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 â—â—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.
non patrem patriae 7 Co. 9. Calvins Case Page 139. The Offender is 35 Eliz. 2. § 8. N. 1. Strictly tied to depart from the same Haven assigned him CXXXVI and within the time appointed him by the Justices of the Peace or Coroner so that if he depart the Realm from any other Haven or Port or over-stay his time and depart afterwards yet he is a Felon within this Act. CXXXVII Ireland Page 139 140. Or returns or come again into any her Majesties Realms or Dominions 35 Eliz. 2. § 10. N. 1. An Offender within this act abjures in form aforesaid and departs this Realm and afterwards goeth into Ireland without licence and then returns into England with licence which going into Ireland seems to be Felony by this Act. But Quare how the offence shall be tried not in Ireland for this Statute binds not that Kingdom nor can he taken notice of there nor yet can it be tried in England for that the Offence was done elsewhere so that this is Casus omissus and cannot be punisht for that no way of trial is appointed Crompt 53.54 Page 140. CXXXVIII Suspected 35 Eliz. 2. § 11. N. 1. Altho the party be no Jesuit Seminary or Massing Priest yet if there be cause to suspect him and he refuse to answer whether he be so or no such suspition and refusal is ground enough for his Commitment Page 140. 141. Having lawful Authority in that behalf 35. Eliz. 2. § 11. N. 1. This Clause seems to refer to 27. Eliz. 2. § 13. N. 1. Which appoints that the discovery of a Popish CXXXIX Priest or Jesuit shall be made to some Justice of Peace or higher Officer who is to give Information thereof to some of the Privy Council c. under the penalty of two hundred Marks Which Statute of 27 Eliz. 2. § 13. N. 1. tho it do not in express terms say that the Justices of Peace or other higher Officer shall examine the Priest or Jesuit so discovered yet in as much as it gives power to take Cognizance of the matter it seems Implicitely to impower him to inform himself of the truth whether the party be a Priest or Jesuit or not as well by examination of the party as otherwise that he may be the better enabled to give Information thereof to some of the Privy Council c. and one Justice of Peace having by 27 Eliz. 2. § 13. N. 1. lawful Authority to examine him he hath authority likewise by this Statute 35 Eliz. 2. § 11. N. 1. to Commit him if he be suspected to be a Priest or Jesuit and refuseth to answer whether he be so or no. As for Master Shepherd's opinion in his sure Guide Cap. 14. § 5. That there must be two Justices to commit a man by force of 35. Eliz. 2. § 12. N. 1. who is suspected to be a Jesuit or Priest CXL till he answers directly I see no ground at all for it Page 141. Answer to the said Questions 35 Eliz. 2. § 11. N. 1. That is whether he be a Jesuit Seminary or Massing Priest for he is not bound to answer to any other Question nor can be Committed by force of this Act for his refusal Page 141 142. CLXI Vrged by Process 35 Eliz. 2. § 13. N. 1. If a Popish Recusant restrained by this act be summoned by Warrant of a Justice of Peace to appear before him the Recusant ought not to travil to such Justice out of his compass of five miles For altho a Justice of Peace's warrant be the Kings Process yet it is not intended here for these words Vrged by Process are restrained by the subsequent words 35 Eliz. 2. § 13. N. 1. as requires the Recusants appearance in some one of the Kings Courts and extend not to all Cases of summons and Process as Wingate Crown 83. mistakes But if in the Case aforesaid the Warrant be to arrest the Recusant and by force thereof he be carried by the Constable c. out of the compass of five miles there he is excused and forfeits nothing for that it was done by Compulsion and yet if there be any Covin between the Recusant and the Justice of Peace or Officer it may be otherwise CXLII Courts Page 142. In any her Majesties Courts 35 Eliz. 2. § 13. N. 1. All Courts wherein the Proceedings are directed by the Kings Laws are the Kings Courts and therefore a Court Leet tho of an Inferior nature and kept in the Lords name yet is the Kings Court 5 Co. 39. Cawdries Case Hetley 18. 2. If a Popish Recusant restrained by this Act be cited into the Ecclesiastical Court he may be force of this Proviso travel out of the compass of five miles to appear there 35 Eliz. 2. § 13. N. 1. For all Ecclesiastical Courts are the Kings Courts and the Laws by which they proceed there are the Kings Laws Page 142 143. This 35 Eliz. 2. § 14. CXLIII N. 1. Extends to all Cases in general where the Popish Recusant ought to render his body to the Sheriff upon Proclamation and is not restrained to a Proclamation upon an Indictment for Recusancy And therefore if a Popish Recusant confined by 35 Eliz. 2. had been proclaimed upon the Statute of Marlebridge 52. H. 3.7 § 1. N. 1. in a Plea de Custodia as a Deforceor he might lawfully have gone out of the compass of five miles the like he may do at this day upon any other Proclamation commanding him to render his body to the Sheriff Page 143. CXLIV Before he or they shall be thereof Convicted 35 Eliz. 2. § 15. N. 1. A Popish Recusant confined by this Act whose Estate is under value is apprehended for offending against this Act 35 Eliz. 2. § 8. N. 1. and before the expiration of three months next after his apprehension is Convicted of such Offence and then before the three months expire conforms and makes such Submission and Declaration as 35 Eliz. 2. § 8. N 3. and § 16. N. 1. is appointed