their Iurisdictions and Authority and to punish the same by admonition excommunication sequestration or deprivation and other censures and process in like form as heretofore hath béen used in like Cases by the Quéens Ecclesiastical Laws Provided always and be it enacted None shall be punished twice for the same Offence That whatsoever persons offending in the premisses shall for their offences first receive punishment of the Ordinary having a Testimonial thereof under the said Ordinaries Seal shall not for the same Offence eftsoons be convicted before the Iustices And likewise receiving for the said first Offence punishment by the Iustices shall not for the same Offence eftsoons receive punishment of the Ordinary Any thing contained in this Act to the contrary notwithstanding This Clause being in the affirmative doth not abrogate the Jurisdiction Ecclesiastical Ecclesiastical Jurisdiction not abrogated which was in the Ecclesiastical Judge before the making of the Statute for that no Negative words are here added as that he should proceed no otherwise or in no other manner or form than this Statute directs And therefore if any Parson Vicar c. deprave or observe not the Book of Common Prayer although this Act inflicts only the forfeiture of a years value and six months Imprisonment for the first Offence yet the Ecclesiastical Judge may for the first Offence deprive him notwithstanding this Act as he might have done if no form of punishment had been here appointed And the said Book being enjoined by Authority the Offence of depraving or non-observing it is punishable by the Ecclesiastical Judge according to the Ecclsiastical Law without the further aid of any Temporal Law then the commanding it to be observed Co. 5.5 6. Cawdries Case And in such Case the Sentence of Deprivation given by the Ecclesiastical Judge though it exceed the punishment inflicted by the Temporal Law is not to be questioned by the Temporal Judges but they ought to give Faith and Credit to it For cuilibet in sua arte perito est credendum Cawdries Case fol. 7. Co. 4.29 Bunting and Heppingwells Case Provided always and be it enacted Stat. Sect. 13. Ornaments of the Church and Ministers That such Ornaments of the Church and of the Ministers thereof shall be retained and be in use as was in this Church of England by Authority of Parliament in the second year of the Reign of King Edward the Sixth until other Order shall be therein taken by the Authority of the Quéens Majesty with the advice of her Commissioners appointed and authorized under the Great Seal of England for Causes Ecclesiastical or of the Metropolitan of this Realm And also That if there shall happen any Contempt or Irreverence to be used in the Ceremonies or Rites of the Church by the mis-using of the Orders appointed in this Book the Queéns Majesty may by the like advice of the said Commissioners or Metropolitan ordain and publish such further Ceremonies or Rites as may be most for the advancement of Gods Glory the Edifying of his Church and the due Reverence of Christs holy Mysteries and Sacraments All Laws and Ordinances made for other Service shall be void And be it further Enacted by the Authority aforesaid That all Laws Statutes and Ordinances wherein or whereby any other Service Administration of Sacraments or Common Prayer is limited established or set forth to be vsed within this Realm or any other the Queéns Dominions or Countries shall from henceforth be utterly void and of none effect Stat. v Eliz. cap. i. An Act for the Assurance of the Queens Majesties Royal Power over all States and Subjects within her Dominions FOR preservation of the Queéns most Excellent Highness her Heirs and Successors Stat. and the Dignity of Sect. 1 the Imperial Crown of this Realm of England And for the avoiding both such hurts perils dishonors and inconveniencies as have before time befallen as well to the Quéens Majesties noble Progenitors Kings of this Realm as for the whole Estate thereof by means of the Iurisdiction and Power of the Sée of Rome unjustly Claimed and Vsurped within this Realm and the Dominions thereof and also of the dangers by the fauters of the said usurped Power at this time grown to marvelous outrage and licentious boldness and now requiring more sharp restraint and correction of Laws than hitherto in the time of the Queéns Majesties most mild and merciful Reign have béen had used or established Be it therefore Enacted Ordained and Established Stat. by the Quéen our Soveraign Lady and the Lords Spiritual and Sect. 2 Temporal The Penalty for maintaining the Authority of the Bishop or See of Rome and the Commons in this present Parliament assembled and by Authority of the same That if any Person or Persons dwelling inhabiting or resiant within this Realm or within any other the Quéens Dominions Seigniories or Countries or in the Marches of the same or elsewhere within or under her Obeysance and Power of what Estate Dignity Preheminence Order or Condition soever he or they be after the first day of April which shall be in the year of our Lord God One thousand five hundred sixty thrée shall by Writing Typhering Printing Preaching or Teaching Déed or Act advisedly and wittingly hold or stand with to extol set forth maintain or defend the Authority Iurisdiction or Power of the Bishop of Rome or of his Sée heretofore claimed used or usurped within this Realm or in any Dominion or Country being of within or under the Queéns Power or Obeisance or by any Spéech open Déed or Act advisedly and wittingly attribute any such manner of Iurisdiction Authority or Preheminence to the said Sée of Rome or to any Bishop of the same Sée for the time being within this Realm or in any the Quéens Dominions or Countries that then every such Person or Persons so doing or offending their Abbettors Procurers and Counsellors and also their aiders assistants and comforters upon purpose and to the intent to set forth further and extol the said usurped Power Authority or Iurisdiction of any of the said Bishop or Bishops of Rome and every of them being thereof lawfully Indicted or Presented within one year next after any such Offences by him or them Committed and being lawfully Convicted or Attainted at any time after according to the Laws of this Realm for every such Default and Offence shall incur into the dangers penalties pains and forfeitures Ordained and Provided by the Statute of Provision and Praemunire made in the Sixtéenth year of the Reign of King Richard the Second Hold or stand with c. or attribute The Printers of any Book which attributes to the Pope or See of Rome any such Authority or Jurisdiction within this Realm Printing bringing in offering and delivering of Books c. and the utterers thereof in most Cases are within the danger of this Law and if any man bring over such Books Written beyond the Seas knowing the
so the word taken is to be expounded and the like Exposition hath been made of the Statutes of 2 3 E. 6. cap. 2. of Soldiers and 1 Jac. cap. 11. of having two Wives living Stat. 1 3 E. 6. 2 1 Jac. 11. Hutton 131. If the Offence be committed out of this Realm yet it cannot be tried upon the Statute of 35 H. 8. cap. 2. Stat 35 H. 8. 2. of Trial of Treasons committed out of the Realm For this Act hath prescribed a special form of a Trial in this Case which must be observed And if such Offender be a Peer of England Indictment of a Peer the Indictment cannot be taken before any others then the Justices of Assize and Goal delivery in the County where he is imprisoned or the Justices of the Kings Bench Hutton 131. Lord Digbies Case Stat. Sect. 22. Trial of Peers Provided always That if any Peér of this Realm shall happen to be Indicted of any Offence made Treason by this Act he shall have his Trial by his Péers as in other like Cases of Treason is accustomed Stat. Sect. 23. And be it further Enacted That if any Subject of this Realm at any time after one month next after the end of this present Session of Parliament shall not resort or repair every Sunday to some Chuch Chappel or some other usual place appointed for Common Prayer and there hear Divine Service according to the Statute made in that behalf in the first year of the Reign of the late Q. Elizabeth that then it shall and may be lawful to and for any one Iustice of Peace of that Limit Division or Liberty wherein the said party shall dwell upon proof unto him made of such default by confession of the party or Oath of witness to call the said party before him and if he or she shall not make a sufficient excuse and due proof thereof to the satisfaction of the said Iustice of Peace That it shall be lawful for the said Iustice of Peace to give Warrant to the Churchwarden of the said Parish wherein the said party shall dwell under his Hand and Seal to levy twelve pence for every such default by distress and sale of the Goods of every such Offender rendring to the said Offender the Overplus of the money raised of the said Goods so to be sold and that in default of such distress it shall and may be lawful for the said Iustice of Peace to commit every such Offender to some Prison within the said Shire Division Limit or Liberty wherein such Offender shall be inhabiting until payment be made of the said sum or sums so to be forfeited which forfeiture shall be imployed to and for the use of the Poor of that Parish wherein the Offender shall be resident or abiding at the time of such Offence committed Provided That no man be impeached upon this Clause Within what time the Offender shall be impeached except he be called in question for his said default within one month next after the said default made And that no man being punished according to this Branch But once punished for one Offence shall for the same Offence be punished by the forfeiture of twelve pence upon the Law made in the first year of the late Quéen Elizabeth If any Subject of this Realm By a Subject of this Realm Subject of this Realm who here meant