An explanation of the laws against recusants, &c. abridged by Joseph Keble ...

3 Jac. 4. of convictions.

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

2. In an Information upon 3 Jac. 4. § 2. N. 2. for not receiving the Sacrament, the Conviction of the party for Recusancy ought to be shewed in certain, before whom, in what Court &c. for before he is Con∣victed of Recusancy he is not lyable to the penalty Inflicted by 3 Jac. 4. § 2. N. 2. for not receiving: And yet if it be only generally shewed in the Information that the defendant was Convicted in due form of Law, and the defendant doth not de∣mur thereto, but pleads not guilty, and it be found against him, there Judgment shall not be staid for this defect, for he hath lost his advantage, and by his plea hath ad∣mitted

the point of Conviction; and at the trial, the only thing in issue was; whether he had received the Sacrament, and not whether he was Convicted. 2 Gro. 365, 366. Sivedal and Lenthal.

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

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

For if it had been said, he should have forfeited twenty pound for the first Offence, forty pound for the second, and sixty pound for the third; he must have been Con∣victed, and have had Judgment of the first Offence, before he could have incurred the penalty for the second, and of the second before he could have incurred the penalty for the third; and every one of these Of∣fences

must have appeared Judicialiter, which could not be ante Judicinum.

But here 3. Jac, 4. § 3. N. 2. where 'tis said he shall forfeit twenty pound for the first year, forty pound for the second, and sixty pound for every year after, it is otherwise, and the Offender shall forfeit sixty pound for the third year, altho he was never Convicted for the first or second.

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

Page 160. Shall for every such Of∣fence lose and forfeit threescore pounds. 3 Jac. 4. § 3. N. 3. If a Popish Recusant once receive the Sacrament, after his Con∣formity, and after neglect so to do within the time prescribed by this Act 3 Jac. 4 § 1. N. 2. and is guilty of such neglect for two years together; altho, he was ne∣ver convicted for the first year, yet an In∣formation lieth against him, and he shall forfeit threescore pound for the second year;

for 3 Jac. 4. § 3. N. 3. he is liable to pay so much for every Offence, that is for every year wherein he neglects to receive the Sacrament after he hath once received it: and the Informer is at his liberty; for which Offence or year, he will inform whether for the first, second &c. and the reason of this is, because here are no steps or gradations to encrease the penalty for the second or third Offence, but the penal∣ty is equal and alike in this Case for every Offence.

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

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

Page 160. Or before Justices of As∣size &c. 3 Jac. 4. § N. 3 5. Note, that

notwithstanding these words, an Infor∣mation upon this Statute by an Informer, Qui tam, &c. for not receiving the Sacra∣ment cannot be brought before Justices of Assize, or Goal-delivery, or Justices of Peace; for no Common Informer can sue for the King and himself before any of those Ju∣stices, but must sue in one of the Courts of Re∣cord at Westminster.

Page 161. 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 there∣by 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 'tis 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 present∣ed.

Page 162, 163. To enquire, hear, and determine. 3 Jac. 4. § 7. N. 1. This is intended of Indictments only, and re∣vives 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-de∣livery 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 Con∣viction 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. Against any person ei∣ther 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 re∣strained to this latter sort, but is misrecited in this particular, Dalt. Cap. 100. tit. for∣feiture.

Page 163. Shall be rendred to the Sherif &c. before the next Assizes &c. 3 Jac. 4. § 7. N. 2. in 2 Rol. 108. Bridg∣man 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 de∣fault of appearance thereupon, but it was resolved by the Court of B. R. that the plea was ill, and that this was not a Con∣viction according to Law, and therefore was in effect as no Conviction; for the Procla∣mation 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 bo∣dy shall be rendred to the Sherif &c. but this Proclamation was, that she should ren∣der 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 Sta∣tute 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. be∣fore the next Assizes; And when the Pro∣clamation 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 a∣voided for any defect, &c. The Recusant

perhaps may be estopped to take such ex∣ception to the Proclamation, yet the King is not.

Note, that Palmer 40, 41. hath slated the difference beetwen the Statute and the Pro∣clamation, as here, and so was the truth of the Case, but in reciting Bridgmans Argu∣ment 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. 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 Corporati∣on 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.

Page 164 Shall not make appear∣ance of Record. 3 Jac. 4. § 7. N. 3. and if the Recusant do appear of Record at the Assizes Goal-delivery, or general, or Quar∣ter Sessions, it shall be sufficient to save his default altho he did not render him∣self 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 a∣ny Court, ought by the Common Law to be in person 10 Co. 101. Bewfages Case.

