pl. 41. and Hob. 205. in Pie and Lovels Case and there was no limitation of time for the Informer Qui tam c. Upon 23 Eliz. 1. § 8. N. 1. until the said Statute of 23 Eliz. 5. § 5. N. 2. which limits him to a year after the offence committed and not a year and a day and altho this offence of Recusancy cannot in strictness be said to be committed for that in truth it is but a bare omission as hath been said supra 62. and therefore there needs not any place alledged yet in common parlance it it will pass well enough for an offence committed and seems to be within the meaning of 31 Eliz. 5. § N. 2. and in 23 Eliz. 1. § 11. N. 1. it s said the third part of the forfeiture for Recusancy shall be to the poor in the Parish where the offence is committed Infra 116. N. 2. 7. Now if it be objected that if the Recusancy be not an offence which is to be laid in the proper County by 31 Eliz. 5. § 2. N. 1. because it is not an offence that can be properly said to be committed by the same reason the Informer who is restrained by 31 Eliz. 5. § 5. N. 1. to a year after the offence committed is not restrained in the Case of Recusancy nor the poor of any Parish can take any benefit by 23 Eliz. 1. § 11. N. 1. as to the third part of the forfeiture for that there is no Parish wherein Recusancy can be said to be committed I answer there is a great difference betwixt the Cases for in the Cases of limitation of time when the offence must be prosecuted 31 Eliz. 5. § 5 N. 1. and that of the poor of the Parish 23 Eliz. 1. § 11. N. 1. where the forfeiture is to be distributed the word committed is no part of the substance of the matter and t is no more than if the Statute had said within a year after the offence and to the Parish where the offence was and there committed may be taken well in that sense but it cannot be so in that other Case supra 62. about the proper County for 31 Eliz. 5. § 2. N. 1. makes the Commission of the offence matter of substance and whither it were committed or not in the County where it is laid in the Information or popular suit goeth not to the merits of the Cause for if it were not committed in that County and the defendent alledg and traverse it and it be found for him the Plantiff shall be barred and those words That he may traverse that it was not committed shew clearly that offences which consist only in omission were not intended for otherwise neither Recusancy nor any other offence of that nature could be punished by any Information or popular Action for the Jury upon their Oaths must of necessity find that it was not committed in any County for that in truth and property of Speech it was not committed at all 8. By 31 Eliz. 5. § 5. N. 3. If the Informer Qui tam c. doth not prosecute within a year after the offence yet the King may at any time within two years after that year ended and therefore it was resolved in 2 Co. 366 in Syvedale and Sir Edward Lenthalls Case where an Information was brought in the Court of Exchequer Tam quam c. Upon 3 Jac. 4. § 3. N. 3. for three years forbearance to receive the Sacrament after Conformity that altho it was not good for the Informer yet it was well enough as to the King 9. Alien A natural born Subject or a denizen being defendent in any suit upon a penal Law in B. R. C. B. or Exchequer is not Compellable to put in special Bail but may appear by Attorny 29 Eliz. 5. § 21. N. 2. and 31 Eliz. 10. § 20. N. 3. Telverton 53. Saint Georges Case Bar. Feme 10. An Action of debt or Information Tam pro c. lieth upon 23 Eliz. 1. § 11. N. 1. against the Husband and Wife for the Recusancy of the Wife and the Husband in that case is lyable to pay the twenty pound per month notwithstanding he himself be no Recusant 3 Bulstrode 87. The King and Law 1 Rol. 93. pl. 41. Dr. Fosters Case Hob. 97. Moore and Hussey Savile 25. pl. 59. Infra 119. N. 2. But the Wife cannot appear by Supersedeas alone without her Husband for both must appear or both be outlawed Hob. 179. Lovedens Case Infra 173. N. 2. Nor can she plead or joyn issue without her Husband 2 Rol. 90. Sir G. Curson and Vxor's Case and therefore where in an Information brought against the Husband and Wife for the Recusancy of the Wife the Record was entred praedict J. M. veniunt praedicta M. dicit quod ipsa non est inde Culpabilis de hoc ponit se super Patriam this was alledged to be ill for the Husband pleads not at all but in this Case the Docket being Quod J. C. M. uxor ejus c. placitant non culp and it being manifest that they both appeared the record was amended by the Docket after verdict for it was but the mis-prision of the Clerk in drawing the plea 2 Cro. 530. the same Case with 2 Rol. 90. Crompt 14. a. At the end of the Case in 2 Cro. 530. a note is added that if Sir J. C. and his Wife had pleaded quod ipsi non sunt culpabiles it had been ill but yet it seems that the Law is Contrary to that opinion for where an Action or Information is brought against the Husband and Wife for an offence or wrong done by the Wife there the Husband is charged quoad poenam tho not quoad culpam and when they both plead quod ipsi non sunt culpabiles the meaning is that he is not chargeable quoad poenam and she is not Guilty quoad culpam and therefore it was resolved addition to Bendloes 148 in the Case of Brown and Audley and his Wife Trin. 22 Jac. in Action sur le Case for scandalous words by the Wife that where they both plead non culp and the Jury found the Feme guilty the Plantiff should have Judgment for the issue was good for the reason aforesaid and the finding of the Jury was a good ground for the Judgment for if the Wife were guilty quoad culpam as the Verdict must necessarily be understood she being the wrong doer the Husband by consequence was chargeable quoad poenam and Judgment shall be against both And the resolution 1 Cro. 417. in the Case of Needler versus Symnell and his Wife Mich. 11. Car. 1. is directly contrary to that opinion in the end of 2 Cro. 530. for 1 Cro. 417. it s adjudged that Ipsi non sunt culpabiles by Baron and Feme is a good issue altho the wrong were by the Wife alone 11. Alien An Information of Recusancy lyeth
annorum amplius non accessit ad Ecclesiam c. The question was whether the Existens c. Should refer to the time of his Indictment or to the time of his absence And the Judges conceived that the Indictment was well enough and pursuant to the Statute and that Existens should in this Case refer to the time of his absence LXII Lieu. Page 60. Upon 23 Eliz. 1. § 5. N. 1. this offence Not repair c. but forbear c. consists not in committing but in omitting and is but a nonfeasance and therefore cannot be said to be in any certain place and for this reason in a popular action brought by the Informer qui tam c. there needs no place be alledged in the Declaration Anderson 139. pl. 109. Cuff against Vachel Nor is Recusancy within 31 Eliz. 5. § 2. N. 1. which sayeth that the offence shall be laid in the proper County where it was done or committed for to speak properly it was not committed any where Hobart 251. pl. Grimstone versus Molineux infra 79. § 6. LXIII Proof Page 60. 61. By this Being thereof lawfully convicted 23 Eliz. 1. § 5. N. 1. Is not ment that the party must be Convicted in some former suit but a Conviction upon the same Indictment or Information which is brought against him for the recovery of the 20 l. per month is sufficient conviction within the meaning of this Statute And so are all penal Statutes which have in them those words being thereof lawfully Convicted to be understood that is of a conviction in the same sute whereupon the penalty is to be recovered for the meaning only is that the offendor shall forfeit nothing before Conviction which is no more than the Law implyeth and therefore in truth these words are but superflous and might as well have been omitted 11 Co. 59. 1 Rolls 90. pl. 41. Dr. Fosters Case and 1. Rolls 234. pl. 6. and 3. Bulstrode 87. the King against Lane 2. Nor is Convicton intended here 23 Eliz. 1. § 5. N. 1. only of a Conviction by Verdict and therefore if the offendor be convicted upon his confession of the Fact and Judgment thereupon be had and consequently if Judgment be had against him upon a demurrer which is a Confession of the matter of Fact Or if Judgment be given against him on nihil dicit for any other Cause any of these are sufficient Convictions whereupon to recover his penalty for Convicted is here 23 Eliz. 1. § 5. N. 1. to be taken for attainted as t is in many other Cases for until Judgment he shall forfeit nothing and altho he that is convicted is not therefore attainted yet every one who is attainted or adjudged is Convicted and of such a Conviction is this Statute to be understood infra 233. LXIV Forfeiture Page 61. These words To the Queens Majesty In 23 Eliz. 1. § 5. N. 1. are but surplusage and import no more than the Law would have given the Queen without them for where a Statute gives a forfeiture and limits not to any particular person the King shall have it by construction of Law as was agreed 2 Anderson 128. pl. 73. in the Case of Agard and Tandish and so should he have this whole 20 l. per month if the Statute had staid here and had not afterwards made another express appointment infra 76. Page 61. 62 63. It seemeth that the month here 23 Eliz. 1. § 5. N. 1. mentioned shall be accounted secundum numerum singulorum dierum LXV Dayes allowing but 28 daies to a month for so are all Statutes to be understood which speak of the month unless W. 2. cap. 5. § N. for the account of a Lapse and 2 3 Ed. 6.13 § N. of proving a suggestion 1. Inst 135. 2 Co. 166. Yelverton 100 Hob. 179. supra pl. 7. and of this opinion the Court of B. R. seemed to be upon the Construction of the Statute of Liveries 8. Ed. 4.2 § 2. N. 3. in the Case of Donner and Smith 3. Co. 835. pl. So that by this account the Recusant shall forfeit thirteen score pounds in the whole year 2. In an Information 2 Cro. 529. pl. brought by Parker Quitam c. against Sir John Curson and his Wife for the Recusancy of the Wife for 11 months and not guilty pleaded it was proved at the Trial Pasch 17. Jac. in B. R. that she conformed and came to Church for part of the time in the Information yet forasmuch as she was a Recusant both before and after it was said by the Court that her Conformity for some part of the time should not excuse her and she was found Guilty for the whole time 3. The Informer shewed that the Recusant was absent from Church from the 10 September 15. Jac. unto 9 September 16. Jac. and demanded Two hundred and twenty pounds for eleven months upon not Guilty pleaded it was found against the Defendent and it was resolved that altho the Informer had demanded less than by his own shewing was due for the time mentioned in the Information was 13 months compleat Except one day yet the Information was well enough for the Recovery shall be intended to be for the eleven months when the Recusant was first absent and the Addition of more is not material 2 Cro. 529. and 2 Roll. 90. Parker against Sir John Curson and his Wife and this is not like the Case of 1 Cro. 331. Bawderock and Mackaller Mich. 9. Car. 1. where the Informer Qui tam c. Upon 31 Eliz. 6. of Symony demanded less than the penalty and the Court seemed to be of opinion that altho it was good enough for the King notwithstanding that misprision yet it was not so for the Informer and compared it to the Case of Agard and Candish where an Information was brought upon the Statute of liveries after the year and it was adjudged to be good for the King but not for the Informer for upon 31 Eliz. 6. § N. which gives one intire penalty for the offence if less be demanded the Statute is not persued and there is a clear variance between that and the Information but in the Case of Recusancy when he demands Two hundred pounds for eleven months the Statute 23 Eliz. 1. § 5. N. 1. is persued and tho it appear by the Information that the Recusant was absent for a longer time yet the Informer is at liberty whither he will demand the penalty for his absence during that Supernumerary time 4. If it be shewed in the Information that the Recusant was absent from Church from a day certain to a day certain which in all makes 13 months and the penalty is demanded for that time and the Jury find the party Guilty for 12 months it hath been held by some that the Verdict shall be good for 12 months but whether for the first 12 months is a Question for in Sir J. Cursons Case 2
narrow or too large For if in the large sense then the refusing to receive the Sacrament contrary to 3 Jac. 4. § N. by him that conforms and comes to Church may be as fitly called a point of Recusancy as the refusing the Oaths of Supremacy or Allegiance But if in a strict and proper sense then it extends only to the point of not coming to Church and not to the refusing the Oaths of Supremacy or Allegiance And in this last sense are all the Statutes to be understood which inflict any penalty or disability upon a Recusant or a Popish Recusant unless where the not receiving of the Sacrament is particularly mentioned And this appears by the explanation which the Statutes make every where of Conformity the Opposite to Recusancy viz. repairing to Church and more particularly 3 Jac. 4. § 2. N. 2. which saith that the Popish Recusant which conforms himself and repairs to the Church shall receive the Sacrament which words and repairs to the Church are explanatory of the former viz. which conforms himself so that this Conformity is not intended of taking the Oaths of Supreamacy or Allegiance but consists only in repairing to Church and consequently Recusancy its opposite properly so called consists in absenting from Church And this appears further by 3 Jac. 4. § 1◠N. 3. where 't is said that the Oath of Allegiance shall be required of him who confesseth or denieth not himself to be a Recusant or that he hath not received the Sacrament where Recusant cannot be understood in any other sense than of him who forbears to come to Church 2. An Information or Indictment against a Popish Recusant for Recusancy is of the form with that against any other Recusant viz. that he came not to his Parish Church or any other Chappel Church or usual place of Common-Prayer but forbore the same by the Space of c. Co. Entr. 569. and 11 Co. 56. Dr. Fosters Case So that upon his Conviction of Recusancy it doth not appear upon Record whether the Offender be a Popish or other Recusant And therefore where this 35 Eliz. 2. § 3. N. 1. or any of the subsequent Statutes commands or prohibits a Popish Recusant convict to do a thing and a person convicted of Recusancy who is a Popish Recusant be indicted thereupon his conviction must be set forth in the Indictment with this or the like conclusion per quod praedict A. B. devenit papalis recusans convictus So it is if a Popish Recusant Convict be incapacitated to take or to give or dispose of any thing and another person be substistuted by the Statute in his stead as in the Case of a Presentation by 3 Jac. 5. § N. in a Quare Impedit by the Chancellor and Scholars of the University his Conviction must be set forth with an Averment that he is papalis recusans 10 Co. 54. And if a Popish Recusant whether convicted or not convicted be so commanded prohibited or incapacitated in an Indictment or Information upon the Statute it must be Averred that he is Papalis Recusans 3. A person who hath a certain place of abode is convicted for not coming to Church and afterwards becomes a Papists being none before It seemeth that he is not restrained by 35 Eliz. 2. § 3. N. 1. within the compass of five miles because he was not a Popish Recusant at the time of his Conviction for the adverb then cannot have relation to the foregoing words viz. having any certain place of dwelling and above within this Realm for then the sense would be that if he be a Popish Recusant at any time when he hath a certain place of dwelling and abode within this Realm and he were formerly convicted for nor coming to Church he shall repair to his dwelling within forty dayes after his Conviction which may be a meer impossibility for perhaps the forty dayes after his conviction expired before he became a Popish Recusant and therefore the word then must of necessity relate to the subsequent words touching his Conviction And being then a Popish Recusant is as much as to say being a Popish Recusant at the time of his Conviction so that if he be convicted as a Recusant yet if he be not then a Popish Recusant he is not restrained by this Act 35 Eliz. 2. § 3. N. 1. if he be within this branch of the Statute viz. One who hath a certain place of dwelling and above within this Realm CXXVII Measures Page 130 131. Above five miles 35 Eliz. 2. § 3. N. 1. when an Act of Parliament speaks of miles they are not to be taken as a Bird or Arrow may flie but according to the nearest and most usual way 3 Cr. 212. Ming versus Earl 2. The Miles here 35 Eliz. 2. § 3. N. 1. I take to be intended of English miles an English mile contains eight furlongs each furlong forty pearches or Poles and every Pearch or Pole sixteen foot and an half 4 Inst 274. Dalt Cap. 65. tit Weight And so much was a mile explained to be 35 Eliz 6. § N. by the same Parliament which made 35 Eliz. 2. against Popish Recusants London Rast 252. where 't is said eight furlongs to a mile and not five furlongs as 't is mistaken in Poulton And yet in that Case of Minge 3 Cr. 212. The Defendent in maintainance that the locus in quo was four miles from Rye according to 23 Eliz. 5. § N. of words pleaded that it was 4000 paces from Rye reckoning five foot to every pace where is meant the Italian mile viz. 5000 foot and not the English which is 5280 foot and no exception was taken to it by the Plaintiff or the Court. CXXVIII Alien Page 131 132. By comparing altogether 35 Eliz. 2. § 3. and 4. it will plainly appear that the Statute puts a great difference between the Popish Recusant who hath a certain place of abode in this Realm and him that hath none for to restrain a Popish Recusant who hath a certain place of abode within this Realm from travelling above five miles there are three qualifications requisite by the Act 25 Eliz. 2. § 3. N. 1. That 1. he be convicted of Recusancy 2. That he be a Popish Recusant at the time of his Conviction 3. That at the time of such Conviction he be within this Realm and if either of these fall he is not restrained by this Act. But if a Popish Recusant have no certain place of abode within this Realm but is ubiquitary there no such qualifications are required but if he be a Papist and doth not usually repair to Church but forbears so to do he ought to repair to the place where he was born or where his Father or Mother dwelt and not to remove above five miles from thence and that whether he be Convicted or not for the Statute 35 Eliz. 2. § 4. N. 1. when it comes to speak of him who hath no certain place of abode leaves