is to be understood a natural born Subject or an Alien naturalized here by Act of Parliament or made a Denizen of England by the Kings Letters Patents And who not But these words here are exclusive of two sorts of Subjects 1. Of an Alien inhabiting in this Realm who oweth to the King a local Subjection or Ligeance and is neither naturalized or made Denizen For the word Subject is as a mark of distinction and must be necessarily exclusive of some persons or other within this Realm and therefore cannot be supposed to take in meer Aliens who if neither naturalized or made Denizens are only local Subjects and of the lowest form For if no person inhabiting within the Realm were here intended to be excepted the word Subject would be idle and to no purpose 2. An Alien Naturalized by Act of Parliament in Scotland or Ireland or made Denizen of either of those Kingdoms by the Kings Letters Patents is for the same reason out of the meaning of this Branch although he live in England For it seems that such a person is still an Alien here and shall not partake of any priviledges in England by his being Naturalized or made Denizen in Scotland or Ireland Their Acts or Laws not being Obligative or concluding to us in England Vide Vaughan 278 279 280 285 287. Craw versus Ramsey And therefore the power here given any one Justice of Peace to levy the twelve pence per Sunday doth not extend to either sort of these Aliens An Alien within Stat. 1. Eliz. 2 but yet they may forfeit twelve pence per Sunday for their absence from Church upon an Indictment of the Statute of 1 Eliz. cap. 2. and that by force of the general words there Every person and persons inhabiting within this Realm so that what is said in Dr. Fosters Case Co. 11.63 viz. That this Statute gives a more speedy remedy for the Recovery of the twelve pence is not to be understood of all persons within 1 Eliz. but only of the Subjects of this Realm in the sense of this Branch of the Statute And if a man be born within any of the Kings Dominions which were such and united with England in their subjection at the time of his birth although he be not born within England Natural Subjection not local yet if he live here he is a Subject of this Realm within the intent of this Act For Natural Subjection and Ligeance are not local or confined to that Kingdom or Country where he was born But he is a natural Subject in any of the Dominions belonging at the time of his Birth to the Prince under whom he was born And upon this ground it was resolved in Calvins Case Co. lib. 7. Postnati 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 Kings Dominions which were such and so united at the time of his birth if he live in England is punishable by this Act and any one Justice of Peace may grant his Warrant to levy the twelve pence for his absence from Church vide antea Sect. 19. Morning and Evening Prayers Every Sunday This repairing to Church every Sunday must be as well to Evening Prayers as to Morning Prayers For it ought to be an entire day and an entire Service By Hutton and Berkley Justices Dalton V. cap. 45. tit Recusants To the satisfaction of the said Iustice of Peace In this Case the Justice of
him who is in another County For the coercive Authority of a Justice of Peace Justice of Peace limited to his County cannot exceed his limits or bounds as is held in Plowden 37. in the Case of the Sheriffs of London And therefore 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 Goal 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 to do then an ordinary person 13 E. 4. 8. Bro. Freshsuite 3. so that as it seems in this Case the party who keeps such Arms cannot be imprisoned by this Act But this likewise is Casus Omissus and not here provided for And yet nevertheless be it Enacted by the Authority aforesaid Stat. Sect. 25. A Popish Recusant shall maintain his Armor That notwithstanding the taking away of such Armor Gunpowder and Munition the said Popish Recusant shall and may be charged with the maintaining of the same and with the buying providing and maintaining of Horse and other Armor and Munition in such sort as other his Majesties Subjects from time to time shall be appointed and commanded according to their several Abilities and Qualities and that the said Armor and Munition at the Charge of such Popish Recusant for them and as their own provision of Armor and Munition shall be shewed at every Muster shew or use of Armor to be had or made within the said County Provided always That neither this Act Stat. Sect. 26. Ecclesiastical Censures nor any thing therein contained shall extend to take away or abridge the Authority or Iurisdiction of the Ecclesiastical Censures for any cause or matter but that the Commissioners of his Majesty his Heirs and Successors in Causes Ecclesiastical for the time being Archbishops Bishops and other Ecclesiastical Iudges may do and procéed as before the making of this Act they lawfully did or might have done Any thing in this Act to the contrary in any wise notwithstanding Stat. vii Jac. cap. ii An Act that all such as are to be Naturalized or restored in Blood shall first receive the Sacrament of the Lords Supper and the Oath of Allegiance and the Oath of Supremacy What they shall be bound unto who shall be Naturalized or restored in Blood FOrasmuch as the Naturalizing of Strangers and restoring to Blood persons Attainted have béen ever reputed matters of méer grace and favour which are not fit to be bestowed upon any others then such as are of the Religion now established in this Realm Be it therefore Enacted by the Kings most Excellent Majesty the Lords Spiritual and Temporal and the Commons in this present Parliament Assembled that no person or persons of what Quality Condition or Place whatsoever being of the age of Eightéen years or above shall be Naturalized or restored in Blood unless the said person or persons have received the Sacrament of the Lords Supper within one month before any Bill exhibited for that purpose and also shall take the Oath of Supremacy and the Oath of Allegiance in the Parliament House before his or her Bill be twice Read And for the better effecting of the premises Be it further Enacted by the Authority aforesaid That the Lord Chancellor of England or Lord Keeper of the Great Seal for the time being if the Bill begin in the Vpper House and the Speaker of the Commons House of Parliament for the time being if the Bill begin there shall have Authority at all times during the Session of Parliament to minister such Oath and Oaths and to such person and persons as by the true intent of this Statute is to be ministred This Act to take place from and after the end of this present Session of Parliament Stat. vii Jac. cap. vi An Act for Administring the Oath of Allegiance and Reformation of married Women Recusants WHereas by a Statute made in the Third year of your Majesties Reign intituled Stat. Sect. 1. an Act for the better discovering and repressing of Popish Recusants the form of an Oath to be ministred and given to certain persons in the same Act mentioned is limited and prescribed tending only to the Declaration of such Duty as every true and well affected Subject not only by bond of Allegiance but also by the commandment of Almighty God ought to bear to your Majesty your Heirs and Successors which Oath such as are infected with Popish superstition do oppugne with many false and unsound Arguments the just defence whereof your Majesty hath heretofore undertaken and worthily performed to the great contentment of all your loving Subjects notwithstanding the gainsayings of contentious Adversaries And to shew how greatly your Loyal Subjects do approve the said Oath they prostrate themselves at your Majesties Féet beséeching your Majesty that the same Oath may be administred to all your Subjects To which end we do with all humbleness beseech your Highness that it may be Enacted Every person above the age of 18 years herein intended shall take the Oath of Allegiance and before whom And be it Enacted by the Authority of this present Parliament That all and every person and persons as well Ecclesiastical as Temporal of what Estate Dignity Preheminence Sex Quality or Degrée soever he she or they be or shall be above the age of Eightéen years being in this Act mentioned and intended shall make take and receive a Corporal Oath upon the Evangelists according to the tenor and effect of the said Oath set forth in the forementioned Statute before such person or persons as hereafter in this Act is expressed That is to say All and every Archbishop and Bishop Archbishops and Bishops that now is or hereafter shall be before the Lord Chancellor or Lord Kéeper of the Great Seal for the time being Ecclesiastical Judges and Officers And all and every Ecclesiastical Iudge Officer and Minister of what Estate Dignity Preheminence or Degree soever he or they be or shall be before the Archbishop of the Province or Bishop or other Ordinary of the Diocess for the time being wherein such Ecclesiastical Iudge Officer or Minister ought to exercise his said Office Place or Function A Baron or Baroness or above that Degree Privy Counsellors Presidents And all and every person and persons of or above the Degree of a Baron of Parliament or Baroness of this your Highness Realm of England and all of your Highness Privy Counsel residing in London or Westminster or within thirty miles thereof and the Presidents of Wales and the North Parts before any four of your Highness Privy Counsel whereof the Lord Chancellor Lord Treasurer Lord Privy Seal