But after a Plea pleaded to an Indict∣ment 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 As∣sizes or Sessions must take care that his ap∣pearance 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 Acti∣on 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 per∣sonally

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 Pro∣clamation, or to consent that his appear∣ance be entred of Record, it seems that his appearance cannot be recorded, but his de∣fault shall, and he shall stand Convicted there∣upon.

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 can∣not be recorded, as was resolved 43 Eliz. in Ascoughs Case, Gouldsborough 118. pl.

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 forfei∣tures 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 Con∣viction and bring his Action of debt gi∣ven 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 Recu∣sants 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 Convicti∣ons whatsoever upon Indictment whither by Verdict Confession, &c. Whereupon Judgment is given, as well as to Convicti∣ons upon Proclamation and default: And the penalty of twenty pound per month, shall in any of the said Cases run on for∣ever after, and be appropriated to the King.

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 Mi∣chaelmas 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 Con∣victed 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 Stan∣dens Case, Hil. 20. Jac. and Pasch. 16. Jac. in the Lady Webbs Case, Bridgman 121. who was Convicted in March; the plead∣ing 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, with∣out any mention of Michaelmas Term.

Page 166, 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 Con∣victed 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 a∣lone, 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 af∣ter such Conviction, but is utterly barred 11 Co. 61. and 1 Rol. 93. Dr. Fosters Case, Owen 37. Sulherd and Eveterds.

2. 2 Cr. 481, 482. The Lady Webb Pasch. 16 Jac. was Indicted and Convicted of Re∣cusancy 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 maintain∣able notwithstanding such former Convicti∣on of the Wife, for that the Wife seems not to be such an offender as is here in∣tended 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 Hus∣band 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 Hus∣band 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 af∣ter 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 In∣dicted 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 pur∣pose, 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 du∣ring the Coverture; and 'tis a General rule that his Goods or Lands cannot be seized for the forfeiture or penalty where the Wife only is Indicted and Convicted of the offence.

4. A Recusant is Indicted for absenting

himself from Church for twelve months, and afterwards is Convicted upon that In∣dictment: 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 proxi∣mum 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 Con∣viction upon Indictment at the Kings suit, but not to hinder the Informer after Con∣viction from suing for the months incurred before Conviction.

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 Michael∣mas Term to see whither the Recusant will tender twenty pound for every month con∣tained in the Indictment and incurred af∣ter 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 Com∣mission 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 Con∣viction

by Jones Justice.

Page 168, 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 Bul∣strode. 133.

Page 169. All other the lands, &c. lyable to such seizure or to the penal∣ties aforesaid. 3 Jac. 4. § 9. N. 2. Lane 105, 106. Halseyes Case. Lands are Con∣veyed to a trust for B. a Convicted Recu∣sant; Quaere, whither the King may seize such Lands for the Recusants non-pay∣ment 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. Tho it be tendered or ready to be paid. 3 Jac. 4. § 11. N. 4. by this branch of the Act, a new advan∣tage is given to the King against the Re∣cusant 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 whe∣ther 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 ten∣der of the twenty pound per month at the Exchequer will not save the Seizure, but the King shall enjoy the Lands notwithstand∣ing Jones 24, 25. Standens Case.

Page 171, 172, 173. 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 tis 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. 'tis 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 cit∣ed:

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 seiz∣ed, 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 contra∣ry 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 presen∣tation 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 appen∣dant by such seizure, two parts of the Ad∣vowson are likewise seized by consequence, altho it be not named in the Inquisition, as was resolved in the Case of the Chancel∣lor of Cambridg and Walgrave. Hob. 126.127. Moor 872. pl. 1214.

And there, altho the King hath title, but to two parts of the Advowson, yet he shall present alone by his Prerogative, and so he should have done where there were three Coparceners of an Advowson, two of full age, and one under age, and in ward to the King, the King only should by his Preroga∣tive 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 (Heredi∣taments) and the Seizure of the Mannor shall draw with it the Seizure of the Advow∣son, yet the Kings two parts of the Advow∣son shall not pass from him by such Gene∣ral words, and therefore if the King seizeth two parts of a Mannor belonging to a Recusant Convict, to which an Advowson is appen∣dent, and grants over his two parts of the Mannor to a Subject, with all Heredita∣ments, 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 Recu∣sant had the Manor, Hob. 126. Moor 872.