AN Explanation OF THE LAWS AGAINST RECUSANTS c. ABRIDGED By JOSEPH KEBLE Of GRAYES-INNE Esq LONDON Printed for SAMUEL KEBLE At the Turks Head in Fleet-street over against Fetter-lane-end 1681. TO THE READER Reader THe Usefulness of the LAWS concerning Recusants c. Explained which is here referred to in Pag. 7. occasioned the Paines in suiting this Abridgement to the several Editions of the Statutes by Quotations directed to the Particular Statute Paragraph and Number or distinct Sentence of each Paragraph which is most proper to the last Edition now in the Press and to evince the Necessity or great Convenience of those several Wayes of Section without which I could not without some Difficulty discover the Meaning of any Cases of the least Variation And therefore what I wrote for my own Ease I hope will not be thought uneasy to others my Design not intending this Publick when wrote But to pleasure a Particular Friend I have permitted it to be so Some things of weight are here added particularly Pl. 251. and other things of less moment are added or omitted as seemed fit and that it be but as kindly received as I intended is the utmost Desire of Grayes Inne 27 March Anno 1681. JOSEPH KEBLE AN EXPLANATION OF THE LAWS AGAINST POPERY ABRIDGED Stat. 1. Eliz. 1. Of SVPREMACY PAge 2. The Statute of 1 2 Phil. and Mar. 8. mentioned 1 Eliz. 1. § 2. N. 1. repealed 26 H. 8.1 and 35 H. 8.3 by both which King H. 8. his Heirs and Successors were declared Supream Head of the Church of England and by repeal of 1 and 2 Ph. and Mar. 8. those other Statutes 26 H. 8.1 and 35 H. 8.3 were revived and are again in force III. 4 Inst 325. Page 5. By the abrogation of the Jurisdiction of any forreign Prelate 1 Eliz. 1. § 16. N. 2. all Jurisdiction derived from such Forreigner is abrogated likewise IV. and therefore the concurrent Jurisdiction which the Arch-Bishop of Canterbury is supposed to have in the inferiour Dioceses ought not now to be exercised by him but is utterly taken away by this Act for he had it not as Arch-bishop but as Legatus natus to the Pope Hob. 17. Dr. James Case Lamb. 224. V. High Commission Page 8. The Jurisdiction and authority by 1 Eliz. 1. § 18. N. 1. given to the late Court called the High Commission Court are now taken away by 17 Car. 1 cap. 11. § 4. N. 1. But the power given by 1 Eliz. 1. § 18. N. 1. to the Queen to constitute such Commissioners was no more than she had before by ancient prerogative and the Laws of the Land for thereby she might have made such an Ecclesiastical Commission if 1 Eliz. 1. § 18. had never been made 5. Co. 8.9 Cawdries Case and 2 Cr. 37. Page 13. If a man had done any deed or act VI. or executed any thing which amounted to the holding standing with or maintaining the Spiritual or Ecclesiastical Jurisdictiction of any foreign Prelate c. he might before the Statute of 23 Eliz. 1. § 8. N. 1. have been indicted for it after the year expired for the restraint here 1 Eliz. 1. § 31. N. 1. in point of time extends to offences committed by preaching teaching or words only and not to all Cases within this branch as Wing Crown 10. mistakes But now by the Statute 23 Eliz. 1. § 8. N. 1. It seemeth that the prosecution must be within a year and a day for all offences whatsoever against this Act. VII Dayes Page 13 14. The half year here mentioned 1 Eliz. 1. § 31. N. 2. is not to be understood of six months as Wingate Crown 10. mistakes which is in Law to be accounted secundum numerum singulorum dierum allowing XXVIII dayes to every month and not according to the Solar month nor according to the Kalendar unless it be on 13 Ed. 1. W. 2. cap. 5. § N. for the lapse in Quare Impedit and by 2 and 3 Ed. 6.13 § N. of proving a suggestion 1 Inst 135. and 2 Crook 166 167. B. of Peterborough vers Catesby Yelverton 100. Catesby vers Baker and Hob. 179. Copley against Collins But the halfe year in 1 Eliz. 1. § 31. N. 2. is to be understood according to the Kalendar Infra pl. 65. Page 14. Sir Edw. Coke 4 Inst 331 in his Construction of 1 Eliz. 1. § 31. N. 2. saith that no persons shall be impeached for any of the offences by preaching teaching VIII or words unless they be lawfully indicted within the space of half a year but yet it seemeth that the words of the. Statute will not bear such a Construction neither if they did is it Law at this day nor was then when the Institutes were wrote 1. For that 1 Eliz. 1. § 31. N. 2. refers only to the Case of Imprisonment that where the Offender by preaching teaching or words is imprisoned and is not indicted within half a year after the offence committed he shall be set at liberty and shall be no longer detained in Prison for any such cause or offence and this was done in favour of liberty and to prevent a long imprisonment upon a malicious and groundless accusation but there is no colour to extend the words to the Offender who was never imprisoned altho the offence was by preaching teaching or words only 2. Put the Case that an Offender by preaching teaching or words had been imprisoned within the half year yet it seems very questionable whether at the half years end when he was set at liberty as he ought to be by 1 Eliz. 1. § 31. N. 2. if he be not in the mean time indicted he should have been clearly discharged by this Act from any prosecution during the half year then next following for altho it be said he shall be no longer detained in Prison for any such cause or offence yet that seems to refer only to his imprisonment before conviction and detained imports as much Viz. That he should not be continued or remain in the same imprisonment which he suffered within the first half year before any Indictment was found against him but not that he should not be indicted afterwards within the compass of the year and if found guilty suffer the imprisonment and other penalties inflicted by this act and it might so have happened that an Offender by preaching teaching or words might have been accused taken and imprisoned a day or two before the half year next after the offence expired in which Case it cannot be thought to be the meaning of the makers of the Law that by his imprisonment for a day or two he should escape the penalties of the Law and could not be afterwards indicted within the compass of the year and yet in that Case he ought to be set at liberty by the express words of the Act which saith he shall be set at liberty if not indicted within half a year after the offence
be construed to be against reason for many things are excepted out of Statutes by the Law of Reason which are not excepted by express words 4 Inst 330 331. Com. 13. XVII Indictment Page 22. One indicted on 1 Eliz. 2. § 5. N. 1. for administring Baptism in other form then is thereby prescribed and is convicted and afterwards is again indicted for the like offence 1 Leon. 295. Pl. 403. by the opinion of Clench Justice in B. R. the second Indictment must mention the first Conviction or the Judgment cannot be for the second Offence viz. Imprisonment for a year and deprivation But Wray Cheif Justice held that if both Indictments were before the same Justices they are to take notice of the first conviction altho it be not mentioned in the second Indictment and ought to give Judgment accordingly but if the second Indictment be taken by other Justices then without mention therein of the first Conviction they cannot give Judgment for the second offence Page 24. XVIII Bar. Feme A Feme Covert is within the meaning of 1 Eliz. 2. § 9. N. 1. any person c. and shall be liable to the penalties thereby inflicted Hob. 97. Moor versus Hussey Dyer 203. pl. Sir Edward Walgrave's Case XIX Parliament Page 24. There hath been a great question when this Parliament of 1 Eliz. began Poulton saith Jan. 23. Dyer 203. pl. is Jan. 25. and 4 Inst 7. is Febr. 25. and for the incertainty when it commenced an information upon 1 Eliz. 2. § 9. N. 1. against Sir Edward Walgrave and his Wife by the Queens Attorny without any special recital of the Statute only supposing the offence to be Contra formam effectum cujusdam Statuti in Parliamento tent ' apud Westmon Anno primo Reginae nunc c. Dyer 203 pl. was held good For this is a general Statute and so needs not be perticularly recited Com. 53.79.81.23 XX. Religion Page 24. The hearing of Mass is a maintaining within 1 Eliz. 2. § 9. N. 2. and the person hearing is indictable thereupon Hob. 97. Dyer 203 and 323 pl. Fermors Case XXI Indictment Page 25. The Offender in any of these Cases viz. 1 Eliz. 2. § 10. N. 1. § 11. N. 1. cannot be punished for the second offence before he be adjudged for the first and that second offence must be committed after the Judgment given for the first nor for the third offence before he be adjudged for the second and that third must be committed after the Judgment for the second for quod non apparet non est non apparet Judicialiter ante Judicium 2 Inst 479. Dyer 323 pl. XXII Forfeiture Page 25 26. An Information was brought by the Attorny General in B. R. upon 1 Eliz. 2. § 9. N. 2. for hearing Mass and Judgment given Trin. 3 Eliz. Quod forisfaceret Dominae Reginae si non solvet infra c. tunc Imprisonabitur c. as 1 Eliz. 2. § 12. N. 1 and 13. N. 1. the forfeiture was estreated into the Exchequer within the six weeks mentioned in the Statute and before the six weeks expire the Defendent in the Information dieth Quaere whether his Executors shall be charged with the forfeiture of an hundred marks for that the Offender died within six weeks and so by the act of God his body cannot suffer imprisonment for six months in lieu of the forfeiture and the Statute gave his Election in this Case whether he would suffer imprisonment or pay the hundred marks Dyer 203 231. pl. Sir Edw. Walgraves Case But this Question may now be prevented for the Offender may be indicted upon 23 Eliz. 1. § N. which inflicts for such offence an hundred marks and imprisonment both XXIII Bar. Feme Page 26. A Feme Covert is within this Statute 1 Eliz. 2. § 14. N. 1. all and every Person c. and shall forfeit twelve pence if she repair not to Church every Sunday and holyday 11 Cook 61. Dr. Fosters Case 1 Rol. 93. 3 Bulstr 87. pl. Dominus Rex Law Hob. 97. XXIV Alien Page 26. In an Indictment upon 1 Eliz. 2. § 14. N. 1. It need not be inferred that the Offender is an Inhabitant within this Realm c. for if he be not that ought to come on the other side Godbolt 148. pl. 191. Ann Mannocks Case XXV Averment Page 26 27. Nor need be averred in such indictment on 1 Eliz. 2. § 14. N. 1. that the Party had no lawful or reasonable excuse to be absent but that ought likewise to come on the other side 2 Leonard 5. pl. 6 Eliz. Dormers Case Note that these words Having no lawful or reasonable excuse c. are by mistake in that Case supposed to be in 23 Eliz. 1. XXVI Church Page 27. If a Man doth not resort to the Church of the Parish wherein he dwelleth nor to the Chappel of Ease whereunto the place of his abode belongs yet if he goeth to that Church or Chappel to which he hath been accustomed to resort it seemeth to be sufficient to satisfie the intent of 1 Eliz. 2. § 14 N. 1. 1 Bulst 159. Page 27. Altho the words of 1 Eliz. 2. XXVII § 14. N. 1. be disjunctive Viz. That he shall abide there during the time of Common-Prayer Preaching or other Service of God yet they are to be taken conjunctively and the party ought not to depart when the Service is ended if there be preaching but must continue there for the whole time Godbolt 148. pl. 191. Mannocks Case and yet if he abides there during the whole time he may be liable to the penalty of this Law for there are four Adverbs in 1 Eliz. 2. § 14. N. 1. 1. Diligently which denotes Attention 2. Faithfully which denotes Devotion 3. Soberly which denotes Gravity 4. Orderly which denotes Decency All which ought to be observed so that if he walk or talk in the Church during the service of God there he may be punished upon this Act as if he were absent by Cook Cheif Justice 1 Rol. 93. Dr. Foster's Case XXVIII Forfeiture Page 27 28. This Forfeiture 1 Eliz. 2. § 14. N. 2. still remains notwithstanding the Statute of 23 Eliz. 1. § 5. N. 1. which gives the 20 l. per month and that appears by 3 Jac. 4. § 27. N. 2. which gives a more speedy remedy for the recovery of the Forfeiture of twelve pence and by the different times when these two Forfeitures are due which sheweth that the one was not intended in the Room of the other For the 20 l. per month is due for a months absence and cannot be sued for till the month is past but the twelve pence is due for every absence either Sunday or Holyday for it is forfeited as soon as the Sunday or Holyday is past and may be sued for every week So that the Recusant may be punished both by
this Statute for his weekly absence 1 Eliz. 2. § 14. N. 2. and by 23 Eliz. 1. § 5. N. 1. for his monthly absence nor is he helped by this Act in case of Conformity as he is by 23 Eliz. 1. Dr. Foster's Case 11 Co. 63. and 1 Rolls 94. pl. 41. But yet altho 1 Eliz. 2. § 14. N. 2. doth not discharge him of this twelve pence upon Conformity it seemeth that 1 Jac. 4. § 2. N. 1. Page 28. XXIX The Ordinary or Ecclesiastical Judge by 1 Eliz. 2. § 15. N. 1. and § 16. Ordinary N. 1. cannot legally punish any man for not coming to the Church of that Parish where he inhabits if he goeth to any other altho he sheweth not any reasonable let for it shall be a good Plea for the Party to say that that is not his Parish Church but that he had used to frequent another Church and did resort thereunto and if the Ecclesiastical Court will not receive this Plea the Party shall have a Prohibition for the Spiritutual Court hath no power to judge what shall be said a mans Parish Church and so it was resolved by the whole Court of Kings Bench Trin. 9. Eliz. 1. Bulstrode 159. nor can the Spiritual Court try the limits or bounds of Parishes but they shall be tryed by the Common Law 13 Co. 17. XXX Corporation Page 30. These words in like manner and form in 1 Eliz. 2. § 22. N. 1. appoint in what manner the offences shall be enquired of heard and determined by Mayors and Head Officers of Corporations c. By Indictment for so inquire imports and tryal and verdict of twelve men or such other legal proceedings upon the said Indictment as are used by the Justices of Oyer and Terminer and Assizes in their general Sessions For the Mayor or Head Officer is not left by this Act to his own arbitrary will or discretion in the hearing and determining the offence but must proceed according to the rules and forms of Law in the Conviction of the offender 2. And 1 Eliz. 2. § 22. N. 1. saith to which Iustices of Assize do not commonly repair so that the Mayor or head Officer of such places were only intended in the lieu and room of Justices of Assize and are therefore to proceed by the same Rules as they do in the Counties at large 3. Dayes But these words 1 Eliz. 2. § 22. N. 1. extend not to the point of time limited for indicting such offender nor are Mayors and head Officers tyed to their next Sessions as the Justices of Oyer and Determiner and of Assize are as Wing Tit. Service and Sacraments N. 26. mistakes for in like manner and form is intended in such respects only where it is not otherwise provided for by the Statute but it is expresly provided here 1 Eliz. 2. § 22. N. 1. that Mayors and Head Officers of Corporations shall inquire of these offences only twice in the year Viz. Within fifteen dayes after Easter and Michaelmas and not at their general Sessions unless it happen to be the Sessions after one of those two Feasts Nor can the Arch-Bishop or Bishop by 1 Eliz. 2 § 8. N. 1. associate himself in this Case to any Mayor or Head Officer of a Corporation as Wing Tit. Service and Sacraments N. 25. mistakes XXXI Ordinary Page 31. This Clause 1 Eliz. 2. § 23. N. 1. and § 24. N. 1. being in the affirmative doth not abrogate the Jurisdiction Ecclesiastical which was in the Ecclesiastical Judge before the making of this Statute for that no negative words are here added as that he should proceed no otherwise or in no other manner or form than this Statute directs 2. And therefore if any Parson Vicar c. deprave or observe not the Book of Common-Prayer altho 1 Eliz. 2. § 4. N. 5. inflicts only the forfeiture of a years value and six months imprisonment for the first offence yet the Ecclesiastical Judge may for the first offence deprive him notwithstanding this act as he might have done if no form of punishment had been here appointed 3. And the said Book 1 Eliz. 2. § 4. N. 1. being enjoyned by Authority the Offence of depraving or non observing it is punishable by the Ecclesiastical Judge according to the Ecclesiastical Law without the further aid of any temporal Law than the commanding it to be observed 5 Cook 6. Cawderyes Case and in such Case the Sentence of deprivation given by the Ecclesiastical Judge tho it exceed the punishment inflicted by the temporal Law is not to be questioned by the temporal Judges but they ought to give faith and credit to it 5 Cook 7. Cawderies Case 4 Cook 29. Buntings Case 5 Eliz. 2. Of ROME XXXII Books PAge 34. The Printers of any Book which attributes to the Pope or Sea of Rome any such Authority or Jurisdiction within this Realm c. And the Utterers thereof are in most Cases within the danger of this Law 5 Eliz. 1. § 2. N. 1. 2. And if any man bring over such books written beyond the Seas knowing the Contents thereof or secretly deliver out such books to others he knowing the Contents thereof or secretly deliver out such books to others he knowing the Contents thereof unless in this last Case he be a Trader in them and deliver them out upon that account without any act or attribution by conference or allowance he is an Offender within 5 Eliz 1. § 2. N. 1. by the words hold and stand with to maintain c. 3. And so is the Receiver likewise if he afterwards Reads and confers upon any such book with any other person and in his conference by any words or speeches allows the book to be good or conveyes it secretly to his friend to the intent he should read it and be perswaded to be of that opinion 5 Eliz. 1. § 2. N. 2. Or if a man hear of the Contents of such book by the repute of others and doth by any overt Speech commend or affirm it to be good In all these Cases the person so doing especially he that reads it and then allows of it is an Offender within this Act 5 Eliz. 1. § 2. N. 1. 4. And shall for the first Offence incur a Praemunire and for the second be guilty of high Treason So likewise if any Book to that effect be made and written within the Realm and sent over Seas as if it were made out of the Realm and be afterwards bought read or conference be had thereupon ut supra such Offenders are within the danger of this Law Dyer 281 282 pl. and 6 Cook the Preface XXXIII Accessories Page 35. A. was indicted upon 5 Eliz. 1. § 2. N. 3. and that of 13 Eliz. 2. § 4. N. 1. of a Praemunire for aiding one E. knowing him to be a Principle maintainer of the authority and jurisdiction of the Bishop and Sea of Rome contra formam Statuti praedict
such Ministry or Office 5 Eliz. 1. § 5. N. 6. whether of the gift of the King or of a Subject are bound to take this oath of Supremacy 1 Eliz. 1. § 19. N. 4. and not only such as are preferred by the King as 't is restrained in the late Additions to Dalton 184 Cap. 81. Page 39. XXXVIII This 5 Eliz. 1. § 5. N. 6. takes in so much of the Canon and Civil Law as is here allowed but the Common Law as the peculiar Law of this Kingdom is here preferred and perticularly mentioned and not the Canon Law as is erroneously said in the late Additions to Dalton 184. cap. 81. Sect. 11. Page 39. XXXIX The Statute 5 Eliz. 1. § 5. N. 10. saith not that those who belong not to any Court shall take the Oath before those who are authorized by common use to give it as Wingate Crown 20. in fine mistakes for this being then new a Oath devised by the makers of 5 Eliz. 1. § 19. N. 4. no person could have authority by Common use to administer it and the act 5 Eliz. 1. § 5. N. 10 plainly enough speaks of those who have authority by common use to admit the party to the Office and not authority by common use to give the Oath Infra 66. XL. Ordinary Page 39. Upon 5 Eliz. 1. § 6. N. 1. If a man be Indicted for refusing this Oath of Supremacy before him who is reputed to be the Bishop of the Diocess and he plead to the Indictment not guilty he may upon that issue give in evidence quod non fuit Episcopus tempore oblationis Sacramenti Dyer 234. pl. Boners Case XLI Certificate Page 41. It is not necessary on 5 Eliz. 1. § 9. N. 1. that it be mentioned of Record in B. R. how or by whom the Certificate was brought in thither and in Bonners Case Dyer 234. pl. where the Bishop of Westminster certified the refusal of this Oath of Supremacy and Exception was taken that the Certificate was entred to be brought into Court per A. B. Cancellarium dicti Episcopi but not per mandatum Episcopi and the Exception was disallowed for that reason XLII Enquest Page 41. And on 5 Eliz. 1. § 9. N. 3. a Jury of the County where the Kings Bench is can do no more in this Case than inquire that is indict the party refusing the Oath unless where the refusul is in the same County 2. Horn Bishop of Winchester tendered this Oath in Surrey parcel of his Diocess to Bonner then late Bishop of London who refused to take it and this was certified by the Bishop of Winchester into B. R. then sitting at Westminster in the County of Middlesex where Bonner was Indicted by a Jury of that County according to this Act 5 Eliz. 1. § 9. N. 3. the question was by what County he should be tried whether by a Jury of Middlesex where the Indictment was taken or by a Jury of Surrey where the Offence was committed and it was resolved that he should be tryed by a Jury of Surrey for 5 Eliz. 1. § 9. N. 3. extendeth to the Indictment only and leaveth the tryal to the Common Law which appoints it to be where the Offence was committed for regularly by the Common Law debet quis Juri subjacere ubi deliquit 6 and 7 Edw. 6. Dyer 234. 3 Inst 34. 3. So that the Jury on 5 Eliz. 1. § 9. N. 4. is to indict and not the Sheriff as is mistaken in the late additions to Dalton 184. cap. 81. § 11. XLIII Treason Page 42. Savil. 46 47. pl. 99. Slade and Body were condemned in a Praemunire upon 5 Eliz. 1. § 2. N. 1. before Justices of Oyer and Terminer for the extolling the authority of the Bishop of Rome and remained in Prison for the space of two years and afterwards were brought to the Assizes and demanded whether they were still of the same opinion to which they answered that they were and one of them said that if they had a thousand lives they would lose them all in this Case upon which they were indicted and arraigned and convicted upon 5 Eliz. 1. § 10. N. 2. for High Treason and it was resolved by the greater part of the Justices that the words should be taken to be spoken advisedly and wittingly and were within the meaning of this second Branch XLIV Parliament Page 44. Upon 5 Eliz. 1. § 16. N. 2. the King cannot dispence with any Member of the Commons House from taking this Oath of Supremacy for the reason in Vaughan 355. Thomas and Sorrels Case because by this Statute he is persona inhabilis until he hath taken it Infra 258. XLV Priviledge Page 44. Altho by this Act 5 Eliz. 1. § 17. N. 1. no temporal person of or above the degree of a Baron is compellable to take this Oath yet if he be made a Justice of Peace he ought to take it by force of 1 Eliz. 1. § 19. N. 1. Jones 152 153. the Earl of Lincolnes Case Page 44. XLVI By these words temporal person in 5 Eliz. 2. § 14. N. 1. and the Preamble forasmuch c. Arch-Bishops and Bishops altho their possessions be temporalties are excluded out of this Proviso and therefore are to take the Oath for every person who is of the degree of a Baron is not excused as Wingate Crown 29 mistakes but only the temporal Lords of Parliament XLVII Incumbent Page 45. So that every Clergy man or Person in Orders is not within the danger of this Law of 5 Eliz. 1. § 20. N. 1. upon the second tender and refusal of the Oath of Supremacy as Wingate Crown 30. mistakes for every Priest or Minister is Clericus 3 Eliz. Dyer 203. pl. and yet shall not incur the penalty of High Treason upon the second refusal unless he be a local Minister or have some charge Cure or Office in the Church XLVIII Ordinary Page 45. Upon 5 Eliz. 1. § 20. N. 3. Ordinary in the Common Law is properly taken for the Bishop of the Diocess but yet usually in the Common Law and in Statutes for every Commissary and Official of the Bishop or other Judge that hath ordinary Jurisdiction within his limits in Causes Ecclesiastical W. 2. cap. 19. and 31. Edw. 3.11 Termes de la Ley 212. verbo Ordinary 1 Inst 344 and 8 H. 6.3 XLIX Religion Page 45. Upon 5 Eliz. 1. § 20. N. 5. if a man once in his life time heareth private Mass it seems he is within this qualification and incurs High Treason upon the second refusal of the Oath and not only if he used to hear it as Wingate Crown 30. interprets the Statute L. Corn. Page 46 47. The Judgment in a Praemunire is to be out of the Kings protection his Lands Tenements Goods and Chattels to be forfeited to the King and that his body shall remain in Prison at the Kings
