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 Early English books online. (EEBO-TCP ; phase 2, no. A47102) Transcribed from: (Early English Books Online ; image set 52478) Images scanned from microfilm: (Early English books, 1641-1700 ; 568:16) An explanation of the laws against recusants, &c. abridged by Joseph Keble ... Keble, Joseph, 1632-1710. [4], 266, [2] p. Printed for Samuel Keble ..., London : 1681. Reproduction of original in Bodleian Library. eng Dissenters, Religious -- England. Church and state -- England. eebo An explanation of the lavvs against recusants, &c. Abridged. By Joseph Keble, of Grayes--Inne Esq; Keble, Joseph, 1681 274 79902 20 0 0 0 0 0 2.5 B The rate of 2.5 defects per 10,000 words puts this text in the B category of texts with fewer than 10 defects per 10,000 words. 2009-07 Assigned for keying and markup 2009-08 Keyed and coded from ProQuest page images 2009-10 Sampled and proofread 2009-10 Text and markup reviewed and edited 2010-04 Batch review (QC) and XML conversion

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 repealed 26 H. 8.1 .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 ) and not half a year after his imprisonment .

3. It seems now to be out of doubt , but that any Offender against 1 Eliz. 1. altho by preaching , teaching , or words , may be indicted at any time within a year and a day after the offence committed , and that by 23 Eliz. 1. § 8. N. 1. which saith , that all offences against 1 Eliz. 1. and 5 Eliz. 1. and 13 Eliz. 2. touching acknowledgment of her Majesties Supream Government in Causes Ecclesiastical shall and may be inquirable within a year and a day after the offence commmitted , and the affirming or maintaining the Spiritual or Ecclesiastical Jurisdiction of a Foreigner was without question an offence against her Majesties Supream Government in Causes Ecclesiastical , & against the acknowledgment thereof , so that the year limited by 23 Eliz. 1. § 8. N. 1. is now extended to a day further : and what ever the meaning of it was as to the half year all offences against it , whether by preaching , teaching , or words , or otherwise ( for 23 Eliz. 1. § 8. N. 1. is general , and reaches all offences whatsoever against 1 Eli. 1. touching the Supremacy Ecclesiastical , may now be inquired of within a year and a day , whether the party be in prison or not , but yet it seemeth , that in Case of Imprisonment within the first half year this provision 1 Eliz. 1. § 31. N 2. for the setting at liberty of the Prisoner at the end thereof , if he be not before that time indicted , remains still in force , and is not abrogated by 23 Eliz. 1. § 8. N. 1.

IX . Dignity . Page 16. The Provision made in 1 Eliz. 1. § 34. N. 1. and other Acts of Parliament for the Tryal of a Peer by his Peers in case of Treason , where he was to be tryed by the Course of the Common Law is ex abundanti , and he should have such tryal if no such provision were inserted , the like in the case of Felony , Stamf. Coron. 159.

X. Treason . Lambert 2. cap. 7. pag. 227. Justices of Peace cannot deal with Traytors in the point of Treason , but as Breakers of the peace , saying that in some Cases they have a special power to inquire and receive Indictments only , and of this sort are , 1. Treason of extolling Foreign power by 1 Eliz. 1. § 27. N. 1.

2. The Treason of absolving or withdrawing his Majesties Subjects from their natural obedience , by 23 Eliz. 1. § 2. N. 1. &c.

And 3. The Treason of putting in are any Instrument of Reconciliation gotten from the See of Rome , by 13 Eliz. 2. § 2. N. 1.

Lambert 56. There hath been care taken XI . once or twice in our memory to exact this Oath of Supremacy , Oath . 1 Eliz. 1. § 19. N. 4. of all the Justices of the Peace throughout the Realm , whereof some good hath ensued ; but yet many a Justice there is , that by indirect practice , never took either this or the Oath of Offices , whereof what harms do or may grow , I leave to wiser and higher Men to be considered , adding this only , that it would avail greatly to the furtherance of the service , if the Dedimus Potestatem to give these Oaths were dirigible to the Justices and none other to minister the same , not elsewhere , but in their open Sessions .

Crompt . 10. b. Every Justice of Peace before he takes upon him to exercise or occupy the Office of a Justice of Peace shall take the Oath of Supremacy , XII . Justices . 1 Eliz. 1. § 19. N. 4.

Crompt . 11. Nota , XIII . That the Justices of Peace ought to take this Oath of Supremacy in the open Court of Sessions , where he serves , by 12 Eliz. 1. § 15. N. 1. and I have seen it done at the Assizes in the County of Stafford , and its the best way to be so done , for where on 5 Eliz. 1. § 7. N. 1. a Commission is made to take their Oaths , when they are made Justices of Peace , it may be hath taken his Oath , when he hath not done so in fact , if he that be to be sworn be such a one , as is not well affected to the Religion now established .

Crompt . 12. Charge in Sessions . XIV . First to inquire if any within this year and day hath depraved , Religion . despised , or contemned the Sacrament of the Body and Blood of our Saviour Jesus Christ in contempt thereof by any Contemptuous words , or by any words of depraving , despising , or advisedly hath in any other manner contemned , despised , or reviled the said Sacrament contrary to the Edicts and Declarations heretofore , &c. 1 Ed. 6.1 . § N. 1 Eliz. 2. § N. and 23 Eliz. 1. § N.

1 Eliz. 2. Of RELIGION .

XV. Incumbent . PAge 21. Altho the first part of this Clause of 1 Eliz. 2. § 3. N. 1. Viz. all and singular Ministers in any Cathedral , or other place ) seems to intend a local Minister only , and not one , who is neither Parson , Vicar , or Stipendary Chaplain , yet the next words ( 1 Eliz. 2. § 4. N. 1. If any Parson , Dicar , or other Minister , that ought to say Common Prayer , or minister the Sacraments , &c. ) thereby comprehend all lawful Ministers and Priests whatsoever , for 't is held in our Law , that as he is Sacerdas he ought and is bound Jure divino celebrare Coenam Dominicam & dictae Coenae actiones , &c. and if he be indicted upon this Statute with the addition of Clericus , that word implies him to be a Priest or Minister within the meaning thereof , Dyer 203. pl.

2. Note , That by the Statute 13 and 14 Car. 2.4 . § 2. N. 2. this 1 Eliz. 2. and all other Laws which were then in force for the Uniformity of Prayer , and administration of the Sacraments within the Realm of England , are now applicable to the Book of Common Prayer , authorized by 14 Car. 2.4 . and are to be put in ure with relation to the said Book .

XVI . Religion . Page 21 , 22. These words 1 Eliz. 2. § 4. N. 2. ( wilfully or obstinately standing in the same ) seem to restrain the Law to such other prayers as are used in hinderance of , or opposition to the Common-prayer , or after admonition or warning to the contrary , and therefore the Prayers used in the Pulpit before Sermon seem not to be within the meaning of this Law , nor to be forbidden by it , because generally tollerated by those in authority , and so not obstinately used : and were those words wanting , altho the words of the Statute 1 Eliz. 2. § 4. N. 2. are general , any other Form or open Prayers , yet they ought to have a particular Construction , according to reason , and the intent of the Makers of the Law ( Viz. That no Minister shall use any other form to the hindrance of , or in opposition to this ; for a penal Law shall not alwayes be construed according to the words , but according to the intent , Com. 18.465 , 466 , 467.109 , 110. and the words of a Law may be infringed , and yet the Law it self may not , which intent shall never 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. and the Indictment was certified in B. R. and it was held by the greater part of the Justices , that the Indictment was insufficient , for want of those words , 5 Eliz. 1. § 2. N. 3. upon purpose , and to the intent to set forth and extol the Authority , &c. & contra formam Statuti will not supply that defect , Trin. 20. Eliz. Dyer 363 pl.

2. Note in the report of Dyer 363. pl. the Statute 1 Eliz. is mistaken for this 5 Eliz. 1. there being no mention of the intent in 1 Eliz. 1.

The Intent is a thing hidden , and lieth in the heart , and therefore there must be some overt act or speech , which declares the intent , for the intent it self is not traversable , but that by which it is made manifest , as was adjudged in 5 Cook 77. Booths Case .

XXXIV . Indictment . Page 36 , 37. All Offences , 5 Eliz. 1. § 3. N , 1. contrary to the true meaning of the premisses , that is the Offences , 5 Eliz. 1. § 2. N. 1. in holding or standing with , to extoll &c. the Jurisdiction of the See or Bishop of Rome , or attributing such jurisdiction , &c. or procuring , counselling , &c. which is here for the first offence made a Praemunire , for these are the only premisses in the Act.

2. And 5 Eliz. 1 § 3. N. 1 , Extends not to the Oath of Supremacy , or any offence in refusing of it , much less to all Offences against this act , as it is mistaken in the late Additions to Dalt . Cap. 140. Tit. High Treason , Sect. 11.

3. Nor doth it seem to be the intent of 5 Eliz. 1. § 3. N. 1. to give the Justices of Peace any power to enquire of any offence made High Treason thereby ; for the power here given to the Justices of Peace is only to inquire of Offences contrary to the true meaning of the premisses , and the premisses extend only to those Offences made a Praemunire , and this clearly appears by the subsequent words , viz. 5 Eliz. 1. § 3. N. 2. that the Presentment thereof shall be certified in B. R. who shall hear and determine every such Offence , as if the Offender had been presented upon any matter in the Statute of 16 Rich. 2. § Now that cannot be intended of high Treason , Dalt . 54. Cap. 20.

4. The like may be said of Justices of Assize , for as they are meerly Justices of Assize , they cannot by force of this Act , 5 Eliz. 1. § 3. N. 1. inquire of either the first or second Offence , in refusing the Oath of Supremacy , nor of the second Offence in extolling the Bishop of Romes authority ; only for the first Offence in Extolling , &c. they may inquire and take Indictments thereof , and certifie them in B. R.

5. But then by their Commission of Oyer and Terminer , they may not only inquire of the first or second Offence in extolling the Bishop of Romes authority or refusing the Oath of Supremacy , but may hear and determine them , and accordingly , Savil 46 , 47. pl. 99. Slade and Bode were indicted , arraigned , and tryed in the County of Southampton of a Praemunire for the first Offence in extolling the Bishop of Romes authority , upon which they were attainted , and afterwards of Treason for the second Offence , before Sir Roger Manwood and Justice Periam , Justices of Assize , by vertue of their Commission of Oyer and Terminer , for the Certificate here mentioned , 5 Eliz. 1. § 3. N. 2. which is to be sent in B. R. is required only of the Justices of Assize and the Justices of the Peace ; but Justices of Oyer and Terminer upon Indictments taken before them , may proceed to hear and determine as Manwood and Periam did in that Case , as well for the first as second Offence .

6. For which first Offence in extolling the Bishop of Romes authority , it seems the Justices of Assize , who have a Commission of Oyer and Terminer have their Election either as Justices of Assize to enquire only , and then they must certifie the presentment , or Indictment into B. R. or to inquire hear and determine , as they are Justices of Oyer and Terminer , and then they are not bound to certifie : for Commissioners of Oyer and Terminer are not within the meaning of this branch of 5 Eliz. 1. § 3. N 2. as was held , Savil 46 , 47. pl. 69.

7. By what hath been said it appears that the question put in Savil 47. pl. 99. by Ayloffe , viz. how they could proceed upon such an Indictment , not certified in B. R. within forty dayes , was grounded upon a double mistake . 1. That Justices of Oyer and Terminer were bound to certifie in B. R. all Indictments for extolling the authority of the Bishop of Rome , taken before them . 2. That Indictments for the second Offence were within the meaning of 1 Eliz. 1. § 3. N. 2. for the speaks thereof the second Indictment , which was for High Treason .

Page 37. By Presentment here 5 Eliz. 1. § 3. N. 2. is to be understood , not only that which is properly so called , which the Jurors find and present to the Court , XXXV . Indictment . without any former Indictment delivered to them : 〈◊〉 also an Indictment , which is drawn and engrossed in form of Law , and delivered to the Jurors to be inquired of , which Indictment , the Justice here named have power to take , by force of the word Inquire , 5 Eliz. 1. § 4. N. 1. and is included within the word Presentment , 5 Eliz. 1. § 3. N. 2. being a species of it , for every Indictment found by the Jurors is a Presentment , and the Record saith Juratores , &c. presentant &c. when they find an Indictment , but every Presentment is not an Indictment , 2 Inst. 239. and as well the one as the other , touching the Offences aforesaid , must be certified in B. R. infra 72.

Page 27 , 38. XXXVI . Dayes . If the term be then open in 5 Eliz. 1 § 3. N. 2. is the Essoyn day which is the first day of the Term , properly so called , and on that day the Term is open ( At the first day of ful Term 5 Eliz. 1. § 3. N. 2. ) that is quarto die post , which is the usual day of Appearance , and the first day of every Term in common reputation , for the Essoyn day is the first day of the Term , only to some perticular intents , and 't is not full Term till quarto die post , Savil 124. pl. 193. Matthew ver. Harcourt . So that if forty dayes expire on the day before the Essoyn day , the Presentment need not be certified until quarto die post , which is the day of Appearance , but if they expire on the Essoyn day or afterwards and before the quarto die post , the Justices here named , 5 Eliz. 1. § 3. N. 1. must not stay till the quarto die post , but are bound to certifie by the last day of the Forty days under the penalty here limited 5 Eliz. 1. § 3. N. 3. for the Term was then open .

XXXVII . Oath . Page 39. All Persons who are preserred to any 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 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 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 th●●● two Cases , but the other Justices may .

LXXIV . ●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 that the Indictment was good enough notwithstanding it is not said of what Parish the Recusant was : for the whole penalty of twenty pound per month is at first 23 Eliz. 1. § 5. N. 1. given to the Queen : and the Inhabitants of the Parish where the offence was , are by 23 Eliz. 1. § 11. N. 1. to sue in the Exchequer for their third part , and surmile in their Bill that the offence was in their Parish , and if it were so , it shall be delivered to them as the Act directs .

LXXVIII . Exchequer . Page 71. Upon 23 Eliz. 1. § 11. N. 1. the principal Officers of the Court of Exchequer are the Treasurer and Barons , but the principal Officers of the receit of the Exchequer are the Treasurer and Chamberlains , Savile 38. pl. 87.

LXXXIX . Information . Page 71. &c. 82. on 23 Eliz. 1. § 11. N. 1. upon a penal Statute where part of the forfeiture is given to the King , and part to him that will sue ; the Informer or Plantiff qui tam , &c. sequitur tam pro Domino Rege , quam pro seipso , and so it must be said in the Information or declaration , and not only there , but in the Joyning of Issue and the Venire facias , it must be entred , qui tam pro Domino Rege , &c. or the omission of it is Error 1 Cro. 336. pl. Mich. 9. Car. 1.

2. In an Information upon 23 Eliz. 1. § 11. N. 1. the usual way is that the Informer for himself petit inde tertiam partem , juxta formam Statut' . 11 Co. 56. Dr. Fosters Case , but then the Statute must be named , for in an Information 2 Cro. 142. Mich. 4. Jac. by Broughton , Qui tam , &c. against Mo●re , for the forbearing to come to Church Contra formam Statuti , without naming which Statute , in which Case the Informer demanded the third part for himself , it was adjudged by the Court of B. R. to be ill , for there are several Statutes against Recusancy , and it did not appear which of them was meant .

3. But if this Statute of 23 Eliz. 1. § 11. N. 1. be named in Certain , and the party who sueth demands the whole forfeiture for the King and himself , and Judgment be given that the King shall recover one moity , and the Informer or Plantiff Qui tam , &c. the other moity , in that Case the Judgment is well enough : for the Information or declaration being , Quod actio accrevit Domino Regi & praefat. A. ad habend' & exigend ' the full forfeiture , the Judgment doth not vary there from , when it saith , that a moiety shall be to the King , and a moiety to the Plantiff or Informer : and altho the Statute 23 Eliz. 1. § 11. N. saith that he which will sue shall have but a third part , yet th●t is by way of distribution only , and such distribution if the penalty is an act subsequent to the Judgment and is to be made as well out of the moity given by the Judgment to the Informer or Plantiff , Qui tam , &c. as out of the mony thereby given to the King , and this I conceive to be the reason of the resolution in Chambers , Case 2 Roll. 437. pl. where such a Judgment in Case of Recusancy upon this Statute was allowed to be good .

But if the whole forfeiture be not demanded in certain , there , altho the party who sues demands his own share , 't is ill ; and so it was adjudged in an Information upon a poenal Statute , 5 Eliz. 5. § 16. N. 1. which concluded , Vnde petit advisamentum Curiae , & quod forisfaciat 5 l. pro qualibet offensunde ipse petit medietatem . For the Informer doth not make his demand certain , but leaves it to the Court or Jury to cast up the sum it Amounts to : Hobart 245. Pie and Westly .

4. If there be several Statutes , Information . and each of them prohibit one and the same thing , and Inflict a penalty and give an Information for recovery of it ; the Information may conclude contra formam Statuti , and good ; because the best shall be taken for the King . 5 H. 7.17 . So if one Statute make the offence , and another Inflicts the penalty or forfeiture , and the Information be for the offence only , it may conclude contra formam Statuti , which is to be understood of that Statute which makes the offence . But if the Information both lay down the offence , and demand the penalty , there both Statutes must be recited , or at least the Information must conclude contra formam Statutorum : Owen 135. Wests Case , supra 72. § 6.

5. In the late additions to Dalt . 547. cap. 191. § 6. N. 3. it s said that Informations and sai●s on penal , Statutes are stricti juris , and excepted out of all the Statutes of Jeofailes ; which is a mistake , for they are not excepted out of 32 H. 8.30 . It s true they are out of 18 Eliz. 14. § N. and 21 Jac. 13. § N. and that as it seemeth in all Cases within those two Statutes : see Styles 307. Theoballs against Newton .

And in the Case of Scot and Lawes , Hob. 328. It seems to be intimated that they are excluded out of all three : Where the Case was debt by an Informer , Qui tam , &c. upon a penal Statute 21 H. 8.13 . § 2. N. 4. the defendent pleads non debet praefato J. ( meaning the Informer , and not the King ) and the Issue was found against the defendent ; in that Case it was resolved that this was a good Cause to stay Judgment , and there it s said that it being upon a penal Statute , the Statute of Jeofailes 32 H. 8.30 . would not help it , but that reason was Ex abundanti , for 32 H. 8 , 30. seems to extend to all popular suits whatsover ; and in Wallers Case Dyer 346.347 . in an Information brought against him 18 Eliz. by Topcliffe , Qui tam , &c. upon 37 H. 8.9 . of Usury , it was adjudged that the mis-conveying of Process , and mis-joyning of Issue in the said Information , Dayes . were aided by 32 H. 8.30 .

6. By 31 Eliz. 5. § 5. N. 2. an Informer , Qui tam , &c. must begin his suit within one year after the offence committed , otherwise he shall not have any part of the penalty 2 Co. 366. Hill. 12 Jac. Godbolt 158. pl. 216. Sivedale versus Sir Edward Lenthal : But popular suits upon the Statute 39 Eliz. 2. § N. of Tillage are excepted , and not upon the Statute of Tallage , as is mistaken in the the late additions to Dalt . 546. cap. 191. § 3.

In Dr. Fosters Case , 11 Co. 65. it s said , that the Informer hath no Remedy for recovery of the forfeitures for Recusancy after the year and day is expired , for that time is limited in certain by 23 Eliz. 1. § 8. N. 1. but yet with submission it seems that 23 Eliz. 1. § 8. N. 1. relates to Indictments only , and so it was held in this very Case of Dr. Foster , 11 Co. 60. and 1 Rol. 93. 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 against an Alien , upon 23 Eliz. 1. § 11. N. 1. If he inhabits within the Realm , and if Judgment be had against him he may have a Writ of Error to relieve himself 1 Inst. 1●9 .

12. Information . When once the Informer qui tam , &c. hath commenced his suit he hath of a popular Action made it his own principal Action . 11 Co. 65. Dr. Fosters Case , Vaughan 343. Thomas and Sorrel .

And in this Case it is not necessary that the defendent be served with Process to answer it , for if the Informer put his Information into Court , t is enough to appropriate to him his share of the penalty , Godbolt 158. pl. 216.

But yet a Note ought first to be made of the day month and year when it was exhibited , for before by 18 Eliz. 5. § 1. N. 5. it is not to be taken to be of Record , nor shall operate any thing either in appropriating the penalty , or barring any other Informer , but when that is done no other Informer can sue for the same offence , and t is a good plea in barr , for the defendent to say that there is another Information depending against him for the same offence for as soon as the first Information is delivered in and entred upon record , according to 18 Eliz. 5. § 1. N. 5. it shall be said to be depending , altho it be not alledged that any Writ or process is such out against the defendent thereupon 3 Cro. 261. Mich. 33. and 34 Eliz. the Queen versus Harris , Styles 417. Hob. 209. Parry versus Paris , Palmer 40. Webbs Case , Termes de la Leyverb . Action popular .

The defendent in an Information pleads that heretofore another Information was hibited against him such a day in another Court for the same offence , but mistakes and names in his plea a wrong day , and not that wherein the first Information is exhibited . The Plantiff replyeth , nul tiel Record ; yet if it appears that in truth the Information pleaded in barr , was exhibited before the other , which is the substance of the matter , this misprision shall not vitiate the defendent Hob. 209. Parry and Paris ; note this Case is cited in the late additions to Dolt . cap. 191. Sect 6. N. to prove that one person cannot exhibit two Informations in the same or in several Courts , but that was not the question there , nor I think ever made a question , but that the same person may exhibit too several Informations so they be not both for one and the same offence .