the 1 2 Ph. M. 8. and all and every Branches Clauses and Articles therein contained other than such Branches and Sentences as hereafter shall be excepted may from the last day of this Session of Parliament by Authority of this present Parliament be repealed and shall from thenceforth be utterly void and of none effect The Statute of 1. and 2. Ph. Mar. here mentioned repealed The King declared supream Head Stat. 1 2. Ph. Mar. 8. 26 H. 8. 1. 35 H. 8. 3. the Statutes of 26 H. 8. cap. 1. and 35 H. 8. cap. 3. By both which King Henry the Eighth his Heirs and Successors were declared supream Head of the Church of England And by the repeal of that of 1. and 2. Ph. Mar. those other of 26 and 35 H. 8. were revived and are again in force Co. 4. Inst 325. Vide Sect. 5. Stat. Sect. 3. A reviver of several Stat. And that also for the reviving of divers of the said good Laws and Statutes made in the time of your said dear Father it may also please your Highness That one Act and Statute made in the three and twentieth year of the Reign of the said late King Henry the Eighth entituled An Act that no person shall be cited out of the Diocess where he or she dwelleth except in certain Cases And one other Act made in the Four and Twentieth year of the Reign of the said late King entituled An Act that Appeals in such cases as hath been used to be pursued to the See of Rome shall not be from henceforth had ne used but within this Realm And one other Act made the five and twentieth year of the said late King concerning restraint of payment of Annates and First-fruits of Archbishopricks and Bishopricks to the See of Rome And one other Act in the said five and twentieth year entituled An Act concerning the submission of the Clergy to the Kings Majesty And also one Act made in the five and twentieth year entituled An Act restraining the payment of Annates or First-fruits to the Bishop of Rome and of the Electing and Consecrating of Archbishops and Bishops within this Realm And one other Act made in the said five and twentieth year entituled An Act concerning the Exoneration of the Kings Subjects from Exactions and Impositions heretofore paid to the See of Rome and for having Licences and Dispensations within this Realm without suing further for the same And one other Act made in the six and twentieth year of the said late King entituled An Act for Nomination and Consecration of Suffragans within this Realm And also one other Act made in the eight and twentieth year of the Reign of the said late King entituled An Act for the Release of such as have obtained pretended Licences and Dispensations from the See of Rome And all and every Branches Words and Sentences in the said several Acts and Statutes contained The Sentences and Branches in the aforesaid Statutes shall extend to the Queen by Authority of this present Parliament from and at all times after the last day of this Session of Parliament shall be revived and shall stand and be in full force and strength to all intents constructions and purposes And that the Branches Sentences and Words of the said several Acts and every of them from thenceforth shall and may be judged déemed and taken to extend to your Highness your Heirs and Successors as fully and largely as ever the same Acts or any of them did extend to the said late King Henry the Eighth your Highnesses Father And that it may also please your Highness that it may be enacted by the Authority of this present Parliament That so much of one Act or Statute made in the two and thirtieth year of the Reign of your said dear Father King Henry the Eighth entituled An Act concerning Precontracts of Marriages and touching degrees of Consanguinity as in the time of the late King Edward the sixth your Highnesses most dear Brother by one other Act or Statute was not repealed And also one Act made in the seven and thirtieth year of the Reign of the said late King Henry the Eighth entituled An Act that Doctors of the Civil Law being married may exercise Ecclesiastical Jurisdiction And all and every Branches and Articles in the said two Acts last mentioned and not repealed in the time of the said late King Edward the sixth may from henceforth likewise stand and be revived and remain in their full force and strength to all intents and purposes Any thing contained in the said Act of repeal before mentioned or any other matter or cause to the contrary notwithstanding What Stat. repealed by the Stat. of 1 2 P. M. 8. shall continue repealed And that it may also please your Highness that it may be further enacted by the Authority aforesaid That all other Laws and Statutes and the Branches and Clauses of any Act or Statute repealed and made void by the said Act of Repeal made in the time of the said late King Philip and Quéen Mary and not in this present Act specially mentioned and revived shall stand remain and be repealed and void in such like manner and form as they were before the making of this Act any thing herein contained to the contrary notwithstanding A reviver of the Stat. of 1 Ed. 6. 1. And that it may also please your Highness That it may be enacted by the Authority aforesaid that one Act and Statute made in the first year of the Reign of the late King Edward the sixth your Majesties most dear Brother entituled An Act against such persons as shall unreverently speak against the Sacrament of the Body and Blood of Christ commonly called the Sacrament of the Altar and for the receiving thereof under both kinds and all and every Branches Clauses and Sentences therein contained shall and may likewise from the last day of this Session of Parliament be revived and from thenceforth shall and may stand remain and be in full force strength and effect to all intents constructions and purposes in such like manner and form as the same was at any time in the first year of the Reign of the said late King Edward the Sixth any Law Statute or other matter to the contrary in any wise notwithstanding A repeal of the Statute of 1 2 P. M. 6. and several other Statutes And that also it may please your Highness That it may be further established and enacted by the Authority aforesaid that one Act and Statute made in the first and second years of the late King Philip and Queen Mary entituled An Act for the reviving of three Statutes made for the punishment of Heresies and also the said three Statutes mentioned in the said Act and by the same Act revived And all and every Branches Articles Clauses and Sentences contained in the said several Acts and Statutes and every of them shall be
from the last day of this Session of Parliament deemed and remain utterly repealed void and of none effect to all intents and purposes Any thing in the said several Acts or any of them contained or any other matter or cause to the contrary notwithstanding Stat. Sect. 4. The abolishing of Forreign Authority And to the intent that all usurped and Forreign Power and Authority Spiritual and Temporal may for ever be clearly extinguished and never to be used or obeyed within this Realm or any other your Majesties Dominions or Countries may it please your Highness That it may be further enacted by the Authority aforesaid That no Forreign Prince Person Prelate State or Potentate Spiritual or Temporal shall at any time after the last day of this Session of Parliament use enjoy or exercise any manner of Power Iurisdiction Superiority Authority Preheminence or Priviledge Spiritual or Ecclesiastical within this Realm or within any other your Majesties Dominions or Countries that now be or hereafter shall be but from thenceforth the same shall be clearly abolished out of this Realm and all other your Highnesses Dominions for ever Any Statute Ordinance Custom Constitutions or any other matter or cause whatsoever to the contrary in any wise notwithstanding By the abrogating the Jurisdiction of any Forreign Prelate Archbishop of Canterburies concurrent Jurisdiction abrogated all Jurisdiction derived from such Forreigner is abrogated likewise And therefore the concurrent Jurisdiction which the Archbishop of Canterbury is supposed to have in the inferiour Diocesses ought not now to be exercised by him but is utterly taken away by this Act For he had it not as Archbishop but as Legatus natus to the Pope and if continued to be exercised is a meer Usurpation Hobart 17. Dr. James's Case And that also it may likewise please your Highness Stat. Sect. 5. Ecclesiastical Jurisdiction annexed to the Crown that it may be established and enacted by the Authority aforesaid that such Iurisdictions Priviledges Superiorities and Preheminences Spiritual and Ecclesiastical as by any Spiritual or Ecclesiastical Power or Authority hath heretofore béen or may lawfully be exercised or used for the Visitation of the Ecclesiastical State and Persons and for Reformation Order and Correction of the same And of all manner of Errors Heresies Schisms Abuses Offences Contempts and Enormities shall for ever by Authority of this present Parliament be united and annexed to the Imperial Crown of this Realm Sir Edward Coke 4. Inst 325. calls this an Act of Restitution of the ancient Jurisdiction Ecclesiastical which always belonged of Right to the Crown of England That is a restitution of the exercise of it For in truth this Statute is not introductory of a new Law The Kings ancient Jurisdiction Ecclesiastical but declaratory of the old and annexes not any Jurisdiction to the Crown but that which was or of right ought to be by the ancient Laws of this Realm parcel of the Kings Jurisdiction By which Laws the King as supream Head hath full and intire Power in all causes Ecclesiastical as well as Temporal For the Ecclesiastical Laws are the Kings Laws as well as the Temporal And the Judges of either of those Laws derive their Authority from him alone Co. 5.8 9. Cawdries Case where are several instances of Ecclesiastical Jurisdiction exercised by the Kings of this Realm in several Ages Moore 755. b. 1043. The King is Persona mixta And in this respect the King is said to be Persona mixta and Persona mixta unita cum Sacerdotibus for that he hath both Ecclesiastical and Temporal Jurisdiction 10 H. 7.18 Co. 2.44 Bishop of Winchesters Case Coke 13.17 Case of Modus Decimandi Vid. Co. lib. 6. Praefac ' And supream Ordinary The King is the supream Ordinary and by the ancient Laws of this Realm may without any