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
contrary to Law Whether they be Popish or other or perswades others so to do or to forbear the Church or to impugne the Kings authority in Causes Ecclesiastical she shall be imprisoned by force of this Act 35 Eliz. 1. § 1. N. 5. until she conform and submits her self but she cannot be further proceeded against so as to require her to abjure A married Woman by this Act 35 Eliz. 1. § 10. N. 2. with her husband is likewise punishable for her Recusancy by action of of Debt c. brought against her and her Husband at the Kings Suit so that 't is a great mistake to say she is not punishable by this Statute CXXIII Exile Page 124 125. Upon 35 Eliz. 1. § 13. N. 1. Every abjuration as well as that for Felony is an Exile or Banishment and if perpetual and by authority of Parliament amounts to a Civil death and therefore the Wife of a man banished or abjured for ever might sue or be sued without her Husband as was ruled in the Case of the Lady Maltravers 10 Edw. 3. and of the Lady Belknap 1 H. 4.1 and 2 H. 4.7 2. And if a man be perpetually banished by Authority of Parliament unless it be for Felony or by force of this Act 35 Eliz. 1. § 13. N. 3. his Wife shall be endowed living the Husband 3. And if he had been perpetually banished or abjured for felony the Wife should have had her joynture presently altho not her dower as was resolved 19 Edw. 1. in Weylands Case and the reason is because tho the Husband be naturally living yet he is civilly and in the eye of the Law as a dead man 4. But yet these Cases are to be understood of a Banishment or abjuration for ever and not of a Relegation or Exile for a time for in such Case neither could the Wife sue or be sued without her Husband nor could she have her Dower or Joynture during the natural life of her Husband 1 Inst 132. 2 Inst 47. and 3 Bulst 188. Wilmotes Case 1 Rol. 400. pl. 27. Moor 851. pl. 1159. 5. But if a Man be abjured by force of this Act the Wife shall not have her Dower or Joynture during the natural life of her Husband altho he be abjured for ever but she is in a worse Case than the Wife of a person perpetually banisht was at the Common Law For this Act 35 Eliz. 1. § 13. N. 2. by express words gives his Lands Tenements and Hereditaments to the Queen during his life which is to be understood of his natural life and the saving here of the Wives Dower 35 Eliz. 1. § 13. N. 3. is not intended of the Dower which she might claim at Common Law presently upon the abjuration of her Husband nor shall make void the former words of the Act by which all his Lands are given to the Queen during his natural Life but his only the usual provision made in Acts of of Parliament which create any new felony for the saving of the Dower of the Wife after the death of the Husband so that the meaning of this branch 35 Eliz. 1. § 13. N. 3. is that if the Husband refuse to abjure or abjure and refuse to depart according to this Act or return without license yet the Wife shall be indowed and the Heir inherit his lands after he is naturally dead CXXIV Days Page 125 126. Note that this Act 35 Eliz. 1. § 13. N. 4. being at first but temporary was afterwards discontinued Hutt 61 62. But is since renewed by 3 Car. 1.4 5 § 21. N. 1. and declared to be in Esse 16 Car. 2.4 § 1. N. 1. and is in full force at this day 2. And in such Case it hath been questioned if a Statute be discontinued and afterwards revived Parliament how an Indictment thereupon shall conclude whither contra formam Statuti or Statutorum For if a Statute be temporary and afterwards continued for a longer time or made perpetual and never discontinued there without doubt it shall be contra formam Statuti But it hath been held by some that where it was once discontinued and then revived there it is as if there were two several and distinct Statutes and the Indictment shall conclude contra formam Statutorum 9 Eliz. Palmers Case But others have held the contrary and that there is not any difference in the Case of a Statute at first temporary and afterwards before any discontinuance continued for a longer time or made perpetual and a Statute discontinued and then revived but that it shall in both Cases be held but as one Statute and that the conclusion shall be contrà formam Statuti and not Statutorum unless where the Act of reviver makes any addition to the former Act or increaseth the penalty or forfeiture for then there is no doubt but they are two distinct Acts of Parliament and according to this latter opinion hath the practice been in Informations upon 5 Eliz. 9. of perjury which determined 14 Eliz. and was revived 29 Eliz. 5. § 2. N. 3. and yet all Informations thereupon conclude contra formam Statuti And so as it seems ought all Indictments