comes to this is an Estate of the clear yearly value of 20 marks within the meaning of this Act and shall free him from abjuration For altho in strictness of Law his Estate be not clearly so much above all charges for that it is chargeable without yearly Rent of 40 l. yet in equity he shall pay no more then his proportion of it which the Land he purchased will discharge and yet yeild 20 marks per Annum clearly besides Page 136 137 CXXXII This Statute 35 Eliz. 2 § 8. N. 2. Or Goods and Chattels being in the disjunctive Lands or Goods an Estate partly of Lands and partly of goods will not satisfie the intent thereof and therefore if a Popish Recusant who offends aginst this Act hath 15 marks per Annum yearly in Lands and be worth 30 l. in goods altho this taken together be in truth an estate of more value then is here required yet it shall not free him from abjuration for 35 Eliz. 2. § 8. N. 2. doth not warrant any valuation of the goods and Lands together so as to supply the defect of the yearly value of the Lands by the Goods or the defect of the value of the goods by the Lands and therefore the Recusant must have such an Estate in the one or the other as will answer the Statute And
but no particular cause for the recusants travel was expressed in the license and this seems to be a good exception for the inserting into the License that the Popish recusant hath urgent or necessary occasion or business answers only the former part of this Proviso 3 Jac. 5. § 7. N. 2. which gives the former Justices power to license him if he hath necessary occasion or business to travel out of the compass of five miles but withall it ought to be mentioned in the license particularly what that occasion or business is which is the cause of the License for so this Act here 3 Iac. 5. § 7. N. 3. expressly appoints and therefore that form of a License for a recusant to travel which Dalton 379 Cap. 124. tit licenses hath set down wherein no cause is mentioned but urgent and necessary business seems too short and general and is not to be relyed on Page 210 CCXXVIII First taking his Corporal oath 3 Iac. 5. § 7. N. 4. in Mansfiel ca. Moor 836. pl. 1127. there is another oath mentioned for a Popish recusant to take before he can be licensed to travel and that is the oath of Allegiance prescribed by 3 Jac. 4. § 25. N. 1. for in Moor 836. it 's said that in an Information brought against the recusant for travelling out of the compass of five miles the defendant pleaded a licence from four Justices of peace and his plea was disallowed because among other things that did not shew that before the licence he had taken the oath of Allegiance yet Quaere of this and by what Law the omitting to take that Oath makes the Licence void but I rather think it to be a mistake and that such an exception might be moved but the plea not disallowed for that reason Page 210 211. Before the said four Justices of the Peace or any of them 3 Jac. 5. § 7. N. 4. Master Shepherd in Sure Guide Cap. 14. Sect. 5. thinks that no less than two of the four Justices of the peace can minister this Oath to the recusant But I take it to be there that any one of the four Justices may minister the Oath in this Case And there is a great difference between any Justices for that denotes the Plural number as in the subsequent clause 3 Jac. 5. § 27. N. 1. where any Justices may imprison the Offender that is any two Justices or more and Any of the Justices are here 3 Iac. 5 § 7. N. 4. which denotes the singular number and the following words who shall have Authority by vertue of this Act to minister the same may be well enough applied to any one Justice of peace Page 211. CCXXX That he hath truly informed them of the Cause of his journey 3 Iac. 5. § 7 N. 4. If an information be brought against a Popish recusant for travelling out of his compass of five miles and he plead a licence from four Justices of peace it seems necessary that he averr in his plea that the cause contained in his licence was true and real Moor 836. pl. 1127. CCXXXI Ability Page 212. This clause 3 Iac. 5. § 8. N. 9. extends not to all sorts of recusants who are convicted or have Wives who are recusants convicted as is mistaken in the Additions to Dalton Cap. 81. Sect. 46. tit Recusants but at this day only to the Popish recusant convicted or having a Wife who is a Popish recusant convicted A Popish recusant not convicted hath a Wife who is convicted of recusancy but is no Popish recusant the Husband is not disabled by 3 Iac. 5. § 9. N. 1. 