Act of Parliament make Ordinances and Institutions for the Government of the Clergy and may deprive them if they obey not Moore 755. C. 1043. Cro. Trin. 2. Jac. 37. And if there be a controversie between Spiritual Persons concerning their Jurisdiction the King is Arbitrator and 't is a right of his Crown to distribute to them and to declare their Bounds Hobart 17. Dr. James's Case Laws to be administred distinctly And yet although these Jurisdictions Ecclesiastical and Temporal are both in the King they are not to be confounded For although both Laws are the Kings Laws yet they are to be administred distinctly so that he who hath Ecclesiastical Jurisdiction derived from the King ought not to usurp upon the temporal Law And the Ecclesiastical Judge who meddles in Temporal Causes or Suits and draws the Interest or Cause of the Subject which ought to be determined by the Common Law ad aliud examen viz. to be decided by the Ecclesiastical Law offends contra Coronam dignitatem Regiam In confounding those Jurisdictions of the King which ought to be kept separate and distinct Prohibition And in such Cases not only a Prohibition lies but the Ecclesiastical Judge if the Cause originally belongs to the Common Law Pramunire and not to the Ecclesiastical Court incurs a Praemunire for depriving the Subject of the benefit of the Common Law which is his Birthright Co. 12.37 38 39 40. Co. 3. Inst 120. And therefore it was Resolved That if a man be excommunicated in the Bishops Court for a matter which belongs to the determination of the Common Law 't is no less than a Praemunire Praemunire And that by force of the word elsewhere in the Statute of 16 R. 2. cap. 5. Stat. 16 R. 2. 5. If any man pursue in the Court of Rome or elsewhere c. 5 E. 4.6 The King may do what the Pope might by the Canon Law By this and the former Clause which restores to the King the Title and Exercise of the Power of Supream Head of the Church of England and annexes to the Crown all Ecclesiastical Jurisdiction heretofore exercised by any Forreigner The King as supream Head may do whatever the Pope might formerly do within this Realm by the Canon Law And upon this ground it was resolved Trin. 39 Eliz. in Hollingworths Case in the Kings-Bench That notwithstanding the Statute of 25 H. 8. cap. 19. Stat. 25 H. 8. 19 which makes the sentence of the Delegates definitive and saith that no further Appeal shall be had yet the King after such definitive Sentence may grant a Commission of Review Commission ad revidendum For that after a definitive Sentence the Pope as supream Head by the Canon Law used to grant a Commission ad revidendum Co. 4. Inst 341. Upon this ground it was likewise resolved in the Case of Grendon versus the Bishop of Lincoln al' That the King with the consent of the Patron and without the Bishop may make an Appropriation Appropriation And in such Case the King doth it Authoritate sua regia
suprema Ecclesiastica qua fungitur for so are the words in the Charter there Plowden 497 498 500. Vide Co. 5. 10. Cawdries Case Co. 11. 10 11. Pridle and Nappers Case And where the King is Patron an Appropriation may be made by him alone Addition to Popham 145. And as he is supream Head and supream Ordinary a Resignation Resignation made to him of a Deanry is as good as if it were made to the Bishop Dyer 12 13 Eliz. 293. Pollard and Walronds Case Plowden 498. Palmer 493. Hayward and Fulchers Case And that your Highness your Heirs and Successors Stat. Sect. 6. The Queen may assign Commissioners to exercise Ecclesiastical Jurisdiction Kings or Queens of this Realm shall have full Power and Authority by vertue of this Act by Letters Patents under the Great Seal of England to assign name and authorize when and as often as your Highness your Heirs or Successors shall think meet and convenient And for such and so long time as shall please your Highness your Heirs or Successors such person or persons being natural born Subjects to your Highness your Heirs or Successors as your Majesty your Heirs or Successors shall think meet to exercise use occupy and execute under your Highness your Heirs and Successors all manner of Iurisdictions Priviledges and Preheminencies in any wise touching or concerning any Spiritual or Ecclesiastical Iurisdiction within these your Realms of England and Ireland or any other your Highnesses Dominions and Countries And to visit reform redress order correct and amend all such Errors Heresies Schisms Abuses Offences Contempts and Enormities whatsoever which by any manner of Spiritual or Ecclesiastical Power Authority or Iurisdiction can or may lawfully be reformed ordered redressed corrected restrained or amended to the pleasure of Almighty God the increase of Virtue and the conservation of the Peace and Vnity of this Realm And that such person or persons so to be named assigned authorized and appointed by your Highness your Heirs or Successors after the said Letters Patents to him or them made and delivered as is aforesaid shall have full Power and Authority by virtue of this Act and of the said Letters Patents under your Highness your Heirs or Successors to exercise use and execute all the premisses according to the tenor and effect of the said Letters Patents Any matter or cause to the contrary in any wise notwithstanding High Commission Court The Jurisdiction and Authority here by given to the late Court commonly called the High Commission Court are now taken away by Act of Parliament but the Power here given the Queen to constitute such Commissioners was no more than she had before by ancient Prerogative and the Laws of England For thereby she might have made such an Ecclesiastical Commission if this Act of 1 Eliz. had never been made Co. 5.8 9. Cawdries Case Cro. Trin. 2. Jac. 37. Stat. Who are compellable to take the Oath Ecclesiastical Persons and Officers Judge Justice Mayor Temporal Officer He that hath the Queens Fee And for the better observation and maintenance of this Act may it please your Highness That it may be further enacted by the Authority aforesaid That all and every Archbishop Bishop and all and every other Ecclesiastical person and other Ecclesiastical Officer and Minister of what Estate Dignity Preheminence or Degree soever he or they be or shall be and all and every temporal Iudge Iustice Mayor and other Lay or Temporal Officer and Minister and every other person having your Highnesses Fees or Wages within this Realm or any your Highnesses Dominions shall make take and receive a corporal Oath upon the Evangelist before such person or persons as shall please your Highness your Heirs or Successors under the Great Seal of England to assign and name to accept and to take the same according to the tenor and effect hereafter following that is to say I A. B. do utterly testifie and declare in my Conscience The Oath for the Queens Supremacy That the Queens Highness is the only Supream Governour of this Realm and of all other Her Highness Dominions and Countries as well in all Spiritual or Ecclesiastical Things or Causes as Temporal And that no Forreign Prince Person Prelate State or Potentate hath or ought to have any Jurisdiction Power Superiority Preheminence or Authority Ecclesiastical or Spiritual within this Realm And therefore I do utterly renounce and forsake all Forreign Jurisdictions Powers Superiorities and Authorities and do promise that from henceforth I shall bear Faith and true Allegiance to the Queens Highness her Heirs and lawful Successors and to my Power shall assist and defend all Jurisdictions Priviledges Preheminences and Authorities granted or belonging to the Queens Highness her Heirs and Successors or united and annexed to the Imperial Crown of this Realm So help me God and by the Contents of this Book And that it may also be Enacted The penalty for refusing the Oath That if any such Archbishop Bishop or other Ecclesiastical Officer or Minister or any of the said Temporal Iudges Iusticiaries or other Lay-Officer or Minister shall peremptorily or obstinately refuse to take or receive the said Oath That then he so refusing shall forfeit and lose only during his life all and every Ecclesiastical and Spiritual Promotion Benefice and Office and every Temporal and Lay-Promotion and Office which he hath solely at the time of such refusal made And that the whole Title Interest and Incumdency in every such Promotion Benefice and other Office as against such person only so refusing during his life shall clearly cease and be void as though the party so refusing were dead And that also all and every such person and persons so refusing to take the said Oath shall immediately after such refusal be from thenceforth during his life disabled to retain or exercise any Office or other Promotion which he at the time of such refusal hath joyntly or in Common with any other person or persons And that all and every person and persons that at any time hereafter shall be preferred promoted or collated to any Archbishoprick or Bishoprick or to any other Spiritual or Ecclesiastical Benefice Promotion Dignity or Office or Ministry or that shall be by your Highness your Heirs or Successors preferred or promoted to any Temporal or Lay-Office Ministry or Service within this Realm or in any your Highness Dominions before he or they shall take upon him or them to receive use exercise supply or occupy any such Archbishoprick Bishoprick Promotion Dignity Office Ministry or Service shall likewise make take and receive the said Corporal Oath before mentioned upon the Evangelist before such persons as have or shall have Authority to admit any such person to any such Office Ministry or Service or else before such person or persons as by your Highness your Heirs or Successors by Commission under the Great Seal of England shall be named assigned or appointed to minister the