pleasure 1 Inst 129 130. Rast Entr. 466. Tit. Judgment 3. Inst 218. 2. But his intalled Lands he shall forfeit only during his life for this forfeiture must be understood of such an Estate as he may lawfully forfeit and the general words of the Statute of Praemunire 16 Rich. 2. § 2. N. 7. scil Lands and Tenements shall not take away the force of the Statute de donis conditionalibus 13 Ed. 1. W. 2. cap. 1. § N. 1 Inst 130 131. Godbolt 308. pl. Lord Sheffeild and Ratcliffe 11 Cook 63. 3. And the person Attainted in a Praemunire is disabled to be a witness in any Cause 1 Inst 6. or to sue for Attainder in a Praemunire is a good Plea in disability of the Plaintiff according to Littleton 41. 4. By the Statute of 25 Ed. 3. St. 5. cap. 22. § 1. N. 2. which saith that a man attainted in a Praemunire shall be out of the Kings Protection and 25 Ed. 3. St. 5. § 1. N. 3. 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. Coron Br. 196 2 Bulstrode 299. Sir Anthony Mildmayes Case and this Sir Edw. Cook 7 Cook 14 in Calvine's Case and 12 Cook 38. seemeth to allow for Law before this Statute of 5 Eliz. 1. § 21. N. 1. and positively affirms it to have been the Law in 1 Inst 130. and yet in the same Case of Calvin 7 Co. he saith that 25 Ed. 3. St. 5. cap. 22. § 1. N. 2. is intended only a legal Protection according to Littleton 41 and so likewise he expounds it in 3 3 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 kill'd him without warrant he should have been punished by Law as a man slayer and this sort of Protection by the Law of Nature saith he is indelibilis immutabilis which the person could not take away but yet under favour if a man attainted in a Praemunire were before 5 Eliz. 1. § 21. N. 1. under that indelible and immutable protection of the King given by the Law of nature then the opinion Coron Brook 196. and allowed by himself was not Law but if that opinion Coron Brook 196. were Law and any man might before 5 Eliz. 1. § 21. N. 1. have killed a man attainted in a Praemunire and that by force of 25 Ed. 3. Sta. 5. cap. 22. § 1. N. 3. It followeth 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 Ed. 3. Stat. 5. cap. 22. § 1. N. 3. It is now restored by this Statute 5 Eliz. 1. § 21. N. 1. 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 of Treason 13 Eliz. 2. Of BVLLS PAge 50. LI. Upon 13 Eliz 2. § 2. N. 1. a man absolves or reconciles or is absolved or reconciled to the Pope or See of Rome without any Bull writing or Instrument to that purpose This Case seemeth not to be within the meaning of this Statute for there must be some Bull Writing or Instrument to Authorize such Absolution or Reconciliation or the person who gives or receives it is not punishable by this act altho he may be by 23 Eliz. 1. § 2. N. 1. and 3 Jac. 4. § 22. N. 1. LII Accessary Page 51. Note all concealers of this offence are not within the danger of this Law 13 Eliz. 2. § 5. N. 1. as Wingate Crown 35. misrecites and therefore if a man be present at such offer motion or perswasion and conceal it he shall not incur Misprision of Treason unless he be the party to whom any such Bull c. or Absolution c. was ofered LIII Ouster le mere Page 52. Upon 13 Eliz. 2. § 7. N. 1. A man brings into the Kings Dominions such Agnus Dei or other like superstitious things and another offers and delivers them It seemeth that neither he that brings them in nor he that offers or delivers them is within this Act or lyable to the penalty for 13 Eliz. 2. § 7. N. 2. By the express words it must be the same person So that neither the bringer in unless he offer and deliver them or Cause them to be delivered nor he who delivers them or offereth them to be delivered unless he be the person who brought them in is an offender within this Act. LIV. Alien Page 52. Vpon 13 Eliz. 2. § 7. N. 2. The offer or delivery of such Agnus Dei or other superstitious things to any sort of person is not an offence within this act as Wingate Crown 37. supposeth it to be but to make it an offence it must be delivered or offered to a subject of this Realm or of the Dominions of the same LV. Intendment Page 52.53 Upon 13 Eliz. 2. § 7. N. 3. The intent is material in this Case and therefore if a man be indicted upon the Statute for bringing in and offering or delivering such Agnus Dei c. or receiving the same the intent must be mentioned in the Indictment as it must be in Indictments upon all Statutes where the intent as here is made part of the offence so in an Indictment upon 5 6 Ed 6.4 § 3. N. 1. It is not enough to say the party drew his Dagger in the Church against I. S. but it must be averred that he did it with an intent to strike him as was resolved by the Court of B. R. 33 Eliz. in Penhalls Case 4 Leonard 49. pl. 127. It seemeth by the words of 13 Eliz. 2. § 7. N. 3. That to make the Receiver of such superstitious things an offendor within it there must be a Concurrence of intentions for the using or wearing them both in the giver and receiver and that therefore if a person coming from beyond the Seas brings into this Realm any such superstitious things but with no intent they should be worn or used and gives them to his friend at his request who receives them with an intent to wear or use them this is penal to neither Not to the giver for he had no superstitious intent and the intent is material nor to the receiver for that the offering or delivering them to be worn or used is expresly made in the Statute 13 Eliz. 2. § 7. N. 2. a condition precedent to the obliquity of the fact in receiving them for the Statute 13 Eliz. 2. §
7. N. 3. saith then as well the person so doing as also every other person receiving thm to that intent shall incurre a Praemunire so that then only when the person delivering them so doth that is delivers them to be worn or used the person receiving them to that intent shall incurre a Praemunire But yet there needs not any such concurence of intentions in the giver and receiver to make the giver an offender and therefore if a man brings into the Realm such superstitious things and delivers them to be worne or used tho the party receive them not to the intent to use or wear them but defaces burns or otherwise destroyes yet he that gave or delivered them incurrs a Praemunire for the words in the act 13 Eliz. 2. § 7. N. 2. relating to the offerer or deliverer are intire in themselves and have no dependence on the subsequent words 13 Eliz. 2. § 7. N. 3. relating to the receiver but generally make all offenders who bring them in and either offer or deliver them to a superstitious intent without any respect to the intent of the party who receives or is offered them LVI Justices Page 54. Upon 13 Eliz. 2. § 8. N. 1. If the person to whom such Agnus Dei c. Is offered do bring the offender to any Justice of Peace of the County where the offer is made altho he be not the next Justice yet it is good enough and satisfieth the intent of this act for the word next is put in such cases into acts of Parliament but for conveniency and the more speedy Execution of Justice Styles 246. pl. Maine and Sergeants Case LXVII Justices Page 54. The Statute 13 Eliz. 2. § 8. N. 1. provides for the discovery of the offender in order to his punishment in three Cases 1. If any such superstitious thing be offered and the party be able to apprehend him that offers it he must bring him to the next Justice of Peace of the County where the offer is made 2. But if he cannot apprehend him he is to disclose his name and place of abode or resort to the Ordinary of that Diocese or a Justice of Peace of that County where the person to whom the offer was made is resident and that within three dayes after such offer made 3. But 13 Eliz. 2. § 8. N. 2. If he receives the thing offered then he is not to apply to the Ordinary but is strictly tyed to deliver it within a day after to some Justice of Peace of that County where he who received it shall then be Resident or happen to be and in this last Case if he receives it with an intent to use or wear it and keeps it above a day or delivers it to any other person or Justice of Peace or any other County he incurrs a Praemunire But these Justices of Peace are strangely confounded as well in Dalt 229. cap. 89 tit high Treason as in Wingate Crown 37 Lambert 194. 195. Page 56. LXVIII Upon 13 Eliz. 2. § 10. N. 1. As is aforesaid So that if the offence be not declared as is aforesaid that is to such Justice of Peace as is appointed in 13 Eliz. 2. § 8. N. 1. but it shall be declared to any oother Justice of Peace of a wrong County that other Justice of Peace shall not incurre a Praemunire if he doth not signifie or declare it to a Privy Counsellor Here 13 Eliz. 2. § 10. N. 1. 'T is plain that any one Privy Counsellor sufficeth and the Justice of Peace is not bound to signifie the offence to the Privy Council as Wingate Crown 138. misrecites the Statute 23 Eliz. 1. Of CHVRCHES PAge 58. Upon 23 Eliz. 1. § 2. N. 1. LXXIX Conspiracy It was held Mich. 12 Jac. in Loult and Faulklands Case 2 Cro. 357.358 and 2 Bulstrode 271. 253. and 1 Rol. 209. pl. 49. that if a man were indicted for endeavouring and practising voluntarie felonice proditorie to perswade and withdraw any of the Kings Subjects from his obedience unto the Romish Religion and was afterwards debito modo acquietatus yet an Action upon the Case in Nature of a Conspiracy would not lie a-against the party who procured him to be Indicted and the main reason given was that sorasmuch as every man is bound to discover Treason and 't is dangerous to conceal any thing which may tend to Treason therefore the procuring one to be Indicted concerning it was no Cause of Action And Coke Chief Justice said that such an Action was never brought before that time But later Resolutions have been to the contrary of this opinion and 't is held for Law at this day that if a man procures another to be Indicted of High Treason an Action upon the Case in nature of a Conspiricy lieth against him that procures it as well as if it were for Felony the first leading Case of this nature which was resolved upon solemn argument or debate was that of Hil. 1. Car. 1. of Smith and Crashaw c. addition to Bendloes 152. Latch 79.80 Jones 93.94.95 Where it was adjudged upon great deliberation by all the four Judges of B. R. that an Action in nature of a Conspiracy doth well lie in such Case and that not only in Case of acquital upon Tryal but upon the Exhibiting a Bill of Indictment for High Treason to the Court or Jury if the Jury bring in Ignoramus altho in this last Case a Writ of Conspiracy lyeth not and Lovets Case was denyed to be Law and Justice Dodderidge who concurred 2 Bulstrode 271 253 changed his opinion in Smiths Cas◠and held the Action maintainable so that whosoever of meer malice without probable cause causeth any to be Indicted on 23 Eliz. 1. § 2. N. 1. or on 3 Jac. 4. § 22. N. 1. for endeavouring or practiceing so to perswade or withdraw any Subject or prefers a Bill to the Court or Jury for that purpose is lyable to an Action upon the Case for so doing if the party be acquitted or the Jury bring in Ignoramus as in other Cases of Felony LX. Accessory Page 59. These words And shall not within twenty dayes c. disclose the same 23 Eliz. 1. § 3. N. 1. have no reference to those who are aiders and maintainers of the offender but only to those who have barely a knowledge of the offence without aiding or maintaining the party And therefore if such as are aiders or maintainers of the person offending discover the offence within twenty daies yet such discovery shall not free them from the guilt of Imprisonment of Treason as Wingate Crown 42. mistakes but if they once aid or maintaine the party knowing him to be an offendor they are guilty whither they disclose or conceal the offence and shall have no benefit of the twenty dayes LXI Enfant Page 60. Upon 23 Eliz. 1. § 5. N. 1. Moor 606. pl. 838. Talbot was Indicted quod existens aetatis 16
Cro. 529. the demand was but for 11 months and when the Jury finds the defendent guilty it shall be intended to be for the 11 months for which the penalty is demanded and that shall be accounted from the 10 September which was the first day of absence alledged in the Information and the rest of the time to the 9 September following after the first 11 months is to be accounted as surplusage But in this Case on 23 Eliz. 1. § 5. N. 1. where the Jury abridgeth the time for which penalty is demanded it may be questioned whither the Verdict shall be intended to be for the first 12 months of the 13. and the Judges of B. R. to salve a Case of the like nature 3 Cro. 835. seemed to be of opinion and 8 Ed. 4.2 § 2. N. 3. that it is not material which were the 12 months wherein the party offended but if that opinion be law it must follow that the party can never be punished for the 13 month but that must be remitted to him because it s left uncertain which of the 13 shall be accounted the month not found by the Jury and it rather seems for this reason that the Verdict is void for the uncertainty which 12 months of the 13 the party offended unless it shall be intended of the first 12. 5. Mr. Shephard in his sure Guide cap. 6. Sect. 5. Raiseth this question viz. 23 Eliz. 1. § 5. N. 1. having reference to 1 Eliz. 2. § 14. N. 1. which sayeth every one shall come to Church every Sunday and Holy-day whither he that is not at Church every Holy-day doth not rigore juris forfeit 20 pound a month by force of 23 Eliz. 1. § 5. N. 1. but this question seems altogether needles for t is clear by the express words of 23 Eliz. 1. § 5. N. 1. that it must be a forbearance from Church for a whole month together that makes the party liable to the forfeiture of 20 l. and if he comes to Church on any Sunday or Holy-day within the month he is ficed from the penalty of 20 l. altho not from the 12d and by 1 Eliz. 2. § 14. N. 1. for the dayes of his absence if he comes not every Sunday and Holy-day both LXVI Behaviour Page 63. 64. Upon the words Be bound in 23 Eliz. 1. § 5. N. 2. Some have made a question and among them Mr. Shephard in his Sure Guide cap. 6. Sect. 5. by whom or in what Court the Recusant shall be bound to the good behavior by force of this Statute for that the Court is not expresly mentioned and Wingate Crown 44. hath stumbled upon a conceit that after certificat made in B. R. a Justice of Assie Goal delivery or Peace shall bind the party to the good behavior and misrecites the Statute accordingly but it seemeth the intention of the Law makers was that he should be bound in B. R. and of that opinion is Dalt 192 § 5 cap. 79 tit good behaviour 2. For where any proceedings are appointed to be upon or after a certificate sent to any Court there by common intendment the proceedings are to be in that Court to whom the Certificate is sent if no other Court be named and it cannot be presumed by any reasonable construction of 23 Eliz. 1. § 5. N. 2. That the Certificate into B. R. is to any other end than for the Justices there to proceed in such manner as the Act directs to be done after such Certificate as no question they may in this Case as well as upon Certificate of a presentment or of refusal of the Oath of Supremacy against 5 Eliz. 1. § 5. N. 10. Supra 39. and t is a rule in Construction of Statutes that where the intention plainly appears the Law ought to be advanced according to its end tho the words be short and imperfect especially Laws made for Religion as is held Hob. 157. and 11 Co. in Magdalen Colledge Case and 2 Bulstrode 155. 3. Popish Recusants convicted are not to be reputed sufficient sureties within 23 Eliz. 1. § 5. N. 2. and therefore were refused by the Court of B. R. in the Case of Grifith 2 Bulstrode 155. LXVII Schools Page 64. An Usher or assistant in teaching is a Master in the School and seemeth to be included within the word School-Master 23 Eliz. 1. § 6. N. 1. and the following words here or teacher explain who is intended viz. Every teacher of youth 23 Eliz. 1. § 7. N. 2. LXVIII Licence Page 64. 65. This Clause repair to Church as is aforesaid or be allowed 23 Eliz. 1. § 6. N. 1. being in the dis-junctive it seemeth that altho a School-Master doth not come to Church yet if he be Licensed by the Bishop or Ordinary it shall excuse the penalty and this is not altered in that particular either by 1 Jac. 4. § N. infra nor by 13 and 14 Car. 2.4 § 11. N. 1. but then he must by 13 and 14 Car. 2.4 § 11. N. 1. c. Among other things subscribe a declaration or acknowledgment that he will confirm to the Liturgy of the Church of England as it is now by law Established or he shall for the first offence suffer three months imprisonment without bail and for the second and every other offence shall suffer three months imprisonment without bail and also forfeit V. li. 2. But if he be licensed and subscribe and do as aforesaid and so cannot be punished by 23 Eliz. 1. § 6. N. 1 or either of the other said acts yet now by 17 Car. 2.2 § 4. N. 1. unless he take the Oath there mentioned and frequent Divine service Established by the Laws of this Kingdom and carry himself there as the said Statute is appointed he shall forfeit for every offence ten pound li. so that now conformity in repairing to Church is is necessarlly required of every such Schoolmaster 3. But now by 13 and 14 Car. 2.4 § 11. N. 1. There may be 12 pence taken for such licence notwithstanding 23 Eliz. 1. § 7. N. 1. LXIX Dayes Page 65. 66. This limitation of time within one year and day 23 Eliz. 1. § 8. N. 1. extends not to any offence made Treason by 23 Eliz. 1. but only to such offences mentioned in this act or 1 Eliz. 1.2 and 5 Eliz. 1. and 13 Eliz. 2. as concern the Kings Supremacy in Causes Ecclesiastical the service of God coming to Church or Establishment of Religion 2. And for those touching Religion 23 Eliz. 1. § 8. N. 1. enlargeth the time limited by 1 Eliz. 2. § 20. N. 1. which saith the party must be Indicted the next Sessions or 1 Eliz. 2. § 22. N. 1. If in a Corporation within fifteen dayes after Easter or Michaelmas for now he may be Indicted at any time within the year and day 3. But for absolving or withdrawing or for being absolved withdrawn or reconciled which are 23 Eliz. 1. § 2. N. 1.