this Case altho he come too late after Conviction to save the forfeiture of his lands and goods yet he shall not be compelled to abjâ—re for the affirmative words here 35 Eliz. 2. § 15. N. 1. That upon such Conformity Submission and Declaration before Conviction he shall be Discharged of all Pains and Forfeitures do not carry in them the force of a Negative viz. that if it be after Conviction he shall not be discharged of any of them and by 35 Eliz. 2. § 8 N. 3. he is not compellable to abjure I at any time within three months next after his apprehension he conforms confesseth and submits as is there appointed CXLV Church Page 143 144. It seems clear that no Submission Confession or Declaration can discharge the Popish Recusant who is an Offender within this Act from any Pain or Forfeiture thereby inflicted unless it be performed in some Parish Church for
the arrears CLII. Seizure Page 150. 151. Where any seizure shall be had 1 Jac. 4 § 5. N. 1. That is a seizure upon either a Judgment against the Recusant by Indictment on 23 Eliz. 1. § 5. N. 1. or an Indictment and Conviction by Proclamation and default of appearance according to 29 Eliz. 6. § 5 N. 5. for the seizure of two parts of the Recusants lands was given the King by 29 Eliz. 6. § 4. N. 3. upon default of payment of the twenty pound per month in either of those Cases Page 151. Go towards the satisfaction and payment of the twenty pound 1 Jac. 4. § 5 N. 1. CLIII Hereby a Principal Branch of 29 Eliz. 6. is altered for whereas by 29 Eliz 6. § 4. N. 3. supra 99. The Queen might for non-payment of the Forfeiture have seized two parts of a Convicted Recusants Lands Nomine poenae and as a gage or penalties until the 20 l. per month had been paid and yet the profits should not have gone towards the satisfaction of the said 20 l. per month 1 Jac. 4. § 5. N. 1. was made for ease and benefit of the Recusant in that point so that now if two parts of his Lands be seized for default of payment of the forfeiture the profits received to the Kings use shall go towards satisfaction thereof and when the forfeiture is paid out of the profits the Recusant shall have his Land again unless in such Case where the King by 3 Jac. 4. § 11. N. 4. make his Election and seizeth two parts in lieu of the twenty pound per month And therefore the Resolution or Judgment said to be 1 or 2 Jac. Grayes Case cited in Beckets Case Lane 93. and by Bridgman 16 Jac. in his argument of Parker and Webbs Case 2 Rol. 25. and applied thereunto viz. that if a Recusant Convicted failes of payment of the 20 l. per month the King shall have his Lands as a gage or penalty and the profits shall not go in satisfaction thereof However it were true as the Law stood upon 29 Eliz. 6. § 4. N. 3. and before the making of 1 Jac. 4. § 5. N. 1. yet 't is not Law at this day nor could be applicable to either of chose Cases Lane 93. of Becket or 2 Rol. 25. of Parker which came to be debated long after this Act was made and the Law altered in that point Page 151. CLIV. Where any such seizure shall be had c. 1 Jac. 4. § 5. N. 3. this relative such takes in both the Seizures before mentioned viz. A Seizure upon Indictment and Judgment thereupon by 23 Eliz. 1. § 5. N. 1. and a Seizure upon Conviction on Proclamation and default according to 29 Eliz. 6. § 4. N. 3. and as in both these Cases the Recusant who failes of the payment of the 20 l. per month shall have the benefit to discount the profits received by the King so the King shall in the like Cases of Seizure retain the two parts in his hands after the Recusants death until the residue of the debt or duty due and payable to the King be satisfied CLV Dayes Page 152 153. Two parts of the Lands c. Of any such Recusant This Clause 1 Jac. 4. § 5. N. 3. extends not to Intailed Lands unless where there is a Judgment for the King against the Ancestor for his Recusancy And therefore if the Recusant Convicted upon Proclamation and default be Tenant in Tail and two parts of his Lands be seized in his life time for non-payment of the 20 l. per month and he die the Arrears not being satisfied to the King yet the Heir in Tail shall have the Land out of the Kings hands without payment of the Arrears For that such Conviction is in nature of a Verdict only and not of a Judgement as was hold in 1 Rol. 94. Dr. Fosters Case 2. And where a Statute gives to the King a seizure or forfeiture of Lands it shall not be intended of Lands in Tail unless it be expresly so appointed by the Statute or by force of some other Statute Cooperating therewith In which Case the Intailed Lands may be changed by general words in the Statute which gives the forfeiture or seizure an instance whereof we have in the Case of a Recusant Tenant in Tail Indicted Convicted and Adjudged upon 23 Eliz. 1. § 5. N. 1. for his intailed Lands shall remain after his death in the Kings possession until the Arrears be satisfied and that by force of 29 Eliz. 6. § 4. N. 3. and this Statute 1 Jac. 4. § 5. N. 3. Cooperating with the Statute 33 H. 8.39 § 66. 