3 Cro. 261. The Queen against Harris , Mich. 33. and 34. Eliz. An Information was in B. R. upon 5 and 6. Ed. 67. § N. for buying of Wools , the defendent pleads that there is another Information depending against him in C. B. at the suit of L. and avers that they are both for the same offence : but in truth that in C. B. supposed the offence to be done at one time , and that in B. R. at another time , yet this is a good plea in Bar of the latter Information , being with an Averment that they are both for the same offence ; for otherwise by the Informers false supposal of the day , the defendent shall be put to double trouble .

And the same advantage no Question any man may take against whom two Informations are exhibited upon 23 Eliz. 1. § 4. N. 2. for hearing of Mass , for perchance he never heard Mass above once in his life time , and there is no reason he should be put to double trouble for one offence .

13. But otherwise it seems to be in the Case of Recusancy , for if an Information be on 23 Eliz. 1. § 5. N. 1. for not coming to Church for a month , there if the defendent proves that he was at Church any time within that month it shall be sufficient to avoid the penalty of the 20 l.

And as the defendents giving Evidence that he was at Church within the compass of any other month , then that which is laid in the Information , shall not excuse him ; so the Informers proof of his absence any other month , shall not hurt him , but the Evidence must go to the very same month which the Information mentions : And the reason is , for that this offence is punishable according to the time of its duration or continuance , and the offendor is to forfeit for every month of his absence , so that if another Information be exhibited against him for not coming to Church during another month , it cannot be supposed to be for the same absence with that in the first Information , but for the like absence at another time , and therefore cannot be pleaded in bar thereof .

14. If two Informers , on one and the same day , exhibit Informations against the same person for the same offence , they are both void and may be pleaded the one in Bar of the other , for that there is no priority to attach the Right of Action in one of the Informers more than in the other . Hob. 128. Pie versus Coke .

15. Altho Sunday be not dies Juridicus , so as to award a Judicial process , or enter a Judgment of record on that day , yet an Information may be exhibited in Court on that day , and Good . Jones 156.157 , Bedoe and Alpe .

16. In C. B. an Information may by the course of the Court be brought in and delivered to one of the Judges there out of term , and shall be dated then : For 18 Eliz. 5. § N. forbids all antedates 2 Rol. 33. Smith versus Carter .

17. An Information is brought by an Informer , Qui tam , &c. upon 23 Eliz. 1. § 5. N. 1. for Recusancy ; and pending the Information , the Recusant is convicted at the Kings suit upon an Indictment for the same absence ; the question is , what remedy the Recusant hath in this Case that he may not Bis puniri pro uno delicto ? And to this it was answered by Coke Chief Justice , B. R. in Dr. Fosters Case , that he may plead this Conviction , puis le darreine continuance , to discharge himself of the Information , 1 Rol. 9 5. pl. 41. But , as the Reporter well observes there , the Informer when he hath begun his popular Action hath appropriated the Action to himself : And if it shall be admitted that the King can devest him of this Action when he pleaseth , by Indictment at his own suit , this would prove very mischievous to Informers . Quaere therefore , how in this Case the Recusant shall defend himself from being doubly punisht for one and the same offence .

But if the Recusant be once convicted at the Kings suit either by Indictment upon 23 Eliz. 1. § 5. N. 1. or according to 29 Eliz. 6. § 2. N. 5. or 3 Jac. 4. § N. upon Proclamation , the Informer , Qui tam , &c. Cannot afterwards charge him , but is barred for ever after : For the intention of 23 Eliz. 1. § 11. N. 1. is , that the Informer may exhibit Informations against such only as are concealed , or not charged at the Kings suit : So that the Informer is neque falcator , neque messor , but spicelegus , a Gleaner . And that in such Cases only where the King doth not prosecute pardon or release before the Informers Action is commenced . 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 King die , all proceedings in Suits depending between party and party shall stand : But 2 Cro. 14. is to be understood of such Cases where after a Plea or demurrer by the defendent , the Attorny General alone replies , or joynes in demurrer , there the proceedings shall be void and the defendent shall plead de novo . But the Information it self shall stand to avoid a manifest inconvenience , for that the Informer is limited to a certain time wherein to exhibit his Information , and so these two opinions are reconciled .

20. An Informer , Release . qui tam , &c. may be Nonsuited altho the King cannot , 1 Inst. 139. Hutton 82. Farrington versus Arundell .

If pending the popular action , or Information the Plantiff or Informer , qui tam , &c. be Nonsuited , or release , or Enter a nolie prosequi , or die , none of these shall bar the King , but the Attorny Genaral may proceed upon the Information for the Kings part , 1 Leonard 119. pl. 191. 3 Cro. 138. Stretton versus Taylor , 3 Cro. 583. Hamond 3 Inst. 194. Moor 541. pl. 715. and 11 Co. 66. Dr. Fosters Case , 2 Bulstrode 261.262 . Waller versus Hanger , 2 Rol. 33. Smith versus Carter : And therefore the opinions in 37 H. 6.5 . and 38 H. 6.2 . that if the Plantiff in a Decies tantum which is a popular Action , be Nonsuit , the King is without remedy but by Indictment : or if such Plantiff will relinquish his Suit that the King hath nothing further to do , seem not to be Law at this day .

21. If a popular Information be brought upon a penal Statue in a wrong Court where the Informer cannot sue , Courts . yet it was held , Moor 564 , &c. pl. 770. in Agar and Candishes Case that the King should not for that loose his advantage of the suit , but the Information should be good for his part of the penalty .

By 18 Eliz. 5. § 3. N. 3. If an Informer or Plantiff , Costs . upon a penal Statute where any forfeiture is generally limited to him that will sue , shall delay or discontinue his suit , or be Nonsuit , or shall have the Tryal or matter pass against him , by Verdict or Judgment of Law , he shall pay to the defendent his Cost Charges and Damages : see the addition to Bendloes 141. Rhobotham and Vincent ; and if it be upon a special Verdict or demurrer , those Cases are within 18 Eliz. 5. § 3. N. 3. and he shall pay Costs , by force thereof Hutton 36. Pies Case .

But an Informer is not compellable to find Sureties to answer Costs , howbeit the Court if they see Cause may order him to appear in person before the defendent answer the Information 2 Bulst. 18 Martin and Gunnystons Case .

Savil 10. pl. 26. Wilkes Case , it was held in the Exchequer Chamber that if a writ of Error be brought upon a Judgment given for the King at the Suit of an Informer , a Scire facias ought to be awarded against the Informer .

LXXX . Courts . Page 82 , 83 , 84. By any Court of Record , is here 23 Eliz. 1. § 11. N. 1. meant the four ordinary Courts of Record , at Westminster : For they are the general Courts of Record , and the Courts where the Kings Attorny may acknowledge or deny , and the words of 23 Eliz 1. § 11. N. 1. being general are left to the construction of law , where the Rule is that verba equivoca & in dubio posita intelliguntur in digniori & potentiori sensie . And in this sense shall these words ( Court of Record ) be construed in all penal Statutes where the penalty is to be recovered in a popular suit , so that the Informer , qui tam , &c. cannot sue before Justices of Assize Goal-delivery or Oyer and Terminer , or Justices of Peace as in Borrough or corporate Towns , or in a Court of Pipowders , Stannary Courts , &c. Jones 193.

And such a construction hath been made of those words ( Court of Record ) upon several Statutes as 6 Co. 19.20 . and Moor 600. pl. 827. Gregories Case on 4 and 5 Ph. & Mar. 5. § N. of Woolen Cloathes .

In 1 Cro. 149. Green versus Guy , on 21 11.8.13 . § 11. N. 2. of Non-resid nee .

In 1 Cro. 112.113 . and Hutton 99 Farrington and Keymer , on 23 H. 8.4 . § 5. N. 3. of Brewers .

In Stiles 340. Buck stone and Shurlock on 7 Ed. 6.5 . § 6. N. 3. of selling wine without Licence .

In 3 Cro. 737. Barnabee versus Goodale . and 2 Cro. 538. Millors Case and Styles , 383. upon 5 Eliz. 4. § 13. N. 3. of Trades .

In Moor 421. pl. 581 upon the Statutes for Tanning of Leather and divers others .

2. It was held Mich. 6 and 7 Ed. 6. Dyer 236. pl. by all the Justices but three , that where a Statute appoints a penalty for any offence made thereby , which was not an offence at the common law to be Recovered in any of the Queens Courts of record by Action of debt and no other Court is appointed : The Statute intends the sour ordinary Courts of Record at Westminster , and the offence and penalty cannot be punished and determined by Commissioners of Oyer and Terminer in Patriam .

But Dyer makes a Quaere hereupon ; and Sir Edward Coke in Scarlets Case , 12 Co. 98. saith 10 Jac. that the opinion of Catlin , Sanders , and Whiddon , ( which were the three dissenting Justices before , &c. ) is at this day held for good law , and the opinion of the rest of the Justices that ( any Courts of Record ) are restrained to the ordinary Courts at Westminster of Record , is not held for law . Continual Experience ( saith he ) being against it , for that Justices of Assize in respect of their Commission of Oyer and Terminer , have alwaies enquired of offences where the penalties is appointed to be sued ( in any Court of Record ) as upon 33 H. 8.9 . § 18. N. 1. of unlawful Games 35 H. 8.17 . § 9. N. 2. of words and 5 and 6 Ed. 6.14 . § 9. N. 2. of forfeitures and other Statutes .

But under favor , altho Commissioners of Oyer and Terminer may take Indictments for the doing of that which is made malum prohibitum by a Statute Law , yet that part of the opinion in Dyer 236 which relates to the Action of debt and the Courts of Record where such Action must be brought , is good law , and where only ( Courts of Record ) are named , such Action cannot be brought in any other Court then the four ordinary Courts of record at Westminster , as appears by the several Cases and resolutions before recited .

3. Sir Edward Coke 3 Inst. 193. and 4 Inst. 174. saith that this exception of Recusancy , in 21 Jac. 4. § 5. N. 1. doth not extend to the Courts 21 Jac. 4. § 1. N. 5. wherein the Informer is to sue but only to the County where 21 Jac. 4. § 2. N. 1. the offence is to be laid .

So that notwithstanding that exception 21 Jac. 4. § 5. N. 1. the Kings Bench Chancery , C. B. Exchequer , or Exchequer Chamber , cannot relieve or hold plea of any Information for Recusancy , either by the Kings Attorny or 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 can be taken to be of such Laws only as are in force in Ireland .

And in this Case the Offender may be tryed here in England , altho his offence was committed in Ireland , and that by force of 35. H 8 2. § 1. N. 2. notwithstanding the Statute of 1. and 2. Ph. and Mar. 10. § N. For it was resolved 1. Anderson 263. pl. 269. in Ororkes Case by all the Judges of England 33. Eliz. that Treason committed in Ireland may be tried in England ; and the like resolution was in Sr. John Perrots Case : 34. Eliz. 7 Co. 23. Calvins Case 1. Inst. 261.3 . Inst. 11. Dyer 298. Dr. Stories Case 13. Eliz.

And if a Subject of England who is a Peer of Ireland be sent to any such Colledg , or Seminary and offend ; as 27. Eliz. 2. § 5. N. 1. aforesaid , he may be tryed in England by a common Jury , notwithstanding the offence was in Ireland where he is a Peer , contrary to 19 and 20 Eliz. Dyer 360. Where it is said that Wray , Dyer ▪ and Gerard Attorny general were of opinion that a Peer in Ireland cannot be tryed in England for Treason done in Ireland ; because he cannot have his trial by his Peers : But this is not Law ; and Sr. Christopher Wray protested he never gave any such opinion , but held the contrary . 1. Inst. 261.

LXXXIX● Accessary Page 93. Upon 27 Eliz. 2. § 6. N. 1. [ Convey , Deliver . &c. ] So that he that is barely a Messenger , or Instrument to convey , or deliver such mony , or other releif , is within the Danger of this Law , as well as the Lender or Giver .

Page 93.94 . This Clause 27 Eliz. 2. § 6. N. 4. Extends not to every person brought up in such Colledge or Seminary ; XC . as Wingate Crown , 54. mistakes : For if such person afterwards quits his Colledg or Seminary , and hath no longer any relation thereunto , but abides elsewhere beyond the Seas ; he who gives or conveys releif , or maintenance to him , is not within this branch of the Statute ; because the person releived , or maintained is not then of or in any Colledg or Seminary , and yet perhaps this may be an offence within 3 Car. 1.2 . § 1. N. 2.

Page 97. Upon 27 Eliz 2. § 10 N. 1. The taking of the Oath by such Jesuit , Priest or other Ecclesiastical person , and his Acknowlidgment of his due obedience , doth not exempt him from the danger of this Law , as Wingate Crown . 57. mistakes : But he must continue his due obedience to the Laws made in Cases of Religion : and this seems to be clearly the meaning of the Makers of this Law . 27 Eliz. 2. § 10. N. 1. So that if afterwards he shew his disobedience to any of these Laws , by forbearing to come to Church &c. he may be Indicted as a Traytor , for coming into the Realm , as if he had never made any such submission and acknowledgment .

Page 95. Her Highness Laws . 27 Eliz. 2. § 10. N. 1. That is the Laws of her and her Successors ; XCII . Prerogatives . and not only those which were made in her own time , But such likewise as should be made afterwards : For in Acts of Parliament King or Queen , if a Soveraign , Includes Successors ; unless there be express words of restraint to that individual person . Com. 176. Hill and Grange 6 Co. 27. the Souldiers Case 12 Co. 109.1 . Inst. 9. and 2. Inst. 742. and 3. Inst. 6.4 . Inst. 352.

And so it is of the Kings Grants , if in his politick Capacity ; for there his Successor shall be charged tho the Grant mention neither Heir or Successor ; as it was adjudged in the Case of an Annuity granted to Sir Thomas Wroth during his Life . Com. 457.

Page 97. Being Subject of this Realm 27 Eliz. 2. § 13. N. 1. XCIII . And not any person as Wingate Crown 59. mistakes .

Page 97. At the Queens pleasure 27. Eliz. 2. § 13. N. 1. In this Case the Offender must be proceeded against according to the course of Law : XCIIII . Prerogatives . For he cannot be Fined or Imprisoned at the Kings pleasure by force of this Statute , before he be Indicted , Convicted , and Judgment given against him : and so were the Proceedings against Sir Thomas Figet ( Tit. Contempts Br. 6. do not say he was first Arraigned &c. ) for going Armed contrary to 2 Ed. 3 , § N. for 24. Ed. 3.33 . saith that he was Arraigned .

And if in this Case on 27 Eliz. § 13. N. 1. the Offender be committed to Prison , in order to his Trial and Conviction ; yet before Judgment , or at least before Conviction he may be let to mainprize , and the Fine shall be Imposed by the Justices before whom he is Convicted : Justiciarii per corum Descretionem Assessent finem et non Dominus Rex per se in Camera sua , neo aliter Coram se nisi , per Justiciarios suos et haeo est voluntas Regis ( viz. ) per Justiciarios suos et legem suam unum est dicere 2 R. 3.11 . see 4. Inst. 71.179 .

29 Eliz. 6. Of PROCLAMATIONS .

XCV . Courts . PAge 100 , 101 : Sir Edward Coke in Dr. Foster's Case 11 Coke 61. saith that by this Clause 29 Eliz. 6. § 2. N. 2. ( as hath been well observed ) 23 Eliz. 1. § 11. N. 1. is altered in a material point , viz. that whereas by 23 Eliz. 1. § 11. N. 1. The Informer might sue the Recusant ; for the penalty in any Court of Record , he is now by 29 Eliz. 6. § 2. N. 2. restrained from suing in the C. B. or Exchequer : But this is utterly denyed to be Law , as the constant practice and experience ever since 29 Eliz. 6 , § 2. N. 2 , sufficiently testifies : and Hob. Ch. J. 204. in Pie and Lovel's Case saith , that that Observation was made as he takes it by Sir Edward Coke himself ; But however Serjant Rol. in Dr. Fosters Case 1 Rol. 93. pl. 41. brings him in speaking in another Language , and more consonant to Law , viz. That the Conviction here mentioned 29 Eliz. 6. § 2. N. 2. is intended of Convictions upon Indictments only ; and that no other sort of Convictions or Proceedings upon 23 Eliz. 1. are mentioned or intended throughout this whole Act 29 Eliz. 6.

And if so , then the Informer is not concerned in this Act , 29 Eliz. 6. § 2. N. 2. nor restrained thereby , as to the Courts wherein he is to sue but that he may sue still in C. B. or Exchequer , and so was it resolved in point in Hob. 204.205 . Pie and Lovels Case , where the opinion of Sir Edward Coke 1 Rol. 93. is confirmed and allowed for Law , and 11 Co. 61. exploded , 29 Eliz. 6. § 2. N. 2. being made only for the benefit of the Queen in her suits by Indictment , Infra , 118 165.

2. And the true reason is there : Juices . given Hob. 204.205 . why those negative words and not elsewhere , were added 29 Eliz. 6. § 2. N. 2. viz. not to exclude the Informer out of the C. B. or Exchequer , but to restrain Justices of Peace from proceeding to Convict any person upon Indictments for Recusancy or for saying hearing or being at Mass , which they were enabled to do by 23 Eliz. 1. § 8. N. 1. but again disabled by these negative words in this Act 29 Eliz. 6. § 2. N. 2. and the hearing and determining of those offences commited only to the Justices of B. R. Assizes and general Goal-delivery .

But for Informations by a common Informer , they were never intended here 29 Eliz. 6. § 2. N. 2. and the Justices of Assize and Goal delivery cannot hold plea of such Information , as was resolved by the Judges Mich. 4. Car. 1. Jones 193.

And yet 29 Eliz. 6. § 2. N. 2. did not wholly abrogate the power of the Justices of Peace , or of any other Justices to whom Authority was given by 23 Eliz. 1. § 8. N. 1. surra 72. in relation to the offences of Recusancy or of saying or hearing Mass , but that they might after 29 Eliz. 6. § 2. N. 2. take Indictments notwithstanding the negative words here , for this Statute restraines them only from proceeding to Conviction , but not from taking Indictments , as was held in Sir Edward Plowdens Case , cited 11 Co. 63. in Dr. Fosters Case , and now by 3 Jac. 4. § 7. N. 1. the power of Justices of Peace to hear and determine the offences of not coming to Church is again restored to them . Infra 103.165 .

XCXX . Proces . Page 102 , 103 , 104. This Statute 29 Eliz. 6. § 3. N. 1. medles not with any other way of Conviction than at the Queens suit by Indictment , as hath been said , and so is the Conviction here mentioned to be understood , for this Statute is not Introductory , of a new Law , nor gave the Queen any new or other remedy than what she had against the Recusant by 23 Eliz. 1. § 5. N. 1. that is by Indictment , but only gave her a more speedy way of proceeding upon that sundamental remedy . 11 Co. 60. and 1 Rol. 93. Dr. Fosters Case .

So that a Conviction upon an Information against the Recusant upon 23 Eliz. 1. § 11. N. 1. or any other way , save by Indictment , doth not appropriate the penalty of twenty pound per month to the King for the time to come by force of 29 Eliz. 6. § 3. N. 1. Inrfa 165. supra 72. Hob. 205. Pie and Lovel , nor for the same person by force of 3 Jac. 4. § 8. N. 1. where the same words are used , and a Conviction by Indictment only intended as here .

2. In Hob. 205. It s said that if a man at the making of 29 Eliz. 6. § 3. N. 1. had been Convicted of Recusancy by any other means then by Indictment , he had not been bound by 29 Eliz. 6. § 3. N. 1. to pay the twenty shillings ( it should be twenty pound ) a month from the Conviction , and if a man be now Convicted in B. R. by Indictment or otherwise he cannot be proclaimed nor otherwise his penalty run on , which last words , Inferr that the Conviction here intended is only a Conviction , according to 29 Eliz. 6. § 5 N. 6. by Proclamation upon default .

3. But if we compare together 29 Eliz. 6. § 2. N. 2. which speaks of a Conviction after the making of this Statute , and 29 Eliz. 6. § 2. N. 1. which speaks of a Conviction before this Statute , the Contrary will evidently appear : for 29 Eliz. 6. § 2. N 1. must necessarily be intended of Convictions according to 23 Eliz. 1. § 5 , N. 1. without any Proclamation , for the Proclamation in the Case of Recusancy was not given until 29 Eliz. 6. § 5. N. 5.

And if a man had been Convicted of Recusancy upon Indictment in B. R. or elsewhere before 29 Eliz. 6. § 5. N. 5. the forfeitures of twenty pound per month , should by force of 29 Eliz. 6. § 3. N. 1. have run on from the time of the Conviction , that is clear by the express words of the former clause , 29 Eliz. 6. § 2 N. 1.

Then comes 29 Eliz. 6. § 3. N. 1. which provides what shall be done upon Convictions for the future , and appoints in that case , likewise the forfeiture of twenty pound per month to run on from the time of Conviction .

Both which Convictions as well before as after this Statute are granted to be meant only of Convictions upon Indictment , and there is no difference between the penning of these two Clauses , 29 Eliz. 6. § 2. N. 1.2 . but that one respects the time past , and the other the time to come ; but both appoint the penalty to run on . Now there is no reason to suppose that the makers of the Law intended the word ( Convicted ) in a more restrained sense in this Clause 29 Eliz. 6. § 3. N. 1. then in the former Clause 29 Eliz 6. § 2. N. 1. where the penalty should have run on upon any Conviction whatsoever upon Indictment , or that the Conviction in 29 Eliz. 6. § 2. N. 1. by Indictment upon 23 Eliz. 1. § 5. N. 1. without Proclamation should be wholly shut out of the latter Clause , 29 Eliz. 6. § 2. N. 2.