Page 173. In lieu and full recom∣pence 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 Recu∣sant 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. Mansion-house, is in Law most commonly taken for the Chief messu∣age 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. 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 un∣known 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.

Page 175. there to remain with∣out 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 Ses∣sions as Wingate Coton. 107. mistakes, but must commit him immediatly to Goal, nor can any other Court or Justices Bail him in this Case.

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 un∣til 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. These words (any other Person whatsoever,) 3 Jac. 4. §. 14. N. 3. are Exclusive of the said Per∣son or Persons who are committed for re∣fusal, 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 de∣gree 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 ten∣dered this Oath, and refuse to take it, al∣tho it were never tendered to him before, yet upon his refusal there he incurs a prae∣munire,

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, other∣wise a refusal of it at the Assizes or Sessions doth not make a praemunire by that act 12 Co. 131 infra 265.

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 re∣fusal 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.

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 in∣dictment against him to convict and attaint him of praemunire must contain all the special matter, viz that he stood convicted or in∣dicted of recusancy, or that he had not re∣ceived 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 ten∣dered to him by the Bishop or two Justices of peace Quorum ••••us, &c. and he refused it: and that it was again tendred to him in open Court, and he again refused it: for in this case the Mittimus is the ground upon which he must be proceeded against at the Assizes or Sessions.

But if the first tender and refusal be not expressed in the Mittimus or warrant of Commitment there altho there was a tender and refusal of the oath before the Bishop or two Justices, yet the Justices of assize or Ju∣stices of peace in their Sessions can take no notice of it, but they must there tender him the oath without reference to any prior ten∣der which they may do by such of the Gene∣ral words (any other person whatsoever) 3 Jac. § 14. N. 3. and if he refuse, he in∣currs a praemunire, and in this case the In∣dictment 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 par∣ticular cases enlarged in reference to this oath of Allegiance infra 266.

Page 179. unto which Oath so taken the said person shall sub∣scribe his or her name or mark, 3 Jac. 4. § 15. N. 6. if a man refuse to take any word of this oath, 'tis a refusal of the whole, 1 Bulstr. 198. Lord Vauxes Ca:

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 after∣wards the utlary was reversed. The Que∣stion was whether upon reversal of the utla∣ry

the recusant should have restitution of term again 3 Cro. 278 Eyre vers. Woodfine Pasch. 34. Eliz. & Pellam Justice doubted thereof, and observed that 11 H. 4 65. which saith that the party outlawed shall upon re∣versal 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 accor∣dingly.

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 be∣tween a fieri facias & capias utlagatum, was agreed in Doctor Druryes Ca. 8. Co. 143.

A man is seized of an Advowson in gross, the Church becomes void, and then the pa∣tron

is outlawed upon an indictment of re∣cusancy, whereupon the King presents, the presentee is instituted and inducted and af∣terwards the outlawry reversed; in this case the patron shall be restored to his present∣ment.

So if the patron of an advowson in gross hath judgment in a Quare impedit and is af∣terwards outlawed, for recusancy and the King presents, and the presentee is institut∣ed 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 there∣fore upon reversal the patron shall be resto∣red 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 in∣ducted, 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.

Page 180. 181. Or other de∣fect whatsoever 3 Jac. 4. § 16: N. 1. this is meant of Defects within the Indictment or other proceeedings and not of any Collate∣ral matter which the recusant hath to Dis∣charge himself; as a pardon Auterfoyts Con∣vict, &c. for the recusant is not hereby dis∣abled 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 Indi∣ctment or other proceedings, for if there be any defect, which apparently tends to the Kings prejudice, the recusant may take ad∣vantage of it, and therefore 1 Co. 504.505. in the Case of the Marquis of Winchester, who was indicted and convicted of recusan∣cy, and had judgment thereupon, but Ideo capiatur was omitted, the judgment was re∣verst for that omission which is not alded by 16 and 17 Car. 2.8. § 1. N. 12.

Page 182. the Service men∣tioned throughout this Branch 3 Jac. 4. § P 8. N. 2. is intended of Civil or Do∣mestick 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 for∣reign Prince, &c. in any capacity whatso∣ever without first doing what is here requir∣ed, is felony by 3 Jac. 4. § 18. N. 2. the pas∣sing 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 ser∣vice, for the words are in the Disjunctive (go or pass to serve or voluntarily serve, 3 Iust. 80.

Page 182. Or shall &c. pass over the Seas and there shall volun∣tarily 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 vo∣luntarily 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.