26. N. 1. which chargeth the Lands of the Heir in Tail with debts due to the King upon a Judgment had against the Ancestor But otherwise 't is in the Case of a Praemunire upon 16 Rich. 2.5 § 2. N. 6. which saith the Lands and Tenements of the offendor shall be forfeit to the King for there his entailed Lands shall be forfeit during his life only And the reason is for that general words in an Act of Parliament unless aided by some other Act of Parliament shall never take away the force of 13 Ed. 1. Cap. 1. § N. de donis Conditionalibus 1 Inst 130.391 and 11 Co. 63. Godbolt 308. pl. Sheffield and Ratelifs Case And therefore in 26 H. 8.13 § N and 5 and 6 Ed. 6.11 § N. which makes Intailed Lands forfeitable for Treason the word Inheritance was added any Estate of Inheritance which expresly denotes Lands in Fee Tail as well as Fee simple Now there being neither in this Act 1 Jac. 4. § 5. N. 3. or that of 29 Eliz. 6. § 4. N. 3. any express appointment that the two parts of all Lands seized in the Recusants life time wherein he had any Estate of Inheritance shall after his death continue in the Kings possession nor no other Statute which chargeth the Heir in Tail with the forfeiture due to the King upon Conviction by Proclamation and default the general words here 1 Jac. 4. § 5. N. 3. that his Lands Tenements c. shall continue in the Kings possession shall not inforce a construction in prejudice of the Heir in Tail who claimes by 13 Ed. 1.1 de donis conditionalibus 3. But where there is no Judgment the Recusants Fee simple Lands shall after his death satisfie the intent of these Statutes and so was the Law in reference to entailed Lands upon 29 Eliz. 6. § 6. N. 1. which speaks of the full satisfaction of Arrears in Case of the death of the Recusant And the Arrearages were to be paid by the Heir in Tail only in such Case where there was a Judgment obtained by the King against the Ancestor for his Recusancy but not where the Ancestor Tenant in Tail was Convicted only upon Proclamation and default for here in this last Case the Heir in Tail was not bound by the Statute
Goods or Lands cannot be seized for the forfeiture or penalty where the Wife only is Indicted and Convicted of the offence 4. A Recusant is Indicted for absenting himself from Church for twelve months and afterwards is Convicted upon that Indictment Quaere whither nevertheless the Informer Qui tam c. may not sue him for his absence for the months intervening between the time laid in the Indictment and the time of Conviction For these words here 3 Jac. 4. § 8. N. 2. viz. after such Conviction seem to relate to the proximum antecedens Every month and to imply that the penalty here appropriated to the King is only the penalty due for the months which Incurre after such Conviction upon Indictment at the Kings suit but not to hinder the Informer after Conviction from suing for the months incurred before Conviction CLXXIV Forfeitures Page 168. Except in such Cases where the King shall c. Refuse the same 3 Jac. 4. § 8. N. 3. Jenes 24. in Standens Case if a man be Indicted and Convicted of Recusancy the King is not bound to stay till next Easter or Michaelmas Term to see whither the Recusant will tender twenty pound for every month contained in the Indictment and incurred after such Conviction for the King by 3 Jac. 4. § 11. N. 4. having his Election whither he will accept thereof or seize two parts of the Recusants Lands a Commission for seizure of the Lands may Issue out presently if the King will waive the twenty pound per mouth for he may take his Election as soon as he will after Conviction by Jones Justice Page 168 CLXXV 169. All the Goods 3 Jac. 4. § 9. N. 2. A Recusant Convicted is Tenant for life the remainder to a stranger in Fee he in Remainder with the Recusants Assent cuts down Timber Trees and sells them in this Case the King can be no wayes entitled to the Trees 1 Bulstrode 133. Page 169. CLXXVI All other the lands c. lyable to such seizure or to the penalties aforesaid 3 Jac. 4. § 9. N. 2. Lane 105 106. Halseyes Case Lands are Conveyed to a trust for B. a Convicted Recusant Quaere whither the King may seize such Lands for the Recusants non-payment of the twenty pound per month for if he make his Election and accepts of two thirds in lieu of the twenty pound per month there is no question but such Lands are lyable to seizure for the words of 3 Jac. 4. § 11. N. 4. are that the King may seize two parts of all Lands that shall come to any other person to the use of or in trust for such Recusants but in 3 Jac. 4. § 9. N. 2. which relates to the seizure of two parts for non-payment the words seem to be more restrictive Page 171. CLXXVII Tho it be tendered or ready to be paid 3 Jac. 4. § 11. N. 4. by this branch of the Act a new advantage is given to the King against the Recusant for whereas by 29 Eliz 6. § 4. N. 2. the Convicted Recusant had his Election to pay the King twenty pound per month and so prevent the Seizure of the two third parts of his Lands now by 3 Jac. 4. § 11. N. 4. that Election is taken away and the choice is given to the King whether he will accept of the twenty pound per month or refuse it and seize two third parts of the Recusants Lands in lieu thereof and if the King chuseth the Lands the tender of the twenty pound per month at the Exchequer will not save the Seizure but the King shall enjoy the Lands notwithstanding Jones 24 25. Standens Case Page 171 172 173. CLXXVIII Hereditaments 3 Jac. 4. § 11. N. 4. An advowson is an Hereditament and passeth by that word 18 Eliz. Dyer 351. and is demisable by 32 H. 8.1 § N. as an Hereditament And if it be an Advowson in gross yet it may be seized by the King by 3 Jac. 4. § 11. N. 4. as part of his two parts of the Recusants Hereditaments Jones 23 24. for t is a thing valuable and shall be Assets and is extendable for the Kings debt and upon a writ of right of an Adowson there shall be a Recovery in value 9. 11. scil for every mark twelve pence Hob. 304. Britton 185. 1 Inst 185. 2. In the late additions to Dalt cap. 81. Sect. 23. 