made Treason no time is limited for the persecution but the offender may be Indicted at any time after the year and day for the latter part of 23 Eliz. 1. § 8. N. 2. Speakes of those offences of Treason which the Justices of Peace cannot hear and determine and there no time is limited altho there be in the former part 23 Eliz. 1. § 8. N. 1 for those offences which are inquirable by Justices of Peace 1 Leonard 238. pl. 322. Guilfords Case LXX Justices Page 66. 67. Upon 23 Eliz. 1. § 9. N. 1. The Justices of the Court of B. R. are the Soverain Justices of Oyer and Terminer and Goal-delivery 9 Co. 118. Lord Sanchors Case and therefore may enquire of hear and determine the offences against this Act altho they be not here especially named 2. If an Indictment be preferred upon this Statute 23 Eliz. 1. § 9. N. 1. before Justices of Oyer and Terminer or of Assie for any offence not made Treason or misprision and there is an Indictment before Justices of Peace likewise for the same offence the Judgment of the Justices who do first enquire hear and determine the same shall stand and the Judgment given by the other shall be void as was held in the like Case 2 Inst 739. Upon 31 Eliz. 7. § N. of Inmates 3. The Power here given 23 Eliz. 1. § 9. N. 2. The Justices of Peace in their open Quarter Sessions to hear and determine the offence of not coming to Church is in force at this day notwithstanding 29 Eliz. 6. § 2. N. 2. which saith that every conviction for not coming to Church shall be in B. R. or at the Assizes or General Goal-delivery and not elsewhere for 3 Jac. 4. § 7. N. 1. hath given power to Justices of Peace in their General or Quarter Sessions to enquire hear and determine of all offences for not coming to Church according to former Laws in such manner as the Justices of Assize and Goal delivery might do by former Laws in the Case of Recusancy for not repairing to Church which is clearly a reviver of the power of Justices of Peace given to them by 23 Eliz. 1. § 9. N. 2. to proceed against Recusants and taken from them by 29 Eliz. 6. § 2. N. 2. 4. Nor doth that following Clause 3 Jac. 4. § 7. N. 2. Touching Conviction by proclamation impeach this or restrain the Justices of Peace to proceed to conviction upon proclamation only and default of appearance no more than the Justices of Assize or Goal-delivery are restrained thereby or by 29 Eliz. 6. § 2. N. 5. which gives them likewise Authority to proceed by Proclamation 5. For these Clauses of 3 Jac. 4. § 7. N. 1.2 are in the Affirmative viz. first that the Justices of Peace shall have power to hear and determine the offence of not coming to Church according to Laws in such manner as Justices of Assize and Goal-delivery might do and those Justices might hear and determine that offence according to this Statute 23 Eliz. 1 § 9. N. 1. and then comes the next Clause of 3 Jac. 4. § 7. N. 2. That the Justices of Peace shall have power to convict by proclamation which is purely affirmative also and therefore abrogates no part of the power given them by the former Clause of 3 Jac. 4 § 7. N. 1. and this agrees with what Sir Ed. Coke saith 12 Co. 13 that if a man be Indicted for Recusancy at the Assizes or Sessions of the peace the Court may waive the proceedings by proclamation upon 3 Jac. 4. § 7. N. 2. And may still if they please proceed against the party by process upon this Statute 23 Eliz. 1. § 9. N. 2. in which Case the process must be by Venire facias capias c. As in Indictments of trespass and if saith he the party be fugitive in another County the Indictment may be removed in B. R. and then process may be there made out against him into any County of England LXXI Justices Page 67. Upon 23 Eliz. 1. § 9. N. 2. by Quarter Sessions is intended here only the Sessions of the Peace held at four times of the year and not any other altho it be general Sessions 2. And therefore the Justices of Peace in London who hold a Sessions every month cannot take Indictments upon this Statute 23 Eliz. 1. § 9. N 2. at any of them unless it be the Quarter Sessions For that their Authority is given them only at a certain time as was resolved upon 5 Eliz. 9. § 9. N 1. in the like Case Mich. 17. Jac. B. R. Palmer 44. pl. Taylors Case 3. And 3 Jac. 4. § 7. N. 1. which gives Justices of Peace power to take Indictments of Recusancy at their general or Quarter Sessions for so the word said there imports having reference to the general or Quarter Sessions mentioned before 3 Jac. 4. § 4. N. 2. about presentments yet doth not enlarge the power of the Justices of Peace in this particular nor enable them to take such Indictments at any Sessions but at their four Quarter Sessions for altho it be put there 3 Jac. 4. § 4. N. 2. dis-junctively General or Quarter yet the latter word is but Explicative of the former and shews what general Sessions are meant as appears by 3 Jac. 4. § 14. N. 1. and 7 Jac. 6. § 26. N. 5. touching the Oath of Allegiance for in 3 Jac. 4. § 14. N. 1. t is said that if the party refuse the Oath he shall be committed to Goal until the next Assizes or general Quarter Sessions and if he refuse the Oath tendred him by the Justices of Assize and Goal-delivery in their open Assizes or by the Justices of Peace in their said general Quarter Sessions he shall incurre a Praemunire and in 7 Jac. 6. § 26. N. 5. that the party refusing shall be committed to Goal until the next Assizes or general Quarter Sessions and if he refuse the Oath tendred him by the Justices of Assizes and Goal-delivery in their open Assizes or Goal-delivery or the Justices of Peace or the greater part of them in their general or Quarter Sessions he shall incurre a Praemunire which clearly shews that the same thing is intended by General Quarter Sessions and General or Quarter Sessions and that all General Sessions which are not Quarter Sessions are excluded out of the meaning of those Statutes LXXII Endictment Page 68. the Justices named in 23 Eliz. 1. § 9. N. 2. are hereby impowered to proceed by Indictment only and no other way for they are to hear and determine after enquiry infra 95. 165. 2. And the word Enquire implyeth an Indictment and is alwaies so to be expounded supra 35 and so are the other words hear and determine where other proceedings are not specially named as here they are not 3. For the Action of debt Information c. in any Court of Record is given to the Informer
qui tam c. afterwards 23 Eliz. 1. § 11. N. 1. in a distinct branch by it self without any reference to this 4. So that by 23 Eliz. 1. § 9. N. 2. and before 35 Eliz. 1. § 10. N. 2. which gave the Queen an Action of debt c. the Queen had no other remedy to recover the intire forscitures given hereby but by Indictment only 11 Co. 60. and 1 Rol. 91. pl. 41. Dr. Fosters Case 5. See Jones 193 pl. for that and the suit by the common Informer are the only wayes appointed by 23 Eliz. 1. § 9. N. 2. and § 11. N. 1. and the subsequent Clause 23 Eliz. 1. § 10. N. 1. of submission which names the Justices before whom the party is to submit viz. the Justices before whom he is Indicted Arraigned or Tryed shews what proceedings are meant which are to be had before the Justices here named that is by Indictment Hob. 205. Pie and Lovel 6. Talbot and Shelden were Indicted for Recusancy Contra formam Statuti 23 Eliz. 1. in which Indictment the penalty was demanded and in a Writ of Error the Judgment was reverst for the offence is made by 1 Eliz. 2. § N. and the penalty is given by 23 Eli. 1. § N. and therefore it should have been Contra formam Statutorum Owen 135. pl. Wests Case infra 79 § 4. Far. Feme 7. If a Feme Covert be Indicted at the Kings Suit for an offence within 23 Eliz. 1. § 5. N. 1. she may be charged with the penalty after her Husbands death but the Husband is not chargable nor shall pay the penalty for that he is no party to the Judgment and this was one of the Causes of making 35 Eliz. 1. § 10. N. 1. by which Statute the King may have an Action of debt and recover the forfeiture against the Husband 1 Rol. 93.94 Roy versus Foster Savile 25 pl. 59. LXXIII Treason Page 68. This Exception 23 Eliz. 1. § 9. N. 2. of Treason and misprision of Treason extends not to the Justices of Oyer and Terminer or of Assize and Goal-delivery as Wingate Crown 46. hath mistaken but only to Justices of Peace who are not to medle in thâ—â—â— two Cases but the other Justices may LXXIV â—onformity Page 69. Upon 23 Eliz. 1. § 10. Before Iudgment submit and conform himself c. But now by 1 Jac. 4. § 17. N. 1. If the Recusant conforms after Judgment it seems it shall be time enough to have the forfeiture 2. A man is convicted of Recusancy according to 29 Eliz. 6. § 2. N. 5. upon Proclamation and default of appearance and afterwards submits and conforms he shall by force of 23 Eliz. 1. § 10. N. 1. be discharged of the forfeiture of twenty pounds per month for this is a submission and conformity before Judgment the Conviction upon Proclamation being no Judgment but only in nature of a conviction by verdict as was resolved by all the Judges Mich. 37. and 38 Eliz. see 1 Rol. 94. pl. 41. Dr. Fosters Case 3. Page 69. Certain Persons were Indicted upon 23 Eliz. 1. § 5. N. 1. for not coming to Church and were outlawed upon the Indictment the Court of B. R. would not in this Case receive their submission upon 23 Eliz. 1. § 10. N. 1. but advised them to purchase their pardon for the Outlawry which they did and the their submission was accepted of and they were discharged 4 Leonard 54. pl. 138. Note in the report the Statute 13 Eliz. 2. is mistaken for 23 Eliz 1. for no Indictment for not coming to Church lyeth on 13 Eliz. 2. LXXV Certisicate Page 69 Upon 23 Eliz. 1. § 10. N. 1. If a man be Indicted for Recusancy before Justices of Peace and he submits and conforms before the Bishop of the Diocess be may remove the Indictment by Certiorari into B. R. and there plead his Conformity by Certificate under the Bishops hand and Seal Styles 26. pl. 2. For the manner of a Recusants submission and Conformity before the Bishop after Conviction and the Bishops Certificat thereupon see Co. Entr. 569. LXXVI Forfeitures Page 70.71 All forfeitures of any sums of mony limited by this Act. 23 Eliz. 1. § 11. N. 1. Shall be divied c. So that the distribution here appointed extends not only to the forfeitures of Two hundered and One hundred Marks for saying or hearing of Mass and the ten pound a month for keeping a School-Master Contrary to this Act but likewise to the twenty pound per month for not repairing to Church 2. In which last Case the Informer Qui tam c. shall have the third part as well as in the other Cases for altho by 23 Eliz. 1. § 5. N. 1. the whole Twenty pound per month is given to the Queen which the other forfeitures are not in express words yet that will not alter the Case nor make void the express appointment made here in what manner and to whom all the forfeitures limited by 23 Eliz. shall be disposed of 3. And it is usual in Acts of Parliament to give the whole penalty for any Criminal matter to the King and afterwards in the same Act to make distribution thereof and give part to him that will sue as in 3 H. 6.3 § 1. N. 1.2 and 3 H. 7.7 § 1. N. 5.10 and the subsequent distribution shall alwaies stand good notwithstanding the precedent words of limitation of the whole to the King 4. For those words in penal Statutes To the King or to the Queen are upon the matter but void and superfluous and give the King or Queen no other or stricter interest than they would have had if they had been omitted and it had been said shall forfeit without apointing to whom 5. And the reason is for that the Law devolves the forfeiture upon the King where no other person is appointed and shall forfeit without more saying is as much as shall forfeit to the King But when afterwards in the same Statute a particular appointment is made how the penalty shall be that qualifies the former and general words and such distribution shall be made as the Statute appoints 11 Co. 60. and 1 Rol. 89.90 pl. 41. Dr. Fosters Case and 1 Anderson 139.140 pl. 190. Cuff and Vachell supra 46. Page 71. Upon 23 Eliz. 1. § 11. N. 1. Scot was Indicted for Recusancy LXXVII Poor Anno. 26. Eliz. 2 Leonard 167. pl. 204. By the name of William Scot of Southwark Gent. and Exception was taken to the Indictment for that within Southwark are several Parishes and the third part of the penalty is to be applyed to the relief of the Poor of the Parish where the offence was committed But in this Case the Recusant being named generally of Southwark non potest constare Curiae where the offence was nor to what Parish the third part of the penalty belongs But the whole Court of B. R. were there of opinion
messor but spicelegus a Gleaner And that in such Cases only where the King doth not prosecute pardon or release before the Informers Action is commenced 11 Co. 65. Dr. Fosters Case Bridgman 121.122 Parker against Sir J. Webb and uxor Lane 60. But whither this rule be general Bar. Fe◠and will not admit of an Exception in the Case of a Feme Covert is a Question For by some opinions if a Feme Covert be Indicted and convicted of Recusancy that shall not barr the Informer of his popular Action upon 23 Eliz. 1. § 11. N. 1. against her and her Husband for the Recusancy of the Wife because upon the Conviction by Indictment the cannot be compelled to pay the forfeiture of twenty pound per month while her Husband lives nor can it be levied of her Goods and Lands for that during the Coverture she hath nothing of her own to forfeit but all is her Husbands Bridgman 122. Infra 270. N 9. The Condemnation or acquittal of the party at the suit of the Informer is a good Bar against the King and all others 11 Co. 66. 18. Before 4 H. 7.20 § 1. N. 7. Collusion It seems that if a popular Action had been brought by Covin and with the consent of the defendent and the defendent was for want of Evidence or other Cause found not guilty and the Covin appeared to the Court yet Judgment should have been given thereupon against the King and it should have been a good Bar against all others 9 Ed. 4.4 pl. but now by 4 H. 7.20 § 1. N. 7. If any person sue with good Faith any Action popular and the defendent Plead a Recovery in an Action popular in Bar or that before that time he had Barred the Plantiff in such Action the Plantiff may aver such recovery or Bar was by Covin and upon such Covin found the Plantiff shall have Judgment and the defendent attainted or condemned of Covin shall shave Imprisonment of two years by process of Capias or Outlawry as well at the Kings suit as any other and the release of the party shall not avail the defendent which Covin may be averred generally Com. 49.50 54 55. Wymbishe and Talbois If a man bring upon a penal Statute debt tam c. quam c. and the defendent pleads thereunto the Plantiff may reply without the Kings Attorny c. Princes Case In debt upon 23 Eliz. 1. § 11. N. 1. the defendents demurred and the Plantiff qui tam c. Joyned in demurrer without the Kings Attorny and held to be good 1 Cro. 10.11 Farringtons Case Trin. 1. Car. 1. but in an Information tam c. quam c. the Kings Attorny ought to reply 2 Rol. 33. Smith and Catter And this difference between debt and an Information was taken Hutton 82. in the said Farringtons Case but yet if in an Information the defendent plead a special plea and the Kings Attorny will not reply and prosecute for the Kings part the Informer shall be admitted to reply and prosecute for his part as was adjudged in Stretton and Taylors Case 1 Leonard 119. pl. 161. and 11 Co. 65. Dr. Fosters Case 3 Inst 194. 19. The King before any Information or other popular suit commenced may pardon or release the whole penalty incurred Priory and it shall be a good bar against all men 11 Co. 65.66 Dr. Fosters Case 3 Inst 194.195.37 H. 6.4 _____ 2 R. 312. _____ _____ 1 H. 7.3 _____ Termes de ley 102. Decies tantum And if the defendent in the Information do not take advantage of such pardon or release by his plea but is condemned in the suit and the Kings share of the penalty be put in the Pipe in magno rotulo yet he may then discharge himself thereof upon a Compertum suit in magno rotulo by shewing forth the whole matter by way of Plea and shall not loose the effect of his pardon or release Savile 23. pl. 56. Tirringhams Case But when once the Informer hath brought his popular Suit the King cannot discharge it and if he then pardon or release or his Attorny enter an ulterius non vult prosequi this is good for the Kings part only but is no Bar quoad the Informer who may proceed notwithstanding for his part of the penalty And therefore neither can the Kings Attorny discharge the Jury when they come to deliver their Verdict Hutton 82. Vaughan 343. Thomas and Sorrel 1 Leonard 119. pl. 161. and 3 Cro. 138. Stretton and Taylor 3 Cro. 583. Hammon and Grissith 3 Inst 194. 1 H. 7.3 Such Entry of a non vult prosequi by the Attorny General hath the same effect with a Nonsuit of a Private person but the King cannot be said properly to be Nonsuit because he is in Judgment of Law ever present in Court 1 Inst 139.227 Hutton 82. Goldsborough 53. pl. Leighs Case Savile 56. pl. 119. Weare against Adamson Upon the Death of Queen Elizabeth it was resolved by the Judges that where an Information tam pro Domina Regina quam c. was brought upon a penal Statute and pending the same and before Judgment the Queen dyed the Information it self should stand for that otherwise the Suit might be lost there being a time limited for the bringing of it but all the proceedings thereupon were lost and void and the defendent should plead de novo 2 Cro. 14. and 7 Co. 30.31 Of discontinuance of Process And to that purpose 5 Ed. 6. Rot. 38. is there cited where in a popular action the King dyed after demurrer upon the Evidence and before Judgment and the defendent pleaded de novo But yet 1 Cro. 10.11 and Hob. 82. Farringtons Case in a popular action of debt upon 23 Eliz. 1. § 11. N. 1. against Prince and his Wife where the defendent demurred upon the declaration and the Plantiff qui tam c. Joyned demurrer in Hillary Term and King James died the Vacation following It was resolved that not only the Writ and declaration but all the other proceedings thereupon should stand notwithstanding the demise of the King for that in such Case it is meerly the Suit of the party and is aided by 1 Ed. 6.7 § 1. N. 4. of Discontinuances and he only Joyned in demurrer Which Resolutions are in appearance flatly contrary each to other for 2 Cro. 14. seems to take in all popular Suits whatsoever and as well a popular Action of debt as an Information but yet t is observable that in 1 Cro. 10. the Plantiff only joyned in demurrer and not the Kings Attorny And this seems to be the reason why in that Case the proceedings should stand notwithstanding the demise of the King for where the party alone joyns in demurrer or replies and not the Kings Attorny there the Suit may properly be said to be depending between party and party and within the express words of 1 Ed. 6.7 § 1. N. 4. which provides that altho the