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 inform∣ed 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, 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, &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 de∣fault, 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 Con∣troller 3 Jac. 4. § 21. N. 2. that is, he of the two who takes the bond and oath is, to certi∣fy them into the Court of Exchequer, or to forfeit, &c. for where the literal sense will ingen der an absurdity or impossibility, such a construction must be made as will stand with Reason and the intent of the Law∣makers; and in such Cases a Copulative shall be taken for a Disjunctive, or contra, Com. 289 363.

But if the Deputy of the Customer or

Controller take the bond or oath, and no Certificate thereof is made, the Customer or Controller himself, whose Deputy he is, shall forfeit for that default; altho he had no no∣tice from his Deputy of the taking of the said bond or oath, for he is answerable for all the defaults of his Deputy, See Dyer 238, 239. where it was held that the Customer should forfeit the treble value of the Merchandize upon 3 H. 6 3. § N. for his Deputies con∣cealing of the payment of the Customs; so a Sheriff shall answer for all his Officers un∣der him, 4 Co. 33. Miltons Ca. Crompt. Ju∣risd. 110.

And so generally shall all other Officers answer for their Deputies, 9 Co. 48.98. Terms de Ley 111.32. H. 34. Forfeiture Br. 27.

Page 185, 186. withdraw any of the Subjects of the King's Majesty, &c. from their natural obe∣dience, 3 Jac. 4. § 22. N. 1. by the King's Subjects to be understood here Na∣tural Subjects only, that is, such whose Subjection is Natural and absolute Due by Nature and Birth-right, and which begins with their Birth: and not Aliens, altho they are Naturalized or made Denizens, much less those who are only local Subjects: for none but Natural Subjects can be said to be withdrawn from their natural obedience, and as the King of England cannot be said to be a Natural Lord or King to an Alien born, so neither can an Alien be said to be

his Natural Subject, Natural Prince and Natural Suject being correlatives.

And an Indictment of high Treason against an Alien born who resides here, al∣tho it shall be contra ligeantiae suae debitum & contra Dominum Regein in respect of his lo∣cal Ligeance, yet naturalem shall be omitted out of the Indictment, and so it was.

2 & 3 Ph. & Mar. in the Case of Sherley a French. man & 36 Eliz. in the Cases of Ste∣phano Ferara de Grana and Emmanual Lewis Tmore two Portugals, who conspired with Doctor Lopes against Queen Elizabeth.

And so as it seems it ought to be for the same reason if the Alien were indenized or naturalized: for Naturalization it self which is by Act of Parliament and the highest pri∣viledg an Alien is capable of, yet cannot create this natural Subjection or Obedience which is not due by any Law or Constitu∣tion of Man: Naturalization being but a fiction in Law which confers the priviledges of a Natural Subject but cannot make him a Natural Subject who was none before, for then he would have two natural Princes; one where he was born, the other where he was naturalized, Vaughan 279.283. Crane and Ramsey 7 Co. 567.25 Calvins Ca.

2 and 3 Ph. and Mar. Dyer 145 Heb 171. Courteens Ca. So that to absolve, persuade withdraw or reconcile an Alien born whose Subjection to the King began not with his Birth, or for any such to be absolved, per∣suaded, withdrawn or reconciled seems not

to be Treason within this Act, 3 Jac. 4. § 22. N. 1.

But this Subjection is not to be under∣stood locally, or in respect of the place of a man's birth, but in respect of the Prince to whom Subjection is due at the time of his birth: and therefore if a Scot or Irish-man be absolved or reconciled in England, altho the Offence be committed in another King∣dom than where his Subjection began, yet being born a Subject to the King of England it's Treason in the absolver or person re∣conciling, and in him that is absolved or re∣conciled: nor is it necessary in all Cases that the Party be born in the King's Domi∣nions, but that he may be a natural Sub∣ject notwithstanding, and consequently with∣in this Act, 3 Jac. 4. § 22. N. 1. as in the Case of an Ambassador, 7 Co. 18. Cal∣vins Ca.

Page 186, 187. which shall here∣after be reconciled 3 Jac. 4. § 24. N. 1. in the late Additions to Dalt. Cap. 140 Sect. 12. is intimated that this Clause extends to no Cases of Treason or Mispri∣sion of Treason: for there in reciting 3 Jac. 4. § 24. N. 1. the Cases of Treason and mis∣prision of Treason are excepted which is a great mistake, for the Submission here spo∣ken of 3 Jac. 4. § 24. N. 1. is only in the Case of a declared Treason, seil, being re∣conciled to the Pope or Sea of Rome.