said Oath And that it may likewise be further enacted by the Authority aforesaid That if any such person or persons as at any time hereafter shall be promoted preferred or collated to any such Promotion Spiritual or Ecclesiastical Benefice Office or Ministry or that by your Highness your Heirs or Successors shall be promoted or preferred to any Temporal or Lay Office Ministry or Service shall and do peremptorily and obstinately refuse to take the same Oath so to him to be offered that then he or they so refusing shall presently be judged disabled in the Law to receive take or have the same Promotion Spiritual or Ecclesiastical or the same Temporal Office Ministry or Service within this Realm or any other your Highnesse Dominions to all intents constructions and purposes He that sues Livery or 〈…〉 And that it may be further enacted by the Authority aforesaid that all and every person and persons Temporal suing Livery or Oustre le maine out of the hands of your Highness your Heirs or Successors before his or their Livery or Oustre le maine sued forth and allowed He that doth homage to the Queen He that shall be received into the Queens service and every Temporal person or persons doing any homage to your Highness your Heirs or Successors or that shall be received into Service with your Highness your Heirs or Successors shall make take and receive the said Corporal Oath before mentioned before the Lord Chancellor of England or the Lord Keeper of the Great Seal for the time being or before such person or persons as by your Highness your Heirs or Successors shall be named and appointed to accept or receive the same And that also all and every person and persons taking Orders He that taketh Orders He that taketh Degrees in any University and all and every other person and persons which shall be promoted or preferred to any Degree of Learning in any Vniversity within this your Realm or Dominions before he shall receive or take any such Orders or be preferred to any such Degree of Learning shall make take and receive the said Oath by this Act set forth and declared as is aforesaid before his or their Ordinary Commissary Chancellor or Vice-Chancellor or their sufficient Deputies in the said Vniversity Provided always He that having an Estate of Inheritance in a temporal Office first refuseth and then taketh the Oath and that it may be further enacted by the Authority aforesaid That if any person having any Estate of Inheritance in any Temporal Office or Offices shall hereafter obstinately and peremptorily refuse to accept and take the said Oath as is aforesaid and after at any time during his life shall willingly require to take and receive the said Oath and so do take and accept the same Oath before any person or persons that shall have lawful Authority to minister the same that then every such person immediately after he hath so received the same Oath shall be vested judged and deemed in like estate and possession of the said Office as he was before the said refusal and shall and may use and exercise the said Office in such manner and form as he should or might have done before such refusal Any thing in this Act contained to the contrary in any wise notwithstanding And for the more sure Observation of this Act Stat. Sect. 8. The penalty of the maintenance of Forreign Authority and the utter Extinguishment of all Forreign and usurped Power and Authority may it please your Highness that it may further be enacted by the Authority aforesaid That if any person or persons dwelling or inhabiting within this your Realm or in any other your Highnesses Realms or Dominions of what Estate Dignity or Degree whatsoever he or they be after the end of 30 days next after the determination of this Session of this present Parliament shall by Writing Printing Teaching Preaching express words deed or act advisedly maliciously and directly affirm hold stand with set forth maintain or defend the Authority Preheminence Power or Iurisdiction Spiritual or Ecclesiastical of any Forreign Prince Prelate Person State or Potentate whatsoever heretofore claimed used or usurped within this Realm or any Dominion or Country being within or under the Power Dominion or Obeysance of your Highness or shall advisedly maliciously and directly put in ure or execute any thing for the extolling advancement setting forth maintenance or defence of any such pretended or usurped Iurisdiction Power Preheminence or Authority or any part thereof that then every such person and persons so doing and offending their abettors aiders procurers and Counsellors being thereof lawfully convicted and attainted according to the true order and course of the Common Laws of this Realm for his or their first offence shall forfeit and lose unto your Highness your Heirs and Successors all his and their Goods and Chattels as well real as personal The forfeiture for the first Offence And if any person so convicted or attainted shall not have or be worth of his proper Goods and Chattels to the value of twenty pounds at the time of his Conviction or Attainder That then every such person so convicted and attainted over and besides the forfeiture of all his said Goods and Chattels shall have and suffer Imprisonment by the space of one whole year without Bail or Mainprise And that also all and every the Benefices Prebends and other Ecclesiastical Promotions and Dignities whatsoever of every spiritual person so offending and being attainted shall immediately after such Attainder be utterly void to all intents and purposes as though the Incumbent thereof were dead And that the Patron and Donor of every such Benefice Prebend spiritual Promotion and Dignity shall and may lawfully present unto the same or give the same in such manner and form as if the said Incumbent were dead The forfeiture for the second Offence And if any such Offender or Offenders after such Conviction or Attainder do eftsoons commit or do the said Offences or any of them in manner and form aforesaid and be thereof duly convicted and attainted as is aforesaid That then every such Offender and Offenders shall for the same second Offence incur into the dangers penalties and forfeitures ordained and provided by the Statute of Provision and Praemunire made in the sixteenth year of the Reign of King Richard the second The forfeiture for the third Offence And if any such Offender or Offenders at any time after the said second Conviction and Attainder do the third time commit and do the said Offences or any of them in manner and form aforesaid and be thereof duly convicted and attainted as is aforesaid That then every such Offence or Offences shall be deemed and adjudged High Treason and that the Offender or Offenders therein being thereof lawfully convicted and attainted according to the Laws of this Realm shall suffer pains of death and other penalties forfeitures and losses as in
commence take sue and prosecute their said Appeal from the said pretenced Sentence and for the reversing of the said pretenced Sentence within this Realm in such like manner and form as was used to be pursued or might have béen pursued within this Realm at any time since the xxiv year of the Reign of the said late King Henry the Eighth upon Sentences given in the Court or Courts of any Archbishop within this Realm And that such Appeal as so hereafter shall be taken or pursued by the said Richard Chetwood and Agnes or either of them and the Sentence that herein or thereupon shall hereafter be given shall be judged to be good and effectual in the Law to all intents and purposes any Law Custom Vsage Canon Constitution or any other matter or cause to the contrary notwithstanding An Appeal between Richard Harcourt and Anthony Fydell Provided also and be it enacted by the Authority aforesaid That where there is the like Appeal now depending in the said Court of Rome betweén one Richard Harcourt Merchant of the Staple and Elizabeth Harcourt otherwise called Elizabeth Robins of the one party and Anthony Fydell Merchant Stranger on the other party that the said Robert Elizabeth and Anthony and every of them shall and may for the prosecuting and trying of their said Appeal have and enjoy the like remedy benefit and advantage in like manner and form as the said Richard and Agnes or any of them hath may or ought to have and enjoy this Act or any thing therein contained to the contrary in any wise notwithstanding Stat. i Eliz. cap. ii An Act for the Vniformity of Common Prayer and Service in the Church and the Administration of the Sacraments WHere at the death of our late Soveraign Lord King Edward the Sixth Stat. Sect. 1. there remained one uniform Order of Common Service and Prayer and of the Administration of Sacraments Rites and Ceremonies in the Church of England which was set forth in one Book Intituled The Book of Common Prayer and Administration of Sacraments and other Rites and Ceremonies in the Church of England Authorized by Act of Parliament holden in the Fifth and Sixth years of our said late Sovereign Lord King Edward the Sixth Intituled An Act for the Vniformity of Common Prayer and Administration of the Sacraments the which was repealed and taken away by Act of Parliament in the First year of the Reign of our late Sovereign Lady Quéen Mary to the great decay of the due honour of God and discomfort to the Professors of the Truth of Christ's Religion Be it therefore Enacted by the Authority of this present Parliament That the said Estatute of Repeal A repeal of the Statute of 1 M. 2. And the Book of Common Prayer shall be in force and every thing therein contained only concerning the said Book and the Service Administration of the Sacraments Rites and Ceremonies contained or appointed in or by the said Book shall be void and of none effect from and after the Feast of the Nativity of Saint John Baptist next coming And that the said Book with the Order of Service and of the Administration of Sacraments Rites and Ceremonies with the alteration and additions therein added and appointed by this Estatute shall stand and be from and after the said Feast of the Nativity of Saint