By Conviction therefore in these Clauses , 29 Eliz. 6. § 2. N. 1.2 . seems to be meant such Convictions upon Indictment as were warranted by the Statutes in force at the several and respective times here mentioned , that is to say , in 29 Eliz. 6. § 2. N. 1. a Conviction upon 23 Eliz. 1. § 5. N. 1. without a Proclamation .

And in 29 Eliz. 6. § 2. N. 2. a Conviction either with or without a Proclamation .

In either of which Cases the penalty of twenty pound per month shall run on by force of this Act 29 Eliz. 6. § 3. N. 1. and consequently it shall run on , if the Recusant be Indicted , Convicted , and adjudged in B. R. altho he cannot be Proclaimed there .

And accordingly it was agreed 1 Rol. 93. in Dr. Fosters Case , that where the Recusant is Convicted upon Indictment , the penalty should ever after run on , and be appropriated to the King and t is not restrained there to a Conviction upon Proclamation only .

4. But yet altho this Clause 29 Eliz. 6. § 3. N. 1. Extends as well to a Conviction upon 23 Eliz. 1. § 5. N. 1. as to a Conviction by Proclamation ; yet every Conviction upon 23 Eliz 1. § 5. N. 1. is not here Intended ; for if a man Indicted for Recusancy , do upon his Arraignment confess the Indictment to be true , and plead guilty : Or upon trial a Verdict pass against him ; these are Convictions in Law , but yet by these Convictions he forfeits nothing untill Judgment , nor shall the penalty of twenty pound per month run on , or be appropriated to the King until Judgment be given by ( Conviction ) Therefore is here 29 Eliz. 6. § 3. N. 1. to be understood Convicted by Proclamation or default ; or Convicted by Verdict , Confession &c and adjudged , for so the word is here to be taken ; viz. For Adjudged , or Attainted ; unless it be in case of Conviction upon Proclamation ; and in such a 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 against the Recusant Tenant in Tail in his life time , the heir is bound in that Case .

5. If a Judgment was had against the Recusant before 1 Jac. 4. § 5. N. 1. and he had died before seizure of the two parts of his Lands : the Question was whither after his death they might have been seized by force of 29 Eliz. 6. § 6. N. 1. for the Arrears of the penalty Incurred in his life time : for that the Seizure here given is meerly in nature of a nomine paenae , or penalty inflicted for his contempt in not paying the 20 l. per month and should not have gone in satisfaction of the debt , but the Queen should have held the Land till the 20 l. per month were otherwise paid and satisfied ; and when this penalty of seizure was not executed in the Recusants life time , by his death the contempt was gone and consequently the penalty inflicted for that contempt could not then be put in Execution . Lane 92 , 93. Beekets Case Lane 107. Halseys Case .

But now by 1 Jac. 4. § 5 N. 1. the seizure is not as a meer penalty for the contempt of non payment , but for the satisfaction of the King of the Arrears of 20 l. per month , and the profits of the Land shall go towards the payment and satisfaction thereof , so that now there is no question , but the two parts of the Recusants Lands may be seized after his death , unless the hair discharge himself by his Conformity .

4. Note in all these Cases of seizure , where the Land is to be discharged upon the death of the Recusant , altho an Affidavit be made of his death , and a discharge obtained thereupon , yet 't is a rule in the Court of Exchequer , that a Commission shall be Awarded , first to Enquire Savile 130. pl. 201.

CVII . Page 111. This branch 29 Eliz. 6. § 7. N. 2. seems not to extend to all forfeitures for Recusancy , for the power here given to the Lord Treasurer , &c. is only in relation to those forfeitures which are by 29 Eliz. 6. § 3. N. 1.2 . appointed to be paid into the receipt of the Exchequer , which are the forfeitures due to the Queen by Conviction upon Indictment , for this Act medles with no other ; so that if the 20 l. per month be recovered in a popular suit by the Informer qui tam , &c. one third part thereof ought still to be paid to the poor of the Parish only , according to 29 Eliz. 1. § 11. N. 1. notwithstanding this act 29 Eliz. 6. § 7. N. 2.

35 Eliz. 1. Of SECTARIES .

Page 114. Wingate Crown 70. saith , that if any person above sixteen years of Age obstinately refuseth to come to Church for a month , CVIII . Religion . or impugnes the Queens Authority in Causes Ecclesiastical , he shall be committed to Prison , 35 Eliz. 1. § 1. N. 2. which is a great mistake , for no man shall be punished by this Act for either of those Causes , only the not coming to Church being only a precedent qualification required in the person whom the Act makes liable to the penalties thereof for the other offences therein mentioned Crompton 53.

2. And therefore if a man never comes to Church , yet he is no offender within 35 Eliz. 1. § 1. N. 2. unless he advisedly or purposely move or perswade another to deny or Impugne the Kings Authority in Causes Ecclesiastical , or to that end or purpose advisedly and malitiously move or perswade some other to forbear to come to Church or receive the Communion or to be present at Conventicles , &c. or if he himself be present at such Conventicles , &c.

3. And on the other hand if a man move or perswade any other to deny or Impugne the Kings Authority in Causes Ecclesiastical , or to forbear to come to Church or receive the Communion , or to be present at Convinticles , &c. Or if he himself be present at any Conventicles , &c. yet he is no offendor within 35 Eliz. 1. § 1. N. 2. if he goeth to Church once within the compass of a month .

4. So that the party must both forbear to come to Church , and be guilty of some other offences here enumerated , or he is not punishable by 35 Eliz. 1. § 1. N. 2. and as for the denying or Impugning the Kings Authority in Causes Ecclesiastical , it s no offence within this Statute , unless the party moves or perswades others so to do : and not then neither , unless he hath been absent from Church by the space of a month .

Page 114 , 115. Under colour or pretence of any exercise of Religion . 35 Eliz. 1. § 1. N. 3. Altho this Act is commonly called the Act against Sectaries , CIX . as distinguished from those of the Romish profession , yet in truth it extends to all Recusants whatsoever , as well Popish as other , except 35 Eliz. 1. § 2. N. 1. in the point of abjuration , for Popish service is performed under Color or pretence of Exercise of Religion ; and the assembly or meeting of Popish Recusants under such Color or pretence is an assembly or meeting contrary to the Laws and Statutes : and they as well as others may be Indicted upon this Statute if they forbear to come to Church for the space of a month , and be present at any part of the Popish service , or move or perswade , ut supra : And may be Imprisoned without Baile until they conform and make submission , as by 35 Eliz. 1. § 4. N. 1. is appointed , but they cannot be required to abjure unless they offend against 35 Eliz. 2. § 8. N. 2.

2. A Popish Recusant is likewise subject to an Action of debt , &c. given to the Queen by this Statute 35 Eliz. 1. § 10. N. 2.

CX . Process . Page 115. Being thereof lawfully convicted 35. Eliz. 1. § 1. N. 5. that is convicted both of his absence from Church and of that other offence which makes him punishable by this Act ( viz. ) going to Conventicles or moving or perswading &c. for his absence from Church for a month must be laid down precisely in the Indictment , for without that the other is no offence within this Act.

2. And t is not necessary that the party be Convicted of such absence upon any prior Indictment , for altho there was never any former Conviction of him for Recusancy , yet if he offend against this Act 35 Eliz. 1. § 1. N. 5. in any of the other particulars he may be Convicted both of that offence and of his absence upon one and the same Indictment , and so was the Indictment Mich. 16. Car. 1. in the Case of Lee and others , 1 Cro. 593. pl. who were Indicted upon this Statute , at the Sessions of the Peace in Essex , for absenting themselves for a month from Church , and resorting to Conventicles , to which they pleaded not guilty , and the Indictment was removed in B. R. to be tryed there .

CIX . Oath . Page 116. Being thereunto required by the Bishop , &c. or any Justice of Peace , 35 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 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 out all the aforesaid qualifications , 35 Eliz. 2. § 3. N. 1. required in him , who hath a certain place of abode .

2. And it clearly distinguishes between him who is convicted for not repairing to some Church , &c. which 35 Eliz. 2. § 3. N. 1. is required in those , whose abode is certain , and him , who doth not usually repair to some Church , which 35 Eliz. 2. § 4 N. 1. in those whose abode is uncertain , it is sufficient to bring them with 〈◊〉 the danger and penalty of this Law , if they repair not to the place appointed them by this Act , or remove above five miles from thence .

3. And 't is observable , that in this Clause 35 Eliz. 2. § 4. N. 1. which speaks of the Popish Recusant who hath no certain place of abode , there is no mention made of Forty days to be allowed him after his Conviction , to repair to the place appointed him , the reason' whereof is because it takes in the whole kind of such Popish Recusants , as well the not Convicted , as the Convicted , and makes no distinction between them , if they have no certain place of abode , Et ubi lex non distinguit , nee nos distinguere debemus .

4. Nor was it without great reason 35 Eliz. 2. § 4. N. 1. that ubiquitary Popish Recusants should be consined , whether they were Convicted or not Convicted ; as for the other who have a certain place of abode it is to be presumed that the most considerable of them would be prosecuted and convicted for their Recusancy in the respective places where they dwell , and de minimis non curat lex may in this Case be applyed to persons as well as in other cases to things , but as for him who is fixed to no certain place , as he is the more dangerous of the two , so the more unlikely to be persecuted to a Conviction , being here one day and gone the next ; and therefore the less taken notice of ; and had 35 Eliz. 2 § 4. N. 1. taken in only such as are convicted , it would have been eluded and rendred inessectual for want of a Conviction of the greater part of such ubiquitary Recusants .

5. The want of due consideration of 35 Eliz. 2. § 3. and 4. in each of these parts of it hath occasioned some mistakes , and Wingate Crown 78. restrains both parts 〈◊〉 it to Recusants convicted , and makes no mention that such as have no abode , must ●e in England at the time of their Conviction .

And in the late Additions to Dalton cap. 81. Sect. 14. t is not only said that both sorts must be Convicted , but that they must be in England at the time of their Conviction , which two things are only requisite in such who have a certain place of abode , and not in the other sort who have no abode who are within the meaning and danger of 35 Eliz. 2. § 4. N. 1. without any precedent Conviction for Recusancy .

CXXIX . Lieu. Page 134. A Popish Recusant repairs to the place appointed him by this act 35 Eliz. 2. § 3. and 4. and keeps within his compass of five miles , but doth not present himself or deliver in his name , as 35 Eliz. 2. § 6. N. 2. he doth not forfeit his goods or Lands , for there is no particular penalty inflicted in this part of the Act for that omission , nor yet in the subsequent branch 35 Eliz. 2. § 8. N. 2. for him that hath 20 marks per annum in freehold or goods and Chattels worth forty pound .

But yet such person may be Indicted for such neglect and fined upon the general words 35 Eliz. 2. § 6. N. 1. which commands Indictment . the thing to be done : for where an Act of Parliament Commands any thing to be done , and inflicts no penalty , an Indictment lyeth against the person who ought to do it , for his neglect or omission 2 Inst. 55.163 . 3 Cro. 655. Crouthers Case .

CXXX . Exile . Page 135 , 136. If any such person or persons being a Popish Recusant 35 Eliz. 2. § 8. N. 2. that is , any popish Recusant within the former branches of the Statute , and none but such . Dalton Cup. 45. tit . Recusants applieth 35 Eliz. 2. § 8. N. 2. to Popish Recusants Convicted , as if it concerned them , and them only , and so both at once extends and restrains the Stature contrary to its true meaning : For these words ( any such person or persons ) neither extend to all that are Convicted , nor are restrained to such only as are Convicted .

For the Popish Recusant who hath a certain place of abode within this Realm , altho he be convicted , is not within 35 Eliz. 2. § 3. and § 8. N. 2. unless he were a Popish Recusant and in England at the time of his Conviction .

And the Popish Recusant who hath no place of abode within this Realm , is within 35 Eliz. 2. § 4. and 8. altho he were never convicted .

So that either of these sorts of Popish Recusants who have an Estate under value viz. he who hath no place of abode , and he who having a certain place of abode was Convicted when a Popish Recusant and in England , and no other are lyable by 35 Eliz. 2. § 8. N. 4. to abjuration .

CXXXI . Estates . Page 136. Of the clear yearly value of twenty marks above all charges . 35 Eliz. 2. § 8. N. 2. A rent charge of forty pound per Annum is issuing out of lands worth C. l. per Annum : A Popish Recusant lyable to be confined by this Statute , purchaseth for his life or in Fee parcel of of the Lands , of the clear yearly value of 20 Marks over and above what his proportion of the said Rent-charge comes to , this is an Estate of the clear yearly value of 20 marks within the meaning of this Act , and shall free him from abjuration : For altho , in strictness of Law , his Estate be not clearly so much above all charges , for that it is chargeable without yearly Rent of 40 l. yet in equity he shall pay no more then his proportion of it , which the Land he purchased will discharge , and yet yeild 20 marks per Annum clearly besides .

Page 136 , 137 ▪ CXXXII . This Statute 35 Eliz. 2 § 8. N. 2. ( Or Goods and Chattels ) being in the disjunctive ( Lands or Goods ) an Estate partly of Lands and partly of goods , will not satisfie the intent thereof and therefore if a Popish Recusant , who offends aginst this Act , hath 15 marks per Annum yearly in Lands , and be worth 30 l. in goods , altho this taken together be in truth an estate of more value then is here required , yet it shall not free him from abjuration for 35 Eliz. 2. § 8. N. 2. doth not warrant any valuation of the goods and Lands together so as to supply the defect of the yearly value of the Lands by the Goods , or the defect of the value of the goods by the Lands , and therefore the Recusant must have such an Estate in the one or the other as will answer the Statute .

And this is not like the Case of Jurors upon 2 H. 5. § 2. cap. 3. § 1. N. 2. where t is said that the Juror shall have Lands , of the clear yearly value of 40 s. if the debt or damage declared amount to 40 marks , in which Case altho it be in the disjunctive debt or damage , yet it hath been adjudged that where the debt and damages doth amount to 40 marks it is sufficient , and the Juror must have 40 s. per Annum 1 Inst. 272. For in that Case the word ( or ) is cumulative , and ( debt or damage ) both amount to no more than one intire thing , viz. The value of the Cause or Action depending .

And it appears plainly to be the intent of the makers of the Law , 2 H. 5. Sect. 2. Cap. 3. § 1. N. 2. that no Cause declared to be of the value of 40 Marks , shall be tryed by Jurors of a less Estate ; But in our Case the Lands and Goods are things of different natures , one real and the other personal , and cannot be regularly reduced under one and the same head , and therefore shall not be valued together , unless 35 Eliz. 2. § 8. N. 2. had expresly appointed such a valuation .

2. But yet if a Popish Recusant hath a lease for years and personal Goods , and both do amount in value to above 40. l. he shall be out of the danger of abjuration , for altho the lease is in the realty , and the goods are personal , yet they shall in this Case be valued together : For that by this Copulative ( and ) 35 Eliz. 2. § 8. N. 2. expresly so appoints , without distinguishing between the values of either , but makes it sufficient if both of them be of that value .

3. Mony secured upon a Mortgage of Lands is within the meaning of these words ( Goods and Chattels ) : 35 Eliz. 2. § 8. N. 2. And if the Popish Recusant hath above 40. l. owing to him upon such Mortgage , he cannot be required to abjure .

CXXXIII . Days . Page 137. Within three months next after such person shall be apprehended or taken 35 Eliz. 2. § 8. N. 3. Wingate Crown 80. clearly mistakes the meaning , for he saith , that a Popish Recusant , whose Estate is under value , must make the submission prescribed by this Act within three months next after his arrival at his place of abode , which is a complicated Error ; for he quites leaves out him who is to repair to the place where he was born , or his Father or Mother dwells ; he makes the party lyable to such submission before he becomes an offendor by not repairing or not presenting himself , and giving in his true name or Travelling above five Miles : He speakes nothing of his being apprehended whereas by the Act he cannot be required to abjure until three months after his apprehension , and he turns the three months after his apprehension into three months after his arrival ; all great mistakes and fit to be taken notice of by Justices of Peace , whose part it is to require the submission and abjuration , that they may not be misled in the Execution of this part of their office by trusting to that abridgment .

Page 138. CXXXIV . Being thereunto required by the Bishop &c. 35 Eliz. 2. § 8. N. 3. If the offendor be not before the end of the three months next after his appreliension required by the Bishop , a Justice of Peace , or the Minister or Curate to make such submission , he cannot be required afterwards , nor be compelled to abjure by force of this Act , but if he be required within the three months to make submission , and refuse , he may be at any time afterwards warned or required to abjure .

CXXXV . Exile . Page 138 , 139. The Oath of abjuration 35 Eliz. 2. § 8. N. 4. may be in this form , or to this effect .

You shall Swear that you shall depart out of this Realm of England , and out of all other the Kings Majesties Dominions , and that you shall not return hither or come again into any of his Majesties Dominions but by the licence of our said Soveraign Lord the King or of his heirs : So help you God . 3 Inst. 217. Stamford 119.120 .

Wilkinson , 66. hath set down another form &c. resembling that of a Felon &c.

This hear you , Sir Coroner , that I J M. of H. in the County of S. am a Popish Recusant , and in the contempt of the Laws and Statutes of this Realm of England , I have and do refuse to come to hear Divine Service there read and exercised : I do therefore according to the intent and meaning of 35 Eliz. 2. § 8. N. 4. &c. abjure the Land and Realm of King Charles , now King of England , Scotland , France and Ireland ; and I shall hast me towards the Port of P. which you have given and assigned to me , and that I shall not go out of the high-way leading thither , nor return back again &c. If I do , I will that I be taken as a Felon of our laid Lord the King ; and that at P. I will diligently seek for passage , and I will stay there but one flood and Ebb , if I can have passage ; and unless I can have it in such space , I will go every day into the Sea up to my knees , assaying to pass over . So God me help and his holy Judgment .

But in alluding to the old Oath for Felony &c. Wilkinson is mistaken in the very Offence for which the Popish Recusant is to abjure by force of 35 Eliz. 2. § 8. N. 4. For the Offence is not his Refusal to hear Divine Service , for that is but one of the precedent qualifications of the person ; but the Offence it self is of another nature viz. his not repairing to the place the Statute appoints him , or his removal from thence contrary to the Statute , or his not presenting himself , and delivering his true name , as aforesaid : Either of these , if he be a Popish Recusant , within the meaning of this Act , is a Crime for which he ought to abjure , unless he prevents his abjuration by a timely Submission : Nor is the Popish Recusant bound to swear that he will not go out of the high way , or return back , or will tarry but one Flood and Ebb , or go into the Sea up to his knees : Nor ought the Coroner or Justices of Peace to require any such Oath of him ; for this is a new Offence made by a Statute Law , which doth not require the strict form of Abjuration , as in Case of Felony ; and altho the Felon were tied to these Circumstances , yet the Recusant is not nor shall be a Felon for omitting them , but 't is sufficient if he simply abjure , as 35 Eliz. 2. § 8. N. 4. directs , and go from the appointed Port within the time limited , and not return without Licence into any of the Kings Dominions .

He that thus abjures the Realm , doth yet owe the King his Ligeance , and remaineth within the Kings Protection . Qui abjurat Regnum , amittit regnum , sed non Regem ; amittit Patriam , sed 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 abj●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 there is a great difference between the penning of this Statute 35 Eliz. 2. § 15. N. 1. and 35 Eliz. 1. § 1. N. 5. for in 35 Eliz. 1. § 1. N. 5. there is an express designation of the place where such Submission and Declaration shall be , ( viz. ) in any Church , Chappel , or usual place of Common prayer , whither the Offender comes ; and this shall free him from his Imprisonment supra 112 , But 35 Eliz. 2. § 8. N. 3. Where 't is said that he shall abjure unless he comes usually to Church , and make such Confession and Submission &c. His coming usually to Church cannot be applied to his Confession and Submission ; for that is to be made but once , and not usually ; and therefore there being no place appointed where this Confession and Submission shall be made , we must necessarily have recourse to 35 Eliz. 2. § 15. N. 1. where a place is appointed viz. some Parish Church : So that the coming usually to Church without this formal Submission and Confession , or Declaration , in some Parish Church , frees not the Offender here in any Case from abjuration : Altho the coming to any Church Chappel or usual place of Common-prayer , and hearing Divine service , and making open Submission and Declaration there shall free an Offender within 35 Eliz. 1. § 1. N. 5. from Imprisonment .

Page 144 , 145. CXLVI . Submission 35 Eliz. 2. § 15. and 16. If a Popish Recusant Indicted upon this Statute makes his Submission , and brings with him into B. R. a testimonial thereof ; it is the Course of that Court to cause him there to make his Submission again upon his knees , which the Clerk of the Crown reads to him , and so was it done Pasch. 2. Car. 1. Latch . 16. in the Case of one Throgmorton ; but Jones Justice said there was no Statute to compel him to this second Submission , and Throgmorton complained that he was not therein dealt with according to Law .

2. 35 Eliz. 2. § 16. N. 2. Is Over her Majesty or within any her Majesties Realms or Dominions : And not over her Majesty within any her Dominions as Wingate Crown 85. grosly misrecites ; for that denies only Popes or See of Romes Authority over her Majesty ; but not any other ther Authority which they might claim over her Subjects : And 't is clear by the disjunctive ( or ) which Wingate omits , that both these Authorities are intended to be denied by this Submission , these words ( or any Colour or means of any Dispensation ) which are a very material part of the Submission , are likewise omitted by Wingate .

CXLVII . Certificate . Page 145. Such Relaps 35 Eliz. 2. § 18. N. 1. with the Indictment thereof , is to be certified into the Court of Exchequer , as was done by the Justices of B. R. 1 Bulstrode 133 in the Case of Francis Holt Pasch. 9 Jac.