Page 187. For and touching the poynt of so being reconciled only,

3 Jac. 4. § 23. N. 1. there are three several sorts of Offences made Treason, 1 To be willingly absolved or withdrawn from a man's natural obedience. 2 To be willing∣ly reconciled to the Pope or See of Rome. 3 To promise obedience to any pretended Authority of that See, or to any other Prince, State, or Potentate.

But in 3 Jac. 4. § 24. N. 1. only the se∣cond of these Offences is remitted in case of Submission, viz, the being reconciled to the Pope or See of Rome) by which I con∣ceive to be meant the forsaking of the Reli∣gion established by Law, and embracing that which is professed and maintained by the Pope and Sea of Rome, and in that sense these words, 3 Jac. 4. § 24. N. 1. are com∣monly taken at this day.

And that this is the meaning of 3 Jac. 4. § 24. N. 1. appears by 23 Eliz. 1. § 2. N. 1. which makes it Treason to absolve or with∣draw the Subjects from their natural obe∣dience, or 23 Eliz. 1. § 2. N. 3. to move them to promise obedience to the See of Rome or any other Prince, &c. to answer which follows in that Act 23 Eliz. 1. § 2. N. 5. three other Sorts of Treason, viz,

• 1 To be absolved or withdrawn:
• Or 2 To be reconciled:
• Or 3 To promise such Obedience, so that the Offence of being re∣conciled answers to the Offence of with∣drawing the Subjects from the Religion esta∣blisht to the Romish Religion, which ex∣plains what is meant by such Reconciliation,

• viz, the being so withdrawn from the one Religion to the other.

But by this Chance 3 Jac. 4. § 24. N. 1. if a Person be thus reconciled, that is, change his Religion, and become a Papist, yet if he be capacitated to submit as is required by this Act and submit, accordingly, and take the oaths of Supremacy and Allegiance, such offence of being reconciled shall not be Treason.

But as for being absolved or withdrawn from his natural Obedience, Or 2 pro∣mising obedience to the pretended authority of the See of Rome, or any other Prince, State or Potentate besides his Natural King, such Submission and taking the Oaths by 3 Jac. 4. § 24. N. 1. shall not absolve him from that Guilt, but he shall have judgment, and suffer for the same, as in Case of high Treason, notwithstanding such Sub∣mission, &c.

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

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

N. 3. of having two Wives living, Hutt. 131.

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

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

• 1. Of an Alien inhabiting this Realm, who oweth to the King a local Subjection or Ligeance, and is neither Naturalized or made a Denizen, for the word [Subject] is a mark of distinction, and must be necessari∣ly exclusive of some persons or other within this Realm, and therefore can not be sup∣posed to taken for meer aliens, who if neither naturalized or made Denizens are only local Subjects and of the lowest form; for if no person inhabiting within the Realm were here intended to be excepted, the word [Sub∣ject] would be idle and to no purpose.

• 2. An Alien Naturalized by Act of Par∣liament in Scotland, or Ireland or made Deni∣zen of either of those Kingdoms by the King's Letters Patents is, for the same rea∣son, out of the meaning of this Branch 3 Jac. 4. § 27. N. 1. altho he live in England: for it seems that such a person is still an Alien here, and shall not partake of any privi∣ledges in England by his being Naturalized or made Denizen in Scotland or Ireland, their Acts or Laws not being obligative or concluding to us in England. Vaughan 278.280, &c. Crane and Ramsey.

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

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

And if a man be born within any of the King's Dominions which were such and united with England in their Subjection at the time of his Birth, altho he be not born within England, yet if he live here he is a

Subject of this Realm within the intent of this Act 3. Jac. 4. § 27. N. 1.

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

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

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

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

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

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

Page 192, 193. wanting with∣out fraud or Covin other habita∣tion or sufficient maintainance, 3 Jac. § 34.4. N. 1. A Father or Mother hath no settled habitation, but yet hath sufficient maintainance, the child receives such Pa∣rent into his house who forbears to come to Church, in this case the child shall for∣feit X l. per month, for altho the Parent had no habitation, yet this is not a wanting habitation within the meaning of this Act, seeing he wanted not sufficient means to procure one.

But if the Parent hath an habitation yet if he want sufficient maintainance to keep him in that habitation, altho he refuse to come to Church, the child shall forfeit no∣thing for receiving him into his house, for the words here 3 Jac. 4. § 34. N. 1. are in the Disjunctive, and if the Parent wants either other habitation in the sense of the Act, or sufficient maintainance, the Child may receive him.