't is said that the King may refuse the twenty pound per month and take to two parts of the Recusants Lands and all the goods c. And an Advowson is not of 3 Jac. 4. § 11. N. 4. and Standens Case cited But this is a mistake as to the Clause it self and as to the point in Law and the Authority brought for it for in truth there is no such Clause in this Statute nor in any other that the King upon the refusal of the twenty pound per month should take the Recusants goods for the seizure of the Goods is given 3 Jac. 4. § 9. N. 2. where the offendor failes of payment of the twenty pound per month but not where the King dischargeth him of that payment by refusing it so that where the King refuseth the twenty pound per month the Recusants Goods cannot be seized but only two parts of his Lands The Law likewise is mistaken for if the King refuseth the twenty pound per month he may seize an Advowson as part of his two parts as hath been said so that an Advowson is within 3 Jac. 4. § 11. N. 4. and not without it And the Case of Standen is quite contrary to that opinion in the late Additions to Dalt cap. 81. Sect. 23. for Justice Jones held strongly that an Advowson was within 3 Jac. 4. § 11 N. 4 and Hobart Chief Justice and Winch declared themselves to be of the same mind and Justice Hutton denyed not that an Advowson was within it only held that the force of 3 Jac. 4. § 11. N. 4. as to an Advowson in gross is taken away by 3 Jac. 5. § 19. N. 1. which gives the presentation to the University but the three other Justices were against him and held that where the King had seized it as part of his two parts and the Incumbent dyed the King should present and not the University Infrà 250. N. 5. 3. If the King seize by Inquisition two parts of a Mannor belonging to a Recusant Convict to which an Advowson is appendant by such seizure two parts of the Advowson are likewise seized by consequence altho it be not named in the Inquisition as was resolved in the Case of the Chancellor of Cambridg and Walgrave Hob. 126.127 Moor 872. pl. 1214. And there altho the King hath title but to two parts of the Advowson yet he shall present alone by his Prerogative and so he should have done where there were three Coparceners of an Advowson two of full age and one under age and in ward to
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
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
this Statute for his weekly absence 1 Eliz. 2. § 14. N. 2. and by 23 Eliz. 1. § 5. N. 1. for his monthly absence nor is he helped by this Act in case of Conformity as he is by 23 Eliz. 1. Dr. Foster's Case 11 Co. 63. and 1 Rolls 94. pl. 41. But yet altho 1 Eliz. 2. § 14. N. 2. doth not discharge him of this twelve pence upon Conformity it seemeth that 1 Jac. 4. § 2. N. 1. Page 28. XXIX The Ordinary or Ecclesiastical Judge by 1 Eliz. 2. § 15. N. 1. and § 16. Ordinary N. 1. cannot legally punish any man for not coming to the Church of that Parish where he inhabits if he goeth to any other altho he sheweth not any reasonable let for it shall be a good Plea for the Party to say that that is not his Parish Church but that he had used to frequent another Church and did resort thereunto and if the Ecclesiastical Court will not receive this Plea the Party shall have a Prohibition for the Spiritutual Court hath no power to judge what shall be said a mans Parish Church and so it was resolved by the whole Court of Kings Bench Trin. 9. Eliz. 1. Bulstrode 159. nor can the Spiritual Court try the limits or bounds of Parishes but they shall be tryed by the Common Law 13 Co. 17. XXX Corporation Page 30. These words in like manner and form in 1 Eliz. 2. § 22. N. 1. appoint in what manner the offences shall be enquired of heard and determined by Mayors and Head Officers of Corporations c. By Indictment for so inquire imports and tryal and verdict of twelve men or such other legal proceedings upon the said Indictment as are used by the Justices of Oyer and Terminer and Assizes in their general Sessions For the Mayor or Head Officer is not left by this Act to his own arbitrary will or discretion in the hearing and determining the offence but must proceed according to the rules and forms of Law in the Conviction of the offender 2. And 1 Eliz. 2. § 22. N. 1. saith to which Iustices of Assize do not commonly repair so that the Mayor or head Officer of such places were only intended in the lieu and room of Justices of Assize and are therefore to proceed by the same Rules as they do in the Counties at large 3. Dayes But these words 1 Eliz. 2. § 22. N. 1. extend not to the point of time limited for indicting such offender nor are Mayors and head Officers tyed to their next Sessions as the Justices of Oyer and Determiner and of Assize are as Wing Tit. Service and Sacraments N. 26. mistakes for in like manner and form is intended in such respects only where it is not otherwise provided for by the Statute but it is expresly provided here 1 Eliz. 2. § 22. N. 1. that Mayors and Head Officers of Corporations shall inquire of these offences only twice in the year Viz. Within fifteen dayes after Easter and Michaelmas and not at their general Sessions unless it happen to be the Sessions after one of those two Feasts Nor can the Arch-Bishop or Bishop by 1 Eliz. 2 § 8. N. 1. associate himself in this Case to any Mayor or Head Officer of a Corporation as Wing Tit. Service and Sacraments N. 25. mistakes XXXI Ordinary Page 31. This Clause 1 Eliz. 2. § 23. N. 1. and § 24. N. 1. being in the affirmative doth not abrogate the Jurisdiction Ecclesiastical which was in the Ecclesiastical Judge before the making of this Statute for