1 Iac. 4. Of SEIZVRES .

CXLVIII . Oath . PAge 147. By the Oath of Obedience is here 1. Jac. 4. § 1. N. 2. meant the Oath of Supremacy in 1. Eliz. 1. § 19. N. 4. supra , and by that name it is here called afterwards 1 Jac. 4. § 3. N. 2. Crompt . 13.

Page 148. CXLIX . It hath been doubted on 1 Jac. 4. § 2. N. 1. whether these words ( Accodring to the true meaning of the Statutes in that behalf ) do refer only to the manner of the Recusants Conformity , or to the time likewise when it is to be done , as well as to the manner : For if they refer to the time , then the Recusant is still bound notwithstanding this Statute to Conform before Judgement according to 23 Eliz. 1. § 10. N. 1. or his Conformity afterwards shall not discharge him of the penalty .

But the better opinion is , that by these words ( according to the true meaning of the Statutes ) 1 Jac. 4. § 2. N. 1. is to be Intended only that the Recusant must Conform in such manner as . is there appointed .

But as to the time , the general words 1 Jac. 4. § 2. N 1. have enlarged the time limited by 23 Eliz. 1. § 10. N. 1. For this Statute 1 Jac. 4. § 2. N. 1. is made in further favour of the Recusant : So that now if he Conforms after Judgment , 't is time enough , and he shall be discharged of all penalties in respect of his Recusancy .

2. And if an Information tam pro Domino Rege quam pro seipso be brought upon 23 Eliz. 1. § 11. N. 1. against the Recusant ; and after Judgment had against him thereupon he Conforms , he shall be discharged of the Judgment ; but first his Conformity must appear of Record , otherwise the Court cannot take notice of it ; and as for that his Remedies against the King , and the Informer must be several ; for against the Informer he must bring his Audita Querela and against the King he must plead his Conformity , which he may do in this Case after Judgment , for that no Audita Querela lieth against the King 11 H. 7.10 . and it he should not be admitted to plead , he would be without any legal Remedy to discharge himself of the forfeiture and Judgement as to the Kings part , whose Execution will not be hindered by the Audita Querela against the Informer : But if the Defendant neglect to put in his Plea , and Execution issueth for the King , and he be taken in Execution , he comes too late to plead his Conformity , and hath then no other way left to releive himself as to the Kings part , but by his Petition to the King to pardon the Debt . 2 Bulstrode 324 1. Rol. 95. Dr. Fosters Case : Savil 23. pl. 56. Tiringhams Case .

CL. Heir . Page 149. If any Recusant shall hereafter die 1 Jac. 4. § 3. N. 1. that is a Recusant either Convicted upon Proclamation and default , or Convicted by Verdict , Confession , &c. and adjudged : for in both those Cases , if the Recusant die , the discharge of the Heir depends upon his Conformity .

CLI . Forfeiture . Page 149 , 150. Of all and singular the penalties , Charges and Incumbrances , 1 Jac. 4. § 3. N. 1. If Judgment be had at the Kings suit against a Recusant Tenant in Tail for Recusancy , this is a charge and Incumbrance within this Stature , of which the Heir in Tail shall not be discharged , unless he conforms , but must satisfie all the Arrears incurred in the life time of his Ancestor : For it being a debt to the King upon a Judgment , the entailed Lands are lyable thereto by 33 H. 8.391 . § N.

But these two Clauses 1 Jac. 4. § 3. N. 1. discharge the Arrears of the 20 l. per month Incurred in the Recusants life time upon the Conformity of the Heir in such Cases only where the two parts of the Recusants Lands were not seized before his death : For if they are seized in his life time and continue so till his death , neither his fee simple Lands nor his Intailed Lands ( if a Judgment were had against him for his Recusancy at the Kings suit ) shall be discharged upon the Heirs conformity without payment of the arrears .

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 33 H. 8.39 . § 68. ( 26 ) N. 1. because it is not a debt by Judgment as that Statute requires . Moor 523. pl. 691.

And thus the opinion Trin 43 Eliz. of the two Chief Justices 3 Cro. 846. is to be understood , for they held that if intailed Lands had been seized for non-payment of the twenty pound per month , and the Tenant in Tail had died , the issue in Tail should not have had the Land out of the Queens hands . before the debt were satisfied , but should have been charged with the said debt : At the end of 3 Cro. 846. pl. is added a Dubitatur ; But yet the opinion there held stands good , if it be intended only of a Conviction of the Ancestor by Judgment upon Trial or Confession and not of a Conviction upon Proclamation and default .

Page 154. CLVI . To any Colledge &c. 1 Jac. 4. § 6 N. 1. extends only to publick houses or Colledges , but not to such as are bred beyond the Seas in any private Popish Family , and therefore 3 Car. 1. cap. 2 (3) § 1. N. 2. was made to supply that defect .

CLVII . Scholars . Page 155. Note all Grammar Schools are not here 1 Jac. 4. § 9. N. 1. excepted , but only publick or free Grammar Schools , nor yet all Gentlemens Houses , but only of such as are not Recusants , in both which respects this Statute is defectively recited in the late additions to Dalt . cap. 87. Sect. 1.

3 Jac. 4. of convictions .

PAge 158 , 159. CLVIII . Every Popish Recusant Convicted . 3 Jac. 4. § 2. N. 2. Wingate Crown 98. Speaks Indefinitely , as if this extended to all Recusants whatsoever , which is contrary to the express words of the Statute .

2. In an Information upon 3 Jac. 4. § 2. N. 2. for not receiving the Sacrament , Information . the Conviction of the party for Recusancy ought to be shewed in certain , before whom , in what Court &c. for before he is Convicted of Recusancy he is not lyable to the penalty Inflicted by 3 Jac. 4. § 2. N. 2. for not receiving : And yet if it be only generally shewed in the Information that the defendant was Convicted in due form of Law , and the defendant doth not demur thereto , but pleads not guilty , and it be found against him , there Judgment shall not be staid for this defect , for he hath lost his advantage , and by his plea hath admitted the point of Conviction ; and at the trial , the only thing in issue was ; whether he had received the Sacrament , and not whether he was Convicted . 2 Gro. 365 , 366. Sivedal and Lenthal .

CLIX. Conformity . Page 159. This Conformity 3 Jac. 4. § 2. N. 2. need not be set forth in the Information in every particular Circumstance , as when , or before whom the Popish Recusant Conformed himself : For it is sufficient if it be said that he went to Church , and continued there dureing Divine Service , and afterwards neglected to receive the Sacrament &c. and upon such Conformity and neglect , he is liable to the Penalty inflicted by this Act , altho he never went before the Ordinary . 2 Cro. 366.

CLX . Forfeiture . Page 159 , 160. And for every year after such not receiving forty pound . 3 Jac. 4. § 3. N. 2. Note the Statute saith , not that the Offender shall forfeit for the first , second , and third Offence ; but for the first and second year , and for every year after .

For if it had been said , he should have forfeited twenty pound for the first Offence , forty pound for the second , and sixty pound for the third ; he must have been Convicted , and have had Judgment of the first Offence , before he could have incurred the penalty for the second , and of the second before he could have incurred the penalty for the third ; and every one of these Offences must have appeared Judicialiter , which could not be ante Judicinum .

But here 3. Jac , 4. § 3. N. 2. where 't is said he shall forfeit twenty pound for the first year , forty pound for the second , and sixty pound for every year after , it is otherwise , and the Offender shall forfeit sixty pound for the third year , altho he was never Convicted for the first or second .

2. And therefore in an Information upon 3 Jac. 4. § 3. N. 2. for sixty pound against a Popish Recusant Convicted for Recusancy , who hath conformed and neglected to receive the Sacrament the third year after his Conformity ; its sufficient to set forth that he was a Popish Recusant , and was convicted and conformed himself , and went to Church &c. two years before such a day , and that after the said day , he sailed for a whole year to receive the Sacrament , without mentioning what he did the first or second year after his Conformity ; and so was 2 Cro. 365.

Page 160. CLXI . Shall for every such Offence lose and forfeit threescore pounds . 3 Jac. 4. § 3. N. 3. If a Popish Recusant once receive the Sacrament , after his Conformity , and after neglect so to do within the time prescribed by this Act 3 Jac. 4 § 1. N. 2. and is guilty of such neglect for two years together ; altho , he was never convicted for the first year , yet an Information lieth against him , and he shall forfeit threescore pound for the second year ; for 3 Jac. 4. § 3. N. 3. he is liable to pay so much for every Offence , that is for every year wherein he neglects to receive the Sacrament after he hath once received it : and the Informer is at his liberty ; for which Offence or year , he will inform whether for the first , second &c. and the reason of this is , because here are no steps or gradations to encrease the penalty for the second or third Offence , but the penalty is equal and alike in this Case for every Offence .

2 It is observable that the Popish Recusant , who after his Conformity receives the Sacrament , and afterwards neglects so to do , for the space of one or more years ; is in worse Condition than he who conforms and receives it not at all ; for in this last Case he shall forfeit but twenty pound for the first , and forty pound for the second year ; but if he once receive the Sacrament , and afterwards neglect it for the space of two years , he shall forfeit for each of those years threescore pound .

Page 160. CLXII . To him that will sue for the same . 3 Jac. 4. § 3. N. 4 An Information upon this Branch must be brought by an Informer Qui tam &c. within a year after the Offence or neglect , or he can take no advantage thereof ; for such an Information is within 31 Eliz. 5. § N. 2. Cro. 366.

Page 160. CLXIII . Justices . Or before Justices of Assize &c. 3 Jac. 4. § N. 3 5. Note , that notwithstanding these words , an Information upon this Statute by an Informer , Qui tam , &c. for not receiving the Sacrament cannot be brought before Justices of Assize , or Goal-delivery , or Justices of Peace ; for no Common Informer can sue for the King and himself before any of those Justices , but must sue in one of the Courts of Record at Westminster .

Page 161. CLXIV . Of all and all manner of Popish Accusants . 3 Jac. 4. § 4. N. 1. As this Act is penned , it seemeth that the Church-wardens and Constables are not bound thereby to present the monthly absence from Church of any of the Children or Servants , of a Popish Recusant , altho such Children or Servants be Recusants , unless they are Popish Recusants , and that 't is sufficient to satisfie 3 Jac. 4. § 4. N. 2. to present their names , without taking any notice of their absence from Church .

But if they be Popish Recusants , they fall within the general words of the Act , and their monthly absence ought to be presented as well as that of their Parents , or Masters ; and in this Wingate Crown 100. hath clearly mistaken ; for he tells us that the monthly absence of all the Children and Servants , of a Popish Recusant , ought to be presented .

Page 162 , 163. CLXV . To enquire , hear , and determine . 3 Jac. 4. § 7. N. 1. This is intended of Indictments only , and revives the power of the Justices of Peace , given them by 23 Eliz. 1. § 9. N. 2. suprà 72. and taken from them by the negative words of 29 Eliz. 6. § 2. N. 2. suprà 95. N. 2. so that now the Justices of Peace may proceed to Judgment against the Recusant upon 23 Eliz. 1. § 5. N. 1. or convict him upon Proclamation and default ; and so may the Justices of Assize , and Goal-delivery proceed either way : For the words of 3 Jac. 4. § 7. N. 2. and of 29 Eliz. 6. § 5. N. 5. which give the Proclamation , being in the Affirmative , do not take away the proceedings upon 23 Eliz. 1. § 9. N. 2. but that the Justices may waive the Conviction by Proclamation if they please .

Nor is the Informers popular suit 23 Eliz. 1. § 11. N. 1. taken away by 29 Eliz. 6. § 4. N. 3. or by this Statute 3 Jac. 5. § 7. N. 2. Dr. Fosters Case , 11 Co. 61.

Page 163. CLXVI . Against any person either for not repairing to Church &c. 3 Jac. 4. § 7. N. 2. so that this branch of the Statute which gives the Conviction by Proclamation extends to other Recusants besides Popish Recusants , and is not restrained to this latter sort , but is misrecited in this particular , Dalt . Cap. 100. tit . forfeiture .

Page 163. CLXVII . Shall be rendred to the Sherif &c. before the next Assizes &c. 3 Jac. 4. § 7. N. 2. in 2 Rol. 108. Bridgman 122 in an action brought against Sir John Web and his Wife for recovery of twenty pound per month for the Recusancy of the Wife ; the defendants plead that the Feme was before that time Convicted for the same absence upon Indictment at the Kings suit , and Proclamation made that she should render her self at the next Assizes , and default of appearance thereupon , but it was resolved by the Court of B. R. that the plea was ill , and that this was not a Conviction according to Law , and therefore was in effect as no Conviction ; for the Proclamation was Erronius in two points . 1. In the person to whom 3 Jac. 4. § 7. N. 2. saith it shall be proclaimed that the offendors body shall be rendred to the Sherif &c. but this Proclamation was , that she should render her self to the Justices of Assize : For the rendring of the body to the Sherif is a material point : And the intent of the Statute is not persued in this Proclamation , for the intent was , that Recusants being dangerous Members of the Common-wealth should be in the Custody of the Sherif , &c. ne nocere valeant .

2. In the time , when the Proclamation was , that she should render her self at the next Assizes , but 3 Jac. 4. § 7. N. 2. before the next Assizes ; And when the Proclamation is ill , the Conviction for default of appearance thereupon cannot be good , nor shall Bar the King or the Informer of their Action : And altho by 3 Jac. 4. § 16. N. 1. That no Proclamation shall be avoided for any defect , &c. The Recusant perhaps may be estopped to take such exception to the Proclamation , yet the King is not .

Note , that Palmer 40 , 41. hath slated the difference beetwen the Statute and the Proclamation , as here , and so was the truth of the Case , but in reciting Bridgmans Argument he reports it quite contrary , viz. that the Proclamation was , that the Recusants body should be rendred to the Sheriff , and that it ought to have been , that it should be rendred to the Justices of Assize , but this is a mistake , and contrary to the Statute and the truth of the Case .

Page 164. CLXVIII . Or other Keeper of the Goal , 3 Jac. 4. § 7. N. 2. a Keeper of a Goal may be by usage or prescription , 42. Ass. 7. and 1 Inst. 114. and if the person Indicted for Recufancy live in a Corporation where the Sheriff hath not to do , and he be proclaimed upon this Statute , he may render himself to the Keeper of the Goal there .

CLXIX . Appearance . Page 164 Shall not make appearance of Record . 3 Jac. 4. § 7. N. 3. and if the Recusant do appear of Record at the Assizes Goal-delivery , or general , or Quarter Sessions , it shall be sufficient to save his default altho he did not render himself to the Sheriff upon the Proclamation , and this is clear by the words of 3 Jac. 4. § 7. N. 3. which is grosly mistaken , Wingate Crown 102. who saith the Recusant shall be Convicted if he render not his body to the Sheriff or Bayliff of the Liberty , and that default be recorded .

2. This appearance on 3 Jac. 4. § 7. N. 3. must be in proper person , and not by Attorny , for none can at first appear by Attorny unless enabled by some Statute ; and all appearances by the defendent in any Court , ought by the Common Law to be in person 10 Co. 101. Bewfages Case .

But after a Plea pleaded to an Indictment an Attorny may be admitted at the discretion of the Court , if they think fit , but not otherwise , and in some Cases not not without a special Writ , directed to the Justices to that purpose , 16 Ed. 4.5 . F. N. B. 26.

3. The party Indicted and proclaimed on 3 Jac. 4. § 7. N. 3. who appears at the Assizes or Sessions must take care that his appearance be entred of Record : For if the Clerk of the Assizes , or Clerk of the Peace , should mistake and instead thereof record his default , he hath no way to avoid his standing Convicted ; But he is put to his Action upon the Case against such Clerk of the Assizes or Peace , see Popham 29. Keilway 180.

4. The personal presence at the next Assizes or Sessions of the Party indicted of Recufancy , and proclaimed on 3 Jac. 4. § 7. N. 3. altho he continue there from the beginning to the ending is no sufficient ground to record his appearance , nor shall save his default , for altho he be there personally present and openly confess himself to be the same person who was Indicted , and against whom the Proclamation issued , yet if he deny to appear upon the Proclamation , or to consent that his appearance be entred of Record , it seems that his appearance cannot be recorded , but his default shall , and he shall stand Convicted thereupon .

And this is no more an appearance than where a Prisoner is brought to Common pleas Bar by Habeas Corpus , to the intent to have him appear to an Original brought against him , and he denies to appear to the Action , in which Case his appearance cannot be recorded , as was resolved 43 Eliz. in Ascoughs Case , Gouldsborough 118. pl.

CLXX . Process . Page 165. Shall be as sufficient a Conviction in Law . 3 Jac. 4. § 7. N. 3. That is , a Recusant thus Convicted upon Proclamation and default of appearance , shall be in the same condition as if he were Convicted by Verdict , but no Judgment is given . Bridgman 122. Parker versus Web.

But this Conviction upon Proclamation is no Judgment , as was resolved 11 Co. 65. in Dr. Fosters Case , and altho it shall make the Recusant lyable to the several forfeitures penalties and incapacities inflicted on Recusants convict , yet it shall not operate as a Judgment , as hath been already shewed in divers instances .

For this reason it hath been questioned whither , if a Recusant be Convicted upon Indictment and Proclamation , the King may not waive his advantage of this Conviction and bring his Action of debt given him by 35 Eliz. 1. § 10. N. 1. for that such Conviction is no Judgment , and consequently ought not to bind the King , as a Judgment against the Recusant should have done . Palmer 40.41 . Sir John Webbs Case .

Worsley obtained a Patent to have all the penalties of Recusants Convict . Altho such a Patent was illegal , for that the King cannot grant the penalty of a penal Law to a Subject , 1 Rol. 10 pl. 10. Roy versus Tollin , Hob. 155. Colt and Glover &c. Hob. 183. Davison versus Barber .

Yet admitting the Patent to be good , it was resolved that the penalties of Recusants Convicted by Proclamation should not pass by those general words 1 Rol. 94.95 . Dr. Fosters Case .

Page 166. Once Convicted . 3 Jac. 4. § 8. N. 1. This extends to all Convictions whatsoever upon Indictment whither by Verdict Confession , &c. Whereupon Judgment is given , as well as to Convictions upon Proclamation and default : And the penalty of twenty pound per month , shall in any of the said Cases run on forever after , and be appropriated to the King .

CLXXII . Days . Page 166. Here 3 Jac. 4. § 8. N. 1. Easter and Michaelmas . Is to be taken disjunctively for Easter or Michaelmas as it is in 29 Eliz. 6. § 4. N. 1. supra 97. for the meaning is not that the Recusant shall have both of the terms of Easter and Michaelmas next after his Conviction wherein to pay the forfeiture of twenty pound for every month contained in the Indictment , but he ought to pay the whole into the Exchequer , the next Easter or Michaelmas Term , which shall first happen after his Conviction , and therefore if he be Convicted in February , he ought to pay the whole the next Easter Term , unless where the King chuses to seize the two thirds of his Lands by force of 3 Jac. 4. § 11. N. 4. as was admitted , Jones 24 , 25. in Standens Case , Hil. 20. Jac. and Pasch. 16. Jac. in the Lady Webbs Case , Bridgman 121. who was Convicted in March ; the pleading was , that in the Easter Term then next following , the said Katherine did not pay into the Exchequer according to the rate of twenty pound per month , without any mention of Michaelmas Term.

Page 166 , CLXXIII . 167 , 168. For every month after such Conviction . 3 Jac. 4. § 8. N. 2. by this Clause , and 29 Eliz. 6. § 4. N 1. supra 96. N. 4. to the same purpose , after the Recusant is once Convicted the penalty of twenty pound per month shall run on without any new Indictment or Conviction , and shall be for ever afterwards appropriated to the King alone , and paid into the Exchequer ; so that the Informer cannot bring any popular Action or Information for the twenty pound per month for any time incurred after such Conviction , but is utterly barred 11 Co. 61. and 1 Rol. 93. Dr. Fosters Case , Owen 37. Sulherd and Eveterds .

Bar & Feme 2. 2 Cr. 481 , 482. The Lady Webb Pasch. 16 Jac. was Indicted and Convicted of Recusancy upon Proclamation and default of appearance , and afterwards an Informer Qui tam &c. sued her and her Husband for a new offence of Recusancy in the Wife subsequent to such Conviction , to which they both pleaded the said Conviction at the Kings suit , the Question was whether the Informer should be barred by this plea , or whether the Information was maintainable notwithstanding such former Conviction of the Wife , for that the Wife seems not to be such an offender as is here intended 3 Jac. 4. § 8. N. 2. because she can have no Goods nor Lands , during the Husbands life , which may be seized for non-payment of the penalty , but it was granted on all hands that if she had been a Feme sole this had been a good plea in Bar of the Informers popular suit , for then she had been bound to pay the twenty pound per month into the Exchequer , and she should not be doubly punished both that way and at the suit of the Informer , and for the same reason it was urged that this Information would not lie against the Husband and Wife , for after the Husbands death she would be lyable to pay into the Exchequer all the Arrears after the rate of twenty pound per month from the time of her Conviction , and her Goods , and two parts of her Lands might be then seized for non-payment thereof : And if the Husband and Wife should in the mean time , at the suit of the Informer , pay twenty pounds per month for part of the same time , for which the Wife was lyable to pay after the Husbands death , this would be a double punishment , for one and the same offence ; suprà 79. N. 10.17 . Infra 270. N. 9.

3. And it was further said , 2 Cro. 482. That it was usual where the Wife was Indicted and Convicted for Recusancy , to seize by Exchequer-process the Lands and Leases which the Husband had in her right ; and one Woods Case was cited to this purpose , which proves that a Feme Covert is within the meaning of the Act ; 3 Jac. 4. § 8. N. 2. and therefore after she is once Convicted upon Indictment , shall be no more Subject to the Informers popular suit than a Feme Sole , but this last point is much to be questioned , for the Lands and Leases of the Wife are the Husbands during the Coverture ; and 't is a General rule that his Goods or Lands cannot be seized for the forfeiture or penalty where the Wife only is Indicted and Convicted of the offence .