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 3 Iac. 5. § 9. N. 1. for that neither the Husband is a Popish recusant nor the Wife convicted CCXXXII Women Page 213 214 215. The Issues and Profits of two parts of her Dower 3 Iac. 5. § 10. N. 1. and not of two parts of her Joynture or Dower as Wingate Coron 134 For there are divers Cases where notwithstanding 27. H. 8.10 § 6 N. 3. the Wife shall have her Dower and Joynture both and if she offend against 3 Iac. 5. § 10. N. 1. she shall forfeit the profits of two parts of both and that not only where the Joynture made to her is not warranted by 27 H. 8.10 § 6. N. 1 But in some Cases where the Joynture is pursuant and according to the Statute she shall have her Dower and Joynture both If an Estate be made of Lands to the wife for the Life of another Dower 4 Co. 3 Vernons Case Or for a thousand years if she lives so long 1 Iust 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 27. H. 8.10 § 6. N. 1. Bickley's Ca. 1. Anderson 288. pl. 296. and 2 Anderson 30 pl. 2. Wentworth's Case Or if an Estate be made to others in Fee or for the Wives life upon trust for her benefit 1 Inst. 36. Or if a man covenant to stand feised to the use of himself in Tayl the Rem to the use of his Wife for life Pasch 16. Jac. B. R. Wood's Ca. Or if the Husband make a Feoffment in Fee to the use of himself for life the Remainder to another for life or years the remainder to the Wife for her life 4 Co 2. Hutt 51. Shrewell's Ca. In all these Cases altho the Lands or rent were conveyed to the Wife for her Joynture yet the Estate not being within 27 H. 8.10 § 6. N. 1. her acceptance thereof shall not barre 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 altho there be an Estate limited to her for her life is because the Estate is not in its first Creation appoynted to take immediatly after the death of the Husband and no matter which ariseth ex post facto can salve this or make it a Joynture within 27 H. 8.10 § 6. N. 3. to barre her Dower And therefore if in Wood's Câ—â—â—â—… the Husband Tenant in Tayl dyeth without issue or if in Hutt 51. he in remainder dye before the Husband or the term for years determine in the Husband's 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 barre her Dower quod ab initio non valet c. And as in all the Cases befo-rementioned if the Estate were made for her Joynture the Wife shall have such Joynture and Dower both so if
she be an Offender within 3 Jac. 5. § 10. N. 1 and conform not within the year next before her Husband's death she shall forfeit the profits of two parts of both But otherwise it is where an Estate is given or limited by the Husband to the Wife and it 's neither expressed nor can be averred and proved to be given or limited for her Joynture or in recompense of her Dower and therefore if any of the Estates before-mentioned which are not within 27 H. 8.10 § 6. N. 1. be granted or limited to the Wife by the Husband or any other Estate for her life or otherwise which would be a good Joynture within the said Statute if it were intended for a Joynture as if a man before or after Marriage covenants to stand seised of Lands to the use of himself for life the remainder to his Wife for her life and it is neither expressed in the deed nor can be averred and proved that it was for her Joynture Or if a man devise Lands by his last Will to his Wife generally and there is no mention in the Will that 't is for her Joynture for in this Case an Averment that it was so intended will not serve unless there be express words in the will to that purpose These Estates so gained by the Wife as they do not barre her Dower out of the Residue of her Husband's Estate but that she shall enjoy both the one and the other 4 Co. 4. So they are not within the meaning of this Act 3 Jac. 5. § 10. N. 1. because not made for her Joynture and she shall not forfeit the Profits of two parts of them altho she may forfeit the Profits of two parts of her Dower which she hath out of the residue