that no negative words are here added as that he should proceed no otherwise or in no other manner or form than this Statute directs 2. And therefore if any Parson Vicar c. deprave or observe not the Book of Common-Prayer altho 1 Eliz. 2. § 4. N. 5. inflicts only the forfeiture of a years value and six months imprisonment for the first offence yet the Ecclesiastical Judge may for the first offence deprive him notwithstanding this act as he might have done if no form of punishment had been here appointed 3. And the said Book 1 Eliz. 2. § 4. N. 1. being enjoyned by Authority the Offence of depraving or non observing it is punishable by the Ecclesiastical Judge according to the Ecclesiastical Law without the further aid of any temporal Law than the commanding it to be observed 5 Cook 6. Cawderyes Case and in such Case the Sentence of deprivation given by the Ecclesiastical Judge tho it exceed the punishment inflicted by the temporal Law is not to be questioned by the temporal Judges but they ought to give faith and credit to it 5 Cook 7. Cawderies Case 4 Cook 29. Buntings Case 5 Eliz. 2. Of ROME XXXII Books PAge 34. The Printers of any Book which attributes to the Pope or Sea of Rome any such Authority or Jurisdiction within this Realm c. And the Utterers thereof are in most Cases within the danger of this Law 5 Eliz. 1. § 2. N. 1. 2. And if any man bring over such books written beyond the Seas knowing the Contents thereof or secretly deliver out such books to others he knowing the Contents thereof or secretly deliver out such books to others he knowing the Contents thereof unless in this last Case he be a Trader in them and deliver them out upon that account without any act or attribution by conference or allowance he is an Offender within 5 Eliz 1. § 2. N. 1. by the words hold and stand with to maintain c. 3. And so is the Receiver likewise if he afterwards Reads and confers upon any such book with any other person and in his conference by any words or speeches allows the book to be good or conveyes it secretly to his friend to the intent he should read it and be perswaded to be of that opinion 5 Eliz. 1. § 2. N. 2. Or if a man hear of the Contents of such book by the repute of others and doth by any overt Speech commend or affirm it to be good In all these Cases the person so doing especially he that reads it and then allows of it is an Offender within this Act 5 Eliz. 1. § 2. N. 1. 4. And shall for the first Offence incur a Praemunire and for the second be guilty of high Treason So likewise if any Book to that effect be made and written within the Realm and sent over Seas as if it were made out of the Realm and be afterwards bought read or conference be had thereupon ut supra such Offenders are within the danger of this Law Dyer 281 282 pl. and 6 Cook the Preface XXXIII Accessories Page 35. A. was indicted upon 5 Eliz. 1. § 2. N. 3. and that of 13 Eliz. 2. § 4. N. 1. of a Praemunire for aiding one E. knowing him to be a Principle maintainer of the authority and jurisdiction of the Bishop and Sea of Rome contra formam Statuti praedict
such Ministry or Office 5 Eliz. 1. § 5. N. 6. whether of the gift of the King or of a Subject are bound to take this oath of Supremacy 1 Eliz. 1. § 19. N. 4. and not only such as are preferred by the King as 't is restrained in the late Additions to Dalton 184 Cap. 81. Page 39. XXXVIII This 5 Eliz. 1. § 5. N. 6. takes in so much of the Canon and Civil Law as is here allowed but the Common Law as the peculiar Law of this Kingdom is here preferred and perticularly mentioned and not the Canon Law as is erroneously said in the late Additions to Dalton 184. cap. 81. Sect. 11. Page 39. XXXIX The Statute 5 Eliz. 1. § 5. N. 10. saith not that those who belong not to any Court shall take the Oath before those who are authorized by common use to give it as Wingate Crown 20. in fine mistakes for this being then new a Oath devised by the makers of 5 Eliz. 1. § 19. N. 4. no person could have authority by Common use to administer it and the act 5 Eliz. 1. § 5. N. 10 plainly enough speaks of those who have authority by common use to admit the party to the Office and not authority by common use to give the Oath Infra 66. XL. Ordinary Page 39. Upon 5 Eliz. 1. § 6. N. 1. If a man be Indicted for refusing this Oath of Supremacy before him who is reputed to be the Bishop of the Diocess and he plead to the Indictment not guilty he may upon that issue give in evidence quod non fuit Episcopus tempore oblationis Sacramenti Dyer 234. pl. Boners Case XLI Certificate Page 41. It is not necessary on 5 Eliz. 1. § 9. N. 1. that it be mentioned of Record in B. R. how or by whom the Certificate was brought in thither and in Bonners Case Dyer 234. pl. where the Bishop of Westminster certified the refusal of this Oath of Supremacy and Exception was taken that the Certificate was entred to be brought into Court per A. B. Cancellarium dicti Episcopi but not per mandatum Episcopi and the Exception was disallowed for that reason XLII Enquest Page 41. And on 5 Eliz. 1. § 9. N. 3. a Jury of the County where the Kings Bench is can do no more in this Case than inquire that is indict the party refusing the Oath unless where the refusul is in the same County 2. Horn Bishop of Winchester tendered this Oath in Surrey parcel of his Diocess to Bonner then late Bishop of London who refused to take it and this was certified by the Bishop of Winchester into B. R. then sitting at Westminster in the County of Middlesex where Bonner was Indicted by a Jury of that County according to this Act 5 Eliz. 1. § 9. N. 3. the question was by what County he should be tried whether by a Jury of Middlesex where the Indictment was taken or by a Jury of Surrey where the Offence was committed and it was resolved that he should be tryed by a Jury of Surrey for 5 Eliz. 1. § 9. N. 3. extendeth to the Indictment only and leaveth the tryal to the Common Law which appoints it to be where the Offence was committed for regularly by the Common Law debet quis Juri subjacere ubi deliquit 6 and 7 Edw. 6. Dyer 234. 