upon this Statute of 35 Eliz. 1. § 13. N. 4. notwithstanding its discontinuance and reviver Owen 135. Wests Case 35 Eliz. 2. Of CONFINEMENT CXXV Alien PAge 128 129. Born within any her Majesties Realms or Dominions or made denizen 35 Eliz. 2. § 2. N. 1. So that all Popish Recusants are not within this branch as Wingate Crown 78. mistakes for it extends not to an Alien who is born out of the Kings Legelance unless he be made Denizen In the late Additions to Dalt cap. 81. Sect. 14. this Clause 35 Eliz. 2. § 2. N. 1. is restrained to such as are born in England but it is clear that is extends to all the Kings Natural Subjects if they live in England altho they were born in Ireland or any other of the late Queens dominions besides England By Denizen is here to be understood an Alien who owes to the King an acquired Subjection or Allegiance whether he be made Denizen by the Kings Letters Patents or be Naturalized by Act of Parliament for Naturalization includes all the priviledges of a Denizen and something more and every one who is naturalized is thereby made a Denizen altho he that is made a Denizen by the Kings Letters Patents is not thereby Naturalized CXXVI Recusant Page 129 130. Which being then a Popish Recusant this 3.5 Eliz. 1. § 3. N. 1. is the first Penal Statute which was made against Popish Recusants by that name and as distinguished from other Recusants In the late additions to Dalt cap. 81. Sect. 7. It s said that the matter of Recusancy stands in two particulars First absenting from the Church Secondly refusing the Oaths prescribed 1 Eliz. 1. § 19. N. 4. and 3 Jac. 4. § 15. N. 1. but this description of Recusancy is either too
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
that the Recusant if he live within ten miles distance of London is to deliver up his name to the Lord Mayor there and 3 Jac. 5. § 4. N. 1. if he live above ten miles distant then to the next Justice of peace but the Statute is there mistaken in both points for by 3 Jac. 5. § 3. N. 3. if the Recusant dwell within ten miles of London and not in London he is to deliver up his name to the next Justice of peace and not to the Lord Mayor and if he dwell above ten miles from London he is not within this Act 3 Jac. 5. § 3. N. 4 nor bound by force thereof to deliver up his name at all Infra 278. CCXIX. Lieu. Page 203 204. This Proviso 3 Jac. 5. § 5. N. 1. is by some taken to be in force at this day But yet under favour as the Proviso is penned it seems to the contrary and that now all Popish Recusants convicted or indicted of Recusancy or not repairing to Church but forbearing by the space of three months are by this Act to depart London and ten miles compass of the same notwithstanding they are Trades-men or have no other place of Dwelling For as to Tradesmen here 3 Jac. 5. § 5. N. 1. are no other excepted than such as when this Act was made used some Trade mystery or manual ocupation and as to both Tradesmen and such as had or should have their only Dwelling in London or ten miles compass the Statute limits them to that place where they inhabited three months next before the Session of Parliament wherein this Act was made which cannot by any strained construction extend to those in future times But the meaning of 3 Jac. 5. § 5. N. 1. seems to be that Popish Recusants indicted or convicted of recusancy or not repairing to Church c. who were then Tradesmen within London or ten miles compass or such as then resided within London or ten miles compass and should have no other place of abode might continue there so that they removed not to any other Dwelling than where they inhabited by the space of three months next before that Session of Parliament or if they did they were to lose the benefit of this Proviso and must have removed above ten miles from London as well as other Popish Recusants convicted or indicted or not repairing to Church as aforesaid And for those words such as shall have their onely Dwelling within the said City c. 3 Jac. 5. § 5. N. 1. the future tense shall have doth not intend such Recusants as should have their Dwelling there or within the ten miles compass after the making of this Act and not before but only such who having their Dwelling there before that Session of Parliament should at the time of their being indicted or convicted have their onely Dwelling there For if they had at such time of their being convicted or indicted two several houses one within London or ten miles and the other at a further distance altho they inhabited in that which was within London or ten miles for three months next before that Session of Parliament yet if they were not Tradesmen at the time of the makieg of this Act 3 Jac. 5. § 5. N. 1. they should have had no benefit by this Proviso but ought