4. A Recusant is Indicted for absenting himself from Church for twelve months , and afterwards is Convicted upon that Indictment : Quaere , whither nevertheless the Informer Qui tam &c. may not sue him for his absence , for the months intervening between the time laid in the Indictment , and the time of Conviction : For these words here 3 Jac. 4. § 8. N. 2. ( viz. ( after such Conviction . ) seem to relate to the proximum antecedens , ( Every month ) and to imply that the penalty here appropriated to the King , is only the penalty due for the months which Incurre after such Conviction upon Indictment at the Kings suit , but not to hinder the Informer after Conviction from suing for the months incurred before Conviction .

CLXXIV . Forfeitures . Page 168. Except in such Cases where the King shall &c. Refuse the same . 3 Jac. 4. § 8. N. 3. Jenes 24. in Standens Case , if a man be Indicted and Convicted of Recusancy , the King is not bound to stay till next Easter or Michaelmas Term to see whither the Recusant will tender twenty pound for every month contained in the Indictment and incurred after such Conviction , for the King by 3 Jac. 4. § 11. N. 4. having his Election , whither he will accept thereof or seize two parts of the Recusants Lands , a Commission for seizure of the Lands may Issue out presently , if the King will waive the twenty pound per mouth , for he may take his Election as soon as he will after Conviction by Jones Justice .

Page 168 , CLXXV . 169. All the Goods . 3 Jac. 4. § 9. N. 2. A Recusant Convicted is Tenant for life , the remainder to a stranger in Fee , he in Remainder with the Recusants Assent cuts down Timber Trees and sells them , in this Case the King can be no wayes entitled to the Trees , 1 Bulstrode . 133.

Page 169. CLXXVI . All other the lands , &c. lyable to such seizure or to the penalties aforesaid . 3 Jac. 4. § 9. N. 2. Lane 105 , 106. Halseyes Case . Lands are Conveyed to a trust for B. a Convicted Recusant ; Quaere , whither the King may seize such Lands for the Recusants non-payment of the twenty pound per month ; for if he make his Election and accepts of two thirds in lieu of the twenty pound per month there is no question but such Lands are lyable to seizure for the words of 3 Jac. 4. § 11. N. 4. are that the King may seize two parts of all Lands that shall come to any other person , to the use of , or in trust for such Recusants , but in 3 Jac. 4. § 9. N. 2. which relates to the seizure of two parts for non-payment the words seem to be more restrictive .

Page 171. CLXXVII . Tho it be tendered or ready to be paid . 3 Jac. 4. § 11. N. 4. by this branch of the Act , a new advantage is given to the King against the Recusant for whereas by 29 Eliz 6. § 4. N. 2. the Convicted Recusant had his Election to pay the King twenty pound per month , and so prevent the Seizure of the two third parts of his Lands , now by 3 Jac. 4. § 11. N. 4. that Election is taken away , and the choice is given to the King whether he will accept of the twenty pound per month , or refuse it , and seize two third parts of the Recusants Lands in lieu thereof , and if the King chuseth the Lands , the tender of the twenty pound per month at the Exchequer will not save the Seizure , but the King shall enjoy the Lands notwithstanding Jones 24 , 25. Standens Case .

Page 171 , 172 , 173. CLXXVIII . Hereditaments 3 Jac. 4. § 11. N. 4. An advowson is an Hereditament , and passeth by that word , 18 Eliz. Dyer 351. and is demisable by 32 H. 8.1 . § N. as an Hereditament : And if it be an Advowson in gross , yet it may be seized by the King , by 3 Jac. 4. § 11. N. 4. as part of his two parts of the Recusants Hereditaments , Jones 23 , 24. for t is a thing valuable and shall be Assets , and is extendable for the Kings debt , and upon a writ of right of an Adowson there shall be a Recovery in value , 9. 11. scil. for every mark twelve pence , Hob. 304. Britton 185. 1 Inst. 185.

2. In the late additions to Dalt . cap. 81. Sect. 23. 't is said that the King may refuse the twenty pound per month , and take to two parts of the Recusants Lands and all the goods &c. And an Advowson is not of 3 Jac. 4. § 11. N. 4. and Standens Case cited : But this is a mistake as to the Clause it self , and as to the point in Law and the Authority brought for it ; for in truth there is no such Clause in this Statute nor in any other , that the King upon the refusal of the twenty pound per month , should take the Recusants goods ; for the seizure of the Goods , is given 3 Jac. 4. § 9. N. 2. where the offendor failes of payment of the twenty pound per month , but not where the King dischargeth him of that payment by refusing it , so that where the King refuseth the twenty pound per month the Recusants Goods cannot be seized , but only two parts of his Lands .

The Law likewise is mistaken , for if the King refuseth the twenty pound per month , he may seize an Advowson as part of his two parts , as hath been said , so that an Advowson is within 3 Jac. 4. § 11. N. 4. and not without it .

And the Case of Standen is quite contrary to that opinion in the late Additions to Dalt . cap. 81. Sect. 23. for Justice Jones held strongly that an Advowson was within 3 Jac. 4. § 11 N. 4 and Hobart Chief Justice and Winch , declared themselves to be of the same mind , and Justice Hutton denyed not that an Advowson was within it , only held that the force of 3 Jac. 4. § 11. N. 4. as to an Advowson in gross is taken away by 3 Jac. 5. § 19. N. 1. which gives the presentation to the University ; but the three other Justices were against him , and held that where the King had seized it , as part of his two parts , and the Incumbent dyed , the King should present , and not the University , Infrà 250. N. 5.

3. If the King seize by Inquisition two parts of a Mannor belonging to a Recusant Convict , to which an Advowson is appendant by such seizure , two parts of the Advowson are likewise seized by consequence , altho it be not named in the Inquisition , as was resolved in the Case of the Chancellor of Cambridg and Walgrave . Hob. 126.127 . Moor 872. pl. 1214.

And there , altho the King hath title , but to two parts of the Advowson , yet he shall present alone by his Prerogative , and so he should have done where there were three Coparceners of an Advowson , two of full age , and one under age , and in ward to the King , the King only should by his Prerogative have presented , during the Wardship , 47 Ed. 3.14 . and 38 H. 6.9 .

But yet altho two parts of an Advowson shall pass , to the King by the word ( Hereditaments ) and the Seizure of the Mannor shall draw with it the Seizure of the Advowson , yet the Kings two parts of the Advowson shall not pass from him by such General words , and therefore if the King seizeth two parts of a Mannor belonging to a Recusant Convict , to which an Advowson is appendent , and grants over his two parts of the Mannor to a Subject , with all Hereditaments , appurtenances , &c. yet two parts of the Advoswon will not pass unless specially named , or the grant be adeo plene & integre & in tam amplis modo & forma prout , &c. The Recusant had the Manor , Hob. 126. Moor 872.

Page 173. CLXXIX . In lieu and full recompence of the twenty pound per month . 3 Jac. 4. § 11. N. 4. So that if the King makes his Election , to seize the two parts , the Recusant is no longer lyable to pay the twenty pound per month , but the two parts of his Lands shall go in lieu and full recompence thereof , Jones 24. Standens Case .

Page 173. CLXXX . Mansion-house , is in Law most commonly taken for the Chief messuage or habitation of the Lord of a Mannor , or the Mannor-house , where he most remains or continues ; Termes de la Ley 199. But it is to be taken here 3 Jac. 4. § 12. N. 1. in a larger sense for any other house which is the Recusants chief dwelling house .

Page 174. CLXXXI . These words passing , &c. and unknown 3 Jac. 4. § 13. N. 4. being in the Conjunctive , it seems that the Bishop : or two Justices ought not to examine upon Oath , or tender this Oath to any passenger or Traveller , quatenus such , unless he be unknown viz such an one as conceals his true name or quality for so it must be reasonable intended , and not of all Travellers through the Country as Wingate Crown 106. mistakes for it appears by the other qualifications here enumerated that the intent of the Act is that it shall be offered by the Bishop or two Justices to such only of whom there is any just Cause of suspition , 7 Jac. 6. § 26. N. 2. Infra 260.

CLXXXIL Imprisonment . Page 175. there to remain without Bayl or maynprise 3 Jac. 4. § 14. N. 1. The Bishop or two Justices can not take Suretyes of him who refuseth the Oath for his appearance at the Assizes or Sessions as Wingate Coton . 107. mistakes , but must commit him immediatly to Goal , nor can any other Court or Justices Bail him in this Case .

CLXXXIII . Justices . Page 175 Until the next Assises or General or Quarter Sessions 3 Jac. 4. § . 14. N. 1. This being in the disjunctive , the Bishop or two Justices have their Election to commit the Party refusing the Oath either until the next Assizes or until the next Sessions as they shall think fit , for some may be more aptly committed untill the next Assises , and some untill the next Sessions 12. to 131.

Page 175 , 176. CLXXXIV . These words ( any other Person whatsoever , ) 3 Jac. 4. § . 14. N. 3. are Exclusive of the said Person or Persons who are committed for refusal , for 't is here in the disjunctive , so that it seems that if any person whatsoever of the age of 18 years , or above , and under the degree of a Nobleman or Noblewoman be at the Assizes or General Quarter Sessions of the peace , whether voluntarily , or brought in upon process on an Indictment of recusancy , or for any other matter , and be there tendered this Oath , and refuse to take it , altho it were never tendered to him before , yet upon his refusal there he incurs a praemunire , and in this respect this Statute 3 Jac. 4. § 14. N. 3. is more Exclusive than 7 Jac. 6. § . 26. N. 6. where there must be a prior tender and refusal of this oath , otherwise a refusal of it at the Assizes or Sessions doth not make a praemunire by that act 12 Co. 131 infra 265.

CLXXXV Corent . Page 176. shall incurre the danger and penalty of premunire 3 Jac. 4. § 14. N. 3. If a man be committed by the Bishop or two Justices of peace for the refusal of this oath and the tender and refusal be expressed in the Mittimus the Justices of Assize or Justices of Peace in their Sessions are bound to take notice of this tender and refusal .

Indictment . And after they have there made the party a second tender of the oath , and he refuseth it , by which he incurrs a praemunire , the indictment against him to convict and attaint him of praemunire must contain all the special matter , viz that he stood convicted or indicted of recusancy , or that he had not received the Sacrament twice within the year next before , or that passing through the countrey and unknown , being examined upon oath he confessed or denyed not , &c. ( as the case is ) and that the oath was tendered to him by the Bishop or two Justices of peace Quorum ●●us , &c. and he refused it : and that it was again tendred to him in open Court , and he again refused it : for in this case the Mittimus is the ground upon which he must be proceeded against at the Assizes or Sessions .

But if the first tender and refusal be not expressed in the Mittimus or warrant of Commitment there altho there was a tender and refusal of the oath before the Bishop or two Justices , yet the Justices of assize or Justices of peace in their Sessions can take no notice of it , but they must there tender him the oath without reference to any prior tender which they may do by such of the General words ( any other person whatsoever ) 3 Jac. § 14. N. 3. and if he refuse , he incurrs a praemunire , and in this case the Indictment may be short and General ( scilicet ) that he was tendred the oath in the open Court and refused it , &c. and so it must be in all cases where in truth there was never any prior tender and refusal .

See 7 Jac. 6. § 26. N. 2. Whereby the power of the Justices of Peace is in some particular cases enlarged in reference to this oath of Allegiance infra 266.

CLXXXVI . Oath . Page 179. unto which Oath so taken the said person shall subscribe his or her name or mark , 3 Jac. 4. § 15. N. 6. if a man refuse to take any word of this oath , 't is a refusal of the whole , 1 Bulstr. 198. Lord Vauxes Ca :

CLXXXVII . Vilary . Page 179. 180. Outlary 3 Jac. 4. § 16. N. 1. a Termor for years was utlawed upon an indictment of Recusancy , the term was sold by the Lord Treasurer and Barons of the Exchequer , and afterwards the utlary was reversed . The Question was whether upon reversal of the utlary the recusant should have restitution of term again 3 Cro. 278 Eyre vers. Woodfine Pasch . 34. Eliz. & Pellam Justice doubted thereof , C. B. and observed that 11 H. 4 65. which saith that the party outlawed shall upon reversal of the outlary have restitution , speaks only of Goods seised , but not of a term sold before . But Anderson Ch. I. and Walmsley held that the termor in this case should have his term again in whosoever hands the land came and upon whatsoever consideration and not the money for which the term was sold for the Outlary being reverst it is as if there were no record of it , and the Queens interest was but conditional , scilicet , if the outlary were good , and judgment accordingly .

Nor is this like the case where a Sheriff upon a fieri facias & venditioni exponas , sells a term , for there if the judgment be reversed the party shall have the money for which the term was sold , but not restitution of the term it self as was resolved 26 Eliz. Dyer 362.

And the reason is because the Sheriff did no more than he was commanded ; for he was commanded to sell , and therefore the sale shall be good to all intents . But in the case of an outlary it is otherwise , and there is no such command , which difference between a fieri facias & capias utlagatum , was agreed in Doctor Druryes Ca. 8. Co. 143.

A man is seized of an Advowson in gross , Presentment . the Church becomes void , and then the patron is outlawed upon an indictment of recusancy , whereupon the King presents , the presentee is instituted and inducted and afterwards the outlawry reversed ; in this case the patron shall be restored to his presentment .

So if the patron of an advowson in gross hath judgment in a Quare impedit and is afterwards outlawed , for recusancy and the King presents , and the presentee is instituted and inducted ; in this case the patron shall have a fi. fa. to execute the judgment , and shall oust the presentee of the King .

And the reason in both Cases is , because upon reversal of an Outlawry the party shall , be restored to all things which are principal and here the presentment was the principal thing forfeited by the Outlary , and therefore upon reversal the patron shall be restored to it , Moor 269 pl. 421. & Savil 89 pl. 166. Bluerleigh vers . Cornwall .

But if the King upon an Outlary seize a Mannor to which an advowson is appendant and the Church becomes void , whereupon the King presents , and the presentee is inducted , there 't is otherwise , and the King's presentee shall not be removed upon reversal of the Outlary , for the presentment in that Case is but as an accessory that follows the Principal , which is the Mannor , the profits of which Mannor the King was to have during the Outlawry , and consequently the presentment as a profit of the advowson , which is a parcel of the Mannor .

CLXXXVIII . Amendment Page 180. 181. Or other defect whatsoever 3 Jac. 4. § 16 : N. 1. this is meant of Defects within the Indictment or other proceeedings and not of any Collateral matter which the recusant hath to Discharge himself ; as a pardon Auterfoyts Convict , &c. for the recusant is not hereby disabled to plead such Collateral matter but may take advantage thereof 11 Co. 65. Doctor Festers Ca.

Nor yet is this 3 Jac. 4. § 16. N : 1. meant of all Defects whatsoever within the Indictment or other proceedings , for if there be any defect , which apparently tends to the Kings prejudice , the recusant may take advantage of it , and therefore 1 Co. 504.505 . in the Case of the Marquis of Winchester , who was indicted and convicted of recusancy , and had judgment thereupon , but Ideo capiatur was omitted , the judgment was reverst for that omission which is not alded by 16 and 17 Car. 2.8 . § 1. N. 12.

CLXXXIX . Ouster le mere . Page 182. the Service mentioned throughout this Branch 3 Jac. 4. § P 8. N. 2. is intended of Civil or Domestick as wel as Military , 3 Inst. 80. And altho 3 Jac. 4. § 19. N. 1. speaks there of Gentlemen and Persons of higher degrcco without poynting at any particular sort of service , so that to serve or go to serve a forreign Prince , &c. in any capacity whatsoever without first doing what is here required , is felony by 3 Jac. 4. § 18. N. 2. the passing or going out of this Realm to serve a forreign Prince , &c. without taking the oath , or , if of that Quality , entring into bond , is felony by 3 Jac. 4. § 18. N. 2. altho the Party he never received into actual service , for the words are in the Disjunctive ( go or pass to serve or voluntarily serve , 3 Iust. 80.

Page 182. Or shall &c. CXC . pass over the Seas and there shall voluntarily serve . 3 Jac. 4. § 18. N. 2. So if he pass over the Seas upon some other occasion and not with an intent to serve a foreign Prince , &c. yet if when he is there he voluntarily serve him , and did not before his departing hence take the oath , and if of that Quality enter into such bond , he shall incurr the penalty of the Law , and suffer as a felon , 3 Inst. 81.

CXCI. Oblig . Page 182 shall become bound by Obligation , &c. unto Our Soveraign Lord the Kings Majesty , 3 Jac. 4. § 18. N. 1. An obligat made to the Kings use is not sufficient , nor will satisfy the intent of the act , but it must be made to the King himself , for the bond must be Domino Regi , according to 33 H. 8 39. § 51 (1) N. 2. or the Officer who takes it is liable so imprisonment for taking the bond contrary to that statute : therefor Wingate Corone 112. lays a snare for the Officer of the Port , when he directs him only to take this bond to the Kings use ; and he might have been informed out of 33 H. 8.39 . § 51. (1) N. 2. & 24 H. 8.8 . § 1. N. 3. of the difference between a bond made to the King and to the King'suse , Savil 13. Pl. 33.

Page 183. shall be a Felon , CXCII . 3 Jac. 4. § 18. N. 2. the offender against any part of this Branch of the Statute may have the benefit of his Clergy .

The Laws , CXCIII . &c. 183 , 184. which said Customer and Controller 3 Jac. 4. § 21. N. 2. These words notwithstanding the Copulative ( And ) are not to be taken Conjunctively , as if every bond and oath is to be certified both by the Customer and Controller ; for if the Customer take the bond and oath , the Controller is not to be punisht for not certifying , no more is the Customer if the Controller take them , for each of them shall forfeit for his own default , and not for the default of the other .

And it can not be reasonably presumed that one of them is privy to the doings of the other ; And therefore these words must be construed Disjunctively ( Customer or Controller 3 Jac. 4. § 21. N. 2. that is , he of the two 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 from that Guilt , but he shall have judgment , and suffer for the same , as in Case of high Treason , notwithstanding such Submission , &c.

Dalt . Cap. 89 tit . High Treason is thereby clearly mistaken in extending the benefit of this Submission , 3 Jac. 4. § 24. N. 1. generally to all who have been willingly absolved , withdrawn or reconciled , or have promised such obedience .

Page 188. CXCVII The Offender may be proceeded against by force of this Act 3 Jac. 4. § 25. N. 1. in any County where he shall be imprisoned , for so the word [ taken ] is to be expounded , and the like exposition hath been made use of 2 and 3 R : 2. § 6. N. 2. of Souldiers , & 1 Jac. 11. § 1. N. 3. of having two Wives living , Hutt. 131.

If the Offence be committed out of this Realm , yet it can not be tried upon 35. H. 8.2 . § 1. N. 2. for this Act 3 Jac. 4. § 25. N. 1. hath prescribed a special form of a Trial in this Case , which must be observed , and if such Offender be a Peer of England , the Indictment can not be taken before any others than the Justices of Assize and Gaol delivery in the County where he is imprisoned or the Justices of B. R. Hutt. 13. the Lord Digbyes Ca.

CXCVIII. Alien . Page 189. 190. by a Subject of this Realm , 3 Jac. 4. § 27. N. 1. is to be understood a Natural born Subject , or an Alien Naturalized here by Act of Parliament , or made a Denizen of England by the King's Letters Patents , but these words here are exclusive of two sorts of Subjects .

1. Of an Alien inhabiting this Realm , who oweth to the King a local Subjection or Ligeance , and is neither Naturalized or made a Denizen , for the word [ Subject ] is a mark of distinction , and must be necessarily exclusive of some persons or other within this Realm , and therefore can not be supposed to taken for meer aliens , who if neither naturalized or made Denizens are only local Subjects and of the lowest form ; for if no person inhabiting within the Realm were here intended to be excepted , the word [ Subject ] would be idle and to no purpose . 2. An Alien Naturalized by Act of Parliament in Scotland , or Ireland or made Denizen of either of those Kingdoms by the King's Letters Patents is , for the same reason , out of the meaning of this Branch 3 Jac. 4. § 27. N. 1. altho he live in England : for it seems that such a person is still an Alien here , and shall not partake of any priviledges in England by his being Naturalized or made Denizen in Scotland or Ireland , their Acts or Laws not being obligative or concluding to us in England . Vaughan 278.280 , &c. Crane and Ramsey .

And therefore the Power here given any one Justice of Peace , 3 Jac. 4. § 27. N. 2. to levy the XII . d. per Sunday doth not extend to either sort of these Aliens .

But yet they may forfeit XII d. per Sunday for their absence from Church upon an Indictment on 1 Eliz. 2. § 14. N. 1. and that by force of the General words ( every person or persons inhabiting within this Realm ; so that what is said in Doctor Fosters Ca. 11 Co. 63. that this Statute 3 Jac. 4. § 27. N. 1. gives a more speedy remedy for the recovery of the XII d. is not to be understood of all persons within 1 Eliz: 2. § 14. N. 1. but only of the Subjects of this Realm in the sense of 3 Jac. 4. § 27. N. 1.

And if a man be born within any of the King's Dominions which were such and united with England in their Subjection at the time of his Birth , altho he be not born within England , yet if he live here he is a Subject of this Realm within the intent of this Act 3. Jac. 4. § 27. N. 1.