3 Inst 34. 3. So that the Jury on 5 Eliz. 1. § 9. N. 4. is to indict and not the Sheriff as is mistaken in the late additions to Dalton 184. cap. 81. § 11. XLIII Treason Page 42. Savil. 46 47. pl. 99. Slade and Body were condemned in a Praemunire upon 5 Eliz. 1. § 2. N. 1. before Justices of Oyer and Terminer for the extolling the authority of the Bishop of Rome and remained in Prison for the space of two years and afterwards were brought to the Assizes and demanded whether they were still of the same opinion to which they answered that they were and one of them said that if they had a thousand lives they would lose them all in this Case upon which they were indicted and arraigned and convicted upon 5 Eliz. 1. § 10. N. 2. for High Treason and it was resolved by the greater part of the Justices that the words should be taken to be spoken advisedly and wittingly and were within the meaning of this second Branch XLIV Parliament Page 44. Upon 5 Eliz. 1. § 16. N. 2. the King cannot dispence with any Member of the Commons House from taking this Oath of Supremacy for the reason in Vaughan 355. Thomas and Sorrels Case because by this Statute he is persona inhabilis until he hath taken it Infra 258. XLV Priviledge Page 44. Altho by this Act 5 Eliz. 1. § 17. N. 1. no temporal person of or above the degree of a Baron is compellable to take this Oath yet if he be made a Justice of Peace he ought to take it by force of 1 Eliz. 1. § 19. N. 1. Jones 152 153. the Earl of Lincolnes Case Page 44. XLVI By these words temporal person in 5 Eliz. 2. § 14. N. 1. and the Preamble forasmuch c. Arch-Bishops and Bishops altho their possessions be temporalties are excluded out of this Proviso and therefore are to take the Oath for every person who is of the degree of a Baron is not excused as Wingate Crown 29 mistakes but only the temporal Lords of Parliament XLVII Incumbent Page 45. So that every Clergy man or Person in Orders is not within the danger of this Law of 5 Eliz. 1. § 20. N. 1. upon the second tender and refusal of the Oath of Supremacy as Wingate Crown 30. mistakes for every Priest or Minister is Clericus 3 Eliz. Dyer 203. pl. and yet shall not incur the penalty of High Treason upon the second refusal unless he be a local Minister or have some charge Cure or Office in the Church XLVIII Ordinary Page 45. Upon 5 Eliz. 1. § 20. N. 3. Ordinary in the Common Law is properly taken for the Bishop of the Diocess but yet usually in the Common Law and in Statutes for every Commissary and Official of the Bishop or other Judge that hath ordinary Jurisdiction within his limits in Causes Ecclesiastical W. 2. cap. 19. and 31. Edw. 3.11 Termes de la Ley 212. verbo Ordinary 1 Inst 344 and 8 H. 6.3 XLIX Religion Page 45. Upon 5 Eliz. 1. § 20. N. 5. if a man once in his life time heareth private Mass it seems he is within this qualification and incurs High Treason upon the second refusal of the Oath and not only if he used to hear it as Wingate Crown 30. interprets the Statute L. Corn. Page 46 47. The Judgment in a Praemunire is to be out of the Kings protection his Lands Tenements Goods and Chattels to be forfeited to the King and that his body shall remain in Prison at the Kings
pleasure 1 Inst 129 130. Rast Entr. 466. Tit. Judgment 3. Inst 218. 2. But his intalled Lands he shall forfeit only during his life for this forfeiture must be understood of such an Estate as he may lawfully forfeit and the general words of the Statute of Praemunire 16 Rich. 2. § 2. N. 7. scil Lands and Tenements shall not take away the force of the Statute de donis conditionalibus 13 Ed. 1. W. 2. cap. 1. § N. 1 Inst 130 131. Godbolt 308. pl. Lord Sheffeild and Ratcliffe 11 Cook 63. 3. And the person Attainted in a Praemunire is disabled to be a witness in any Cause 1 Inst 6. or to sue for Attainder in a Praemunire is a good Plea in disability of the Plaintiff according to Littleton 41. 4. By the Statute of 25 Ed. 3. St. 5. cap. 22. § 1. N. 2. which saith that a man attainted in a Praemunire shall be out of the Kings Protection and 25 Ed. 3. St. 5. § 1. N. 3. It may be done with him as with the Kings Enemy It seemeth that any man might have lawfully slain such a person as was held 24 H. 8. Coron Br. 196 2 Bulstrode 299. Sir Anthony Mildmayes Case and this Sir Edw. Cook 7 Cook 14 in Calvine's Case and 12 Cook 38. seemeth to allow for Law before this Statute of 5 Eliz. 1. § 21. N. 1. and positively affirms it to have been the Law in 1 Inst 130. and yet in the same Case of Calvin 7 Co. he saith that 25 Ed. 3. St. 5. cap. 22. § 1. N. 2. is intended only a legal Protection according to Littleton 41 and so likewise he expounds it in 3 3 Inst 126. But yet that the Party attainted was still under that Protection which the Law of Nature giveth to the King which he explains to be such a Protection as a Person attainted of Felony or Treason is under notwithstanding his Attainder so that if any man had kill'd him without warrant he should have been punished by Law as a man slayer and this sort of Protection by the Law of Nature saith he is indelibilis