of her Husband's Estate If Lands be conveyed to the Wife before Marriage for part of her Joynture and other Lands are conveyed to her after Marriage in full satisfaction of her Joynture and she refuse those conveyed after Marriage in this Case she may retain those conveyed before marriage and yet be endowed of the residue of her Husband's Estate for that the Lands first settled on her were not for her whole Joynture 1 Inst 35. and 4 Co. 3. And if she be a Popish recusant convict and her Husband none and she conform not within the year next before his Death she shall forfeit the Profits of two parts both of such Dower and of the Estate so conveyed to her before her Marriage And as the Wife shall have her Joynture and Dower both in such Cases where the Joynture is not pursuant to 27 H. 8.10 § 6. N. 1. So in some Cases likewise where she hath a Joynture pursuant to that Statute as where she hath such a Joynture made to her by the Husband before Marriage and he afterwards endow her ad ostium Ecclesiae or if she hath a Joynture made by the Husband in his life-time and after his death his Heir or Feoffee assigne other Lands to her in Dower or the Heir plead to her in a Writt of Dower ne unques seisie que Dower c. or nient accouple in Loyal Matrimony or any other plea save Joynture in Barre of Dower and it be found against him in these Cases the Wife shall hold her Joynture and yet be endowed and if she be an Offender within 3 Jac. 5. § 10. N. 1. shall forfeit the profits of two parts of her Joynture and Dower both But if a Widow who is endowed of the Lands of her deceased Husband takes a second Husband who is no Popish Recusant convicted by whom she hath a Joynture and she becomes a Popish Recusant convict and the second Husband dyeth and the Wife is Offender within 3 Jac. 5. § 10. N. 1. In this Case she shall not by force thereof forfeit the profits of two parts of such Dower and Joynture both but only of her Joynture for that her Dower is not out of the Lands of her said Husband that is of the Husband in whose life-time she stood convicted and after such conviction forbore to conform c. within the year next before his death CCXXXIII Judgment Page 216. Convicted of Popish Recusaney 3 Jac. 5. § 11 N. 1. The conviction mentioned here and in the other Branches of this Statute seems to be intended not only of a Conviction according to 26 Eliz. 6 § 5. N 5. or 3 Jac. 4. § 7. N. 2. upon Proclamation and default of appearance but of a judgment likewise upon an Indictment or popular suit on 23 Eliz. 1. § 5. N. 1. and 11. N. 1. for Conviction in relation to these three last mentioned Remedies is to be taken for adjudged or attainted supra 63. N. 2. and the Popish Recusant who is either convicted upon proclamation and default of appearance or against whom Judgment is had upon an Indictment popular suit or action of debt c. at the King's suit is hereby disabled as an excommunicate person and liable to all other the penalties and incapacities inflicted by this Act 3 Jac. 5. on a Popish Recusant convicted CCXXXIV Excomgent Page 216 Reputed to all intents and purposes disabled as a person c. excommunicate 3 Jac. 5. § 11. N. 1. and not reputed to all intents as an excommunicate person as Wingate Coron 135 mis-recites for as it seems by the words of the Statute the Popish Recusant convicted is not to be reputed as a person excommunicate in any other respect or to any other intent but as to his Disability only infra 243. and yet 2 Bulstr 145.155 the opinion of the Court in B. R. Mich. 11. Jac. Griffith's Ca. seems to be to the contrary that a Popish Recusant convicted may by force of 3 Jac. 5. § 11. N. 1. be attached upon a Writ de excommunicato capeindo Tamen quaere whether this statute being a penal Law and speaking only of the point of disability shall be extended by equity to other Cases or the Recusant be attached upon an excommunicato capiendo unless he be first actually excommunicated A Popish Recusant convict is disabled as an excommunicate person to be a witness in any Cause between Party and Party by Coke Ch. Inst 2 Bulstr 155. Page 216 217 218. CCXXXV May plead the same in disabling of such Plaintiff 3 Jac. 5. § 11. N. 2. this disability in the Popish Recusant convicted is but Quousque c. untill he conform c. and take the Oath of Allegeance and the Defendant must in this Case plead the Conviction at large and must as in a plea of Excommengement demand if the plaintiff shall be answered Hetley 18. which is the Legal Conclusion of a Plea in disability of the person The Defendant in debt upon an Obligation pleads that the Plaintiff is a Popish Recusant convict who replyeth nul tiel record such plea in disability of the person is peremptory and nul tiel record is an issue and judgment shall be given