For Natural Subjection and Legeance are not local or confined to that Kingdom or Countrey where he was born , but he is a natural Subject in any of the Dominions belonging at the time of his birth to the Prince under whom he was born , and upon that ground it was resolved 7 Co. In Calvin's Ca. that a man born in Scotland after the Union of the two Kingdoms , should inherit in England : So that a man born in Scotland , or Ireland , or any other of the King's Dominions which were such , and so united at the time of his B●rth , if he live in England , is punishable by this Act , 3 Jac. 4. § 27. N. 1. and any Justice of Peace may grant his warrant to levy the XII d. for his absence from Church .

CXCIX . Proof . Page 190. To the Satisfaction of the Iustice of Peace , 3 Jac. 4. § 27. N. 2. in this Case the Justice of Peace is sole Judge whether the excuse the Party makes for his absence be sufficient , and sufficiently proved , and the same can not be brought into question elsewhere by the Party .

CC. Dayes . Page 190. Every Sunday , 3 Jac. 4. § 27. N. 1. this repairing to the Church every Sunday must be as well to Evening Prayers as to Morning-Prayers , for it ought to be an entire Day and an entire Service , by Hutton and Berclay Justices , Dalt . Cap. 45. tit . Recusants ,

Page 190 : To Levy 12 d. for every such Default , 3 Jac. 4. § 27. N. 2. So that this forfeiture of XII d. may be levyed weekly , for it is due for every absence , as soon as the Sunday is ended , and hath no relation to the forfeiture of XX lb per Month given by 23 Eliz. 1. § 5. N. 1. but the offender may be punished both by 3 Jac. 4. § 27. N. 2. for his weekly absence , and by 23 Eliz. 1. § . 5. N. 1. for his monthly absence by Coke Ch. J.B.R. 1 Roll 94. Doctor Foster's Ca.

CCII. Accessory . Page 198 , 192. Willingly , &c. keep or harbour 3 Jac. 4. § 32. N. 1. A man freely and of his own accord takes an apprentice or covenant-servant for a certain time , and not knowing him or her to be a recusant , and such Apprentice or servant forbears to come to Church , it seems that the Master shall forfeit nothing , altho he keeps them in his house , for he doth no more than what the Law will compell him to do , during the time agreed on and limited for such apprenticeship or service , and this can not be said to be done willingly , for it is not in his choice to discharge them , untill the time is expired . But if the Master , before he took such Apprentice or other servant knew him or her to be a Recusant , or after their forbearance to come to Church retains them for a longer time than was at first agreed on , this is a keeping or harbouring them willingly , and he shall be liable to this penalty , 3 Jac. 4. § 33. N. 1. Infra 205.

Page 192. in his , CCIII her , or their service fee or Liverty , 3 Jac. 4. § 33. N. 1. This extends to all Servants whatsoever , although they dwell not in the Master's house , nor are his menial Servants ; for if they are retained in his service , fee or livery , as Bailiff , Steward , or in any other capacity , and forbear to come to Church , the Master shall be punished for their absence .

Page 192 , 193. wanting without fraud or Covin other habitation or sufficient maintainance , CCIV. 3 Jac. § 34.4 . N. 1. A Father or Mother hath no settled habitation , but yet hath sufficient maintainance , the child receives such Parent into his house who forbears to come to Church , in this case the child shall forfeit X l. per month , for altho the Parent had no habitation , yet this is not a wanting habitation within the meaning of this Act , seeing he wanted not sufficient means to procure one .

But if the Parent hath an habitation yet if he want sufficient maintainance to keep him in that habitation , altho he refuse to come to Church , the child shall forfeit nothing for receiving him into his house , for the words here 3 Jac. 4. § 34. N. 1. are in the Disjunctive , and if the Parent wants either other habitation in the sense of the Act , or sufficient maintainance , the Child may receive him .

Page 193. that shall be committed by authority to the Custody , CCV &c. 3 Jac. 4 § 34. N. 1. The former Case of an apprentice was put only of such an one whom the Master takes of his own accord , supra 202. But if it be a Parish child bound by the Church-Wardens and Overseers with the assent of the Justices of Peace , if the Master be duely required to take him such Apprentice , as it seems is committed to the Master's custody within the meaning of this proviso , 3 Jac. 4. § 34. N. 1 : for he is punishable if he refuse him , and if he were a recusant , or forbear to come to Church , yet the Master shall forfeit nothing for keeping or harbouring him .

A Serjeant at Armes , Pursivant , Messenger , &c. who keeps his prisoner in his house , or a Gaoler if he keeps his prisoner in his own house which is no part of the Prison , shall not forfeit any thing by force of this Act , 3 Jac. 4. § 34. N. 1. Altho he suffers him to go abroad in the Day-time at his pleasure , and he forbears to come to Church , for that such prisoner was committed by Authority to his Custody .

Page 193. Standing excommunicated 3 Jac. 4. § 35. N 1. infra a Popish recusant after conviction shall be disabled as an excommunicate person , CCVI. yet to other intens he shall not be reputed as a person standing Excommunicate .

Page 193 for such recusancy , 3 Jac. 4. § 35. N. 1. So that if a Popish recusant stand excommunicate for any other cause than for recusancy , CCVII. this branch of the Statute doth not affect him .

CCVIII . Lieu. Page 194 wherein such offence shall happen , 3 Iac. 4. § 36. N. 2. If a man serves or goes to serve a forreign Prince , State or Potentate without first taking the oath of Allegiance , or if of that Quality entring into bond altho part of the Offence was done out of the Realm ; yet for that other part thereof ( viz ) his going or passing over the Sea was done in the Realm , he shall be tried in the Court where that part of the Offence happened , that is where the haven or port is from whence he went or passed over , for a Statute is to be so expounded ut verba accipiuntur cum effectu , 3 Inst. 80.

CCIX. Bar. & some Page 195. with any penalty or forfeiture by force of this Act , 3 Jac. 4 § 40. N. 1. But yet a married woman may be punished by force of any other Act for not receiving the Sacrament during her Marriage , 11 Co. 94. Doctor Foster's Ca.

And therefore if she be a Popish Recusant convict , and receive not the Sacrament within the year next before her husband's death , she shall forfeit the profits of two thirds of her joynture and dower , and be further disabled , as 3 Jac. 5. § 10. N. 1.

And unless she receive the Sacrament after conviction , she cannot be plaintiff with her Husband in any action , but is disabled by 3 Jac. 5. § 11. N. 2 :

And if she receives it not within three months after her Conviction , she may be imprisoned by 7 Jac. 6. § 28 , N. 1. unless the husband pay to the King as is there appointed .

Page 195 For any such offence of not receiving , CCX . 3 Jac. 4. § . 40. N. 1. Wingate Coron. 125. Quite mistakes the meaning of it , for a married Woman is not exempted from all penalty by force of this Act , but only from the Penalty for not receiving the Sacrament , during her marriage ; and there is no question but she may be imprisoned by 3 Jac. 4. § . 14. N. 1. if she refuseth the Oath of Allegiance , and an Indictment of high Treason lieth against her upon 3 Jac. 4. § : 23. N. 1. If she be absolved or withdrawn from her obedience to his Majesty , or become roconciled to the Pope or Seo of Rome , or promise obedience to the said See , &c.

CCXI. Iustices . Page 196 , 197. Where any Bishop or Justices of the Peace , 3 Jac. 4. § . 41. N. 1. the Justices of Peace have a twofold power given them by this Act in reference to the Oath of Allegiance 1. Out of Sessions , and so any two Justices of Peace Quorum unus , &c. may tender the oath to any person by 3 Jac. 4. § . 13. N. 2. eighteen years old , or above , other than Noblemen or Noblewomen . 2. In their General or Quarter Sessions , and there they may by 3 Jac. 4. § . 14. N. 2. 3. They may tender the oath to any such person who hath before refused it , or to any person whatsoever of or above that age , other than Noblemen or Noblewomen .

Now whther the six privy Counsellours here mentioned 3 Jac 4. § . 41. N. 1. may require the Oath of Noblemen and Noblewomen in all cases , where the Justices of Peace may require the same of any subject either in or out of Sessions : or only in such Cases , where they may require it out of Sessions , seems to be a question . For , if the power here given 3 Jac. 4. § 41. N. 1. to the six privy Counsellours be the same with that of the Justices of peace in their Sessions they may by force of this Act tender it to any Nobleman , or unmarried Noblewoman whatsoever above 18 years old , for the Justices of peace in their Sessions , by 3 Jac. 4. § . 14. N. 2. may tender it there to any other person whatsoever : but , if it be meant of the power given the Justices of peace out of Sessions , 3 Jac. 4. § 13. N , 1. then the six privy Counsellours can tender it by force of this Act , 3 Jac. 4. § 41. N. 1. to such Noblemen or unmarryed Noblewomen only , who stand convicted or indicted of recusancy for not coming to Church , or who have not received the Sacrament twice within the year next before , or who passing through the Countrey unknown shall upon examination confess or deny their recusancy , or that they have not so received the Sacrament .

For the salving of which doubt it is to be considered , that the Bishop and not the Justices of Assize are here joyned with the Justices of peace , and these words 3 Jac. 4. § 41. N. 1 ( Where any Bishop or Justices of Peace seem to bear this construction , viz , either the one or the other indifferently may require the oath , and that can be intended only of the power given out of Sessions , for in the Sessions the Bishop hath nothing to do .

But had the Justices of Assize been here added , scil. in all Cases where the Bishops Justices of Assize , or Justices of peace may require this oath , it had been clear that the power here 3 Jac. 4. § 41. N. 1. given the six privy Counsellours was as extensive as that which 3 Jac. 4. § 14. N. 3. is given the Justices of Assize , or Justices of peace in their Sessions , and they might have required the oath of any Nobleman or unmarried Noblewoman whatsoever of competent age . So if the Justices of Peace only had been here named , it had been clearly intended of the Justices of peace in either capacity , either in or out of Sessions . But ( Bishops ) 3 Jac. 4. § 41. N. 1. seems here to be a restrictive word , and to give the privy Counnsellours no more power , in respect of the Nobility , than the Bishops had in reference to any other Subject .

2. These words ( in all Causes where , &c. ) 3 Jac. 4. § 41. N. 1. seem to be restrictive likewise , and exclusive of some Causes ; but the power of Justices of peace in Sessions 3 Jac. 4. § 14. N. 3. extends to all Causes and persons under the degree of Nobility whatsoever , which therefore can not be here intended 3 Jac. 4. § 41. N. 1. but only some particular Causes ejusdem generis , which can be no other than the Causes before-mentioned 3 Jac. 4. § 13. N. 1. wherein the Bishops or two Justices out of Sessions may deal , scil. where the party was before convicted or indicted , or had not received the Sacrament , or passed unknown , and confessed , &c.

And yet as it is reported 1 Bulstr. 197. the Lord Vaux Ca. Pasch. 10. Car. 1. is to the contrary , for it is said there , he was committed to the Fleet by the Privy Counsel for refusing the oath of Allegeance , and afterwards indicted in B. R. of a praemunire for such his refusal , he being then of the age of 18 years , and above , and the said oath being lawfully tendered , &c. All which was certified to the Court by divers of the Privy Counsel , upon which Indictment he was arraigned , and no word in the Indictment of his standing convicted or indicted of Recusancy , or not having received the Sacrament , &c. and yet the Indictment was grounded upon 3 Jac. 4. § 41. N. 1. and not upon 7 Jac. 6. § 26. N. 1. for by that statute 7 Jac. 6. § 26. N. 5. he could not have been indicted of a praemunire for the first refusal , but must have been committed , until the next Assizes or Sessions , and if he had there refused it the second time , he might have been indicted of a praemunire and not otherwise ; but whether this Indictment were according to Law , or only passed sub silentis quaere .

Note , by 7 Jac. 6. § 26. N. 1. any privy Counsellour , or the Bishop of the Diocess may now require this oath of any Baron or Baroness of or above the age of 18 years , in all Cases , and in some Cases some privy Counsellours Quorum unus . &c. may require it of persons above the said degree .

CCXII. Dignity . Page 198. Noblewoman 3 Jac. 4. § 41. N. 1. A Noblewoman who was such by marriage only becomes a Widow , and takes to her second husband a person under the degree of Nobility , by this her second Marriage she hath lost her Nobility ; and if she again becomes a Widow , the oath shall not be tendred her by Privy Counsellours , but the Bishop or two Justices of peace Quorum unus , &c. may by force of this Act 3 Jac. 4. § 41. N. 1. require her to take it , and upon her refusal may proceed against her , as is above directed in the Case of a common person , supra infra 262.

CCXIII. Days . Page 198. then being above the age of 18 years , 3 Jac. 4. § 41. N. 1. in this Case that day eighteen years , on which the party was born , must be wholly elapsed ; for before this oath cannot be tendered , altho the hour of his birth be elapsed , for the Law rejects all fractions and divisions of a Day , for the uncertainty which is always the mother of contention , 5 Co. 1. Claytons Ca. 2 Rolls Abr. 521 tit . Temps .

Page 198. CCXIV. Praemunire 3 Iac. 4. § 41. N. 2. in 1. Bulstr. 197. the Court of B. R. denied the Lord Vaux Counsel , or trial by his Peers , and it was there held that the trial of a Nobleman by his Peers is at Common Law in 4 Cases only , viz , Treason , felony and misprision of both , but not to be allowed in the case of a praemunire , for that in effect is no more than a contempt .

CCXV . Cinque Ports Page 198 , 199. If the Warden of the Cinque Ports do take such bond , and minister such oath , and do not certify them into the Exchequer , this seems to be casus omissus , and not provided for by the Act , 3 Iac. 4. § 42. N. 1. for he shall not be liable to the penalty inflicted by 3 Iac. 4. § 21. N. 2. on the Customer and Controller ; for that , altho it be within the same mischief , there are no express words here , 3 Iac. 4. § 4. N. 1. to reach him , and penal statutes shall not be taken or construed by equity . Lee 77 Yelvert . 22 Com , 17.86 . Kelway 96 , 2 Roll 420. & 1. Inst. 238.

13 Iac. 5. Of RECUSANTS .

CCXVI . Days PAge 201. Within three Days next after the Offence commited , 3 Iac. 5. § 1. N. 3. So that if three Days next after the Offence committed , elapse before the discovery is made , the discoverer shall have no benefit by this Act.

And therefore if the person discovering had no notice of the Offence , till the three Days expire , altho he discovers it presently upon such notice given him , yet he comes too late , much less shall he have three days after notice , as Wingate Coron. 128. mistakes .

CCXVII : Sherifs . Page 201. commanding the said Sheriff or other Officer to pay the same , 3. Jac. 5. § 1. N. 5. In the late Additions to Dalton . Cap. 81. Sect. 57. 't is said that the Sheriff is to grant his warrant for the payment of the discoverer , but that is a meer mis-recital for the Sheriff himself is to pay him .

Page 203. CCXVIII : In the late Additions to Dalt . Cap. 81. Sect. 45. this Clause 3 Jac. 5. § 3. N. 2. is otherwise recited , viz , that the Recusant , if he live within ten miles distance of London , is to deliver up his name to the Lord Mayor there , and 3 Jac. 5. § 4. N. 1. if he live above ten miles distant , then to the next Justice of peace : but the Statute is there mistaken in both points ; for by 3 Jac. 5. § 3. N. 3. if the Recusant dwell within ten miles of London , and not in London , he is to deliver up his name to the next Justice of peace , and not to the Lord Mayor , and if he dwell above ten miles from London he is not within this Act , 3 Jac. 5. § 3. N. 4 nor bound by force thereof to deliver up his name at all . Infra 278.

CCXIX. Lieu. Page 203 , 204. This Proviso 3 Jac. 5. § 5. N. 1. is by some taken to be in force at this day . But yet under favour as the Proviso is penned it seems to the contrary , and that now all Popish Recusants convicted or indicted of Recusancy , or not repairing to Church , but forbearing by the space of three months , are by this Act to depart London , and ten miles compass of the same , notwithstanding they are Trades-men , or have no other place of Dwelling .

For as to Tradesmen here , 3 Jac. 5. § 5. N. 1. are no other excepted than such as when this Act was made , used some Trade , mystery or manual ocupation : and as to both Tradesmen , and such as had or should have their only Dwelling in London , or ten miles compass , the Statute limits them to that place where they inhabited three months next before the Session of Parliament , wherein this Act was made , which cannot by any strained construction , extend to those in future times .

But the meaning of 3 Jac. 5. § 5. N. 1. seems to be , that Popish Recusants indicted or convicted of recusancy , or not repairing to Church , &c. who were then Tradesmen within London or ten miles compass , or such as then resided within London or ten miles compass , and should have no other place of abode , might continue there ; so that they removed not to any other Dwelling than where they inhabited by the space of three months next before that Session of Parliament : or if they did , they were to lose the benefit of this Proviso , and must have removed above ten miles from London , as well as other Popish Recusants convicted or indicted , or not repairing to Church , as aforesaid .

And for those words ( such as shall have their onely Dwelling within the said City , &c. 3 Jac. 5. § 5. N. 1. the future tense ( shall have ) doth not intend such Recusants as should have their Dwelling there , or within the ten miles compass after the making of this Act , and not before : but only such who having their Dwelling there before that Session of Parliament should at the time of their being indicted or convicted have their onely Dwelling there .

For if they had at such time of their being convicted or indicted two several houses , one within London or ten miles , and the other at a further distance , altho they inhabited in that which was within London or ten miles for three months next before that Session of Parliament , yet if they were not Tradesmen at the time of the makieg of this Act , 3 Jac. 5. § 5. N. 1. they should have had no benefit by this Proviso , but ought within ten days after such Indictment or Conviction for Recusancy , to have removed out of the compass of ten miles .

Page 205. CCXX . Licence . Giving Power to grant license or licenses unto the said Recusants , by 35. Eliz. 2. § 12. N. 1. in the Proviso which is by 3 Jac: 5. § 6. N. 4. here repealed is only that which there impowers the Justices of peace , for that is the onely Provise which gives power to grant licence , and the cause here alledged for the repeal , 3 Jac. 5. § 6. N. 2. is the giving of sundry Licences to recusants under colour of a Proviso in 35 Eliz. 2. which can be construed only of those , which were given by the Justices of peace , 35 Eliz. 2. § 12. N. 1. and not of the other Licenses given by 35 Eliz. 2. in several other Cases , so that the Proviso's there , 35 Eliz. 2. § 13 and 14. permitting the Popish recusant to travel in case of process , or commandment by privy Counsellours , or the Queens Commissioners or Proclamation to render his body to the Sheriffs , remain still in force and unrepealed , and the recusant may take the benefit thereof ae this day .

Page 207 , CCXXI . 208. by ( such Recusant ) is intended here , 3 Jac. 5. § 7 N. 1. such Recusant as is confined by 35 Eliz. 2. § 3. N. 1 and § 4. N. 1. and not only such as were mentioned in 3 Iac. 5. § 6. N. 1 for that recital is imperfect , in that it mentions only the Popish recusant convict , 35 Eliz. 2. § 3. N. 1. whereas 35 Eliz. 2. § 4. N. 1. speaks as well of the Popish recusant not convicted , who hath no certain place of abode .

And the benefit of having Licenses from the King or three Privy Counsellours by force of this Act , 3 Jac. 5. § 7. N. 1. is intended as well to the one as the other , altho the convicted only are mentioned in the recital ; And this will plainly appear 1. by the following words here , 3 Iac. 5. § 7. N. 2 which impower the Justices of peace to grant licences , and expressly extend to all now . It cannot be presumed that the makers of the Law intended any difference between the persons to be licensed by the King or privy Counsellours , & the persons to be licensed by the Justices of peace , the power given 3 Jac. 5. § 7. N. 1. to the King or privy Counsellours being more absolute , and not under such praecautions , as is that which is given 3 Jac. 5. § 7. N. 3. to the Justices of peace : for the King or privy Counsellours may grant a license to the Recusant to travel without any particular Cause shewn in the license , or the assent of any other person and , whithout any oath to be made by the recusant , which the Justices of peace cannot do , and there is no reason to think that the power here given to the King or privy Counsellours , which in all other Particulars is so much more absolute and extensive than that given to the Justices of peace should be yet less extensive as to the persons to be licensed .

2. It were absurd to think , that the makers of 3 Jac. 5. § 7. N. 1. intended to confer a greater Priviledge upon the Recusant convicted , whose offence appears upon record , then to such as are not convicted , &c. But if by ( such Recusants ) should be meant only such as are mentioned in the recital 3 Jac. 5. § 6. N. 1. viz , those convicted , and not all who are confined by 35. Eliz. 2. § 3. N. 1. & § 4. N. 1. it would follow that the convicted recusant , who is the more notorious offender may have a licence without any cause shewn , or oath made , but he who is not convicted , is barred of that priviledge , and can apply himself only to the Justices of peace for a licence clogged with divers circumstances which are not required in a licence granted by the King or the three privy Counsellours , 3 Jac. 5. § 7. N. 1.

Much less shall this recital , 3 Jac: 5. § 6. N : 1. of the Statute 35 Eliz. 2. § 3. N. 1. impeach the express words of that Statute , 35 Eliz. 2. § 4. N. 1. as if no other Popish Recusants were intended to be confined thereby , but only such as are convicted , because no other are mentioned in the recital , for the recital of an Act of Parliament in another Act of Parliament being only by way of Preface or Introduction , cannot add to or diminish the Act recited , or make it liable to any other construction than what shall naturally flow from the Act it self , 4. Inst. 331 :

Page 208. CCXXII . Without any other cause to be expressed , 3 Jac. 5. § 7. N. 1. here is one difference between a licence by the King or three of the privy Counsel , and a licence by Justices of peace , for by these 3 Iac. 7. § 5. N. 2. it ought not to be granted , unless the Popish rcusant hath necessary occasions or business ; but the King 's or privy Counsellours licence may be granted in any case at the Recusants request .