within ten days after such Indictment or Conviction for Recusancy to have removed out of the compass of ten miles Page 205. CCXX Licence Giving Power to grant license or licenses unto the said Recusants by 35. Eliz. 2. § 12. N. 1. in the Proviso which is by 3 Jac 5. § 6. N. 4. here repealed is only that which there impowers the Justices of peace for that is the onely Provise which gives power to grant licence and the cause here alledged for the repeal 3 Jac. 5. § 6. N. 2. is the giving of sundry Licences to recusants under colour of a Proviso in 35 Eliz. 2. which can be construed only of those which were given by the Justices of peace 35 Eliz. 2. § 12. N. 1. and not of the other Licenses given by 35 Eliz. 2. in several other Cases so that the Proviso's there 35 Eliz. 2. § 13 and 14. permitting the Popish recusant to travel in case of process or commandment by privy Counsellours or the Queens Commissioners or Proclamation to render his body to the Sheriffs remain still in force and unrepealed and the recusant may take the benefit thereof ae this day Page 207 CCXXI 208. by such Recusant is intended here 3 Jac. 5. § 7 N. 1. such Recusant as is confined by 35 Eliz. 2. § 3. N. 1 and § 4. N. 1. and not only such as were mentioned in 3 Iac. 5. § 6. N. 1 for that recital is imperfect in that it mentions only the Popish recusant convict 35 Eliz. 2. § 3. N. 1. whereas 35 Eliz. 2. § 4. N. 1. speaks as well of the Popish recusant not convicted who hath no certain place of abode And the benefit of having Licenses from the King or three Privy Counsellours by force of this Act 3 Jac. 5. § 7. N. 1. is intended as well to the one as the other altho the convicted only are mentioned in the recital And this will plainly appear 1. by the following words here 3 Iac. 5. § 7. N. 2 which impower the Justices of peace to grant licences and expressly extend to all now It cannot be presumed that the makers of the Law intended any difference between the persons to be licensed by the King or privy Counsellours the persons to be licensed by the Justices of peace the power given 3 Jac. 5. § 7. N. 1. to the King or privy Counsellours being more absolute and not under such praecautions as is that which is given 3 Jac. 5. § 7. N. 3. to the Justices of peace for the King or privy Counsellours may grant a license to the Recusant to travel without any particular Cause shewn in the license or the assent of any other person and whithout any oath to be made by the recusant which the Justices of peace cannot do and there is no reason to think that the power here given to the King or privy Counsellours which in all other Particulars is so much more absolute and extensive than that given to the Justices of peace should be yet less extensive as to the persons to be licensed 2. It were absurd to think that the makers of 3 Jac. 5. § 7. N. 1. intended to confer a greater Priviledge upon the Recusant convicted whose offence appears upon record then to such as are not convicted c. But if by such Recusants should be meant only such as are mentioned in the recital 3 Jac. 5. § 6. N. 1. viz those convicted and not all who are confined by 35. Eliz. 2. § 3. N. 1. § 4. N. 1. it would follow that the convicted recusant who is the more notorious offender may have a licence
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 Grantee should have been Guardian notwithstanding this Act for the mischief intended here to be pretended was removed when the seigniory was granted to another who was no recusant by Jones 19. So if the King had seized the reusants seigniory as part of his two parts the King should have had the Wardship and not the next of Kin for the same reason Jones 21. Page 236 237. CCLIV Shall be thought unmeet for such recusant 3 Jac. 5. § 26. N. 2. So that the Justices of peace are not bound by this Act to deface all reliques of Price or to burn or deface all other Reliques or Popish books as Wingate Coron 144. misleads c. And though herein much is referred to the discretion of the Justices of peace yet where the Husband is a Protestant and only the Wife a Popish recusant it seems by these words 3 Jac. 5. § 26. N. 2. that they are not to consider what is unmeet for the Husband but what is unmeet for the Recusant viz. the Wife and that it was not intended that they should seize burn or deface any Books of the Husbands tho Popish unless such whereby the Wife might be aided or confirmed in her superstition So that in this Case Books written in a Language or Style unintelligible to the Wife are not within the meaning of 3 Jac. 5. § 26. N. 2. nor ought by colour thereof to be taken from the Husband who is no Popish Recusant CCV Warre Page 238. In the same County where such Popish Recusant shall be resident 3 Jac. 5. § 27. N. 