receiving of the profits there it was said Copy-holds shall be included within the general words of Lands Tenements and Hereditaments 3. And yet see Owen 37. where this Case of Sulhard and Everet is otherwise reported and that it was at length after great debate adjudged that Copyhold Lands are not within 29 Eliz. 6 § 4. N. 3. nor are seizable for the Kings two parts And according to this Judgment I take the modern practice of the Exchequer to have been that neither the Land it self nor the profits of Copyhold Lands are lyable to such seizure CIII Process Page 107 108. If the same be taken at any Assize or Goal-delivery 29 Eliz. 6. § 5. N. 6. for if the Indictment had been taken before Justices of Peace no Proclamation thereupon could have been made upon this Statute by the Justices of Assize or Goal-delivery as was resolved in the Case of Sir Edward Plowden And therefore upon such an Indictment for Recusancy taken before Justices of Peace the Court was to remove the Indictment in B. R. and there process might have been made out against the Recusant and he Convicted for the Justices of Peace could do no more than Indict all other proceedings being taken away from them by this Statute 29 Eliz. 6 § 2. N 2.11 Co 63. and 1 Rol. 94. but now by 3 Jac. 4. § 7. N. 1. the Law is altered in this point and the Justices of Peace upon Indictments taken before them may proceed to proclaime and convict the Recusant as well as Justices of Assize and Goal delivery supra 95. N. 2. Page 108 CIV Upon such default 29 Eliz. 6. § 5. N. 6. that is upon his default of appearance of record at the next Assizes or Goal delivery For if he make such appearance that shall save his default of not rendring his body to the Sheriff And the not rendring himself to the Sheriff shall be no Conviction as Wingate Crowne 66. would make it Page 108. CV As sufficient a Conviction in Law 29 Eliz. 6. § 5. N. 6. that is as if he were Convicted by Verdict but not as sufficient as if a Judgment were had against the Recusant For altho by force of 29 Eliz. 6. § 5. N. 5. and other Statutes the Conviction upon Proclamation and default of appearance make a Recusant lyable to divers penalties and Incapacities and is in those respects as forceable as a Judgment yet it shall not in other Cases have the force or effect of a Judgment and therefore it was resolved 37 and 38 Eliz. in the Case of the general pardon Anno 35 Eliz. where there is an exception of all penalties and forfeitures due to the Queen and converted to a debt by Judgment that notwithstanding that exception a Recusant Convicted upon Proclamation was within the pardon and the forfeitures due upon such Conviction were thereby pardoned for the debt was not due to the Queen by Judgment but upon Conviction only but otherwise it had been if he had been Convicted according to 23 Eliz. 1. § 5. N. 1. without Proclamation and Judgment had been given thereupon 11 Co. 65. Dr. Fosters Case Page 109 110 111. CVI. Upon 29 Eliz. 6. § 6. N. 1. It was resolved by all the Judges Mich. 37 and 38 Eliz. 1 Rol. 94. in Dr. Fosters Case that if a man had been Convicted according to this Statute 29 Eliz. 6. § 5. N. 5. by Proclamation upon default and afterwards conformed himself he should be discharged of the penalty due upon his Conviction notwithstanding these words 29 Eliz. 6. § 6. N. 1. and full satisfaction of all the Arrearages and the reason of this is given by Coke Chief Justice B. R. for that 29 Eliz. 6. § 5. N. 6. saith that such Conviction should be as sufficient as if there were a Verdict recorded but 't is only a Judgment which converts the penalty into a debt and not a Verdict And here all the penalties are discharged upon Conformity unless such as are Converted into a debt 29 Eliz. 