Page 208 Vnder the Hands and Seals , CCXIII. 3 Jac. 5. § 7. N. 2. An Indictment was brought upon 35 Eliz. 2. § 3. N. 1. for travelling out of the compass of five miles the recusant pleaded a license under the Seals of four Justices of peace , and exception was taken to the plea ; for that the license ought to have been under their hands as well as their seals , 2 Cr. 352. Mich. 12. Jac. Maxfield Case . And this is a good exception for a license by Justices of peace , altho in writing 't is not sufficient without Seals and subscription both , 1 Roll 108 Pl. 47 , Mucclefields Ca.

CCXXIV. Recusantis Of four of the Justices of Peace 3 Jac. 5. § 7. N. 2. and a license from less than four will not now serve , since the repeal of 35 Eliz. 2. § 12. N. 1. and therefore 1 Roll 108 is misreported in that particular ; for there mention is made of a license from two Justices of peace , as if no more were then requisite , and that Case could not be grounded upon the Proviso in 35 Eliz. 2. § 12. N. 1. which required only two Justices as well for the distance of time ( being nine years ) after the repeal of that Proviso by 3 Jac. 5. § 6. N. 4. ) As for that in Roll 108 there is mention of a licence under the Seals of the Justices of Peace , and of the oath to be taken by the recusant , neither of which was appointed by 35 Eliz. 2. § 12. N. 1. but by this Statute 3 Jac. 5. § 7. N. 4. which must therefore necessarily be there intended , and

Page 208 , CCXXV. 209. With the privity and assent in writing of the Bishop , &c. the Lieutenant , or of any Deputy Lieutenant , 3 Jac. 5. § 7. N. 2. An information was brought against a Popish recusant convict for removing above five miles from the place of his confinement , who pleaded a licence from four Justices of peace , but the plea was disallowed Mich. 12 Jac. Moor 836. Pl. 1127. Mansfields Ca. But yet if it had been granted with the assent of any Deputy Lieutenant residing in the County , there is no doubt but it had been good enough .

The Bishop , Lieutenant , or Deputy Lieutenant who gives his assent , must be a distinct person from the Justices of peace , who grant the licence by 3 Jac. 5. § 7 N. 2. and therefore if one and the same person be a Justice of peace and Deputy Lieutenant , he can not act herein in both capaciteis , for una persona non potest supplere vicem duorum , and if he sign and seal the licence as a Justice of peace , the assent of some other Deputy Lieutenant , or of the Bishop , or Lieutenant must be had thereto , or the licence is void , Mich. 12. Jac. Maxfield's Ca. 2 Cr. 352. and Mansfield's Ca. Moor 836. Pl. 1127. and Mucclefield's Ca 1 Roll 108. and that Rule Quando duo jura concurrunt in una persona , aequum est ac si essent in diversis holds not in such Cases where distinct persons are necessarily required by Law , 7 Co. 14. Calvin's Ca. and here four persons 3 Jac. 5. § 7 N. 2. are necessarily required to grant the licence , and another person to assent to it .

In 2 Cr. 352. one exception to the license in Maxfield's Ca. was that the assent of the Deputy Lieutenant was contained in the license granted by the four Justices of peace , and was not separate and distinct by it self ; But to this the Court made no answer , and it seems that such an assent is well enough by 3 Iac. 5. § 7. N. 2. tho in the same writing with the license , if it be expressed that the four do license , and the Deputy Lieutenant doth assent , and such writing be under the Hands and Seals of all five .

Page 209 , 210. residing within the said county or liberty , 3 Iac. 5. § 7. N. 2. these words seem to refelr as wel to the Bishop & Lieutenant as to the Deputy Lieutenant ; so that if a Bishop's Diocess extends into divers Counties , and he resides in one of them , his assent can be good only for the Popish recusants of that County where he resides , and not for those of any other part of this Diocess .

CCXXVI . Licence . So if a Lieutenant resides out of the County whereof he is Lieutenant , his assent to such license is void , and that these words ( Residing within the County or Liberty ) 3 Iac. 5. § 7. N. 2. cannot be restrained to the Deputy Lieutenant only , appears by those next before-going ( viz , of the same County ) which clearly relate to the Lieutenant as well as to the Deputy Lieutenant , and by consequence so must the word immediately subsequent ( viz , Residing ) and as to the Bishop , the inconvenience is the same as in the Case of the Lieutenant , 3 Jac. 5. § 7. N. 2. for by their remoteness they are disabled to judge of the condition and behaviour of the Recusant to be licensed , and of the circumstances wherein he stands , and whether such license may be granted to him without hazard of the publick safety , which seems to be the reason of this restriction to the County or Liberty where the party who is to assent , resides , and holds as well the case of the Bishop or Lieutenant as of any Deputy Lieutenant residing out of the County .

Page 210 The particular Cause of the said License , CCXXVIII 3 Jac. 5. § 7. N. 3. in Maxfield's Ca. 2 Cr. 352 , another exception to the license granted by the four Justices , was , that it was said to be granted for certain urgent causes : but no particular cause for the recusants travel was expressed in the license : and this seems to be a good exception for the inserting into the License that the Popish recusant hath urgent or necessary occasion , or business , answers only the former part of this Proviso , 3 Jac. 5. § 7. N. 2. which gives the former Justices power to license him , if he hath necessary occasion or business to travel out of the compass of five miles , but withall , it ought to be mentioned in the license , particularly what that occasion or business is which is the cause of the License , for so this Act here , 3 Iac. 5. § 7. N. 3. expressly appoints , and therefore that form of a License for a recusant to travel , which Dalton 379 Cap. 124. tit . licenses , hath set down , wherein no cause is mentioned , but urgent and necessary business seems too short and general and is not to be relyed on .

Page 210 , CCXXVIII First taking his Corporal oath 3 Iac. 5. § 7. N. 4. in Mansfiel . ca. Moor 836. pl. 1127. there is another oath mentioned for a Popish recusant to take before he can be licensed to travel , and that is the oath of Allegiance prescribed by 3 Jac. 4. § 25. N. 1. for in Moor 836. it 's said that in an Information brought against the recusant for travelling out of the compass of five miles , the defendant pleaded a licence from four Justices of peace , and his plea was disallowed , because ( among other things ) that did not shew that before the licence he had taken the oath of Allegiance , yet Quaere of this and by what Law the omitting to take that Oath makes the Licence void , but I rather think it to be a mistake , and that such an exception might be moved , but the plea not disallowed for that reason .

Page 210 , 211. Before the said four Justices of the Peace or any of them , 3 Jac. 5. § 7. N. 4. Master Shepherd in Sure Guide , Cap. 14. Sect. 5. thinks that no less than two of the four Justices of the peace can minister this Oath to the recusant . But I take it to be there that any one of the four Justices may minister the Oath in this Case .

And there is a great difference between ( any Justices ) for that denotes the Plural number , as in the subsequent clause , 3 Jac. 5. § 27. N. 1. where any Justices may imprison the Offender , that is any two Justices or more , and ( Any of the Justices ) are here 3 Iac. 5 § 7. N. 4. which denotes the singular number ; and the following words ( who shall have Authority by vertue of this Act to minister the same ) may be well enough applied to any one Justice of peace :

Page 211. CCXXX . That he hath truly informed them of the Cause of his journey , 3 Iac. 5. § 7 N. 4. If an information be brought against a Popish recusant for travelling out of his compass of five miles , and he plead a licence from four Justices of peace , it seems necessary that he averr in his plea that the cause contained in his licence was true and real , Moor 836. pl. 1127.

CCXXXI : Ability . Page 212. This clause 3 Iac. 5. § 8. N. 9. extends not to all sorts of recusants who are convicted , or have Wives , who are recusants convicted , as is mistaken in the Additions to Dalton , Cap. 81. Sect. 46. tit . Recusants , but at this day only to the Popish recusant convicted or having a Wife who is a Popish recusant convicted .

A Popish recusant not convicted hath a Wife who is convicted of recusancy , but is no Popish recusant , the Husband is not disabled by 3 Iac. 5. § 9. N. 1. to exercise any publick Office or Charge ; for that neither the Husband is a convicted recusant ; nor the Wife a Popish recusant .

A person who is convicted of recusancy , but is no Popish recusant , hath a Wife who is a Popish recusant , but not convicted , the Husband is out of this branch of the Statute 3 Iac. 5. § 9. N. 1. for that neither the Husband is a Popish recusant , nor the Wife convicted .

CCXXXII . Women . Page 213 , 214 , 215. The Issues and Profits of two parts of her Dower , 3 Iac. 5. § 10. N. 1. and not of two parts of her Joynture or Dower , as Wingate Coron. 134 For there are divers Cases , where , notwithstanding 27. H. 8.10 . § 6 N. 3. the Wife shall have her Dower and Joynture both , and if she offend against 3 Iac. 5. § 10. N. 1. she shall forfeit the profits of two parts of both ; and that not only where the Joynture made to her is not warranted by 27 H. 8.10 . § 6. N. 1 But in some Cases where the Joynture is pursuant and according to the Statute , she shall have her Dower and Joynture both .

If an Estate be made of Lands to the wife for the Life of another , Dower . 4 Co. 3 : Vernons Case .

Or for a thousand years , if she lives so long , 1 Iust. 36.

Or if a Rent be granted to the Wife for the life of another , or for years , or any other way not pursuant to 27. H. 8.10 . § 6. N. 1. Bickley's Ca. 1. Anderson 288. pl. 296. and 2 Anderson 30 pl. 2. Wentworth's Case .

Or if an Estate be made to others in Fee , or for the Wives life upon trust for her benefit , 1 Inst. 36.

Or if a man covenant to stand feised to the use of himself in Tayl , the Rem . to the use of his Wife for life Pasch 16. Jac. B. R. Wood's Ca.

Or if the Husband make a Feoffment in Fee to the use of himself for life , the Remainder to another for life or years , the remainder to the Wife for her life , 4 Co 2. Hutt . 51. Shrewell's Ca.

In all these Cases altho the Lands or rent were conveyed to the Wife for her Joynture , yet the Estate not being within 27 H. 8.10 . § 6. N. 1. her acceptance thereof shall not barre her Dower , but she shall have such Joynture and her Dower also .

And the reason why in the two last Cases the Wife shall not be barred of her Dower , altho there be an Estate limited to her for her life , is , because the Estate is not in its first Creation appoynted to take immediatly after the death of the Husband , and no matter which ariseth ex post facto , can salve this , or make it a Joynture within 27 H. 8.10 . § 6. N. 3. to barre her Dower .

And therefore if in Wood's C●●●●… the Husband Tenant in Tayl dyeth without issue , or if in Hutt. 51. he in remainder dye before the Husband , or the term for years determine in the Husband's life-time , so that the Wife may enter presently after his death , yet because the Estate to the wife for her life was not originally limited to take immediately after his death , it shall not barre her Dower quod ab initio non valet &c.

And as in all the Cases befo-rementioned if the Estate were made for her Joynture , the Wife shall have such Joynture and Dower , both ( so if she be an Offender within 3 Jac. 5. § 10. N. 1 and conform not within the year next before her Husband's death , ) she shall forfeit the profits of two parts of both .

But otherwise it is where an Estate is given or limited by the Husband to the Wife , and it 's neither expressed nor can be averred and proved to be given , or limited for her Joynture , or in recompense of her Dower , and therefore if any of the Estates before-mentioned , which are not within 27 H. 8.10 . § 6. N. 1. be granted or limited to the Wife by the Husband , or any other Estate for her life , or otherwise which would be a good Joynture within the said Statute , if it were intended for a Joynture , as if a man before or after Marriage covenants to stand seised of Lands to the use of himself for life , the remainder to his Wife for her life , and it is neither expressed in the deed , nor can be averred and proved that it was for her Joynture ; Or if a man devise Lands by his last Will to his Wife generally , and there is no mention in the Will that 't is for her Joynture ( for in this Case an Averment that it was so intended will not serve , unless there be express words in the will to that purpose , These Estates so gained by the Wife , as they do not barre her Dower out of the Residue of her Husband's Estate , but that she shall enjoy both the one and the other , 4 Co. 4. So they are not within the meaning of this Act 3 Jac. 5. § 10. N. 1. because not made for her Joynture , and she shall not forfeit the Profits of two parts of them , altho she may forfeit the Profits of two parts of her Dower , which she hath out of the residue of her Husband's Estate .

If Lands be conveyed to the Wife before Marriage for part of her Joynture , and other Lands are conveyed to her after Marriage , in full satisfaction of her Joynture , and she refuse those conveyed after Marriage , in this Case she may retain those conveyed before marriage , and yet be endowed of the residue of her Husband's Estate , for that the Lands first settled on her were not for her whole Joynture , 1 Inst. 35. and 4 Co. 3.

And if she be a Popish recusant convict , and her Husband none , and she conform not within the year next before his Death , she shall forfeit the Profits of two parts both of such Dower and of the Estate so conveyed to her before her Marriage .

And as the Wife shall have her Joynture and Dower both in such Cases where the Joynture is not pursuant to 27 H. 8.10 . § 6. N. 1. So in some Cases likewise where she hath a Joynture pursuant to that Statute , as where she hath such a Joynture made to her by the Husband before Marriage ; and he afterwards endow her ad ostium Ecclesiae , or if she hath a Joynture made by the Husband in his life-time : and after his death , his Heir or Feoffee assigne other Lands to her in Dower , or the Heir plead to her in a Writt of Dower ne unques seisie que Dower , &c. or nient accouple in Loyal Matrimony or any other plea ( save Joynture ) in Barre of Dower , and it be found against him in these Cases , the Wife shall hold her Joynture , and yet be endowed ; and if she be an Offender within 3 Jac. 5. § 10. N. 1. shall forfeit the profits of two parts of her Joynture and Dower both .

But if a Widow , who is endowed of the Lands of her deceased Husband , takes a second Husband who is no Popish Recusant convicted , by whom she hath a Joynture , and she becomes a Popish Recusant convict , and the second Husband dyeth , and the Wife is Offender within 3 Jac. 5. § 10. N. 1. In this Case she shall not by force thereof forfeit the profits of two parts of such Dower and Joynture both : but only of her Joynture , for that her Dower is not out of the Lands of her said Husband , that is , of the Husband in whose life-time she stood convicted , and after such conviction forbore to conform , &c. within the year next before his death .

CCXXXIII . Judgment . Page 216. Convicted of Popish Recusaney 3 Jac. 5. § 11 : N. 1. The conviction mentioned here and in the other Branches of this Statute , seems to be intended not only of a Conviction according to 26 Eliz. 6 : § 5. N : . 5. or 3 Jac. 4. § 7. N. 2. upon Proclamation and default of appearance , but of a judgment likewise upon an Indictment or popular suit on 23 Eliz. 1. § 5. N. 1. and 11. N. 1. for Conviction in relation to these three last mentioned Remedies is to be taken for adjudged or attainted supra 63. N. 2. and the Popish Recusant who is either convicted upon proclamation and default of appearance or against whom Judgment is had upon an Indictment , popular suit or action of debt ; &c. at the King's suit is hereby disabled as an excommunicate person and liable to all other the penalties and incapacities inflicted by this Act 3 Jac. 5. on a Popish Recusant convicted .

CCXXXIV . Excomgent . Page 216 Reputed to all intents and purposes disabled as a person , &c. excommunicate , 3 Jac. 5. § 11. N. 1. and not reputed to all intents as an excommunicate person , as Wingate Coron 135 mis-recites : for as it seems by the words of the Statute the Popish Recusant convicted is not to be reputed as a person excommunicate in any other respect , or to any other intent but as to his Disability only infra 243. and yet 2 Bulstr. 145.155 : the opinion of the Court in B. R. Mich. 11. Jac. Griffith's Ca. seems to be to the contrary , that a Popish Recusant convicted may by force of 3 Jac. 5. § 11. N. 1. be attached upon a Writ de excommunicato capeindo : Tamen quaere whether this statute being a penal Law and speaking only of the point of disability shall be extended by equity to other Cases , or the Recusant be attached upon an excommunicato capiendo , unless he be first actually excommunicated .

A Popish Recusant convict is disabled as an excommunicate person to be a witness in any Cause between Party and Party by Coke Ch. Inst. 2 Bulstr. 155.

Page 216 , 217 , 218. CCXXXV . May plead the same in disabling of such Plaintiff 3 Jac. 5. § 11. N. 2. this disability in the Popish Recusant convicted , is but Quousque , &c. untill he conform , &c. and take the Oath of Allegeance , and the Defendant must in this Case plead the Conviction at large , and must as in a plea of Excommengement demand if the plaintiff shall be answered , Hetley 18. which is the Legal Conclusion of a Plea in disability of the person .

The Defendant in debt upon an Obligation pleads that the Plaintiff is a Popish Recusant convict , who replyeth nul tiel record such plea in disability of the person is peremptory and nul tiel record is an issue and judgment shall be given against the Defendant upon failer of the Record , Hetley 18.

But yet if there be a Plea of a Conviction of Recusancy had before the Justices of Gaol delivery , and the Defendant mistakes , Certiorari . and takes out a Certiorari to the Justices of Peace , this shall not be a failer of the Record , altho the Defendant hath it not at the day ; for that the issuing of a Certiorari was the Award of the Court : but a Certiorari shall be awarded de novo to the Justices of Gaol delivery before whom the Plaintiff was convicted , Hob. 135. Pye and Thrill .

Note : If the Defendant be sued in C. B. or any other of the Principal Courts at Westminster , and he plead a Conviction of Recusancy before the Justices of Gaol delivery , or Justices of Peace , he need not take his Certiorari out of the Chancery , and so bring it by Mittimus ; but the Court may send a Certiorari immediately to that inferiour Court where the Plaintiff was convicted , as was held Hob. 135. See 19 H. 6.19 .

And the Justices themselves before whom the Conviction was had , must certify ; and therefore if the Conviction was had before Justice of peace , the Certificate cannot be by the Custos Rotulorum alone , though he keep the Records , for the Certiorari is in such Case directed to the Justices of peace , Hob 135.

A Popish Recusant is convicted of recusancy in a popular suit , and after such Conviction sues the Informer qui tam , &c. upon some other matter or cause of action arising between them . Quaere whether the Desendant may plead such Conviction in disability of the Recusant , by 3 Jac. 5. § 11. N. 2. for this Conviction disables the Recusant to sue as if he were excommunicated , and no otherwise .

Now if a Bishop excommunicate any one , and the Bishop be afterwards sued at Law for any other matter or cause by the person so excommunicated , the Bishop cannot plead this Excommunication in disability of the plaintiff who sueth 1 Inst. 134. Swinborn 305. part. 5. sect. 6. and the reason given for this 8 Co. 68. in Trollop's Case is , because the Bishop was a party to the Excommunication , and therefore shall take no advantage by it .

Which reason seems to hold likewise in the case of an Informer Qui tam , &c. who is a party to the Conviction of the Recusant upon the popular suit ; which conviction renders the Recusant disabled to all intents as an excommunicate person ; and therefore he being a party to it , by the same Rule shall not take advantage of it in disability of the Recusant in any action brought by the Recusant against him :

But yet notwithstanding I conceive the Informer qui tam , &c , at whose suit the Recusant was convicted , may well take advantage of this Conviction , and plead it in disability of the person of the Recusant , and that the true reason why the Bishop shall not be admitted to plead an Excommunication pronounced by him in disability , &c. is not because he is a party to the Excommengement ; but because in matters of Excommunication the Bishop acts as judge , and 't is by his Sentence and Authority that the party is excommunicated , and he shall not take advantage in another suit of a sentence given by himself judicially ; and this will not hold in the case of an Informer , &c.

14. H. 4.14 .

If an Executor or Administrator becomes a Popish recusant convict , it seems he is disabled by this Act , 3 Jac. 5. § 1. N. 1. to sue in either of these capacities , for 3 Jac. 5 § 11. N. 1. saith he shall be disabled to all intents as an excommunicate person . Now a person actually excommunicated can not sue as Executor or Administrator , as is held 21 Ed. 4.49 . 21 H. 6.30 and 14. H. 6.15 . and 1 Inst. 134. altho there are some opinions to the contrary , Finch . 27.

Page 219 , CCXXXVI . 220. Which are not to be seized or taken into the King's hands , &c. 3 Jac. 5 § 12. N. 1. these words are not restrained to such Lands , &c. as cannot be seized into the King's hands for recusancy , for then the Recusant could in no case sue for more than the third part , for that the King may , if he please , make his Election , and seize the other two parts in lieu of the XX. lb per Month : But they are intended of all Lands , &c. of the recusant , which neither the King hath seized , nor are by Law to be seized by vertue of any thing which the king hath already done ; or in respect of what the recusant after his conviction hath omitted to do .

And therefore if a man be convicted of recusancy upon a popular suit , or an action of debt at the King's suit alone ( in which cases the penalty of XX. lib. per Month is not appropriated to the King for the time to come ; ) and he payeth the penalty recovered ; or if he be convicted upon Indictment ; and after such Conviction duly payes the XX. lib. per Month into the Exchequer , and the King makes no Election to take the two third parts of his Estate in lieu thereof such Recusant may by this Proviso 3 Jac. 5. § 12. N. 1. in either of those Cases sue or prosecute for any of his Lands , Tenements , Leases , Rents , Annuitys or Hereditaments whatsoever notwithstanding his conviction : for when the penalty recovered is satisfied or the forfeiture appropriated to the King is duely paid into the Exchequer his lands , &c. are not to be seized by force of any Law for recusancy , unless the King make his Election to have the two parts , and untill that Election they cannot in the sense of this Proviso , 3 Jac. 5. § 12. N. 1. be said to be Lands to be seized or taken into the King's hands , for that the King cannot have the two parts , and the XX. lib. per Month both .