John Baptist in full force and effect according to the tenor and effect of this Estatute Any thing in the aforesaid Estatute of Repeal to the contrary notwithstanding Stat. Sect. 2. The Book of Common Prayer shall be used And further Be it Enacted by the Queens Highness with the assent of the Lords and Commons in this present Parliament assembled and by the Authority of the same That all and singular Ministers in any Cathedral or Parish Church or other place within this Realm of England Wales and the Marches of the same or other the Quéens Dominions shall from and after the Feast of the Nativity of Saint John Baptist next coming be bounden to say and use the Mattens Evensong Celebration of the Lords Supper and Administration of each of the Sacraments and all the Common and open Prayer The alteration of the Book set forth 5 6 Ed. 6. in such Order and Form as is mentioned in the said Book so Authorized by Parliament in the said Fifth and Sixth years of the Reign of King Edward the Sixth with one alteration or addition of certain Lessons to be used on every Sunday in the year and the Form of the Letany altered and corrected and two sentences only added in the delivery of the Sacrament to the Communicants and none other or otherwise The forfeiture of those which use any other Service then the Book of Common Prayer And that if any manner of Parson Vicar or other whatsoever Minister that ought or should sing or say Common Prayer mentioned in the said Book or Minister the Sacraments from and after the Feast of the Nativity of Saint John Baptist next coming refuse to use the said Common Prayers or to Administer the Sacraments in such Cathedral or Parish Church or other places as he should use to Minister the same in such Order and Form as they be mentioned and set forth in the said Book or shall wilfully or obstinately standing in the same use any other Rite Ceremony Order Form or Manner of celebrating the Lords Supper openly or privily or Mattens Evensong Administration of the Sacraments or other open Prayers then is mentioned and set forth in the said Book open Prayer in and throughout this Act is meant that Prayer which is for others to come unto or hear either in common Churches The Penalty for depraving the Book of Common Prayer or private Chappels or Oratories commonly called the Service of the Church or shall Preach Declare or Speak any thing in the Derogation or Depraving of the said Book or any thing therein contained or of any part thereof and shall be thereof lawfully convicted according to the Laws of this Realm by Verdict of twelve Men or by his own Confession or by the notorious Evidence of the Fact shall loose and forfeit to the Queens Highness her Heirs and Successors for his first offence the profit of all his Spiritual Benefices or Promotions coming or arising in one whole year next after his conviction And also that the person so convicted shall for the same Offence suffer Imprisonment for the space of Six months without Bail or Mainprize That ought or should sing or say Common Prayer c. What Minister is here meant Although the first part of this Clause viz. All and singular Ministers in any Cathedral or Parish Church or other place seems to intend a local Minister only and not one who is neither Parson Vicar or Stipendiary Chaplain yet the next words If any Parson Vicar or other Minister that ought to say Common Prayer or minister the Sacraments c. clearly comprehend all lawful
Common Law preferred or other Law or Laws used or allowed within this Realm c. This takes in so much of the Canon and Civil Law as is allowed here But the Common Law as the peculiar Law of this Kingdom is here preferred and particularly mentioned and not the Canon Law as is erroneously said in the late Additions to Dalton Cap. 81. tit Recusants Sect. 11. As have or shall have Authority by Common use c. Who are to administer the Oath The Statute saith not That those who belong not to any Court shall take the Oath before those who are authorized by Common use to give it as Wingate tit Crown numb 20. mistakes the meaning of this Clause For this being then a new Oath devised by the makers of the Act of 1 Eliz. no person could have Authority by Common use to administer it And the Act plainly enough speaks of those who have Authority by Common use to admit the party to the Office and not Authority by Common use to give the Oath And also Stat. Sect. 5. The Bishop may tender the Oath to any Spiritual person Be it Enacted by the Authority of this present Parliament That every Archbishop and Bishop within this Realm and Dominions of the same shall have full Power and Authority by virtue of this Act to tender or minister the Oath aforesaid to every or any Spiritual or Ecclesiastical person within their proper Diocess as well in Places and Iurisdictions exempt as elsewhere If a man be Indicted for refusing this Oath before him who is reputed to be Bishop of the Diocess Bishop or not Bishop and he plead to the Indictment Non culp he may upon that issue give in Evidence Quod non fuit Episcopus tempore oblationis Sacramenti Dyer 6 7 Eliz. 234. Bonners Case Stat. Sect. 6. The Lord Chancellor may direct Commissions to take the Oath of any person And be it Enacted by the Authority aforesaid That the Lord Chancellor or Kéeper of the Great Seal of England for the time being shall and may at all times hereafter by vertue of this Act without further Warrant make and direct Commission or Commissions under the Great Seal of England to any person or persons giving them or some of them thereby Authority to tender and minister the Oath aforesaid to such person or persons as by the aforesaid Commission or Commissions the said Commissioners shall be authorized to tender the same Oath unto The penalty for the first refusal of the Oath And be it also further Enacted by the Authority of this present Parliament That if any person or persons appointed or compellable by this Act or by the said Act made in the said first year to take the said Oath Or if any person or persons to whom the said Oath by any such Commission or Commissions shall be limited and appointed to be tendred as is aforesaid do or shall at the time of the said Oath so tendred refuse to take or pronounce the said Oath in manner and form aforesaid that then the party so refusing and being thereof lawfully Indicted or presented within one year next after any such refusal and convicted or attainted at any time after according to the Laws of this Realm shall suffer and incur the dangers penalties pains and forfeitures ordained and provided by the Statute of Provision and Praemunire aforesaid made in the 16th year of the Reign of King Richard the second Stat. Sect. 7. Certificate of Refusal into the Kings-Bench And furthermore be it Enacted by the Authority aforesaid That all and every such person and persons having Authority to tender the Oath aforesaid shall within forty days next after such refusal or refusals of the said Oath if the Term be then open and if not then at the first day of the full Term next following the said forty days make true Certificate under his or their Seal or Seals of the names places and degrees of the person or persons so refusing the same Oath before the Quéen her Heirs or Successors in her or their Court commonly called the Kings-Bench upon pain that every of the said persons having such Authority to tender the said Oath making default of such Certificate shall for every such default forfeit 100 l. to the Queens Highness her Heirs or Successors And that the Sheriff of the County where the said Court commonly called the Kings-Bench shall for the time be holden shall or may by vertue of this Act impannel a Iury of the same County to enquire of and upon every such refusal and refusals Indictment of the Offender Which Iury shall or may upon every such Certificate and other Evidence to them in that behalf to be given by vertue of this Act proceed to Indict the person and persons so offending in such sort and degree to all intents and purposes as the same Iury may do of any Offence or Offences against the Queens Majesties Peace perpetrated committed or done within the same County of and for the which the same Iury is so Impannelled Terme When the Term Term. is open and which is the first day of full Term Vide supra Sect. 3. Make true Certificate c. in the Kings-Bench Certificate of refusal by whom brought in not material It is not necessary that it be mentioned of Record in the Kings-Bench how or by whom the Certificate was brought in thither And in Bonners Case where the Bishop of Winchester certified the refusal of this Oath And exception was taken that the Certificate was entred to be brought into Court per A. B. Cancellarium dicti Episcopi but not per mandatum Episcopi the exception was dissallowed for that reason Dyer 6. 7. Eliz. 234. Impannel a Iury of the same County to inquire A Jury of the County where the Kings-Bench is And a Jury of the County where the Kings-Bench is can do no more in this Case then inquire that is Indict the party refusing the Oath unless where the refusal is in the same County Horne Bishop of Winchester tendred this Oath in Surrey parcel of his Diocess to Bonner then late Bishop of London By what Jury the Offender shall be Tryed who refused to take it and this was certified by the Bishop of Winchester into the Kings-Bench then sitting at Westminster in the County of Middlesex where Bonner was Indicted by a Jury of that County according to this Act the Question was by what County he should be Tryed whether by a Jury of Middlesex where the Indictment was taken or by a Jury of Surrey where the offence was committed And it was resolved that he should be Tryed by a Jury of Surrey for this Statute extendeth to the Indictment only and leaveth the Trial to the Common Law which appoints it to be where the Offence is committed for regularly by the Common Law debet quis juri subjacere ubi deliquit Dyer 6. 7. Eliz. 234. Co. 3.