6. § 6. N. 1. But otherwise it would have been if there had been a Judgment against the Recusant upon Tryal or Confession upon 23 Eliz. 1. § 5. N. 1. for then his Conformity would have come too late to have saved the penalty Incurred by his Conviction for by the Judgment the penalty was Converted into a debt Quaere tamen Whither these words here 29 Eliz. 6. § 6. N. 1. Due and payable are to be understood due and payable upon a Judgment only However now by 1 Jac. 4. § 1. N. 1. if the Recusant confirm either before or after Judgment he shall be discharged of all penalties 2. But the profits of the Recusants Lands taken before his Conformity shall never be restored 3. It hath been questioned upon 29 Eliz. 6. § 6. N. 1. if a Recusant Convicted by Proclamation upon default had died before seizure of two parts of his Lands whither his lands might have been seized after his death for the Arrearages of the 20 l. per month or if they were seized in his life time whither they should have been discharged after his death without payment of such Arrears And the opinion of those who held that the seizure should neither ensue nor continue after his death but that the Arrears were discharged was pricipalpally grounded upon 29 Eliz. 6. § 6. N. 1. that due and payable extended only to Arrearages due and payable upon a Judgment and converted into a debt But when the Recusant was Convicted by Proclamation the penalty was never Converted into a debt and therefore when he died there were no Arrearges due in the sense of 29 Eliz. 6. § 6. N. 1. for the heir to pay and yet by such offendor here is generally intended all Recusants Convicted as well by Proclamation upon default as upon on Judgment and the heirs of either should have had the benefit of this Proviso viz. that upon the death of the Ancestor no seizure should ensue or be continued only in the Case of a Judgment the Arrears were to have been paid 4. But there seems now to be no further need of this Question for 1 Jac. 4. § 3. N. 1. meets with both these Cases For if there be no seizure of the Recusants Lands in his life time the discharge of the heir will depend upon his Conformity and if there were seizure the two parts shall continue in his Majesties possession till the Arrears are paid and satisfied But this 29 Eliz. 6. § 6. N. 1. is not intended of entailed Lands For without any aid of this Proviso if a Recusant Tenant in Tail be convicted by Proclamation upon default and dieth neither any Seizure for the Arrears of the 20 l. per month shall ensue after his death nor if they were seized in his life time shall the seizure be continued after his death nor is the heir in Tail bound to pay any such Arrears But if a Judgment be had
against the Recusant Tenant in Tail in his life time the heir is bound in that Case 5. If a Judgment was had against the Recusant before 1 Jac. 4. § 5. N. 1. and he had died before seizure of the two parts of his Lands the Question was whither after his death they might have been seized by force of 29 Eliz. 6. § 6. N. 1. for the Arrears of the penalty Incurred in his life time for that the Seizure here given is meerly in nature of a nomine paenae 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 Lane 92 93. Beekets Case Lane 107. Halseys Case But now by 1 Jac. 4. § 5 N. 1. the seizure is not as a meer penalty for the contempt of non payment but for the satisfaction of the King of the Arrears of 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 unless the hair discharge himself by his Conformity 4. Note in all these Cases of seizure where the Land is to be discharged upon the death of the Recusant altho an Affidavit be made of his death and a discharge obtained thereupon yet 't is a rule in the Court of Exchequer that a Commission shall be Awarded first to Enquire Savile 130. pl. 201. CVII Page 111. This branch 29 Eliz. 6. § 7. N. 2. seems not to extend to all forfeitures for Recusancy for the power here given to the Lord Treasurer c. is only in relation to those forfeitures which are by 29 Eliz. 6. § 3. N. 1.2 appointed to be paid into the receipt of the Exchequer which are the forfeitures due to the Queen by Conviction upon Indictment for this Act medles with no other so that if the 20 l. per month be recovered in a popular suit by the Informer qui tam c. one third part thereof ought still to be paid to the poor of the Parish only according to 29 Eliz. 1. § 11. N. 1. notwithstanding this act 29 Eliz. 6. § 7. N. 2. 