Such acts have at all times received as liberal a construction, as strong an interpretation for the attainment of that end, as possible; for summa est lex quæ pro religione facit (e). All statutes that concern the public good are to be construed liberally (ƒ), even though they be penal as to some of the community (g), for every statute is penal to some persons; and, if the extending of a penal statute by an equitable construction be more advantageous than prejudicial to the greater part of the people, it may, by the rules of law, be so extended (h). And popery has been said to be a conspiracy against the state as well as religion (i).

It is true that the 15th section of the same act speaks of the burials of " popish recusants not being excommunicate." The 12th section, concerning the omission of lawful baptism, had mentioned "popish recusants" without more, while the 13th section again, which applied to marriages, had used the terms, "popish recusants convict." The object of this diversity of language seems clear. It was intended to proportion the rigorous provisions of the law to the notoriety of the papist. Some penalties were to apply to all recusants, others to such only as were convicted of recusancy. Convicted recusants were restrained from marrying otherwise than in the Established Church, but all recusants were bound to baptize their children according to the rites of that church. The provision made as to burials was intended also to apply generally to all recusants. But there was a difficulty in the way of this enactment. Persons under the sentence of excommunication could not be buried in consecrated ground. A recusant, although not convicted, might, under the 30th section of the act, be excommuni, cated by an ecclesiastical court. Therefore the exception

(e) Hobart, 157.

(f) Bac. Abr. Statutes (I), s. 7. (g) Plowd. 36, 59.

(h) Bac. Abr. Statutes (1), s. 9. (i) Thornby v. Fleetwood, 10 Mod. 117.

was inserted in the 15th section, and the term excommunicate was selected, as comprehending more than the term convict.

That this statute of James was, from the first moment of its enactment, interpreted to have imposed upon popish recusants convict all the other disabilities of excommunication, as well as that of bringing and prosecuting actions or suits, is clear from an early case at common law (k). Certain recusants were brought to the bar to take the oath and find sureties. Lord Chief Justice Coke told those who were willing to comply, that he would not take popish recusants [convict] for their sureties. For, under the statute of James, 66 every recusant convict is to be excommunicated, and, therefore, in my circuit I do not admit them for witnesses between party and party, they being no competent witnesses. We have God, the king, and the law of the land on our side; also we have here dealt very favourably with you, and not in any rigorous manner. For we may, by the law of the land, attach every one of you by a writ de excommunicato capiendo, being by the statute of 3 Jac. c. 5, excommunicated, being convicted; and if afterwards you do not conform yourselves according to the laws of the land, then we will deal with you according to the rigour of the law, by writs of excommunicato capiendo."-" The whole court agreed with him herein."

The disabilities of popish recusants convict, therefore, must be taken to comprehend all those which appertain to excommunication (1). Besides the disability to sue, they cannot be witnesses, sureties, administrators, nor attornies or procurators for others; cannot act as executors, although they are not deprived thereby of the executorship, and are not to be allowed Christian burial. And we have seen (p. 39), that in certain cases, a female

(k) The Attorney General v. Griffith and others, 2 Bulstr. 155.

(1) Bac. Abr. Excommunication (D), s. 1.

popish recusant convict is even disabled to have the character of executrix.

Offices and Charges.