immutabilis which the person could not take away but yet under favour if a man attainted in a Praemunire were before 5 Eliz. 1. § 21. N. 1. under that indelible and immutable protection of the King given by the Law of nature then the opinion Coron Brook 196. and allowed by himself was not Law but if that opinion Coron Brook 196. were Law and any man might before 5 Eliz. 1. § 21. N. 1. have killed a man attainted in a Praemunire and that by force of 25 Ed. 3. Sta. 5. cap. 22. § 1. N. 3. It followeth that the Protection which the Law of Nature giveth is not Indelebilis or Immutabilis but that an Act of Parliament might in a particular Case take it away but there is now no further need of this question in the Case of a Praemunire for if this protection by the Law of Nature were taken away by 25 Ed. 3. Stat. 5. cap. 22. § 1. N. 3. It is now restored by this Statute 5 Eliz. 1. § 21. N. 1. And no man can lawfully slay a person attainted in a Praemunire no more than he can without Warrant a man attainted of Felony or of Treason 13 Eliz. 2. Of BVLLS PAge 50. LI. Upon 13 Eliz 2. § 2. N. 1. a man absolves or reconciles or is absolved or reconciled to the Pope or See of Rome without any Bull writing or Instrument to that purpose This Case seemeth not to be within the meaning of this Statute for there must be some Bull Writing or Instrument to Authorize such Absolution or Reconciliation or the person who gives or receives it is not punishable by this act altho he may be by 23 Eliz. 1. § 2. N. 1. and 3 Jac. 4. § 22. N. 1. LII Accessary Page 51. Note all concealers of this offence are not within the danger of this Law 13 Eliz. 2. § 5. N. 1. as Wingate Crown 35. misrecites and therefore if a man be present at such offer motion or perswasion and conceal it he shall not incur Misprision of Treason unless he be the party to whom any such Bull c. or Absolution c. was ofered LIII Ouster le mere Page 52. Upon 13 Eliz. 2. § 7. N. 1. A man brings into the Kings Dominions such Agnus Dei or other like superstitious things and another offers and delivers them It seemeth that neither he that brings them in nor he that offers or delivers them is within this Act or lyable to the penalty for 13 Eliz. 2. § 7. N. 2. By the express words it must be the same person So that neither the bringer in unless he offer and deliver them or Cause them to be delivered nor he who delivers them or offereth them to be delivered unless he be the person who brought them in is an offender within this Act. LIV. Alien Page 52. Vpon 13 Eliz. 2. § 7. N. 2. The offer or delivery of such Agnus Dei or other superstitious things to any sort of person is not an offence within this act as Wingate Crown 37. supposeth it to be but to make it an offence it must be delivered or offered to a subject of this Realm or of the Dominions of the same LV. Intendment Page 52.53 Upon 13 Eliz. 2. § 7. N. 3. The intent is material in this Case and therefore if a man be indicted upon the Statute for bringing in and offering or delivering such Agnus Dei c. or receiving the same the intent must be mentioned in the Indictment as it must be in Indictments upon all Statutes where the intent as here is made part of the offence so in an Indictment upon 5 6 Ed 6.4 § 3. N. 1. It is not enough to say the party drew his Dagger in the Church against I. S. but it must be averred that he did it with an intent to strike him as was resolved by the Court of B. R. 33 Eliz. in Penhalls Case 4 Leonard 49. pl. 127. It seemeth by the words of 13 Eliz. 2. § 7. N. 3. That to make the Receiver of such superstitious things an offendor within it there must be a Concurrence of intentions for the using or wearing them both in the giver and receiver and that therefore if a person coming from beyond the Seas brings into this Realm any such superstitious things but with no intent they should be worn or used and gives them to his friend at his request who receives them with an intent to wear or use them this is penal to neither Not to the giver for he had no superstitious intent and the intent is material nor to the receiver for that the offering or delivering them to be worn or used is expresly made in the Statute 13 Eliz. 2. § 7. N. 2. a condition precedent to the obliquity of the fact in receiving them for the Statute 13 Eliz. 2. §
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
qui tam c. afterwards 23 Eliz. 1. § 11. N. 1. in a distinct branch by it self without any reference to this 4. So that by 23 Eliz. 1. § 9. N. 2. and before 35 Eliz. 1. § 10. N. 2. which gave the Queen an Action of debt c. the Queen had no other remedy to recover the intire forscitures given hereby but by Indictment only 11 Co. 60. and 1 Rol. 91. pl. 41. Dr. Fosters Case 5. See Jones 193 pl. for that and the suit by the common Informer are the only wayes appointed by 23 Eliz. 1. § 9. N. 2. and § 11. N. 1. and the subsequent Clause 23 Eliz. 1. § 10. N. 1. of submission which names the Justices before whom the party is to submit viz. the Justices before whom he is Indicted Arraigned or Tryed shews what proceedings are meant which are to be had before the Justices here named that is by Indictment Hob. 205. Pie and Lovel 6. Talbot and Shelden were Indicted for Recusancy Contra formam Statuti 23 Eliz. 1. in which Indictment the penalty was demanded and in a Writ of Error the Judgment was reverst for the offence is made by 1 Eliz. 2. § N. and the penalty is given by 23 Eli. 1. § N. and therefore it should have been Contra formam Statutorum Owen 135. pl. Wests Case infra 79 § 4. Far. Feme 7. If a Feme Covert