35 Eliz. 1. Of SECTARIES Page 114. Wingate Crown 70. saith that if any person above sixteen years of Age obstinately refuseth to come to Church for a month CVIII Religion or impugnes the Queens Authority in Causes Ecclesiastical he shall be committed to Prison 35 Eliz. 1. § 1. N. 2. which is a great mistake for no man shall be punished by this Act for either of those Causes only the not coming to Church being only a precedent qualification required in the person whom the Act makes liable to the penalties thereof for the other offences therein mentioned Crompton 53. 2. And therefore if a man never comes to Church yet he is no offender within 35 Eliz. 1. § 1. N. 2. unless he advisedly or purposely move or perswade another to deny or Impugne the Kings Authority in Causes Ecclesiastical or to that end or purpose advisedly and malitiously move or perswade some other to forbear to come to Church or receive the Communion or to be present at Conventicles c. or if he himself be present at such Conventicles c. 3. And on the other hand if a man move or perswade any other to deny or Impugne the Kings Authority in Causes Ecclesiastical or to forbear to come to Church or receive the Communion or to be present at Convinticles c. Or if he himself be present at any Conventicles c. yet he is no offendor within 35 Eliz. 1. § 1. N. 2. if he goeth to Church once within the compass of a month 4. So that the party must both forbear to come to Church and be guilty of some other offences here enumerated or he is not punishable by 35 Eliz. 1. § 1. N. 2. and as for the denying or Impugning the Kings Authority in Causes Ecclesiastical it s no offence within this Statute unless the party moves or perswades others so to do and not then neither unless he hath been absent from Church by the space of a month Page 114 115. Under colour or pretence of any exercise of Religion 35 Eliz. 1. § 1. N. 3. Altho this Act is commonly called the Act against Sectaries CIX as distinguished from those of the Romish profession yet in truth it extends to all Recusants whatsoever as well Popish as other except 35 Eliz. 1. § 2. N. 1. in the point of abjuration for Popish service is performed under Color or pretence of Exercise of Religion and the assembly or meeting of Popish Recusants under such Color or pretence is an assembly or meeting contrary to the Laws and Statutes and they as well as others may be Indicted upon this Statute if they forbear to come to Church for the space of a month and be present at any part of the Popish service or move or perswade ut supra And may be Imprisoned without Baile until they conform and make submission as by 35 Eliz. 1. § 4. N. 1. is appointed but they cannot be required to abjure unless they offend against 35 Eliz. 2. § 8. N. 2. 2. A Popish Recusant is likewise subject to an Action of debt c. given to the Queen by this Statute 35 Eliz. 1. § 10. N. 2. CX Process Page 115. Being thereof lawfully convicted 35. Eliz. 1. § 1. N. 5. that is convicted both of his absence from Church and of that other offence which makes him punishable by this Act viz. going to Conventicles or moving or perswading c. for his absence from Church for a month must be laid down precisely in the Indictment for without that the other is no offence within this Act. 2. And t is not necessary that the party be Convicted of such absence upon any prior Indictment for altho there was never any former Conviction of him for Recusancy yet if he offend against this Act 35 Eliz. 1. § 1. N. 5. in any of the other particulars he may be Convicted both of that offence and of his absence upon one and the same Indictment and so was the Indictment Mich. 16. Car. 1. in the Case of Lee and others 1 Cro. 593. pl. who were Indicted upon this Statute at the Sessions of the Peace in Essex for absenting themselves for a month from Church and resorting to Conventicles to which they pleaded not guilty and the Indictment was removed in B. R. to be tryed there CIX Oath Page 116. Being thereunto required by the Bishop c. or any Justice of Peace 35