any Common Informer but the matter shall be heard and determined before Justices of Assize Nisi prius Goal-delivery or Oyer and Terminer or Justices of Peace in their general Sessions according to 21 Jac. 4. § 1. N. 3. but the Informer if it be for Recusancy may by force of that exception 21 Jac. 4. § 5. N. 1. lay or alledge such offence in what County he will for the said exception extends only to the County 21 Jac. 4. § 2. N. 1. and not to the Courts 21 Jac. 4. § 1. N. 5. where the Informer is to sue Which opinion of his touching the extensiveness of the exception is probable enough viz. that 21 Jac. 4. § 5. N. 1. extends only to the County and not to the Courts where the Informer is to sue for the latter part of it speaks only of the County but this is unaptly applied to popular Informations upon 23 Eliz. 1. § 11. N. 1. for they are not within the meaning of that branch of 21 Jac. 4. § 1. N. 5. touching the Courts where the Informer is to sue for 21 Jac. 4. § 1. N. 5. medles not with those Informations upon those penal Laws which give the Informer no other remedy for recovery of the penalty but by Debt Bill plaint or Information in the Courts of Record at Westminster Nor doth 21 Jac. 4. § 1. N. 3. give the Justices of Assize or other Justices there named any new or further power than they had before but only appoints that where Informations might have been brought before them or in the Courts of Westminster at the Election of the Informer now they shall be brought before Justices of Assize Nisi prius Goal delivery or Oyer and Terminer or at the Sessions of the Peace in the County where the offence was committed for the ease of the Subjects who are defendents and not in the Courts at Westminster 4 Co. 1. 1 Cro. 112.113 But in our Case of Recusancy there is no such Election given the Informer by 23 Eliz. 1. § 11. N. 1. but he is strictly tyed to take his remedy by debt Bill plaint or Information in one of the Courts at Westminster and therefore 21 Jac. 4 § 1. N. 5. extends not to it in that branch touching the Courts where the Informer is to sue And as for Sir Edward Cokes Opinion that since 21 Jac. 4. § 1. N. 5. 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 B. R. Mich. 4. Car. 1. Greene and Guy 1 Cro. 146. pl. upon 21 H. 8.13 § 11. N. 2. and Fentons Case Mich. 27. Car. 2. upon this Statute of 23 Eliz. 1. and of C. B. in Farrington and Leymer 1 Cro. 112. Hutton 99. Trin. 4 Car. 1. upon 23 H. 8.4 § 5. N. 3. Are directly in point Contrary thereunto and so is the opinion of Rolls in Styles 340. Buck stone and Shurlock 7 Ed. 6.5 § 6. N. 3. and the resolution in Jones 193. And yet altho in penal Statutes any Court of Record shall be restrained to the ordinary Courts of Record at Westminster possibly in other Statutes those words may admit of a larger Construction 1 Rol. 51. pl. 21. Floyd and Best LXXXI Information Page 85 86. Upon 23 Eliz. 1. § 11. N. 1. by Action of debt Bill plaint or Information by 18 Eliz. 5. § 1. N. 3. it is enacted that none shall be admitted or received to prosecute against any person upon any penal Statute but by way of Information or original Action and not otherwise 6 Co. 19.20 Moor 412. pl. 565. and 600. pl. 827. Gregories Case 3 Cro. 544. Gadley versus Whitecote And this seems to extend as well to penal Statutes made afterwards as to those that were in force when 18 Eliz. 5. § 1. N. 3. was made for t is usual for a latter act of Parliament to be guided by a former as 4 Co. 4. Vernons Case But then it must be in such Cases where there are not express words in the latter act to controule the former and therefore altho the word of 18 Eliz. 5. § 1. N. 3 that the Informer shall not prosecute otherwise then by Information or original action yet the Affirmative words of this subsequent Statute 23 Eliz. 1. § 11. N. 1. that the Informer may sue by Bill hath taken away the force of that negative in 18 Eliz. 5. § 1. N. 3. in relation to the offence mentioned in 23 Eliz. 1. and the prosecutor qui tam c. upon 23 Eliz. 1. § 11. N. 1. may sue by Bill in B. R. 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 3 Inst 194. in Woodson and Clerks Case In a suit brought by Bill in B. R. upon 23 H. 6.10 § 1. N. 12. of Sheriffs and in Moor 248. pl. 390. Vdeson and the Major of Nottinghams Case contrary to the opinion in Styles 381. Hill and Dechair LXXXII Imprisonment Page 86. Upon 23 Eliz. 1. § 11. N. 2. Qui non habet in aere luet in corpore And yet in this Case the Judgment shall be absolute that the King and the Informer recover c. 1 Anderson 140. pl. 190. Vachels Case 2. A Feme Covert Recusant if the forseiture be not paid within the time limited 23 Eliz. 1. § 11. N. 2. may be imprisoned by force of this Statute until she pay or conform 11 Co. 61. Dr. Fosters Case Hob. 97. Moor and 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 Manwood to have hard and close Imprisonment and sequestred from all Company until she conform or forfeiture be paid Savile 25. pl. 59. But if the Husband and Wise be sued upon 23 Eliz. 1. § 11. N. 2. in a popular Action or Information for the Recusancy of the Wife 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 LXXXIII Assurances Page 87. Upon 23 Eliz. 1. § 13. N. 1. since the beginning of this Session of Parliament and yet a Covenons Conveyance tho made before that Session of Parliament should not have defeated the Interest right or Title which was given to the Queen by this Statute and therefore in the Case of Sir John Southwell 3 Leonard 147.148 pl. who in Anno 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 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 23 Eliz. 11 § 13. N. 1. upon which he was Indicted and convicted It was resolved by all the Judges of England that the said lands were liable to this Statute and the Jurors charged to enquire what lands he had and were committed to the Fleet and fined each of them fifty pounds for that yet they would not find those Lands to be his 2. By means of any Conviction or Judgment 23 Eliz. 1. § 13. N. 1. Pauncefoot being Indicted of Recusancy made a deed of gift of all his leases and goods to a great Value coloured over with feined considerations to defeat the Queen of what might accrew to her by his Recusancy or flight and then went beyond Sea and afterwards was outlawed upon the said Indictment and it was resolved 36 Eliz. by the whole Court of Exchequer that this was a fraudulent Conveyanc within 13 Eliz. 5. § 2. N. 3. which was made for the relief of the Queen and otherpersons as well as Creditors But as this Case is related in 3 Co. 82. Twines Case t is observable that altho it was debated whither the Queen should avoid this Conveiance by force of 50 Ed. 3. 6. § 1. N. 2. or that of 3 H. 7.4 § 1. N. 2. or that of 13. Eliz. 5. § 2. N. 3. yet there is no mention made of this branch of 23 Eliz. 1. § 13. N. 1. for t is clear that the Queen could not avoid such a fraudulent Conveyance by force of 23 Eliz. 1. § 13. N. 1. unless Judgment had been first given against the Recusant or he had been convicted and Pauncefoot was neither Convicted or adjudged to be a Recusant but the Queens interest accrewed to her by means of the outlawry only LXXXIV Priviledge Page 88. Upon 23 Eliz. 1. § 14. N. 1. altho a Peer shall be tryed per pares yet he is to be indicted by an inquest under the degree of Nobility and may be Indicted before Commissioners of Oyer and Terminer or in B. R. if the offence be Committed in the County where the Kings bench is 2 Co. 49. 27 Eliz. 2. Of JESVITS LXXXV Alien PAge 90. And his Being born within this Realm c. 27 Eliz. 2. § 3. N. 1. must be comprised in the Indictment but it need not be shown in what particular place he was born but generally Quod J. S. natus infra hoc regnum Angliae c. And so it must be alledged in the Indictment on 27 Eliz. 2. § 3. N. 1. that he was made a Jesuit or Priest c. by authority Challenged or pretended from the See of Rome But it needed not be shewed where he was made a Jesuit or Priest c. whither beyond the Sea or within the Realm for wheresoever it was it is within this Law if he were made so by the pretended Authority of the See of Rome Popham 94. Southwells Case LXXXVI Seminary Page 91. In the late additions to Dalt Cap. 140. § 13. tit high Treason 'T is said that 27 Eliz. 2. § 4. N. 1. relates only to such as had before that time taken Orders which conceit I suppose is grounded on these words viz. who at the end of the said forty days and after such time of departure as aforesaid shall receive c. as if no Jesuit or Priest were here intended but such a one as was then a Priest or Jesuit and had fourty days given him for his departure and no person a Felon by 27 Eliz 2. § 4. N. 1. who receives or releives any other 2. But the words here such Iesuit c. seem to be more Extensive and to relate as well to the Receivers or Releivers of a Jesuit or Priest in Orders at this day as to those who were in Orders at the time of making this Stature and if we weigh the Gramatical Construction of the words with much more reason the former than the latter For the Proximum Antecedens to such is the Jesuit or Priest 27 Eliz. 2. § 2. N. 1. who was to be made ordained or professed and not he that was then ordayned or professed already And those words in 27 Eliz. 2. § 4. N. 1. Every Parson which after the end of the same XL. dayes c. shall receive c. that is fourty days next after the end of that Session of Parliament may well be construed to Extend to all Cases as well of receiving or relieving such who should be afterwards in Orders and should be found within the Realm for the time to come at any time after those fourty days as of such who were then in Orders and were to depart before the XL. days were expired 3. So that the receiving releiving or maintaining of a Jesuit Popish Priest or other Popish Ecclesiastical person at liberty and known by the party to be such is Felony at this day by this Act 27 Eliz. 2. § 4. N. 1. and the Offender shall lose the benefit of his Clergy and so hath the Law been taken upon Actions upon the Case for saying the Plaintiff kept a Seminary-Priest or Jesuit in his house knowing him to be such 2 Cro. 300. Pasch 10 Jac. Smith versus Flynt and Palmer 410. Clerk and Logins Case Lamb. 225. Infra 275. Page 92. By this word Return 27 Eliz. 2. § 5. N. 1. It seems that none are intended here but such as were sent out of this Realm for others born and resident in some other parts of the Kings Dominions untill their Entry into such Colledg or Seminary cannot be properly said to return hither LXXVII Ouster le M◠Page 92 93. Or any other her Highness Dominions 27 Eliz. 2. § 5. N. 1. a Subject of the Kings sent out of England to a Popish Colledg or Seminary is Commanded by Proclamation made in London to return into this Realm and within the six months here limited first goeth into Ireland and then comes into England and within two days submits himself and takes the Oath of Supremacy in this Case notwithstanding his return into England within the six months he shall be guilty of High Treason for after such Proclamation he ought to have come directly into England and into no other of the late Queens Dominions before he had been in England and if he doth he comes into the said Domininions otherwise then is appointed by this Act 27 Eliz. 2. § 5. N. 1. For the intent of 27 Eliz. 2. § 5. N. 1. Seems to be that he should not remain in any of the said Dominions untill he submits and takes the Oath which submission must be made by Oath taken in England within two days after his Arrival here and not elsewhere and altho the Oath of Supremacy be in force in Ireland yet his taking it here will not serve nor yet his submission there for he is to submit to the King and his Laws by which are intended the Laws of England and no other But a submission in Ireland to the Kings Laws
and in such a case it is to be taken in divers other Cases Infra 173. XCVII Days Page 104. Upon 29 Eliz. 6. § 4 N. 1. 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 conteined in the Indictment in the very first of thse Terms next after his Conviction 3 Jac. 4. § 8. N. 1. Infra 172. Page 104. Upon 29 Eliz. 6. § 4. N. 3. Take seiz and enjoy But as to Lands and tenements there must first be an office found for the King XCVIII Seizure for regularly before the finding of such office Lands or Tenements cannot be seized into the Kings hands 2 Inst 573. and 8 Co. 169. Stoughters Case Br. tit Off. 17.55 Com. 486. Nichols Case Page 105. by 29 Eliz. 6. § 4. N. 3. the Queen was to have and enjoy two parts of the Recusants lands and Hereditaments nomine poenae or districtionis XCIX until he had in some other manner satisfied her of the whole forfeiture of the twenty pound per month incuried for his Recusancy And the profits of those two parts should not have been accounted to go to the payment of any part of the said debt or forfeiture for the Statute 29 Eliz. 6. § 4. N. 3. Inflicted this forfeiture upon him meerly as a further 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 3 Cro. 845.846 and by all the Judges 3 Jac. at Russel house Jones 24 Standen versus Vniversity of Oxford and Whitton but now the law is altered in this point by 1 Jac. 4. § 5. N. 1. Infra 153. Page 105 106. A Recusant is Indicted and convicted and then failes of payment of the twenty pound per month C. Chattels yet his goods are not forfeit to the King by 29 Eliz. 6. § 4. N. 3. before seisure for the King hath his Election whither he will seize them or no by Coke Chief Justice B. R. 12 Jac. Cullom versus Sherman 1 Rol. 7. pl. 8. 2. A Recusant lends mony 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 failes of payment of the twenty pound per month in this Case the King shall have the recognizance by force of 29 Eliz. 6. § 4. N. 3. for when forfeited to the Recusant it is but a Chattel personal and shall pass to the King by this word Goods for in an act of Parliament where the offendors 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 29 Eliz. 6. § 4. N. 3. as take and seize referre to two parts of the Recusants Lands and Tenements so enjoy referrs 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 savor of the realty for it was originally for the loan and forbearance of mony which is personal 12 Co. 1.2 Ford and Sheldon 3. If a man who is a Recusant take such a Recognizance in the name of another the King upon his Conviction shall have the Recognizance for when the Recusant was such at the time of the Recognizance taking 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 levying of the forfeiture And such Covin shall not Bar the King 12 Co. 2.3 4. If a Recognizance or obligation be forfeited to the King by force of 29 Eliz. 6. § 4. N. 3. he may grant it over as he may any other Chattel in Action under his private Seal 1 Rol. 7. pl. 8. Cullom versus Sherman Page 106. A Rent of Inheritance CI. Forfeiture and an Advowson in gross are comprehended under this word Hereditaments 29 Eliz. 6. § 4. N. 3. but whither the King may seize such an Advowson as part of his two parts and present by vertue thereof since 3 Jac. 5. § N. which gives the presentation to the Universities see Infra Page 106 107. CII Copy-hold It hath been much disputed whither Copyhold Lands are within this branch of the Statute 29 Eliz. 6. § 4. N. 3. of all other the Lands Tenements and Hereditaments lyable to such seizure or to the penalties aforesaid For regularly in Acts of Parliment which are enacted for forfeiture of Lands Tenements and Hereditaments Copyholds shall not be forfeited but only Lands Tenements and Hereditaments which are such as the C. Law and not those which are such by custome only as Copyholds are And it was agreed in Heydons Case 3 Co. 8 Savil 66 pl. 138. 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 of Parliament shall not extend to Copyholds And if the King should seize them by force of the general words 29 Eliz. 6. § 4. N. 3. Lands Tenements and Hereditaments the Lord would during the time they are in the Kings hands lose his Seigniory customes and services But yet it was held by Manwood Chief Baron and Baron Clerk 1 Leonard 97. pl. 126. in the Case of Sulherd and Everet Mich. 30. Eliz. that Copyholders are within 29 Eliz. 6. § 4. N. 3. and altho 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 2. But it was granted on all hands that by these general words here 29 Eliz. 6. § 4 N. 3. the King hath not any estate given him in the Recusants Copyhold Lands but only a right and title to two thirds of the profits By the Kings receiving of which the Lord cannot be impeached of his customes and services as he would be if the King should seize the land it self And a difference was there taken 1 Leonard 98. pl. 126. between an Act of Parliament which transsers 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 3 Co. 8. that Copy-hold 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 Custome 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 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
Eliz. 1. § 2. N. 1. But put the Case that the offendor is Convicted and the three months next after his Conviction elapse before he is required by the Bishop or any Justice of Peace or the Minister or Curate of the Parish to conform and make submission here appointed and afterwards he is required by one of them so to do It seems in this Case such request comes too late for he ought to conform and submit within the three months if he be required but if he be not required he is not bound to abjure for omitting it altho he shall remain in Prison till he conforms and submits But if within the three months he be required to conform and submit and refuse there is no question but he may be at any time afterwards warned or required to abjure Conformity CXII Page 117 118. That 35 Eliz. 1. § 4. N. 5. appoints the Conformity and submission to be At any Church Chappel or usual place of Common-Prayer but 35 Eliz. 1. § 4. N. 1. limits it to be at some Parish Church the meaning whereof seems to be that if a man be an offendor against this Act and Convicted he may within the three months after his Conviction conform and submit by 35 Eliz. 1. § 1. N. 5. in any Church Chappel or usual place of Common-prayer where there is Common-prayer and either a Sermon or the Gospel read Infra 145. But if he be required within the three months to conform and make submission and he refuseth so to do but the three months expire then by 35 Eliz. 1. § 4. N. 1. his Conformity and submission must be more solemn and publick viz. In some Parish Church where it is presumed there will be the greatest number of People to be Witnesses thereof And by this construction the seeming difference between 35 Eliz. 1. § 1. N. 5. and § 4. N. 1. is reconciled and this construction naturally flows from the order wherein these two branches are placed for 35 Eliz. 1. § 1. N. 5. speaks of a Church Chappel or usual place of Common-Prayer before it mentions the parties refusal to conform and submit within three months next after Conviction but when it hath mentioned such refusal 35 Eliz. 1. § 2. N. 1. then it speaks of the Parish Church only and the second time here limited 35 Eliz. 1. § 4. N. 1. to the offendor when he may conform and submit viz. before he be warned and required to abjure presupposes his refusal to conform and submit within the three months for otherwise he could not be required to abjure But if the offendor be not required within three months according to 35 Eliz. 1. § 4. N. 1. to conform and submit it seems he is not afterwards limited to some Parish Church but may do it according to 35 Eliz. 1. § 1. N. 5. in any Church c. for he is then in no danger of abjuration and his Conformity and submission is then to no other end but to free himself from the Imprisonment inflicted on him upon his Conviction and in that Case the Act saith he may conform and submit in any Church Chappel or usual place of Common-prayer And of this difference of places of Conformity no notice is taken in Additions to Dalt cap. 81. Sect. 13. tit Recusants Church 2. By Parish Church 35 Eliz. 1. § 4. N. 1. is to be understood not only that which hath been alwaies the Mother Church and never belonged to any other but every Church which hath the Administration of Sacraments and Sepulture For that in Law is a Parish Church altho it anciently belonged to another Church 2 Inst 363. where the issue was whither it had Baptisterium and Sepulturam And the Church of Stoke Goldenham tho the Town was parcel of the Rectory of of Hinckly whose Church was Anciently the Mother Church yet having all parochial rights and Church-wardens was adjudged a Parish Church and within 43 Eliz. 2. § N. of the poor CXIII Hutton 93. Hilton and Pauls Case Page 119. These words 35 Eliz. 1. § 5. N. 3. Or any color or means of any dispensation are omitted by Wingate Crown 72. and other particulars faulty CXIV Forfeitures c. Page 120 121. These words All and every the said paines duries forfeitures and payments 35 Eliz. 1. § 10. N. 2. are not to be understood simpliciter or Exclusive as if the forfeitures upon 23 Eliz. 1. § 5. N. 1. could be recovered no other way than is prescribed here But only they give the Queen a new remedy for recovery of them which she had not before and take not away the remedy given by 23 Eliz. 1. § 5. N. 1. upon Indictment nor that by 29 Eliz. 6. § 5. N. 6. upon Indictment and Proclamation nor the Informers popular action given by 23 Eliz. 1. § 11. N. 1. for all these three are affirmative Laws and do not abrogate one the other but may well stand together 2. And the meaning of them taken together is that if the Informer recover the forfeiture upon 23 Eliz. 1. § 11. N. 1. he shall have his part thereof but if the offendor were Indicted at the Queens suit and Judgment had against him upon 23 Eliz. 1. § 5. N. 1 or if he were Convicted upon Proclamation and default upon 29 Eliz. 6. § 5. N. 6. the Queen should have the whole penalty excluding the Informer for he shall not be punished again for the same offence at the suit of the Informer 3. But if the offendor were neither Indicted nor sued by the Informer Qui tam c. the Queen should have another remedy to recover the intire forfeiture by Action of debt c. upon this Statute 35 Eliz. 1. § 10. N. 2. so that the remedies given by these three Statutes 23 Eliz. 1. § 5. N. 1.29 Eliz. 6. § 5. N. 6. and 35 Eliz. 1. § 10. N. 2. are Cumulative and not Privative But as 35 Eliz. 1. § 10. N. 2. doth not abrogate any of the former laws touching Recusancy nor takes away the Informers popular suit so it adds nothing as to the Informer nor gives him any more speedy remedy for the recovery of the forfeiture but leaves him in the same condition as he was in before to take his remedy upon 23 Eliz. 1. § 11. N. 1. Dr. Fosters Case 11 Co. 61.62 and 1 Rol. 90.91.93 2 Cro. 481.8 Bridgman 121.122 Parker versus Webb Page 121. To her Majesties use CXV 35 Eliz. 1. § 10. N. 2. before this Statute the Queen had no other way to recover the intire penalty for Recusancy or any other offence within 23 Eliz. 1. § 5. N. 1. but by Indictment only but by this Statute 35 Eliz. 1. § 10. N. 2. a more speedy remedy was given her by Action of debt bill plaint or Information CXVI Days Page 121 122. Shall and may be recovered 35 Eliz. 1. § 10. N. 2. the King by 31 Eliz. 5. § 5. N.