But if the King make no such Election and the XX. lib. per Month be duely paid into the Exchequer , the Recusant is to hold and enjoy all his Lands , Tenements , &c. as if he had never been convicted : and during that time there can be no distinction made between the two parts and the Recusants third part : so that in this Case the recusant must either be enabled to sue and prosecute for all his Lands , &c. or none , and and to think the latter of these were to render this Proviso 3 Jac. 5. § 12. N. 1. nugatory and vain : But when once the King hath seized the two Thirds for Recusancy either by way of Election or for non-payment of the XX. lib. per Month penalty then the Recusant is enabled to sue only for the other Third part whether in the hands of the King or of a common person .

CCXXXVII . Marriage : Page 220 , 221. Every man , being , or which shall be a Popish Recusant convicted , 3 Jac. 5 § 13. N. 2. A man who is no Popish recusant convicted , marrieth a Woman who is a Popish recusant convicted in other form than is here 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 two Justices Hutton and Iones were divided in opinion upon this point .

For Hutton held that that which is given to the University by 3 Iac. 5. § 19. N. 1. is a settled Estate and Interest , and compared it to the Interest or Estate of the Lord who was to hold the Land , until he was satisfied , the value of the Marriage of the Heir , 52 H. 3.6 . § N. and to that of the Counsel by action , Burnell 11 : Ed. 1. pag. 35. § N. and to an Estate given to a man , until C. lib. be paid . In all which Cases the party hath a settled Estate and Interest in the Land .

But Iones contrary , that the University by 3 Iac. 5. § 19. N. 1. hath only a power or liberty to present ( when the Church becomes void , and compared it to the power given to the Bishop to present by lapse after the six months , 13 Ed. 1.5 . § N. and to that given by 25 Ed. 3. St pog. 121. § N. of Proviso's , where the Pope provides : and to that given to the King by 31 Eliz. 6. § N. of Symony : In which Cases no Estate or Interest is transferred , but only a power or liberty granted to present .

For this Act , 3 Jac. 5. § 19. N. 1. doth not remove the patronage from the Popish Recusant , but that continues still in himself , and he is Patron notwithstanding his Conviction , and as Patron shall confirm a lease made by the Incumbent , as he might have done before his Conviction , which proves that the Interest of the Patronage is not divested out of him , nor consequently settled in the University .

Note : Altho this 3 Jac. 5. be a general Statute , and 3 Jac. 5. § 18. N. 1. be general , of which the Judges ought to take notice ; yet this part of it , 3 Jac. 5. § 19. N. 1. is Special and private , for that it concerns only particular persons , and must be pleaded or specially found , or otherwise the Judges cannot take notice of it , Hob. 227. An. Needlers Case : and 10 Co. 57. and 4 Co. 76. Hollands Case 13 Ed. 4.8 .

Page 230 , 231 , 232 , 233. During such time as the Patron thereof shall be , and remain a Recusant convict , 3 Jac. 5. § 19. N. 1. If the University bring a second Impediment upon this Statute , they must averr that the Popish Recusant Convict was and remained such at the time when the Church became void . For without that they do not enable themselves to present : But they need not averr that he remains a Popish Recusant Convict at the time of the bringing of the second Impediment ; for when the presentment hac vice is once vested in the University , altho the Recusant conform or dye , yet the University shall present .

These words 3 Jac. 5. § 19. N. are words of Restraint , and the Statute gives only a limited power to the University , scilicet , so long as the Recusant shall be patron , or the patron shall be a recusant . So that if before the Church becomes void the recusancy be removed from the patron by his conformity or the patronage be removed from the Recusant , altho he continues a Recusant , the University have lost their power to present Jones 19.

And therefore if the Patron grant the advowson in Fee , or in Tall , or for life , or years ; these Cases are out of the Statute , 3 Jac. 5. § 19. N. 1. And altho after the Grant she becomes a Popish recusant convict , and then the Church becomes void , yet the University shall not present .

And if seems that altho the Patron make such a Grant of the advowson after his conviction , and before the Church is void , yet this shall barre the University , for the patronage was before the Avoidance removed from the Reversion , Jones 12.10 Co. 56. contrary to the opinion of Hutton ▪ who held that if a man made a lease for years of an advowson , yet if afterwards he becomes a Popish recusant convict , the University shall have the presentation as a future Interest given to them by this Act , notwithstanding such Lease Jones 26. And the reason , why by such Grants the University shall be barred , is , for that the Disability here inflicted on the Recusant is only a disability to present , or to grant the next Avoydance , which extends not to any of the Grants before-mentioned , nor severs the patronage from the Patron , as those other Grants do .

And the intent of 3 Iac. 5. § 19. N. 1. is to prevent a Presentation by the Recusant or by him to whom he should grant the Avoidance , who it was presumed would present such a one as the Recusant should appoint . But now when he grants the Advowson it self away , that Mischief is prevented , and the Statute 3 Jac. 5. § 19. N. 1. intended not in that Case to give away the presentation from the Grantee to the University , Jones 19 , 20. And yet if the Recusants grant of the Advowson in Fee or in Tayl , or for Life or Years , were by Covin or in Trust on purpose to avoid this Statute , and be averred and found so to be , such Grant shall not barr the University , 10 Co. 56. Jones 20. supra 246. N. 3. See Godbolt 216 Pl. 309.

But then the Averment in such Case must not be of Covin or fraud to any other intent , only ; but it must be averred to be to the particular intent to avoid this Statute , and defeat the University of the Presentment , and so it must be found by the Jury , &c.

A man seis'd inter alia of an Advowson in gross becomes a Popish Recusant convict , the King seiseth the Advowson , as part of two parts ; the Church becomes void in this Case , it was held by Hutt . that the University , and not the King shall present ; but Jones 17 held strongly to the contrary , and that notwithstanding 3 Jac. 5. § 19. N. 1. the King shall have the Presentation , for 3 Jac. 4. § 11. N. 4. saith that the King may take and seize two third parts of a Recusants Hereditaments , under which word an Advowson is comprehended , supra 178. N. 2.

And altho the power or liberty of presenting is here 3 Iac. 5.19 . N. 1. given the University , yet that is to be intended only in such Cases where a Popish recusant convict is Patron , but when the King hath seized the Advowson as part of his two parts , the King is Patron and not the Recusant ; nor shall the title the King hath to the Advowson by 3 Jac. 4. § 11 : N. 4. be divested by another Act of Parliament , unless it had been given away from the King in express terms , which Warb. and Winch. agreed .

To this it hath been objected that when 3 Jac. 5. § 18. N. 1. disables the Recusant to grant any Avoidance , it disables him to grant it to the King as well as to any other person ; but if the Recusant may forfeit the Advowson to the King , he may forfeit the avoidance to the King , and every forfeiture being a Grant or Gift in Law , as Com. 260.263 . 263. Hales Case , the Recusant by consequence may grant 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 , the Grantee should have been Guardian notwithstanding this Act , for the mischief intended here to be pretended was removed when the seigniory was granted to another who was no recusant by Jones 19. So if the King had seized , the reusants seigniory as part of his two parts , the King , should have had the Wardship and not the next of Kin , for the same reason , Jones 21.

Page 236 , 237. CCLIV Shall be thought unmeet for such recusant 3 Jac. 5. § 26. N. 2. So that the Justices of peace are not bound by this Act to deface all reliques of Price or to burn or deface all other Reliques or Popish books , as Wingate Coron. 144. misleads , &c. And though herein much is referred to the discretion of the Justices of peace , yet where the Husband is a Protestant , and only the Wife a Popish recusant , it seems by these words 3 Jac. 5. § 26. N. 2. that they are not to consider what is unmeet for the Husband , but what is unmeet for the Recusant , viz. the Wife : and that it was not intended that they should seize , burn or deface any Books of the Husbands tho Popish , unless such whereby the Wife might be aided or confirmed in her superstition . So that in this Case Books written in a Language or Style unintelligible to the Wife are not within the meaning of 3 Jac. 5. § 26. N. 2. nor ought by colour thereof to be taken from the Husband who is no Popish Recusant .

CCV . Warre . Page 238. In the same County where such Popish Recusant shall be resident , 3 Jac. 5. § 27. N. 1. A Popish Recusant lives in one County , and his Arms are kept in another County by one who is no Popish Recusant , such Arms cannot be seized by force of this Act by the Justices of Peace of either County .

Not by the Justices of Peace of the County where the Arms are kept for the seizure or taking is here limited to be by Warrant at the Sessions in the County where the Recusant resides , and 3 Jac. 5. § 27. N. must be strictly pursued in that particular : nor by the Justices of peace of the County where the Recusant is resident , for the Arms are in another County where they have nothing to do .

And altho in some cases where a Statute appoints a Justice of peace to do a thing , Justices . he may do it out of his County as to take an Examination upon the Statute of Winton , 13 Ed. 1. St. 2. Cap. 1. N. of a Robbery . 27 Eliz. 13. § 11. N. 2. as was resolved 1 Co. 213 Jones 239. Helier vers . H. of Bluhurst , yet he cannot exercise any coërcive power out of his County , as was resolved in that Case for his potestas jurisdictionis is confined to his County as well as that of a Bishop is confined to his Diocess , see Palmer 473. Astuiths case infra 266. N. 2. And here the taking of the Recusants armour is a coërcive act , and therefore by 3 Jac. 5. § 27. N. 1. can be executed by warrant of the four Justices of peace in that County only where they are Justices : so that this is clearly easus omissus and not provided for by this Act

Page 238. CCLVI. Imprisoned by Warrant of or from any Justices of peace , 3 Jac. 5. § 28. N. 1 any two Justices may grant their Warrant for imprisoning the Offender ; and 't is sufficient in this Case , for Pluralis numerus est duobus contentus , but a Warrant from any one Justice will not serve contrary to Wingate Ceron . 145.

Page 238 , 239. CCLVII . Of such County 3 Jac. 5. § 28. N. 1. that is of the County where the Popish Recusant is resident , for no other County was named before a Popish Recusant lives in one County , and his Arms are kept in another County by one who is no Popish Recusant , the Justices of peace of that other County cannot by force of this Act , 3 Jac. 5. § 28. N. 1. imprison him that keeps them , for they are not named here but the power in this Case is expressly limited to other Justices and no other can intermeddle therein ; neither will the Warrant of the Justices of peace of the County where the Recusant is resident , reach him who is in another County , for the coercive authority of a Justice of peace cannot exceed his limits or bounds , as Comm. 37. is held in the Case of the Lord Say .

It was resolved that if a Justice of Peace of the County where the Felony was committed pursue a Felon into another County and take him there , the Felon must be imprisoned in the County where he is taken , and the Justice of peace who pursued him hath no power to carry him to the Gaol of the County where he did the Felony , for he is a Prisoner in the County where he was taken , and there the Justice of Peace hath no more power to do than an ordinary person , 13 Ed. 48. Freshsuit Br. 3.

So that , as it seems in this Case , the party who keeps such Arms , cannot be imprisoned by 3 Jac. 5. § 28. N. 1. but this likewise wise is casus omissus , and not here provided for .

7 Iac. 6. Of Allegiance .

PAge 243.243 . upon 7 Jac. 6. § 8. N. 1. the King cannot dispence with any Member of the Commons House of Parliament from taking this Oath of Alleglance , CCLVIII. for that he is here declared to be persona inhabilis , untill he take it , Vaughan 355. Thomas and Sorrell supra , 44 and 3 Inst. 154.

Page 246. For any two Justices of Peace within any County , CCLIX . City or Town Corporate , &c. 7 Jac. 6. § 26. N. 2. the two Justices may require his Oath of any person that shall happen to be within their Jurisdiction , altho his Habitation be in another County or Liberty , for the Oath of Allegiance sequitur personam non locum , 2 Bulstr. 155. the King against Griffith , &c.

Page 246. To require any person or persons , CCLX . 7 Jac. 6. § 26. N. 2 : This is an enlargement of the power given to two Justices of Peace by 3 Jac. 4. § 13. N. 4. For thereby they could have required the Oath but only in some particular Cases , supra 181. but by 7 Iac. 6. § 26. N. 2. they may require it of any person whatsoever of competent age and under the degree of a Baron or Baroness .

The Justices of the Peace in this Case 7 Iac. 6. § 26. N. 2. or the Justice of peace in the following Case , 7 Iac. 6. § 26. N. 4. may make his or their special Warrant to the Constable to bring the party before the said Justice or Justices to take the oath ; for by 7 Iac. 6. § 26. N. 2. by giving them power to require the Oath doth implicitly authorize them to make such a Warrant Quando Lex aliquid alicui concedit , concedere videtur , & id sine quo res ipsa esse non potest : and it is against the Office of the Justices of Peace 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 against them , the Husband shall not only pay for the Time contained in the Information or Count , but the Wise shall be imprisoned ever afterwards , unless she conform , or the Huband pay ten Pounds per Month , or yield the third part of his Lands to the King .

And yet this Statute , 7 Jac. 6. § 28. N. 1. doth not after such Conviction of the Wise in a Popular Suit or Action of Debt , &c. at the King's Suit take away the Popular Action or Information from the Informer , or the Action of Debt , &c. from the King for the time to come ; but that they may be brought against the Husband and Wise for the Recusancy of the Wise for any Month or Months wherein she is absent from Church after such Conviction , for 7 Jac. 6. § 28. N. 1. and 23 Eliz. 1. § 11. N. 1. and 35 Eliz. 1. § 10. N. 2. are all Affirmative Laws , and may well stand together : So that any of the three Remedies given by these Statutes may be pursued , 7 Jac. 6. § 28. N. 1. not abrogating any former Law but only providing another way of Punishment for the Wife , after she is once Convicted : howbeit she shall not be punished by any more than one of these three wayes , 11 Co. 63. 1 Roll 94. Doctor Foster's Case : 2 Co. 529. Parker vers. Lawson Crompt 14.

And therefore , if the King bring an Action of Debt , &c. upon 35 Eliz. 1. § 10 N. 2. against the Husband and Wife , or the Informer sue them upon 23 Eliz. 1. § 11. N. 1. for any absence of the Wise from the Church , after she is once Convicted by either of those wayes , and recover : the Privy Counsellour , Bishop , or Justices of Peace here mentioned , 7 Jac. 6. § 28. N. 1. cannot imprison her by force of this Act for the non-payment of the ten Pounds per Month by the Husband for those Months for which the King or Informer hath recovered : or for his not yielding the Thirds of his Lands to the King .

And the Reason is for that , when the Husband stands charged with the Penalty of XX. lib. per Month for the absence of the Wife , the Intent is satisfied in respect of those Months of her absence for which he stands so charged , for if he pay not the XX lib. per Month so recovered , the King or Informer hath the ordinary Remedy after Judgment by Process or Capias against them both , and the Intent of the Act. 7 Jac. 6. § 28. N. 1. was no more than that the Husband should pay for the Recusancy of his Wife , or the Wife be imprisoned .

And if in this Case the Privy Counsellour , Bishop , or Justices of Peace should have power to inform the Wife , unless the Husband would pay ten lib. for the Months for which the King or Informer hath recovered , it would follow that the Husband hath his Election whether he will pay ten Pounds per Month to the King by force of this Act , 7 Jac. 6. § 26. N. 1. or the twenty Pound per Month so recovered against him by the King or Informer ; for he shall not pay both the one and the other , for that were by his puniri pro uno delicto : and if he shall have his Election , the King or Informer might by this device be eluded of the Penalty of twenty lib. per Month so recovered , which could not be the intent of the Makers of this Law .

But if the Wise be after such Conviction imprisoned by force of this Act , 7 Jac. 6. § 28. N. 1. neither the King or Informer can so sue the Husband and Wife for the Recusancy of the Wife , for she is already punished by this Act , and must remain in prison until the Husband pay the ten lib. for every Month , or yield the Thirds of his Lands to the King , or the Wife , conforms .

So if the Husband yields the Thirds of his Lands to save his Wifes imprisonment , he is already punished by this Act , 7 Jac. 6. § 28. N. 1. and shall not again be punished or sued by the King or Informer , either upon 23 Eliz. 1. § 11. N. 1. or 35 Elez. 1. § 10. N. 1.

And if after such Conviction of the Wife he pay ten lib. per Month , to save her imprisonment , he cannot be sued with his Wife for the twenty lib. per Month upon either of those Statutes by the King or Informer , for these Months of her absence from Church incurred after her Conviction , for which he hath paid the twenty lib. monthly to the King ; for he shall not bis puniri pro uno delicto .

Hitherto hath been spoken of the Conviction of the Wife at the King's Suit alone by Action of Debt . &c. or by the Informer , Qui cam , &c. which doth not appropriate the Penalty to the King by 29 29 Eliz. 6. § 4. N. 1. or 3 Jac. 4. § 8. N. 2.

If the Wife be Convicted of Recusancy upon an Indictment , it hath been much debated whether that doth not appropriate the Penalty of twenty lib. per Month to the King for the time to come , by 29 Eliz. 6. § 4. N. 1. and 3 Jac. 4. § 1. N. 2. that the King cannot bring an Action of Debt , or the Informer any Popular Suit against the Husband and Wife for any Offence of Recusancy committed by the Wife after such Conviction . supra 79. N. 17. and 173. N. 2. However , admitting they may yet now , if the King take advantage of this Statute , 7 Jac. 6. § 28. N. 1. and the Wife be either imprisoned , or the Husband yields the third part of his Lands to the King , there is no question but the King and the Informer are both barred to sue for the twenty lib. per Month for any time incurred after her Conviction , for the King hath made his Election to punish her this way , and the Informer cannot sue her , for she is punished already at the Suit of the King . And if the Husband pay the ten lib. per Month , the King and Informer are likewise barred for those Months of her absence from Church , incurred after her Conviction , for which the Husband hath paid the ten lib. monthly to the King , for he shall not be twice punished for the same Offence .

Page 255. CCLXXI. Of all his Lands and Tenements , 7 Jac. 6. § 28. N. 1. By Tenements are to be understood Offices , Rents , Commons , Profits , Apprendre out of Lands , Advowsons and the like ; wherein a man hath any Frank-Tenement , and whereof he is seized ut de libeto tenemento , for all these are included under the word [ Tonement ] as well as Lands and other Inheritances , which are holden , 1 Iust. 6.11 . H. 6.22 . Grants Br. 143. Perkins Sect. 114 , 115. Finch . 130. 2 Anderson 4 : the Womans Lawyer 3. P. 188. But Tenement extends not to a Chattel or Lease for Years , Done Br. 41. grants Br. 87. 1 Bulstr. 101. Turpine against Farryer . So that the Husband need not yield to the King the third part of his Leases for years for the Recusancy of his Wife .

Page 255 , CCLXXII . 256. Shall continue out of Prison , 7 Jac. 6. § 28. N. 1. A married Woman convicted as a Popish Recusant , is ( after her Conviction , and before any further prosecution , or any Election made by the Husband whether he will pay the ten pound per Month , or yield the third part of his Lands . ) imprisoned by Process of Law or for some other Clause not relating to such Conviction , and afterwards is set at liberty : it seems that the Husband shall not pay the ten lib. per Month for the time she was in Prison .

For the Act 7 Jac. 6. § 28. N. 1. speaks only of the time during which she continueth out of Prison ; and altho she were not imprisoned for her Recusancy , yet seeing she had not , during such her imprisonment , the Benefit intended to her in consideration of the ten lib. per Month , or third part , viz , her liberty ; the Husband shall not for that time pay the Penalty here appointed to save her Imprisonment ; but if he pay it for the time after she is set at Liberty , that is sufficient to satisfy the intent of this Act.

But if after such Conviction the Wife be imprisoned by Covin upon some pretence not relating to such Conviction , that shall not save the Husband's payment of the ten lib: per Month for the time she was imprisoned , but after she is set at Liberty she may be again imprisoned by force of this Act , 7 Jac. 6. § 28. N. 2. unless the Husband pay the ten pound per Month , or satisfy to the King the third part of the Profits of his Lands , as well for the time of such Covenous Imprisonment , as for the future : for the Covenous Imprisonment , was upon the matter her own act , and no person shall take advantage of an Imprisonment covenously caused by him or her self , 16 Ed. 45. and here she continued out of Prison in the sense of this Act , 7 Jac. 6. § 28. N. 1. because her Imprisonment was not by process of Law in invitam .

And so if a man be outlawed while he is in Prison , yet the Oatlary shall not be avoided for that cause , if the Imprisonment were by Coven or consent of the party outlawed , 1 Inst. 259.38 . Ass. 17.

3 Car. 1 , 2. (3) Of Ouster le Mere.

PAge 258 , 259. Or of Oyer and Terminer , 3 Car. 1. Cap. 2. (3) § 3. N. 1. Justices of Peace cannot take an Indictment upon this Statute , for no inferior Court shall take authority by any Statute , unless it be specially named , Savill 135. pl. 212. Agard and Sandish .

And altho Justices of Peace have in their Commission , § 14. an express Clause ad audiendum & terminandum ; yet forasmuch as there is a Commission of Oyer and Terminer known distinctly by that name , and the Commission of peace is known distinctly by another Name , they shall not be included under the general words of Justices of Oyer and Terminer , as was adjudged 3 Co. 87. Hill 30 Eliz , B. R. in Smyth's Case , who was Indicter at the Sessions of the Peace in the County of Oxford on 5 Eliz. 14. of Forging Deeds , which impowers Justices of Oyer and Terminer to inquire of , hear and determine that Offence , and yet the Indictment before the Justices of Peace was quasht , as taken coram non judice , 9 Co. 118 , 3 Inst. 103. and 3 Co. 60. 1. Wilson's Case , and 3 Co. 697. Hunts Case , See Justices .

FINIS .

KNowing the Learning and Industry of the Author of this Work , who hath therein very seasonably bestowed his Pains upon Explaining the Antient Laws made against Recusants ; I do Recommend the same to the Publick .

Fra. NORTH . May the 7. 1681 :