1. A Popish Recusant lives in one County and his Arms are kept in another County by one who is no Popish Recusant such Arms cannot be seized by force of this Act by the Justices of Peace of either County Not by the Justices of Peace of the County where the Arms are kept for the seizure or taking is here limited to be by Warrant at the Sessions in the County where the Recusant resides and 3 Jac. 5. § 27. N. must be strictly pursued in that particular nor by the Justices of peace of the County where the Recusant is resident for the Arms are in another County where they have nothing to do And altho in some cases where a Statute appoints a Justice of peace to do a thing Justices he may do it out of his County as to take an Examination upon the Statute of Winton 13 Ed. 1. St. 2. Cap. 1. N. of a Robbery 27 Eliz. 13. § 11. N. 2. as was resolved 1 Co. 213 Jones 239. Helier vers H. of Bluhurst yet he cannot exercise any coërcive power out of his County as was resolved in that Case for his potestas jurisdictionis is confined to his County as well as that of a Bishop is confined to his Diocess see Palmer 473. Astuiths case infra 266. N. 2. And here the taking of the Recusants armour is a coërcive act and therefore by 3 Jac. 5. § 27. N. 1. can be executed by warrant of the four Justices of peace in that County only where they are Justices so that this is clearly easus omissus and not provided for by this Act Page 238. CCLVI. Imprisoned by Warrant of or from any Justices of peace 3 Jac. 5. § 28. N. 1 any two Justices may grant their Warrant for imprisoning the Offender and 't is sufficient in this Case for Pluralis numerus est duobus contentus but a Warrant from any one Justice will not serve contrary to Wingate Ceron 145. Page 238 239. CCLVII Of such County 3 Jac. 5. § 28. N. 1. that is of the County where the Popish Recusant is resident for no other County was named before a Popish Recusant lives in one County and his Arms are kept in another County by one who is no Popish Recusant the Justices of peace of that other County cannot by force of this Act 3 Jac. 5. § 28. N. 1. imprison him that keeps them for they are not named here but the power in this Case is expressly limited to other Justices and no other can intermeddle therein neither will the Warrant of the Justices of peace of the County where the Recusant is resident reach him who is in another County for the coercive authority of a Justice of peace cannot exceed his limits or bounds as Comm. 37. is held in the Case of the Lord Say It was resolved that if a Justice of Peace of the County where the Felony was committed pursue a Felon into another County and take him there the Felon must be imprisoned in the County where he is taken and the Justice of peace who pursued him hath no power to carry him to the Gaol of the County where he did the Felony for he is a Prisoner in the County where he was taken and there the Justice of Peace hath no more power to do than an ordinary person 13 Ed. 48. Freshsuit Br. 3. So that as it seems in this Case the party who keeps such Arms cannot be imprisoned by 3 Jac. 5. § 28. N. 1. but this likewise wise is casus omissus and not here provided for 7 Iac. 6. Of Allegiance PAge 243.243 upon 7 Jac. 6. § 8. N. 1. the King cannot dispence with any Member of the Commons House of Parliament from taking this Oath of Alleglance CCLVIII. for that he is here declared to be persona inhabilis untill he take it Vaughan 355. Thomas and Sorrell supra 44 and 3 Inst 154. Page 246. For any two Justices of Peace within any County CCLIX City or Town Corporate c. 7 Jac. 6. § 26. N. 2. the two Justices may require his Oath of any person that shall happen to be within their Jurisdiction altho his Habitation be in another County or Liberty for the Oath of Allegiance sequitur personam non locum 2 Bulstr 155. the King against Griffith c. Page 246. To require any person or persons CCLX 7 Jac. 6. § 26. N. 2 This is an enlargement of the power given to two Justices of Peace by 3 Jac. 4. § 13. N. 4. For thereby they could have required the Oath but only in some particular Cases supra 181. but by 7 Iac. 6. § 26. N. 2. they may require it of any person whatsoever of competent age and under the degree of a Baron or Baroness The Justices of the Peace in this Case 7 Iac. 6. § 26. N. 2. or the Justice of peace in the following Case 7 Iac. 6. § 26. N. 4. may make his or their special Warrant to the Constable to bring the party before the said Justice or Justices to take the oath for by 7 Iac. 6. § 26. N. 2. by giving them power to require the Oath doth implicitly authorize them to make such a Warrant Quando Lex aliquid alicui concedit concedere videtur id sine quo res ipsa esse non potest and it is against the Office of the Justices of Peace