3. is restrained in this Case to three years after the offence committed within which time he must persue the remedy here given him by 35 Eliz. 1. § 10. N. 2. for the recovery of the forfeiture But it seems that he is not restrained to two years for 31 Eliz. 5. § 5. N. 3. where the forfeiture is limited to the King and him that will sue there the Informer hath one year and the King the next two years if the Informer doth not sue within the first year of the three and the restraint 31 Eliz. 5. § 5. N. 1. of the King to the two next years after the offence committed extends not to this Case For altho the King is enabled by 35 Eliz. 1.10 N. 2. to sue for the intire forfeiture yet the intire forfeiture was not originally limited to the King only for the Informer may sue upon 23 Eliz. 1. § 11. N. 1. as well as the King may upon this Act 35 Eliz. 1. § 10. N. 2. and where the Informer may sue it was not the meaning of 31 Eliz. 5. § 5. N. 1. to limit the King to two years after the offence commited but he may stay if he please till the Informers years is expired and then 31 Eliz. 5. § 5. N. 3. gives him two years afterwards to sue for the penalty 2. Much less is the King limited to sue upon 35 Eliz. 1. § 10. N. 2. within a year and a day and what is said in Dr. Fosters Case 11 Co. 65. viz. that for any forfeiture before the year and day neither the King nor the Informer hath any remedy for that that time is limited in certain by 23 Eliz. 1. § 8. N. 1. is a clear mistake of the meaning of that Statute for the limitation there of a year and a day extends only to the Kings suit by Indictment and not to the popular suit given by 23 Eliz. 1. § 11. N. 1. much less to the Action of debt c. given to the King by this Statute 35 Eliz. 1. § 10. N. 2. suprà 79. N. 6. CXVII Process Page 122. If the King sue by any of these ways of debt bill plaint or Information 35 Eliz. 1. § 10. N. 2. no Proclamation can be made thereupon for the Proclamation given by 29 Eliz. 6. § 5. N. 5. and 3 Jac. 4. § 7. N. 2. in case of Recusancy at the Kings suit is upon Indictment only 11 Co. 62. Dr. Fosters Case CXVIII Courts Page 122. This Statute 35 Eliz. 1. § 10. N. 2. adds to other Courts where the King may sue for Recusancy or for saying or hearing of Mass for by 29 Eliz. 6. § 2. N. 2. the Queen was limited to the Kings bench the Assizes or general Goal-delivery and that only by way of Indictment but 10. v by 35 Eliz. 1. § 10. N. 2. she might sue not only in those Courts by Indictment but in B. R. C. B. or Exchequer by Action of debt Bil plaint or Information 11 Co. 61. Dr. Fosters Case But whereas t is there said that 35 Eliz. 1. § 10. N. 2. takes not off the restriction of the Informer Qui tam c. by 29 Eliz. 6. § 2. N. 2. to the Courts there mentioned this passage was occasioned by an opinion there held 11 Co. 6◠in the said Dr. Fosters Case that the Informer Qui tam c. was restrained by 29 Eliz. 6. § 2. N. 2. to those Courts but the opinion is not Law nor was there ever any such restriction of the Informer for 29 Eliz. 6. § 2. N. 2. intends only suits by Indictment but toucheth not the popular Action or Information supra 95. CXIX Bar. Feme Page 122 123 As c. any other debt c. should or may be recovered 35 Eliz. 1. § 10. N. 2. before this Statute the Queen had no way to recover of the Husband the intire forfeiture for the Recusancy of his Wife Infra 270. 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 Trespas Action upon the Case for words by the Wife c. but not upon an Indictment 2. And in this respect the Queen having before this Statute 35 Eliz. 1. § 10. N. 2. 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 than 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 23 Eliz. 1. § 11. N. 1. supra 79. N. 10. 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 But by 35 Eliz. 1. § 10. N. 2. 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 35 Eliz. 1. § 10. N. 2. 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 11 Co. 61.62 Dr. Fosters Case and 1 Rol. 233.234 Roy versus Law Vxor Savil 25. pl. 59. Page 123. CXX The Statute here 35 Eliz. 1. § 11. N. 1. mentioned and called 28 Eliz. 6. is the same with 29 Eliz. 6. before It being in some Books called 28 Eliz. in others 29 Eliz but as it seems more properly 29 Eliz 6. for the Session wherein it was made was by Prorogation held 15 Feb. 29 Eliz. 1 Anders 294. pl. 303. and 4 Inst 7. Page 123. CXXI Here 35 Eliz 1. § 12. N. 1. Wingate Crown 77. mentions only a Feme Covert leaving out the Popish Recusant Page 124. CXXII The late Additions to Dalton Cap. 81. Sect. 7. 'T is said that no married Woman is punishable by this Statute 35 Elizabeth 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 35 Eliz. 1. § 12. N. 1. 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 35 Eliz. 1. § 1. N. 5. until she conform and submits her self but she cannot be further proceeded against so as to require her to abjure A married Woman by this Act 35 Eliz. 1. § 10. N. 2. with her husband is likewise punishable for her Recusancy by action of 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 CXXIII Exile Page 124 125. Upon 35 Eliz. 1. § 13. N. 1. Every abjuration as well as that for Felony is an Exile or Banishment and if perpetual and by authority of Parliament amounts to a Civil death and therefore the Wife of a man banished or abjured for ever might sue or be sued without her Husband as was ruled in the Case of the Lady Maltravers 10 Edw. 3. and of the Lady Belknap 1 H. 4.1 and 2 H. 4.7 2. And if a man be perpetually banished by Authority of Parliament unless it be for Felony or by force of this Act 35 Eliz. 1. § 13. N. 3. his Wife shall be endowed living the Husband 3. And if he had been perpetually banished or abjured for felony the Wife should have had her joynture presently altho not her dower as was resolved 19 Edw. 1. in Weylands Case and the reason is because tho the Husband be naturally living yet he is civilly and in the eye of the Law as a dead man 4. But yet these Cases are to be understood of a Banishment or abjuration for ever and not of a Relegation or Exile for a time for in such Case neither could the Wife sue or be sued without her Husband nor could she have her Dower or Joynture during the natural life of her Husband 1 Inst 132. 2 Inst 47. and 3 Bulst 188. Wilmotes Case 1 Rol. 400. pl. 27. Moor 851. pl. 1159. 5. But if a Man be abjured by force of this Act the Wife shall not have her Dower or Joynture during the natural life of her Husband altho he be abjured for ever but she is in a worse Case than the Wife of a person perpetually banisht was at the Common Law For this Act 35 Eliz. 1. § 13. N. 2. by express words gives his Lands Tenements and Hereditaments to the Queen during his life which is to be understood of his natural life and the saving here of the Wives Dower 35 Eliz. 1. § 13. N. 3. is not intended of the Dower which she might claim at Common Law presently upon the abjuration of her Husband nor shall make void the former words of the Act by which all his Lands are given to the Queen during his natural Life but his only the usual provision made in Acts of of Parliament which create any new felony for the saving of the Dower of the Wife after the death of the Husband so that the meaning of this branch 35 Eliz. 1. § 13. N. 3. is that if the Husband refuse to abjure or abjure and refuse to depart according to this Act or return without license yet the Wife shall be indowed and the Heir inherit his lands after he is naturally dead CXXIV Days Page 125 126. Note that this Act 35 Eliz. 1. § 13. N. 4. being at first but temporary was afterwards discontinued Hutt 61 62. But is since renewed by 3 Car. 1.4 5 § 21. N. 1. and declared to be in Esse 16 Car. 2.4 § 1. N. 1. and is in full force at this day 2. And in such Case it hath been questioned if a Statute be discontinued and afterwards revived Parliament how an Indictment thereupon shall conclude whither contra formam Statuti or Statutorum For if a Statute be temporary and afterwards continued for a longer time or made perpetual and never discontinued there without doubt it shall be contra formam Statuti But it hath been held by some that where it was once discontinued and then revived there it is as if there were two several and distinct Statutes and the Indictment shall conclude contra formam Statutorum 9 Eliz. Palmers Case But others have held the contrary and that there is not any difference in the Case of a Statute at first temporary and afterwards before any discontinuance continued for a longer time or made perpetual and a Statute discontinued and then revived but that it shall in both Cases be held but as one Statute and that the conclusion shall be contrà formam Statuti and not Statutorum unless where the Act of reviver makes any addition to the former Act or increaseth the penalty or forfeiture for then there is no doubt but they are two distinct Acts of Parliament and according to this latter opinion hath the practice been in Informations upon 5 Eliz. 9. of perjury which determined 14 Eliz. and was revived 29 Eliz. 5. § 2. N. 3. and yet all Informations thereupon conclude contra formam Statuti And so as it seems ought all Indictments upon this Statute of 35 Eliz. 1. § 13. N. 4. notwithstanding its discontinuance and reviver Owen 135. Wests Case 35 Eliz. 2. Of CONFINEMENT CXXV Alien PAge 128 129. Born within any her Majesties Realms or Dominions or made denizen 35 Eliz. 2. § 2. N. 1. So that all Popish Recusants are not within this branch as Wingate Crown 78. mistakes for it extends not to an Alien who is born out of the Kings Legelance unless he be made Denizen In the late Additions to Dalt cap. 81. Sect. 14. this Clause 35 Eliz. 2. § 2. N. 1. is restrained to such as are born in England but it is clear that is extends to all the Kings Natural Subjects if they live in England altho they were born in Ireland or any other of the late Queens dominions besides England By Denizen is here to be understood an Alien who owes to the King an acquired Subjection or Allegiance whether he be made Denizen by the Kings Letters Patents or be Naturalized by Act of Parliament for Naturalization includes all the priviledges of a Denizen and something more and every one who is naturalized is thereby made a Denizen altho he that is made a Denizen by the Kings Letters Patents is not thereby Naturalized CXXVI Recusant Page 129 130. Which being then a Popish Recusant this 3.5 Eliz. 1. § 3. N. 1. is the first Penal Statute which was made against Popish Recusants by that name and as distinguished from other Recusants In the late additions to Dalt cap. 81. Sect. 7. It s said that the matter of Recusancy stands in two particulars First absenting from the Church Secondly refusing the Oaths prescribed 1 Eliz. 1. § 19. N. 4. and 3 Jac. 4. § 15. N. 1. but this description of Recusancy is either too
this is not like the Case of Jurors upon 2 H. 5. § 2. cap. 3. § 1. N. 2. where t is said that the Juror shall have Lands of the clear yearly value of 40 s. if the debt or damage declared amount to 40 marks in which Case altho it be in the disjunctive debt or damage yet it hath been adjudged that where the debt and damages doth amount to 40 marks it is sufficient and the Juror must have 40 s. per Annum 1 Inst 272. For in that Case the word or is cumulative and debt or damage both amount to no more than one intire thing viz. The value of the Cause or Action depending And it appears plainly to be the intent of the makers of the Law 2 H. 5. Sect. 2. Cap. 3. § 1. N. 2. that no Cause declared to be of the value of 40 Marks shall be tryed by Jurors of a less Estate But in our Case the Lands and Goods are things of different natures one real and the other personal and cannot be regularly reduced under one and the same head and therefore shall not be valued together unless 35 Eliz. 2. § 8. N. 2. had expresly appointed such a valuation 2. But yet if a Popish Recusant hath a lease for years and personal Goods and both do amount in value to above 40. l. he shall be out of the danger of abjuration for altho the lease is in the realty and the goods are personal yet they shall in this Case be valued together For that by this Copulative and 35 Eliz. 2. § 8. N. 2. expresly so appoints without distinguishing between the values of either but makes it sufficient if both of them be of that value 3. Mony secured upon a Mortgage of Lands is within the meaning of these words Goods and Chattels 35 Eliz. 2. § 8. N. 2. And if the Popish Recusant hath above 40. l. owing to him upon such Mortgage he cannot be required to abjure CXXXIII Days Page 137. Within three months next after such person shall be apprehended or taken 35 Eliz. 2. § 8. N. 3. Wingate Crown 80. clearly mistakes the meaning for he saith that a Popish Recusant whose Estate is under value must make the submission prescribed by this Act within three months next after his arrival at his place of abode which is a complicated Error for he quites leaves out him who is to repair to the place where he was born or his Father or Mother dwells he makes the party lyable to such submission before he becomes an offendor by not repairing or not presenting himself and giving in his true name or Travelling above five Miles He speakes nothing of his being apprehended whereas by the Act he cannot be required to abjure until three months after his apprehension and he turns the three months after his apprehension into three months after his arrival all great mistakes and fit to be taken notice of by Justices of Peace whose part it is to require the submission and abjuration that they may not be misled in the Execution of this part of their office by trusting to that abridgment Page 138. CXXXIV Being thereunto required by the Bishop c. 35 Eliz. 2. § 8. N. 3. If the offendor be not before the end of the three months next after his appreliension required by the Bishop a Justice of Peace or the Minister or Curate to make such submission he cannot be required afterwards nor be compelled to abjure by force of this Act but if he be required within the three months to make submission and refuse he may be at any time afterwards warned or required to abjure CXXXV Exile Page 138 139. The Oath of abjuration 35 Eliz. 2. § 8. N. 4. may be in this form or to this effect You shall Swear that you shall depart out of this Realm of England and out of all other the Kings Majesties Dominions and that you shall not return hither or come again into any of his Majesties Dominions but by the licence of our said Soveraign Lord the King or of his heirs So help you God 3 Inst 217. Stamford 119.120 Wilkinson 66. hath set down another form c. resembling that of a Felon c. This hear you Sir Coroner that I J M. of H. in the County of S. am a Popish Recusant and in the contempt of the Laws and Statutes of this Realm of England I have and do refuse to come to hear Divine Service there read and exercised I do therefore according to the intent and meaning of 35 Eliz. 2. § 8. N. 4. c. abjure the Land and Realm of King Charles now King of England Scotland France and Ireland and I shall hast me towards the Port of P. which you have given and assigned to me and that I shall not go out of the high-way leading thither nor return back again c. If I do I will that I be taken as a Felon of our laid Lord the King and that at P. I will diligently seek for passage and I will stay there but one flood and Ebb if I can have passage and unless I can have it in such space I will go every day into the Sea up to my knees assaying to pass over So God me help and his holy Judgment But in alluding to the old Oath for Felony c. Wilkinson is mistaken in the very Offence for which the Popish Recusant is to abjure by force of 35 Eliz. 2. § 8. N. 4. For the Offence is not his Refusal to hear Divine Service for that is but one of the precedent qualifications of the person but the Offence it self is of another nature viz. his not repairing to the place the Statute appoints him or his removal from thence contrary to the Statute or his not presenting himself and delivering his true name as aforesaid Either of these if he be a Popish Recusant within the meaning of this Act is a Crime for which he ought to abjure unless he prevents his abjuration by a timely Submission Nor is the Popish Recusant bound to swear that he will not go out of the high way or return back or will tarry but one Flood and Ebb or go into the Sea up to his knees Nor ought the Coroner or Justices of Peace to require any such Oath of him for this is a new Offence made by a Statute Law which doth not require the strict form of Abjuration as in Case of Felony and altho the Felon were tied to these Circumstances yet the Recusant is not nor shall be a Felon for omitting them but 't is sufficient if he simply abjure as 35 Eliz. 2. § 8. N. 4. directs and go from the appointed Port within the time limited and not return without Licence into any of the Kings Dominions He that thus abjures the Realm doth yet owe the King his Ligeance and remaineth within the Kings Protection Qui abjurat Regnum amittit regnum sed non Regem amittit Patriam sed
non patrem patriae 7 Co. 9. Calvins Case Page 139. The Offender is 35 Eliz. 2. § 8. N. 1. Strictly tied to depart from the same Haven assigned him CXXXVI and within the time appointed him by the Justices of the 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. CXXXVII Ireland Page 139 140. Or returns or come again into any her Majesties Realms or Dominions 35 Eliz. 2. § 10. N. 1. An Offender within this act abjures in form aforesaid and departs this Realm and afterwards goeth into Ireland without licence and then returns into England with licence which going into Ireland seems to be Felony by this Act. But Quare how the offence shall be tried not in Ireland for this Statute binds not that Kingdom nor can he 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 punisht for that no way of trial is appointed Crompt 53.54 Page 140. CXXXVIII Suspected 35 Eliz. 2. § 11. N. 1. Altho the party be no Jesuit Seminary or Massing Priest yet if there be cause to suspect him and he refuse to answer whether he be so or no such suspition and refusal is ground enough for his Commitment Page 140. 141. Having lawful Authority in that behalf 35. Eliz. 2. § 11. N. 1. This Clause seems to refer to 27. Eliz. 2. § 13. N. 1. Which appoints that the discovery of a Popish CXXXIX Priest or Jesuit shall be made to some Justice of Peace or higher Officer who is to give Information thereof to some of the Privy Council c. under the penalty of two hundred Marks Which Statute of 27 Eliz. 2. § 13. N. 1. tho it do not in express terms say that the Justices of Peace or other higher Officer shall examine the Priest or Jesuit so discovered yet in as much as it gives power to take Cognizance of the matter it seems Implicitely to impower him to inform himself of the truth whether the party be a Priest or Jesuit or not as well by examination of the party as otherwise that he may be the better enabled to give Information thereof to some of the Privy Council c. and one Justice of Peace having by 27 Eliz. 2. § 13. N. 1. lawful Authority to examine him he hath authority likewise by this Statute 35 Eliz. 2. § 11. N. 1. to Commit him if he be suspected to be a Priest or Jesuit and refuseth to answer whether he be so or no. As for Master Shepherd's opinion in his sure Guide Cap. 14. § 5. That there must be two Justices to commit a man by force of 35. Eliz. 2. § 12. N. 1. who is suspected to be a Jesuit or Priest CXL till he answers directly I see no ground at all for it Page 141. Answer to the said Questions 35 Eliz. 2. § 11. N. 1. That is whether he be a Jesuit Seminary or Massing Priest for he is not bound to answer to any other Question nor can be Committed by force of this Act for his refusal Page 141 142. CLXI Vrged by Process 35 Eliz. 2. § 13. N. 1. If a Popish Recusant restrained by this act be summoned by Warrant of a Justice of Peace to appear before him the Recusant ought not to travil to such Justice out of his compass of five miles For altho a Justice of Peace's warrant be the Kings Process yet it is not intended here for these words Vrged by Process are restrained by the subsequent words 35 Eliz. 2. § 13. N. 1. as requires the Recusants appearance in some one of the Kings Courts and extend not to all Cases of summons and Process as Wingate Crown 83. mistakes But if in the Case aforesaid the Warrant be to arrest the Recusant and by force thereof he be carried by the Constable c. out of the compass of five miles there he is excused and forfeits nothing for that it was done by Compulsion and yet if there be any Covin between the Recusant and the Justice of Peace or Officer it may be otherwise CXLII Courts Page 142. In any her Majesties Courts 35 Eliz. 2. § 13. N. 1. All Courts wherein the Proceedings are directed by the Kings Laws are the Kings Courts and therefore a Court Leet tho of an Inferior nature and kept in the Lords name yet is the Kings Court 5 Co. 39. Cawdries Case Hetley 18. 2. If a Popish Recusant restrained by this Act be cited into the Ecclesiastical Court he may be force of this Proviso travel out of the compass of five miles to appear there 35 Eliz. 2. § 13. N. 1. For all Ecclesiastical Courts are the Kings Courts and the Laws by which they proceed there are the Kings Laws Page 142 143. This 35 Eliz. 2. § 14. CXLIII N. 1. Extends to all Cases in general where the Popish Recusant ought to render his body to the Sheriff upon Proclamation and is not restrained to a Proclamation upon an Indictment for Recusancy And therefore if a Popish Recusant confined by 35 Eliz. 2. had been proclaimed upon the Statute of Marlebridge 52. H. 3.7 § 1. N. 1. in a Plea de Custodia as a Deforceor he might lawfully have gone out of the compass of five miles the like he may do at this day upon any other Proclamation commanding him to render his body to the Sheriff Page 143. CXLIV Before he or they shall be thereof Convicted 35 Eliz. 2. § 15. N. 1. A Popish Recusant confined by this Act whose Estate is under value is apprehended for offending against this Act 35 Eliz. 2. § 8. N. 1. and before the expiration of three months next after his apprehension is Convicted of such Offence and then before the three months expire conforms and makes such Submission and Declaration as 35 Eliz. 2. § 8. N 3. and § 16. N. 1. is appointed this Case altho he come too late after Conviction to save the forfeiture of his lands and goods yet he shall not be compelled to abjâ—re for the affirmative words here 35 Eliz. 2. § 15. N. 1. That upon such Conformity Submission and Declaration before Conviction he shall be Discharged of all Pains and Forfeitures do not carry in them the force of a Negative viz. that if it be after Conviction he shall not be discharged of any of them and by 35 Eliz. 2. § 8 N. 3. he is not compellable to abjure I at any time within three months next after his apprehension he conforms confesseth and submits as is there appointed CXLV Church Page 143 144. It seems clear that no Submission Confession or Declaration can discharge the Popish Recusant who is an Offender within this Act from any Pain or Forfeiture thereby inflicted unless it be performed in some Parish Church for