be Indicted at the Kings Suit for an offence within 23 Eliz. 1. § 5. N. 1. she may be charged with the penalty after her Husbands death but the Husband is not chargable nor shall pay the penalty for that he is no party to the Judgment and this was one of the Causes of making 35 Eliz. 1. § 10. N. 1. by which Statute the King may have an Action of debt and recover the forfeiture against the Husband 1 Rol. 93.94 Roy versus Foster Savile 25 pl. 59. LXXIII Treason Page 68. This Exception 23 Eliz. 1. § 9. N. 2. of Treason and misprision of Treason extends not to the Justices of Oyer and Terminer or of Assize and Goal-delivery as Wingate Crown 46. hath mistaken but only to Justices of Peace who are not to medle in thâ—â—â— two Cases but the other Justices may LXXIV â—onformity Page 69. Upon 23 Eliz. 1. § 10. Before Iudgment submit and conform himself c. But now by 1 Jac. 4. § 17. N. 1. If the Recusant conforms after Judgment it seems it shall be time enough to have the forfeiture 2. A man is convicted of Recusancy according to 29 Eliz. 6. § 2. N. 5. upon Proclamation and default of appearance and afterwards submits and conforms he shall by force of 23 Eliz. 1. § 10. N. 1. be discharged of the forfeiture of twenty pounds per month for this is a submission and conformity before Judgment the Conviction upon Proclamation being no Judgment but only in nature of a conviction by verdict as was resolved by all the Judges Mich. 37. and 38 Eliz. see 1 Rol. 94. pl. 41. Dr. Fosters Case 3. Page 69. Certain Persons were Indicted upon 23 Eliz. 1. § 5. N. 1. for not coming to Church and were outlawed upon the Indictment the Court of B. R. would not in this Case receive their submission upon 23 Eliz. 1. § 10. N. 1. but advised them to purchase their pardon for the Outlawry which they did and the their submission was accepted of and they were discharged 4 Leonard 54. pl. 138. Note in the report the Statute 13 Eliz. 2. is mistaken for 23 Eliz 1. for no Indictment for not coming to Church lyeth on 13 Eliz. 2. LXXV Certisicate Page 69 Upon 23 Eliz. 1. § 10. N. 1. If a man be Indicted for Recusancy before Justices of Peace and he submits and conforms before the Bishop of the Diocess be may remove the Indictment by Certiorari into B. R. and there plead his Conformity by Certificate under the Bishops hand and Seal Styles 26. pl. 2. For the manner of a Recusants submission and Conformity before the Bishop after Conviction and the Bishops Certificat thereupon see Co. Entr. 569. LXXVI Forfeitures Page 70.71 All forfeitures of any sums of mony limited by this Act. 23 Eliz. 1. § 11. N. 1. Shall be divied c. So that the distribution here appointed extends not only to the forfeitures of Two hundered and One hundred Marks for saying or hearing of Mass and the ten pound a month for keeping a School-Master Contrary to this Act but likewise to the twenty pound per month for not repairing to Church 2. In which last Case the Informer Qui tam c. shall have the third part as well as in the other Cases for altho by 23 Eliz. 1. § 5. N. 1. the whole Twenty pound per month is given to the Queen which the other forfeitures are not in express words yet that will not alter the Case nor make void the express appointment made here in what manner and to whom all the forfeitures limited by 23 Eliz. shall be disposed of 3. And it is usual in Acts of Parliament to give the whole penalty for any Criminal matter to the King and afterwards in the same Act to make distribution thereof and give part to him that will sue as in 3 H. 6.3 § 1. N. 1.2 and 3 H. 7.7 § 1. N. 5.10 and the subsequent distribution shall alwaies stand good notwithstanding the precedent words of limitation of the whole to the King 4. For those words in penal Statutes To the King or to the Queen are upon the matter but void and superfluous and give the King or Queen no other or stricter interest than they would have had if they had been omitted and it had been said shall forfeit without apointing to whom 5. And the reason is for that the Law devolves the forfeiture upon the King where no other person is appointed and shall forfeit without more saying is as much as shall forfeit to the King But when afterwards in the same Statute a particular appointment is made how the penalty shall be that qualifies the former and general words and such distribution shall be made as the Statute appoints 11 Co. 60. and 1 Rol. 89.90 pl. 41. Dr. Fosters Case and 1 Anderson 139.140 pl. 190. Cuff and Vachell supra 46. Page 71. Upon 23 Eliz. 1. § 11. N. 1. Scot was Indicted for Recusancy LXXVII Poor Anno. 26. Eliz. 2 Leonard 167. pl. 204. By the name of William Scot of Southwark Gent. and Exception was taken to the Indictment for that within Southwark are several Parishes and the third part of the penalty is to be applyed to the relief of the Poor of the Parish where the offence was committed But in this Case the Recusant being named generally of Southwark non potest constare Curiae where the offence was nor to what Parish the third part of the penalty belongs But the whole Court of B. R. were there of opinion
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
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
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
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
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-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
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
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
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