Statute to proceed against Recusants and taken from them by 29 Eliz. nor doth that following Clause in 3 Jac. touching Conviction by Proclamation impeach this or restrain the Justices of Peace to proceed to Conviction upon Proclamation only and default of appearance no more than the Justices of Assize or Gaol delivery are restrained thereby or by 29 Eliz. which gives them likewise Authority to proceed by Proclamation For both these Clauses of 3 Jac. are in the Affirmative viz. First That the Justices of Peace shall have power to hear and determine the Offence of not coming to Church according to former Laws in such manner as Justices of Assize and Gaol delivery might do And those Justices might hear and determine that Offence according to this Statute of 23 Eliz. 23 Eliz. 1. And then comes the next Clause of 3 Jac. That the Justices of Peace shall have power to convict by Proclamation which is purely Affirmative also and therefore abrogates no part of the power given them by the former Clause And this agrees with what Sir Edward Coke saith lib. 12. fol. 13. That if a man be Indicted for Recusancy at the Assizes or Sessions of the Peace the Court may waive the proceedings by Proclamation upon the Statute of 3 Jac. 4. and may still if they please proceed against the party by Process upon this Statute of 23 Eliz. Upon this Stature In which Case the Process must be by Venire facias capias c. as in Indictments of Trespass And if saith he the party be fugitive in another County the Indictment may be removed into the Kings Bench and then Process may be there made out against him into any County of England In their open Quarter Sessions of Peace What is meant by Quarter Sessions By Quarter Sessions is intended here only the Sessions of the Peace held at four times of the year and not any other although it be a general Sessions And therefore the Justices of Peace in London who hold a Sessions every month cannot take Indictments upon this Statute at any of them unless it be the Quarter Sessions For that their Authority is given them only at a certain time as was resolved in the like Case upon the Statute of 5 Eliz. cap. 9. of Perjury Mich. 17 Jac. B.R. Palmer 44. Taylors Case Stat. 5 Eliz 9. 3 Jac. 4. And the Statute of 3 Jac. c. 4. which gives Justices of Peace Power to take Indictments of Recusancy at their General or Quarter Sessions for so the word said there imports having reference to the General or Quarter Sessions mentioned before about Presentments yet doth not enlarge the Power of the Justices of Peace in this particular nor enable them to take such Indictments at any Sessions but their four Quarter Sessions For although it be put there dis-junctively General or Quarter yet the latter word is but Explicative of the former and shews what General Sessions are meant as appears by the said Statute of 3 Jac. 4. and that other of 7 Jac. cap. 6. touching the Oath of Allegiance 7 Jac. 6. For in 3 Jac. 4. 't is said That if the party refuse the Oath he shall be committed to Goal until the next Assizes General Quarter Sessions and General or Quarter Sessions or General or Quarter Sessions And if he refuse the Oath tendred him by the Justices of Assize and Goal delivery in their open Assizes or by the Justices of Peace in their said general Quarter Sessions he shall incur a Praemunire And in 7 Jac. 6. That the party refusing shall be committed to Goal until the next Assizes or general Quarter Sessions and if he refuse the Oath tendred him by the Justices of Assize and Goal delivery in their open Assizes or Goal delivery or the Justices of Peace or the greater part of them in their general or Quarter Sessions he shall incur a Praemunire which clearly shews that the same thing is intended by general Quarter Sessions and General or Quarter Sessions And that all general Sessions which are not Quarter Sessions are excluded out of the meaning of those Statutes Vide Stat. 3 Jac. cap. 4. Sect. 11. 7 Jac. cap. 6. Sect. 5. Indictments only here intended To enquire hear and determine The Justices named in this Branch of the Statute are hereby impowered to proceed by Indictment only and no other way For they are to hear and determine after Inquiry And the word enquire implies an Indictment and is always so to be expounded And so are the other words hear and determine where other proceedings are not specially named as here they are not For the Action of Debt Information c. in any Court of Record is given to the Informer Qui tam c. afterwards in a distinct Branch by it self without any reference to this so that by this Statute and before that of 35 Eliz. cap. 1. Stat. 35 Eliz. 1 which gave the Queen an Action of Debt c. The Queen had no other remedy to recover the entire forfeitures given hereby but by Indictment only Co. 11. 60. Rolls 1. 93. C. 41. Dr. Fosters Case Vide Jones 193. For that and the Suit by the Common Informer are the only ways appointed by this Statute and the subsequent Clause of Submission which names the Justices before whom the party is to submit viz. the Justices before whom he is Indicted Arraigned or Tried shews what proceedings are meant which are to be had before the Justices here named that is by Indictment Hobart 205. Pie versus Lovell Offence and Penalty by two several Statutes Talbot and Shelden were Indicted for Recusancy Contra formam Statuti 23 Eliz. in which Indictment the penalty was demanded and in a Writ of Error the Judgment was reversed For the Offence is made by the Statute of 1 Eliz. cap. 2. Stat. 1 Eliz. 2 and the penalty is given by this Statute and therefore it should have been Contra formam Statutorum Owen 135. Wests Case Feme Covert when chargeable If a Feme Covert be Indicted at the Kings Suit for an offence within this Act she may be charged with the penalty after her Husbands death but the Husband is not chargeable nor shall pay the penalty for that he is no party to the Judgment And this was one of the causes of making the Statute of 35 Eliz. cap. 1. Stat. 35 Eliz. 1 By which Statute the King may have an Action of debt and recover the forfeiture against the Husband Rolles 1. 93. 94. Roy versus Foster Savile 25 C. 59. Except Treason and misprision of Treason This exception of Treason and misprision of Treason extends not to the Justices of Oyer and Terminer or of Assize and Goal delivery as Wingate hath mistaken in his Abridgment of this Clause tit Crown numb 46. Where the Justices of Peace cannot meddle but only to the Justices of Peace who are not to meddle in those two Cases
Dalton cap. 140. tit High Treason Sect. 13. 't is said That the Clause in this Statute touching those who receive relieve or maintain a Jesuit Receiving or relieving a Jesuit Priest c. at this day is Felony by this Act. c. relates only to such as had before that time taken Orders which conceit I suppose is grounded upon those words viz. who at the end of the said forty days and after such time of departure as aforesaid shall receive c. as if no Jesuit or Priest were here intended but such an one as was then a Jesuit or Priest and had forty days given him for his departure nor no person a Felon by this Act who receives or relieves any other But the words here viz. such Iesuit c. seem to be more extensive and to relate as well to the receivers or relievers of a Jesuit or Priest in Orders at this day as to those who were in Orders at the time of making this Statute And if we weigh the Grammatical construction of the words with much more reason the former then the later For the proximum antecedens to such is the Jesuit or Priest who was to be made ordained or professed and not he that was then made ordained or professed already And those words in this Clause of relieving viz. Every person which after the end of the same forty days c. shall receive c. that is forty days next after the end of that Session of Parliament may well be construed to extend to all Cases as well of receiving or relieving such who should be afterwards in Orders and should be found within the Realm for the time to come at any time after those forty days as of such who were then in Orders and were to depart before the forty days were expired so that the receiving relieving or maintaining of a Jesuit Popish Priest or other Popish Ecclesiastical person at liberty and known by the party to be such is Felony at this day by this Act and the Offender shall lose the benefit of his Clergy and so hath the Law been taken upon Actions of the Case for saying the Plaintiff kept a Seminary Priest or Jesuit in his House knowing him to be such Cro. Pasch 10 Jac. 300. Smith versus Flynt Palmer 410. Clerke and Loggins Case And be it further Enacted by the Authority aforesaid Stat. Sect. 4. They which be in Seminaries shall after Proclamation return and take the Oath If any of her Majesties Subjects not being a Iesuit Seminary Priest or other such Priest Deacon or Religious or Ecclesiastical person as is before mentioned now being or which hereafter shall be of or brought up in any Colledge of Iesuits or Seminary already erected or ordained or hereafter to be erected or ordained in the parts beyond the Seas or out of this Realm in any Forraign parts shall not within six months next after Proclamation in that behalf to be made in the City of London under the great Seal of England return into this Realm and thereupon within two days next after such Return before the Bishop of the Diocess or two Iustices of Peace of the County where he shall arrive submit himself to her Majesty and her Laws and take the Oath set forth by Act in the first year of her Reign That then every such person which shall otherwise return come into or be in this Realm or any other her Highnesse Dominions for such Offence of returning or being in this Realm or any other her Highnesse Dominions without submission as aforesaid shall also be adjudged a Traytor and suffer lose and forfeit as in Case of High Treason Persons sent out of this Realm Return into this Realm and thereupon within two days c. By this word Return it seems that none are intended here but such as were