the arrears CLII. Seizure Page 150. 151. Where any seizure shall be had 1 Jac. 4 § 5. N. 1. That is a seizure upon either a Judgment against the Recusant by Indictment on 23 Eliz. 1. § 5. N. 1. or an Indictment and Conviction by Proclamation and default of appearance according to 29 Eliz. 6. § 5 N. 5. for the seizure of two parts of the Recusants lands was given the King by 29 Eliz. 6. § 4. N. 3. upon default of payment of the twenty pound per month in either of those Cases Page 151. Go towards the satisfaction and payment of the twenty pound 1 Jac. 4. § 5 N. 1. CLIII Hereby a Principal Branch of 29 Eliz. 6. is altered for whereas by 29 Eliz 6. § 4. N. 3. supra 99. 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 penalties until the 20 l. per month had been paid and yet the profits should not have gone towards the satisfaction of the said 20 l. per month 1 Jac. 4. § 5. N. 1. was made for ease and benefit of the Recusant in that point 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 3 Jac. 4. § 11. N. 4. make his Election and seizeth two parts in lieu of the twenty pound per month And therefore the Resolution or Judgment said to be 1 or 2 Jac. Grayes Case cited in Beckets Case Lane 93. and by Bridgman 16 Jac. in his argument of Parker and Webbs Case 2 Rol. 25. and applied thereunto viz. that if a Recusant Convicted failes of payment of the 20 l. per month the King shall have his Lands as a gage or penalty and the profits shall not go in satisfaction thereof However it were true as the Law stood upon 29 Eliz. 6. § 4. N. 3. and before the making of 1 Jac. 4. § 5. N. 1. yet 't is not Law at this day nor could be applicable to either of chose Cases Lane 93. of Becket or 2 Rol. 25. of Parker which came to be debated long after this Act was made and the Law altered in that point Page 151. CLIV. Where any such seizure shall be had c. 1 Jac. 4. § 5. N. 3. this relative such takes in both the Seizures before mentioned viz. A Seizure upon Indictment and Judgment thereupon by 23 Eliz. 1. § 5. N. 1. and a Seizure upon Conviction on Proclamation and default according to 29 Eliz. 6. § 4. N. 3. and as in both these Cases the Recusant who failes of the payment of the 20 l. 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 CLV Dayes Page 152 153. Two parts of the Lands c. Of any such Recusant This Clause 1 Jac. 4. § 5. N. 3. 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 20 l. 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 nature of a Verdict only and not of a Judgement as was hold in 1 Rol. 94. Dr. Fosters Case 2. 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 changed by general words in the Statute which gives the forfeiture or seizure an instance whereof we have in the Case of a Recusant Tenant in Tail Indicted Convicted and Adjudged upon 23 Eliz. 1. § 5. N. 1. for his intailed Lands shall remain after his death in the Kings possession until the Arrears be satisfied and that by force of 29 Eliz. 6. § 4. N. 3. and this Statute 1 Jac. 4. § 5. N. 3. Cooperating with the Statute 33 H. 8.39 § 66. 26. N. 1. which chargeth the Lands of the Heir in Tail with debts due to the King upon a Judgment had against the Ancestor But otherwise 't is in the Case of a Praemunire upon 16 Rich. 2.5 § 2. N. 6. which saith the Lands and Tenements of the offendor shall be forfeit to the King for there his entailed 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 13 Ed. 1. Cap. 1. § N. de donis Conditionalibus 1 Inst 130.391 and 11 Co. 63. Godbolt 308. pl. Sheffield and Ratelifs Case And therefore in 26 H. 8.13 § N and 5 and 6 Ed. 6.11 § N. which makes Intailed Lands forfeitable for Treason the word Inheritance was added any Estate of Inheritance which expresly denotes Lands in Fee Tail as well as Fee simple Now there being neither in this Act 1 Jac. 4. § 5. N. 3. or that of 29 Eliz. 6. § 4. N. 3. 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 chargeth the Heir in Tail with the forfeiture due to the King upon Conviction by Proclamation and default the general words here 1 Jac. 4. § 5. N. 3. that his Lands Tenements c. shall continue in the Kings possession shall not inforce a construction in prejudice of the Heir in Tail who claimes by 13 Ed. 1.1 de donis conditionalibus 3. 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 entailed Lands upon 29 Eliz. 6. § 6. N. 1. which speaks of the full satisfaction of Arrears in Case of the death of the Recusant And the Arrearages were to be 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 here in this last Case the Heir in Tail was not bound by the Statute
Goods or Lands cannot be seized for the forfeiture or penalty where the Wife only is Indicted and Convicted of the offence 4. A Recusant is Indicted for absenting himself from Church for twelve months and afterwards is Convicted upon that Indictment Quaere whither nevertheless the Informer Qui tam c. may not sue him for his absence for the months intervening between the time laid in the Indictment and the time of Conviction For these words here 3 Jac. 4. § 8. N. 2. viz. after such Conviction seem to relate to the proximum antecedens Every month and to imply that the penalty here appropriated to the King is only the penalty due for the months which Incurre after such Conviction upon Indictment at the Kings suit but not to hinder the Informer after Conviction from suing for the months incurred before Conviction CLXXIV Forfeitures Page 168. Except in such Cases where the King shall c. Refuse the same 3 Jac. 4. § 8. N. 3. Jenes 24. in Standens Case if a man be Indicted and Convicted of Recusancy the King is not bound to stay till next Easter or Michaelmas Term to see whither the Recusant will tender twenty pound for every month contained in the Indictment and incurred after such Conviction for the King by 3 Jac. 4. § 11. N. 4. having his Election whither he will accept thereof or seize two parts of the Recusants Lands a Commission for seizure of the Lands may Issue out presently if the King will waive the twenty pound per mouth for he may take his Election as soon as he will after Conviction by Jones Justice Page 168 CLXXV 169. All the Goods 3 Jac. 4. § 9. N. 2. A Recusant Convicted is Tenant for life the remainder to a stranger in Fee he in Remainder with the Recusants Assent cuts down Timber Trees and sells them in this Case the King can be no wayes entitled to the Trees 1 Bulstrode 133. Page 169. CLXXVI All other the lands c. lyable to such seizure or to the penalties aforesaid 3 Jac. 4. § 9. N. 2. Lane 105 106. Halseyes Case Lands are Conveyed to a trust for B. a Convicted Recusant Quaere whither the King may seize such Lands for the Recusants non-payment of the twenty pound per month for if he make his Election and accepts of two thirds in lieu of the twenty pound per month there is no question but such Lands are lyable to seizure for the words of 3 Jac. 4. § 11. N. 4. are that the King may seize two parts of all Lands that shall come to any other person to the use of or in trust for such Recusants but in 3 Jac. 4. § 9. N. 2. which relates to the seizure of two parts for non-payment the words seem to be more restrictive Page 171. CLXXVII Tho it be tendered or ready to be paid 3 Jac. 4. § 11. N. 4. by this branch of the Act a new advantage is given to the King against the Recusant for whereas by 29 Eliz 6. § 4. N. 2. the Convicted Recusant had his Election to pay the King twenty pound per month and so prevent the Seizure of the two third parts of his Lands now by 3 Jac. 4. § 11. N. 4. that Election is taken away and the choice is given to the King whether he will accept of the twenty pound per month or refuse it and seize two third parts of the Recusants Lands in lieu thereof and if the King chuseth the Lands the tender of the twenty pound per month at the Exchequer will not save the Seizure but the King shall enjoy the Lands notwithstanding Jones 24 25. Standens Case Page 171 172 173. CLXXVIII Hereditaments 3 Jac. 4. § 11. N. 4. An advowson is an Hereditament and passeth by that word 18 Eliz. Dyer 351. and is demisable by 32 H. 8.1 § N. as an Hereditament And if it be an Advowson in gross yet it may be seized by the King by 3 Jac. 4. § 11. N. 4. as part of his two parts of the Recusants Hereditaments Jones 23 24. for t is a thing valuable and shall be Assets and is extendable for the Kings debt and upon a writ of right of an Adowson there shall be a Recovery in value 9. 11. scil for every mark twelve pence Hob. 304. Britton 185. 1 Inst 185. 2. In the late additions to Dalt cap. 81. Sect. 23. 't is said that the King may refuse the twenty pound per month and take to two parts of the Recusants Lands and all the goods c. And an Advowson is not of 3 Jac. 4. § 11. N. 4. and Standens Case cited But this is a mistake as to the Clause it self and as to the point in Law and the Authority brought for it for in truth there is no such Clause in this Statute nor in any other that the King upon the refusal of the twenty pound per month should take the Recusants goods for the seizure of the Goods is given 3 Jac. 4. § 9. N. 2. where the offendor failes of payment of the twenty pound per month but not where the King dischargeth him of that payment by refusing it so that where the King refuseth the twenty pound per month the Recusants Goods cannot be seized but only two parts of his Lands The Law likewise is mistaken for if the King refuseth the twenty pound per month he may seize an Advowson as part of his two parts as hath been said so that an Advowson is within 3 Jac. 4. § 11. N. 4. and not without it And the Case of Standen is quite contrary to that opinion in the late Additions to Dalt cap. 81. Sect. 23. for Justice Jones held strongly that an Advowson was within 3 Jac. 4. § 11 N. 4 and Hobart Chief Justice and Winch declared themselves to be of the same mind and Justice Hutton denyed not that an Advowson was within it only held that the force of 3 Jac. 4. § 11. N. 4. as to an Advowson in gross is taken away by 3 Jac. 5. § 19. N. 1. which gives the presentation to the University but the three other Justices were against him and held that where the King had seized it as part of his two parts and the Incumbent dyed the King should present and not the University Infrà 250. N. 5. 3. If the King seize by Inquisition two parts of a Mannor belonging to a Recusant Convict to which an Advowson is appendant by such seizure two parts of the Advowson are likewise seized by consequence altho it be not named in the Inquisition as was resolved in the Case of the Chancellor of Cambridg and Walgrave Hob. 126.127 Moor 872. pl. 1214. And there altho the King hath title but to two parts of the Advowson yet he shall present alone by his Prerogative and so he should have done where there were three Coparceners of an Advowson two of full age and one under age and in ward to
who takes the bond and oath is to certify them into the Court of Exchequer or to forfeit c. for where the literal sense will ingen der an absurdity or impossibility such a construction must be made as will stand with Reason and the intent of the Law-makers and in such Cases a Copulative shall be taken for a Disjunctive or contra Com. 289 363. But if the Deputy of the Customer or Controller take the bond or oath and no Certificate thereof is made the Customer or Controller himself whose Deputy he is shall forfeit for that default altho he had no notice from his Deputy of the taking of the said bond or oath for he is answerable for all the defaults of his Deputy See Dyer 238 239. where it was held that the Customer should forfeit the treble value of the Merchandize upon 3 H. 6 3. § N. for his Deputies concealing of the payment of the Customs so a Sheriff shall answer for all his Officers under him 4 Co. 33. Miltons Ca. Crompt Jurisd 110. And so generally shall all other Officers answer for their Deputies 9 Co. 48.98 Terms de Ley 111.32 H. 34. Forfeiture Br. 27. CXCIV Alien Page 185 186. withdraw any of the Subjects of the King's Majesty c. from their natural obedience 3 Jac. 4. § 22. N. 1. by the King's Subjects to be understood here Natural Subjects only that is such whose Subjection is Natural and absolute Due by Nature and Birth-right and which begins with their Birth and not Aliens altho they are Naturalized or made Denizens much less those who are only local Subjects for none but Natural Subjects can be said to be withdrawn from their natural obedience and as the King of England cannot be said to be a Natural Lord or King to an Alien born so neither can an Alien be said to be his Natural Subject Natural Prince and Natural Suject being correlatives And an Indictment of high Treason against an Alien born who resides here altho it shall be contra ligeantiae suae debitum contra Dominum Regein in respect of his local Ligeance yet naturalem shall be omitted out of the Indictment and so it was 2 3 Ph. Mar. in the Case of Sherley a French man 36 Eliz. in the Cases of Stephano Ferara de Grana and Emmanual Lewis Tmore two Portugals who conspired with Doctor Lopes against Queen Elizabeth And so as it seems it ought to be for the same reason if the Alien were indenized or naturalized for Naturalization it self which is by Act of Parliament and the highest priviledg an Alien is capable of yet cannot create this natural Subjection or Obedience which is not due by any Law or Constitution of Man Naturalization being but a fiction in Law which confers the priviledges of a Natural Subject but cannot make him a Natural Subject who was none before for then he would have two natural Princes one where he was born the other where he was naturalized Vaughan 279.283 Crane and Ramsey 7 Co. 567.25 Calvins Ca. 2 and 3 Ph. and Mar. Dyer 145 Heb 171. Courteens Ca. So that to absolve persuade withdraw or reconcile an Alien born whose Subjection to the King began not with his Birth or for any such to be absolved persuaded withdrawn or reconciled seems not to be Treason within this Act 3 Jac. 4. § 22. N. 1. But this Subjection is not to be understood locally or in respect of the place of a man's birth but in respect of the Prince to whom Subjection is due at the time of his birth and therefore if a Scot or Irish-man be absolved or reconciled in England altho the Offence be committed in another Kingdom than where his Subjection began yet being born a Subject to the King of England it's Treason in the absolver or person reconciling and in him that is absolved or reconciled nor is it necessary in all Cases that the Party be born in the King's Dominions but that he may be a natural Subject notwithstanding and consequently within this Act 3 Jac. 4. § 22. N. 1. as in the Case of an Ambassador 7 Co. 18. Calvins Ca. CXCV. Page 186 187. which shall hereafter be reconciled 3 Jac. 4. § 24. N. 1. in the late Additions to Dalt Cap. 140 Sect. 12. is intimated that this Clause extends to no Cases of Treason or Misprision of Treason for there in reciting 3 Jac. 4. § 24. N. 1. the Cases of Treason and misprision of Treason are excepted which is a great mistake for the Submission here spoken of 3 Jac. 4. § 24. N. 1. is only in the Case of a declared Treason seil being reconciled to the Pope or Sea of Rome CXCVI. Page 187. For and touching the poynt of so being reconciled only 3 Jac. 4. § 23. N. 1. there are three several sorts of Offences made Treason 1 To be willingly absolved or withdrawn from a man's natural obedience 2 To be willingly reconciled to the Pope or See of Rome 3 To promise obedience to any pretended Authority of that See or to any other Prince State or Potentate But in 3 Jac. 4. § 24. N. 1. only the second of these Offences is remitted in case of Submission viz the being reconciled to the Pope or See of Rome by which I conceive to be meant the forsaking of the Religion established by Law and embracing that which is professed and maintained by the Pope and Sea of Rome and in that sense these words 3 Jac. 4. § 24. N. 1. are commonly taken at this day And that this is the meaning of 3 Jac. 4. § 24. N. 1. appears by 23 Eliz. 1. § 2. N. 1. which makes it Treason to absolve or withdraw the Subjects from their natural obedience or 23 Eliz. 1. § 2. N. 3. to move them to promise obedience to the See of Rome or any other Prince c. to answer which follows in that Act 23 Eliz. 1. § 2. N. 5. three other Sorts of Treason viz 1 To be absolved or withdrawn Or 2 To be reconciled Or 3 To promise such Obedience so that the Offence of being reconciled answers to the Offence of withdrawing the Subjects from the Religion establisht to the Romish Religion which explains what is meant by such Reconciliation viz the being so withdrawn from the one Religion to the other But by this Chance 3 Jac. 4. § 24. N. 1. if a Person be thus reconciled that is change his Religion and become a Papist yet if he be capacitated to submit as is required by this Act and submit accordingly and take the oaths of Supremacy and Allegiance such offence of being reconciled shall not be Treason But as for being absolved or withdrawn from his natural Obedience Or 2 promising obedience to the pretended authority of the See of Rome or any other Prince State or Potentate besides his Natural King such Submission and taking the Oaths by 3 Jac. 4. § 24. N. 1. shall not absolve him
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
appointed he shall not forfeit any thing or be disabled by this Act infra 239. Page 221. CCXXXVIII by a Minister lawfully authorized 3 Jac. 5. § 13. N. 2. in an Information upon this Statute for being married otherwise than 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 Traveller come of the other side then the Defendant is in his rejoynder to shew the time and place 2 Bulstr 50 CCXXXIX 52. Creswick against Rookesly Every Woman being or which shall be a Popish Recusant convicted 3 Jac. 5. § 13. N. 3. A Woman who is no Popish recusant convicted marrieth 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 cited supra 237. the Woman only shall be disabled so in this case the man only shall forfeit or be disabled Page 222. CCXL Or any Joynture of the Lands and Hereditaments of her Husband or any of his Ancestors 3 Jac. 5. § 13. N. 3. A Feme who is a Popish recusant convicted and married otherwise than is appointed by this Act is not therefore disabled to have any sort of Joynture as Wingate Coron 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 settled 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 of 3 Jac. 5. § 13. N. 3. nor shall the Wife altho a Popish recusant convicted and married otherwise c. be disabled by any strained construction of this Law to enjoy the Lands after her Husband's death For a penal Law shall be taken strictly and not by Equity or Intendment especially where the intent of the Law-makers doth not appear to the contrary and the Case such as doth but rarely happen and it is a good Rule in the construction of Statute-Laws Vaughan 373. that 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 further than they reach but to say it is Casus omissus and that the Law intended Ea quae frequentius accidunt And yet there is no question but such Lands are a Joynture and if made with the Wives assent before Marriage shall barre her Dower by 27 H. 8.10 § 6. N. 1. which speaks of one Estate or Purchase made to the Wife for her Joynture generally not saying by whom described by Shepherds Epitome Page 222. By vertue of any Custom of any County CCXLI. City or Place 3 Jac. 5. § 13. N. 3. and not of Citys only as 't is restrained in the late Additions Dalton Cap. 85. Sect. 48. The custom here mentioned 3 Jac. 5 § 13 N. 3. viz that the Wife shall have a certain portion of her Husband's Goods after his decease is of force throughout the whole Province of Yorke and in divers other places of England and if he gives them away from her by his will the bequest is void Swinborn 1551 152. part 3. cap. 14.9 H. 3.18 § N. A Woman is an Offender within this Branch 3 Jac. 5. § 13. N. 3. 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 Page 222. Whereof he may be entituled to be Tenant by the courtesy CCXLII. 3 Jac. 5. § 13. N. 4. A Popish recusant convicted marrieth an Inheretrix in other form than is appointed by this Act the Wife dyes without issue born alive of the Marriage in this Case altho the Husband is not intituled to be Tenant by the Courtesy yet the possibility which he once had to be so entituled seems to satisfy the intent of this Act and he shall not forfeit the C. li. So that here is another Casus omissus for it may so happen that a Popish recusant convict may have a great portion 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 3 Jac. 5. § 13. N. 4. the Lands for that he may be entitled to be Tenant by the Courtesy by them shall save his C li. And if his Wife dye having had no issue born alive he is wholly exempted out of the Act and cannot be punished either way Page 223. The Exception here CCXLIII 3 Jac. 5. § 15. N. 1. of Popish Recusant excommumunicate is intended only of one actually excommunicated and not of him who is a Popish recusant convict who shall not be reputed as a person excommunicate to this intent but only as to the point of Disability as supra 234. So that if any Popish Recusant not actually excommunicate be buried elsewhere or otherwise than is here mentioned altho he were convicted yet 't is an Offence punishable by this Law 3 Jac. 5. § 5. N. 1. Page 224 CCXLVI 225. The next of his or her Kin 3 Jac. 5.16 N. 2. It hath been a great Question formerly Whether the Mother can be said to be of kin to the child and it stath been held in the Negative as well by the common Lawyers as Civilians as appears by the Duke of Suffolks Case 5. Ed. 6. Administrators Br. 47. and that of Brown and Skelton 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 than is the Brother or Sister and that shall be preferred in the case of an administrator upon 21 H. 8.5 § 3 N. 6. and of guardianship by the Stature of Marlbridg 52. H. 3.7 where a man dyeth sels'd of Lands holden in soccage Which later opinion agreeth with Lit. 1. that the Parent is nearer of blood to the child than the Uncle See 1 Inst 88. and in Ratcliff's Ca. 3 Co. 40. the Duke of Suffolk's Case is denyed to be Law so that if any child be sent or go beyond the Seas contrary to this Act his Mother by 3 Jac. 3. § 6. N. 2. 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 or next of Blood shall not 3 Jac. 5. § 9. N. 2. be accounted here by course of descent but as in the case of 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 dyeth A and B have issue each of them a son and dye 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 5 Jac. 5 § 16. N. 2. have and enjoy the Lands of the Offender untill 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 than the Cousin German and yet the son of A is heir at Law jure representationis as being the son of the eldest Brother 1 Inst 10. Palmer 304 305. Pervian and Pierce CCXLV Forfeiture Page 225 226. Shall have and enjoy the said Lands c. 3 Jac. 5. § 16. N. 2. It was held by Mountague and Hobert Ch. J. Pasch 15. Jac. Lee 59 in Tredwayes Case that if a person goeth beyond the Seas contrary to this Act yet the state of the Land is not forfeited nor fettled in the next of Kin but rests in the Heir himself who is the offender for the Statute 3 Jac. 5. § 16. N. 1. 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 6 Rich. 2.6 § 1. N. 3. of consenting to ravishment And 11 H. 7.20 § 1. N. 2. of Discontinuance by Women And Hobard said Lee 59. 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 Tanfield chief Baron seemed to be of contrary opinion in the main point and held that the State of the Land is settled by 3 Jac. 5. § 16. N. 2. in the next of Kin. Note In Lee 59. it 's said to be the meaning of this Act 3 Jac. 5. § 16. N. 2. 