The 8th section of the 3 Jac. I. c. 5, applies to "recusant convicts" in general. It disables them from practising the common or civil law, as counsellor, clerk, attorney, solicitor, advocate or proctor,-physic,—and the trade of apothecary,-from being judge, minister, clerk, steward, register, town clerk, or other officer or minister of any court,-from keeping any court,-from bearing office as captain, lieutenant, corporal, sergeant, ancientbearer, or other office in camp, troop, band, or company of soldiers, and from being captain, master, governor, or bearing office in any ship, castle, or fortress of the crown,—under a penalty of 1007. for every such offence; one half to go to the queen, and the other to the informer. These words, "any office," or "any other office," following immediately after the several military and naval offices specifically named, would not, it is submitted, have the effect of disqualifying recusants convict in general from holding offices in either service of a higher rank than the highest of those that are so named. It is a well known rule in the construction of statutes, that when a statute begins by instancing certain individual cases, and concludes by extending its operation to "other" cases, it is to be understood as meaning "such others;" viz., others of the same or an inferior degree. Thus it was held, that the words, "any other means," in an act for vesting certain property in the crown, could not be intended of an act of parliament, for "the makers of the act would have put that in the beginning, and not in the end, after other inferior conveyances, if they had intended to extend the act thereunto." And it was mentioned that bishops were held to be not included in the 13 Eliz. c. 10, which enumerates "colleges, deans and chapters, parsons, vicars," and concludes, "and others having

spiritual promotions" (m). But all doubt as to popish recusants convict is removed by the 9th section of the 3 Jac. I. c. 5. It specifies "popish recusants convict," and even the husbands of popish recusants convict, (unless such husbands and their children, above nine years of age, shall repair to church once a month at least, and he, they, and his servants, of meet age, receive the sacrament,) and it disables all such from exercising "any public office or charge in the commonwealth, either in person or by deputy. It has been remarked, that in the 8th section there is nothing to prevent recusants convict in general from exercising their offices by deputy (n). This is certainly true for the most part. But there is reason to contend that the disability to keep any court is an exception to the rule, and that it embraced the keeping a court by deputy as well as in person.

Going Five Miles from Home.

By the 35 Eliz. c. 2, ss. 2, 3, 4, 6, and 7, and the 3 Jac. I. c. 5, ss. 6 and 7, every popish recusant convict, above sixteen years of age, shall, within forty days after his conviction, repair to his usual abode, or, if he have none, to his native place or his parents' abode, (unless at the time of his conviction he be absent from the realm, restrained by imprisonment or the royal command, or by command of six or more of the privy council, or unable by sickness to travel; in either of which recited cases, he must return to his usual abode, &c. within twenty days after the removal of the difficulty in question). Within twenty days after their return, they must notify it, with their true names, and present themselves to the parish minister or curate, and the town constable, headborough, or tithing-man, who shall enter these matters in a book to be kept in every parish for the purpose, and shall

(m) Archbishop of Canterbury's (n) Hawk. P. C. c. 12, s. 9. case, 2 Co. 46 (b).

afterwards certify them in writing to the next General or Quarter Sessions, where they shall be entered by the clerk of the peace on the rolls. No such person, after so returning to such place of abode or native place, shall pass or remove above five miles from thence, (each mile being one of 1760 yards, and reckoned, not as the crow flies, but by the nearest and most usual way (0), without a written license from the queen, or three privy councillors, or without a special written license granted under the hands and seals of four of the local justices, with the assent in writing of the bishop, lord lieutenant, or deputy lieutenant, (not being one of the four justices) (p), under his hand and seal, the convict having first taken his corporal oath before some one of such four justices, as to the cause of his journey, and that he will make no needless delay. The 13th and 14th sections of the 35 Eliz. c. 2, except all persons going to any court of law, or to the privy council or commissioners under process, or going under proclamation to yield themselves to the sheriff. The penalties for not returning to such place of abode or native place, or removing thence more than five miles without license, are forfeiture of goods and chattels, lands, tenements, and hereditaments, (whether freehold or copyhold,) and all rents and annuities during the offender's life. If he shall not have an inheritance of any kind of the clear yearly value of 20 marks, nor goods and chattels above the value of 407., and shall not, within three months after apprehension for so offending as aforesaid, conform to the Established Church, he shall, upon his corporal oath, at the requisition of any two justices of the peace, or coroner of the county, "abjure this realm of England and all other the queen's majesty's dominions for ever," and shall at once depart out of the realm at the port and within the time assigned by the justices or coroner,

(0) Cro. El. 212,

(p) Mansfield's case, Moor. 836.