Page 193. that shall be com∣mitted by authority to the Custody,

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

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

Page 193. Standing excommunicated 3 Jac. 4. § 35. N 1. infra a Popish recusant af∣ter conviction shall be disabled as an excom∣municate person, yet to other intens he shall not be reputed as a person standing Ex∣communicate.

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

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

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

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

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

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

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

Page 196, 197. Where any Bishop or Ju∣stices of the Peace, 3 Jac. 4. §. 41. N. 1. the Justices of Peace have a twofold power given them by this Act in reference to the Oath of Allegiance

• 1. Out of Sessions, and so any two Justices of Peace Quorum unus, &c. may tender the oath to any per∣son by 3 Jac. 4. §. 13. N. 2. eighteen years old, or above, other than Noblemen or Noblewomen.
• 2. In their General or Quarter Sessions, and there they may by 3 Jac. 4. §. 14. N. 2.
• 3. They may tender the oath to any such person who hath be∣fore refused it, or to any person whatso∣ever of or above that age, other than Noblemen or Noblewomen.

Now whther the six privy Counsellours here mentioned 3 Jac 4. §. 41. N. 1. may

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

For the salving of which doubt it is to be considered, that the Bishop and not the Ju∣stices of Assize are here joyned with the Ju∣stices of peace, and these words 3 Jac. 4. § 41. N. 1 (Where any Bishop or Justices of Peace seem to bear this construction, viz,

either the one or the other indifferently may require the oath, and that can be intended only of the power given out of Sessions, for in the Sessions the Bishop hath nothing to do.

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

2. These words (in all Causes where, &c.) 3 Jac. 4. § 41. N. 1. seem to be restrictive likewise, and exclusive of some Causes; but the power of Justices of peace in Sessions 3 Jac. 4. § 14. N. 3. extends to all Causes and persons under the degree of Nobility whatsoever, which therefore can not be here intended 3 Jac. 4. § 41. N. 1. but only some particular Causes ejusdem generis,

which can be no other than the Causes be∣fore-mentioned 3 Jac. 4. § 13. N. 1. where∣in the Bishops or two Justices out of Sessions may deal, scil. where the party was before convicted or indicted, or had not received the Sacrament, or passed unknown, and con∣fessed, &c.

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

Note, by 7 Jac. 6. § 26. N. 1. any privy

Counsellour, or the Bishop of the Diocess may now require this oath of any Baron or Baroness of or above the age of 18 years, in all Cases, and in some Cases some privy Counsellours Quorum unus. &c. may require it of persons above the said degree.

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

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

Page 198.Praemunire 3 Iac. 4. § 41. N. 2. in 1. Bulstr. 197. the Court of B. R. denied the Lord Vaux Counsel, or trial by his Peers, and it was there held that the trial

of a Nobleman by his Peers is at Common Law in 4 Cases only, viz, Treason, felony and misprision of both, but not to be allowed in the case of a praemunire, for that in effect is no more than a contempt.

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

Notes

• CLVIII.
• Information.
• CLIX. Conformity.
• CLX. Forfeiture.
• CLXI.
• CLXII.
• CLXIII. Justices.
• CLXIV.
• CLXV.
• CLXVI.
• CLXVII.
• CLXVIII.
• CLXIX. Appearance.
• CLXX. Process.
• CLXXII. Days.
• CLXXIII.
• Bar & Feme
• CLXXIV. Forfeitures.
• CLXXV.
• CLXXVI.
• CLXXVII.
• CLXXVIII.
• CLXXIX.
• CLXXX.
• CLXXXI.
• CLXXXIL Imprison∣ment.
• CLXXXIII. Justices.
• CLXXXIV.
• CLXXXV Corent.
• Indictment.
• CLXXXVI. Oath.
• CLXXXVII. Ʋilary.
• C. B.
• Presentment.
• CLXXXVIII. Amendment
• CLXXXIX. Ouster le mere.
• CXC.
• CXCI. Oblig.
• CXCII.
• CXCIII.
• CXCIV. Alien.
• CXCV.
• CXCVI.
• CXCVII
• CXCVIII. Alien.
• CXCIX. Proof.
• CC. Dayes.
• CCII. Accessory.
• CCIII
• CCIV.
• CCV
• CCVI.
• CCVII.
• CCVIII. Lieu.
• CCIX. Bar. & some
• CCX.
• CCXI. Iustices.
• CCXII. Dignity.
• CCXIII. Days.
• CCXIV.
• CCXV. Cinque Ports