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 somewhat more and that the next of Kin shall have the Land it self CCXLVI Presentant Page 226. From and after the end of this present Session of Parliament 3 Jac. 5. § 18. N. 1. A man seised of an Advowson grants the next Avoydance and then becomes a popish Recusant convict the grant of the next Avoydance is void and the University shall present for the foregoing words During his Recusancy do not import the time when his disability shall begin but when it shall end viz when he remains no longer a Recusant But when once he becomes a Popish Recusant convict his disability shall have relation to all the time going before viz from the end of that Session of Parliament wherein this Act was made 10 Co. 55 56. the Chancellor of Oxfords Case and Jones 20. Standens Case c. and such retrospects are usual in Acts of Parliament And yet after the grant of the next Avoydance the Patron or Grantor becomes a Popish Recusant by Covin convict and to the intent to make void such his Grant this shall not deseat the Interest of the Grantor but he may present when the Church becomes void notwithstanding such Conviction Jones 20. But then the Covin must be averred by the Grantee and found by the Jury to be to that particular intent as infra 250. N. 4. Page 228 CCXLVII. 229. Be utterly disabled to present to any Benefice c. 3 Jac. 5. § 18. N. 1. A man hath the right of Nomination to a benefice which is presentative and another hath the Right of Presentation if he who hath the right of Nomination become a Popish Recusant convict I conceive he is disabled by this Act to nominate For altho only the word Present be here used as to a Benefice or Ecclesiastical Living presentative yet this shall extend as wel to Nomination for the intent of the Act 3 Jac. 5. § 18. N. 1. is to prevent a Recusant from appointing who shall be incumbent and the Case of Nomination is in equal mischief with that of the Presentant and if the Recusant should not be disabled to nominate as wel as to present the intent of the Act 3 Jac. 5. § 18. N. 1. would be eluded for he that hath the right of Nomination is in effect the Patron and he that presents at the Nomination of another is but as a Messenger between him and the Ordinary 14 H. 4.11 And if he who is to present presents any other than the person nominated to him or doth not present the person nominated he who nominats may bring a second Impediment against him And he who hath the Nomination must jointly with him who hath the presentation confirm the Lease of the Incumbent Moor 49 Pl. 147. F. N. B. 33. It is true the general Rule is that penal Statutes shall not be taken by Equity from whence may be inferred that 3 Jac. 5. § 18. N. 1. only disabling a Recusant to present to a Benefice presentative shall not be extended to disable him to Nominate altho it be within the same Mischief But that Rule hath some Exceptions and where the intent of the makers of the Law plainly appears by other words in the same Statute a penal Statute shall be expounded largely and according to that Intent beyond the Letter as in case of Symony on 3 Eliz. 6. § N. Hob. 75. Now in the subsequent Clause 3 Jac. 5. § 19. N. 1. touching the University the Nomination as well as Presentation is given to them and consequently the Recusant was intended to be disabled in the one Case as well as in the other Besides the words Disabled to present 3 Jac. 5. § 18. N. 1. may be aptly enough expounded disabled to nominate for the Presentment is truly and really in him who hath the right of Nomination as is held in 14 H. 4.11 Page 229. CCXLVIII Chancellor and Scholars of the Vniversity 3 Jac. 5. § 19. N. 1. altho the University be incorporate by the name of Chancellor Masters and Scholars yet the description here made of them by the name of Chancellor and Scholars is wel enough and sufficiently denotes the persons intended and the University shall have the presentation c. As if the true name of 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 10 Co. 57. Page 229 CCXLIX 230. Shall have the Presentation c. 3 Iac. 5. § 19. N. 1. It hath been a Question what is given to the University by these words whether only a bare power or liberty to present or a settled Estate and Interest in the patronage or advowson Iones 22.25 where
the Avoidance contrary to the express Letter of this Act. But to pass by the Questions whether by the recusants being disabled to grant any Avoidance generally he is disabled to grant an Avoidance to the King or whether the forfeiture of the two Third parts by the recusant can be properly called a Gift or Grant from the Recusant and not rather from the Law which creats the Forfeiture It 's enough here to distinguish between Voluntary Acts and Acts of Compulsion for 3 Jac. 5. § 18. N. 1. was intended only to restrain his Voluntary acts but when he forfeits the avoidance to the King altho the offence viz his recusancy be voluntary yet the conviction and forfeiture thereupon are involuntary and the recusant is therein potius patiens quam agens Jones 21. A Popish recusant convict seized in Fee of an Advowson in gross is attainted of felony or Praemunire and the Church becomes void in this case Jones 20.26 Hutt held that the Interest which accrued to the University upon the conviction for recusancy by 3 Jac 5. § 19. N. 1. should not be divested by the attainder Jones contra And that if a man seised of such an Advowson acknowledge a Statute Merchant and afterwards becomes a Popish Recusant convict and then the Statute is extended the Interest of the University by 3 Jac. 5. § 19. N. 1. shall not be divested by the extent Jones 20.26 If the King seize two parts of a Mannor belonging to a Popish Recusant convict for non-payment of the Forfeiture of XX. lb. per Month by 3 Jac 4. § 11. N. 4. to which Mannor an Advowson is appended the two parts of the advowson shall follow the two parts of the Mannor and the King shall present and not the University notwithstanding 3 Jac. 5. § 19. N. 1. For after such Seisure the King is Patron of the advowson and not the Recusant and in this Case the King shall present alone Hob. 126. Walgrond's Case Moor 872. pl. 1214. Page 233. CCLI As shall then have any other Benefice with cure of Souls 3 Jac. 5. § 21. N. and not as is already beneficed as Wingate Coron 140. mistakes for a sine cura is a benefice and yet the University may present or nominate him who hath a sine cura A Donative of the King 's may be cum cura animorum and so is the Church of the Tower of London 1 Co. 330. Mackaller's Case and the University by 3 Jac. 5. § 21. N. 1. cannot present or nominate him that hath such a Donative Notwithstanding 3 Inst 155. if seems that a Deanary Archdeaconry Prebend c. are not Benefices with cure of Souls nor had they been comprehended under that name in 21. H. 8.13 § 9. N. altho the special Proviso 21. H. 8.13 § 31. N. 1. had been omitted for that Proviso is ex abundanti and there is no such to except them out of 13 Eliz. 12. § 3. N. 1. of reading the Articles And yet if a Dean Archdeacon or Prebendary read not the Articles within the time limited by 13 Eliz. 12. § 3. N. 1. his promotion is not void by that Statute and the reason is because 't is not a Benefice with cure of souls The opinion of Justice Trial at Lincoln in Lent Assizes 1668. who in the case of Doctor Sanderson densed the Archdeacon for that he had not read the Articles within the time so limited and affirmed an Archdeaconry to be a Benefice with care within 13 Eliz. 12. § 3. N. 1. being contrary to the Law and to the recieved meaning of that Statute And as for a Prebend the reason given for the opinion in 3 Co. 79. Bland and Madox case is expressly against 3 Inst 155. for it was there agreed that a Lay-man may be presented to a Prebend quia non habet curam animarum And for the same reason a Dean ' Archdeacon Prebendary c. may be in this case presenced or nominated by the University by 3 Jac. 5. § 21. N. 1. for their promotion is not a Benefice with cure of souls Quaere For if the Corps be a Church with cure as it may he must read Articles but if the Church be only appended the Promotion regularly is no cure of souls which I infer from Dyer 273. pl. 38. Goodman's Case and 18 Ed. 3.36 pl. 20. and 1 Co. 330. Mackaller's Case and 9 Ed. 3.22 pl. 14. Page 234 235. CCLV. Convicted at the time of the death of any Testator or at the time of the Granting of Administrator 3 Jac. 5. § 22. N. 2. These words are to be constructed reddendo singula singulis viz that the Recusant shall be disabled to be Executor if he be convicted at the time of the death of the Testator or to be administrator for so these words at the time of the granting of any administration are here to be understood And therefore if a man makes his will and therein appoints a recusant convict to be his Executor and before the Testators death the conviction is removed by reversal of the judgment or avoided or discharged for some defect in the Indictment Proclamation or other Proceedings and then the Testator dyeth in such case the Recusant is not by this Act 3 Jac. 5. § 22. N. 2. disabled to be Executor For altho the naming of an Executor is in Law a granting administration and if a man by his last Will grants the administration of his Goods and Chattels to J. S. without more saying thereby J. S. is made Executor Dyer 290. So that the Naming of an Executor and the Granting of administration within the meaning of 3 Jac. 5. § 22. N. 2. Administration here relating only to an administrator and not to an Executor besides the naming of an Executor amounts not to a compleat Grant of administration untill the Testators death for then and not before the Will becomes in force and if the party stands not then convicted he is not disabled Much less shall he be disabled to be Executor who is not convicted at the time of the death of the Testator altho he be convicted at the time of the Probat of the Will for if these words Granting of Administration 3 Jac. 5. § 22. N. 1. should relate to an Executor as wel as to an Administrator which in truth they do not yet the power given to the Executor by the Ordinary or Ecclesiastical Judge upon the Probat of the Will cannot be called a Granting but only a committing of Administration according to the Will of the Deceased and in such case all that the ordinary or Ecclesiastical Judge can grant are Letters testifying what the Testator hath already given to the Executor and a power or authority to execute the Will Page 235. CCLIII as Guardian in Chivalry 3 Jac. 5. § 22. N. altho the recusant seised in Chivalry and convicted could not have been Guardian yet if he had granted the seigniory to one who was no recusant
and the authority hereby given them to go and seck the party 12 Co. 130. But the Constable cannot by vertue of such Warrant break the House where the party is for he is no Offender before he refuse the Oath or commit some contempt to the King Page 246. If any Person or Persons of or above the said Age and Degree CCLXI 7 Jac. 6. § 26 N. 3. that is of the said Age and above the said Degree of a Baron or Baroness for so the words must be taken viz conjunctively and not of such who are of the Degree of a Baron or Baroness and no more For the precedent words 7 Jac. 6. § 26. N. 1. appointed that the Oath may be tendered to such by any Privy Counsellour or the Bishop of the Diocess in all Cases altho they were never Convicted Indicted or Presented but to such Noblemen or Noblewomen as are above that Degree it cannot be tendered by vertue of this Act 7 Jac. 6. § 26. N. 3. unless they have been before convicted indicted or presented for not coming to Church or not receiving the Sacrament and in those Cases no less than three Privy Counsellours Quorum nuus c. can tender it 12 Co. 130 131. CCLXII Dignity Page 247. If any Person or Persons whatsoever c. under the said Degree 7 Iac. 6. § 26. N. 4. A Baroness or any Woman above that degree who is not of noble birth but only by Marriage becomes a Widow and takes a second Husband under the Degree of Nobility and is convicted indicted or presented of Recusancy or complained of by the Minister c. to a Justice of Peace who finds cause of Superstition the Justice of Peace may require her to take this Oath altho she were once Noble for by her second Marriage she hath lost her Nobility and Name of Dignity together with the Priviledges of her Nobility Quando mulier nobilis nupserit ignobili desinit esse nobilis which is to be understood of Nobility acquired by Marriage supra 212. For that which was gotten by Marriage may also be lost by Marriage Eodem modo quo quid constituitur dissolvitur and in such Case she shall not be tryed by Noblemen for they are no longer her Peers 2 Inst 50. But if a Woman be Noble by Birth or descent whomsoever she marries yet she remaineth Noble for Birthright is Character indelebilis 4 Co. 118. Actons Case and 6 Co. 53. Countess Rutland 6 and 7 Ed. 6. Dyer 79. Rosin Br. 31.69 and 1 Inst 69. And 't is observable that 21 H. 8.13 § 33. N. 1. provides that a Dutchess Marquess Countess or Baroness Widows which take a second Husband under the degree of a Baron may notwithstanding such second Marriage take such number of Chaplains as if she were a Widow which she could not have done if it had not been expressly provided for by the Statute and the reason given 4 Co. 118. is because by such Marriage her Dignity is determined but hkre 7 Iac. 6. § 26. N. 4. there being no such provisional Clause she shall not have the priviledge of Nobility but may be tendred the Oath of Allegiance by the Justice of Peace as in the Case of a common person Page 247. Shall stand and he presented indictid or convicted CCLXIII 7 Iac. 6. § 26. N. 4. These words being in the Disjunctive it is not necessary that the party be convicted but if he stand presented or indicted for not coming to Church or not receiving the Sacrament and be under the degree of a Baron the Justice of peace ought to tender him this Oath CCLXIV Intendment Page 247 248. And the said Iustice shall find cause of Suspicion 7 Iac. 6. § 26. N. 4. and not if the party be suspected as Wingate Coron 159. mistakes for the bare suspicion of the Justice of peace or any other Person is no sufficient ground to require the Oath or committ the party for the refusal but there must be some good cause for that Suspicion and the same must be alledged in Justice of peace his Plea or justification if he be Sued for committing him so Prison for such refusal So if a Man be arrested on Suspicion of Felony and brings his Action for false Imprisonment the Defendant ought to shew some Matter in fact to induce his Suspicion for in these and the like Cases a bare Suspicion is no justification sufficient it being a Matter secret and not traversable but the Cause of Suspicion is traversable 3 Bulstr 28.4 Weale versus Wells 7 Ed. 4.20 and 17. Ed. 45. and 5 H. 7.4 And whether the Suspicion be just and lawfull shall be tryed and determined by the Justices 2 Inst 52.11 Ed. 4.4 CCLXV. Justices Page 248. That then any one Iustice of Peace 7 Iac. 6. § 26. n. 4. What was said by Coke Chief Justice in Griffiths Case 2 Bulstr 155. that any one Justice of Peace may minister this Oath is to be understood of some Cases only 12 Co. 130. which are no others than those here mentioned as he explains his meaning 12 Co. 132. that one Justice of Peace cannot committ any for Refusal of his Oath unless they be prosecuted indicted or convicted and according to 7 Iac. 6. § 26. n. 4. supra 184. Page 248 CCLXVI. 249 250. Within whose Commission or Power such Person or Persons shall at any time hereafter be 7 Iac. 6. § 26. N. 4 A person complained of and against whom Cause of Suspicion is found by the Justice of Peace flyeth into another County Quaere whether a Justice of Peace of that other County can require the Oath of him and committ him upon Refusal for he seems to be impowered thereunto by express words of the Statute for that the Party is fallen within his Commission or Power c. But yet I conceive that 7 Iac. 6. § 26. n. 4. By these words Any one Iustice of peace within whose Commission or Power c. is designed or intended no other Justice than a Justice of that County where the Party was complained of and suspected and that if he fly into another County no proceedings can be there upon the Complaint and Suspicion in the County whence he came nor any one Justice tender him the Oath or committ him for Refusal without a new Complaint and Cause of Suspicion in the County whither he flyeth For where the Party cannot be Indicted of a Praemunire for Refusing the Oath upon the second Tender at the Assizes or Sessions by 7 Iac. 6. § 26. n. 6. There the Justice or Justices of Peace out of Sessions cannot tender the Oath or commit for Refusal for the Commitment is in order to a second Tender and an Indictment of Praemunire thereupon but in this Case the Party can not be Indicted of a Praemunire in the County where he flyeth for refusing it upon the second Tender for the Offence for which the Party must be indicted is a
complicated Offence consisting of several Particulars 1. In giving just cause of Suspicion without which the Party complain'd of according to this Act 7 Iac. 6. § 26. n. 4 cannot be tendered the Oath by one Justice of Peace Then 2. In refusing the Oath before the Justice of Peace who tendered it And lastly 3. In refusing it upon the second Tender at the Assizes or Sessions all which must be comprized in the Indictment So that the cause of Suspicion is pars communis and that arising in the County where the Party dwelt and was complained of cannot be punished in another County unless the Statute 7 Iac. 6. § 26. n. 4. had expressly made it examinable there supra 184. True it is that some Statutes do enable Justices of Peace to punish an Offence done in another County but that is where they enable them likewise to examin the truth of the Fact and take Process and Evidence thereof So 1 Iac. 27. § 5. n. 2. and 7 Iac. 11. § 8. n. 3. and supra 255. impower the Justices of Peace where the Party is apprehended to examin and punish the Offence but in our Case the cause of Suspicion arising in one County is not made examinable and consequently not punishable in another County and if not punishable there no Justice of Peace of that other County can proceed upon that cause of Suspicion notwithstanding the Party happen to be within his Commission or Power But yet the Party so flying into another County may without any Complaint or cause of Suspicion be tendered the Oath and proceeded against there by two Justices of Peace Quorum unus c. by vertue of the fore-going words of this Clause 7 Iac. 6. § 26. n. 2. Altho he dwell in another County and that for the reason before given viz because this Oath sequitur personam non locum But Wingate Coron 150. saves the labour of this Question for he erroneously restrains the pawer of tendring the Oath in this Case to the Justice of Peace to whom the Complaint is made as if no other Justice of peace of that County could proceed therein which is contrary to the express words as well as the meaning of 7 Iac. § 26. n. 4. Note That Dalton 107. Cap. 45. saith it seems requisite that the Justice or Justices of Peace do make like Certificat as 3 Iac. 4. § 13. n. 5. at the next Assizes or Quarter-Sessions of such Persons as have taken this Oath before them by force of 7 Iac. 6. § 26. n. 4. But upon what ground Master Dalton thought this requisite to be certified at the Assizes I know not seing there is no such Certificate to be made by 3 Iac. 4. § 13. n. 5 but only to the General or Quarter-Sessions of the Peace And as for the Sessions I conceive neither the Justices of Peace if they proceed on 7 Iac. 6. § 26 n. 4. and not upon 3 Iac. 4. § 13. n. 5. are bound to make such Certificate nor the Clerk of the Peace or Town-Clerk to record it for it is not here required to be done But yet in such Cases where the same persons are impowered by both these Statutes to require and minister this oath as where the Party is convicted of Recusancy in which Case two Justices of the Peace Quorum unus c. may require the Oath by the Special words in this Clause of 7 Iac. 6. § 26. n. 2. or of the General words in this Clause of 7 Iac. 6. § 26. n. 2. And it doth not appear upon which of these Statutes they proceed as it may sometimes so happen there if the Party take it will be fafest for the two Justices to make such Certificate to the next General or Quarter-Sessions as is appointed 3 Iac. 4. § 13. n. 5. and for the Clerk of the Peace or Town-Clerk to record it Page 250. CCLXVII If any Person or Persons this Clause 7 Iac. 6. § 26. n. 5. is General and extends to all before So that if any of the Nobility refuse this Oath they may be committed to the Common Gaol c. by such as are by this Act Authorized to tender it 12 Co. 131. Page 251. CCLXVIII Shall refuse to take the said Oath duly tendered to him or her 7 Iac. 6. § 26. n. 5. If the Persons authorized to tender this Oath ask the Party whether he will take it and he saith he will not quaere whether this be such a Tender and Refusal as shall make the refuser liable to be imprisoned proceeded against by force of this Act unless he or they who tender it have in readiness both the Form of the Oath and the Book to swear on for it is to be presumed that the Act intends all requisite Circumstances ready to enable the one to minister and the other to take the Oath And 't is held that before there can be any such Refusal of this Oath as is here intended it ought to be read or offered to be read to the Party especially if he be illiterate or if he be not yet that at least it ought to be offered to him for himself to read it for perhaps the Party never saw or heard it And in such Case it would be against Reason that the Refusal should be penal and therefore in 9 Iac. upon the Tender of this Oath at Sarjeants-Inne in Fleet-Street it was read by Order of the Judges there Page 251. CCLXIX To the Common Gaol 7 Iac. 9. § 26. n. 5. The Justices of the Court of B. R. used to tender this Oath in Court as Justices of Peace of Middlesex and upon Refusal the Party is to be committed to the Prison of the Marshalsey which is the Ordinary Prison of that Court untill the next Sessions 2 Bulstr 155. Dyer 297. Page 252 253 254. CCLXX. Being lawfully Convicted as a Popish Recusant 7 Iac. 6. § 28 n. 1. That is upon Indictment at the King's Suit or a Popular Action or Information upon 23 Eliz. 1. § 5. and 11. or Debate at the King's Suit alone by 35 Eliz. 1. § 10. n. 2. supra 119 In which two last Cases the former Laws are somewhat altered by this Statute For by the former Laws 23 Eliz. 1. and 35. Eliz. 1. If a Person had been convicted of Recusancy any other way than by Indictment no more could have been demanded either by the King or Informer than for the Months mentioned in the Information or Count and the Penalty should not have run on in such Case for that 29 Eliz. 6. § N and 3 Jac. 4 § N. which appropriate the Penalty to the King after Conviction intend no other Conviction than by Indictment as hath been there said But by this Act 7 Jac. 6. § 28. N. 1. If a Popular Action or Information or Action of Debt c. at the King's Suit alone be brought against the Husband and Wife for the Recusancy of the Wife and Judgment be had