sent out of this Realm For others born and resident in some other part of the Kings Dominions until their entry into such Collledge or Seminary cannot be properly said to return hither The Queens Laws And her Laws What Laws are here meant Vide Sect. 7. Whither a person sent beyond Seas must first return Or any other her Highnesse Dominions A Subject of the Kings sent out of England to a Popish Colledge or Seminary is commanded by Proclamation made in London to return into this Realm and within the six months here limited first goes into Ireland and then comes into England and within two days submits himself and takes the Oath of Supremacy In this Case notwithstanding his return into England within the six months he shall be guilty of High Treason For after such Proclamation he ought to have come directly into England and into no other of the late Queens Dominions before he had been in England and if he doth he comes into the said Dominions otherwise then is appointed by this Act For the intent of the Act seems to be That he should not remain in any of the said Dominions until he submits and takes the Oath which submission must be made and Oath taken in England within two days after his arrival here and not elsewhere And although the Oath of Supremacy be in force in Ireland yet his taking it there will not serve nor yet his submission there For he is to submit to the King and his Laws by which are intended the Laws of England and no other But a submission in Ireland to the Kings Laws can be taken to be of such Laws only as are in force in Ireland Trial in England of Treason done in Ireland And in this Case the Offender may be tryed here in England although his Offence was committed in Ireland and that by force of the Statute of 35 H. 8. Stat. 35 H. 8. 2. 1 2 Ph. Mar. 10. cap. 2. notwithstanding the Statute of 1 2 Ph. Mar. cap. 10. For it was resolved by all the Judges of England in the Case of Ororke 33 Eliz. that Treason committed in Ireland may be tryed in England And the like resolution was in Sir John Perrots Case 34 Eliz. Co. 7. 23. Calvins Case Co. 1. Inst. 261. Co. 3. Inst 11. Dyer 13 Eliz. 298. Dr. Stories Case Anderson 1. 263. C. 269. Ororkes Case And if a Subject of England who is a Peer of Ireland Trial of Peers be sent to any such Colledge or Seminary and offend as aforesaid he may be tried in England by a common Jury notwithstanding the offence was in Ireland where he is a Peer contrary to Dyer 19 20 Eliz. 360. where 't is said that Wray Dyer and Gerard Attorney General were of opinion That a Peer of Ireland cannot be tryed in England for Treason done in Ireland because he cannot here have his Tryal by his Peers but this is not Law and Sir Christopher Wray protested he never gave any such opinion but held the contrary Co. 1. Inst 261. And be it further Enacted by the Authority
enlarged of such Imprisonment or Restraint and shall be able to Travel repair to their place of dwelling where they usually heretofore made their common abode and shall not at any time after pass or remove above five miles from thence Stat. Sect. 2. Or to be convicted shall repair to his usual dwelling and not remove above five miles And also That every person being above the age of sixtéen years born within any her Majesties Realms or Dominions or made Denizen and having or which hereafter shall have any certain place of dwelling and abode within this Realm which being then a Popish Recusant shall at any time hereafter be lawfully convicted for not repairing to some Church Chappel or usual place of Common Prayer to hear Divine Service there but forbearing the same contrary to the said Laws and Statutes and being within this Realm at the time that they shall be convicted shall within forty days next after the same Conviction if they be not restrained or stayed by Imprisonment or otherwise as is aforesaid and in such Cases of restraint and stay then within twenty days next after they shall be enlarged of such Imprisonment or Restraint and shall be able to Travel repair to their place of usual dwelling and abode and shall not at any time after pass or remove above five miles from thence The punishment of an Offender upon pain that every person and persons that shall offend against the tenor and intent of this Act in any thing before mentioned shall lose and forfeit all his and their Goods and Chattels and shall also lose and forfeit to the Quéens Majesty all the Lands Tenements and Hereditaments and all the Rents and Annuities of every such person so doing or offending during the Life of the same Offender What Popish Recusants are not within this Act Born within any her Majesties Realms or Dominions or made Denizen So that all Popish Recusants are not within this Branch as Wingate tit Crown n. 78. mistakes For it extends not to an Alien who is born out of the Kings Leigeance unless he be made Denizen And which are In the late Additions to Dalton cap. 81. tit Recusants Sect. 14. this Clause is restrained to such as are born in England but it is clear that it extends to all the Kings natural Subjects if they live in England although they were born in Ireland or any other of the late Queens Dominions besides England Denizen who 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 although he that is made a Denizen by the Kings Letters Patents is not thereby naturalized Which being then a Popish Recusant This 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 Dalton cap. 81. tit Recusants Sect. 7. What is Recusancy it 's said That the matter of Recusancy stands in two particulars First absenting from the Church Secondly refusing the Oaths prescribed by 1 Eliz. 1. and 3 Jac. 4. Stat. 1 Eliz 1. 3 Jac. 4. But this description of Recusancy is either too narrow or too large For if the word Recusancy be taken in a large sense then the refusing to receive the Sacrament contrary to the Statute of 3 Jac. 4. by him that conforms and comes to Church may be as fitly called a point of Recusancy as the refusing the Oaths of Supremacy or Allegiance But if Recusancy be taken in a strict and proper sense then it extends only to the point of not coming to Church and not to refusing the Oaths of Supremacy or Allegiance And in this last sense are all the Statutes to be understood which inflict any penalty or disability upon a Recusant or a Popish Recusant unless where the not receiving of the Sacrament is particularly mentioned And this appears by the explanation which the Statutes make every where of Conformity the opposite to Recusancy viz. repairing to Church What is Conformity and more particularly the said Statute of 3 Jac. 4. which saith That the Popish Recusant convicted which conforms himself and repairs to the Church shall receive the Sacrament which words and repairs to the Church are explanatory of the former viz. which conforms himself so that this Conformity is not intended of taking the Oaths of Supremacy or Allegiance but consists only in repairing to Church and consequently Recusancy its opposite properly so called consists in absenting from Church And this appears further by that Branch of the said Statute of 3 Jac. cap. 4. which relates to the Oath of Allegiance where 't is said That the Oath shall be required of him who confesseth or denieth not himself to be a Recusant or that he hath not received the Sacrament where Recusant cannot be understood in any other sense then of him who forbears to come to Church An Information or Indictment against a Popish Recusant Information or Indictment against a Popish Recusant for Recusancy is of the same form with that against any other Recusant viz. That he came not to his Parish Church or any other Church Chappel or usual place of Common Prayer but forbore the same by the space of c. Vide Co. lib. intr 569. Co. 11. 56. Dr. Fosters Case so that upon his Conviction for Recusancy it doth not appear of Record whether the Offender be a Popish or other Recusant And therefore where this or any of the subsequent Statutes commands or prohibits a Popish Recusant convict to do a thing and a person convicted of Recusancy who is a Popish Recusant be Indicted thereupon his Conviction must be set forth in the Indictment with this or the like confusion Per quod praedict A.B. devenit Papalis Recusans convictus so it is if a Popish Recusant Convict be incapacitated to take or to give or dispose of any thing and another person be substituted by the Statute in his stead as in the Case of a Presentation by force of the Statute of 3 Jac. cap. 5. Stat. 3 Jac. 5. in a Quare Impedit Quare Impedit brought by the Chancellor and Schollars of the University His Conviction must be be set forth with an averment that he is Papalis Recusans Vide Co. 10. 54. And if a Popish Recusant whether convicted or not convicted be so commanded prohibited or incapacitated in an Indictment or Information upon the Statute it must be averred that he is Papalis Recusans A person who hath a certain place of abode is convicted for not coming to Church What Popish Recusants are not within this Act. and afterwards becomes a Papist being none before It seems that he is not restrained
apprehended The three months relate to the time of the Offenders being apprehended whereas by the Act he cannot be required to abjure until three months after his apprehension and he turns the three months after his apprehension into three months after his arrival All great mistakes and fit to be taken notice of by Justices of Peace whose part it is to require the submission and abjuration that they may not be misled in the Execution of this part of their Office by trusting to that Abridgment Required to submit within what time Being thereunto required by the Bishop c. If the Offender be not before the end of the three months next after his apprehension required by the Bishop a Justice of Peace or the Minister or Curate to make such submission he cannot be required afterwards nor be compelled to abjure by force of this Act. But if he be required within the three months to make submission and refuse he may be at any time afterwards warned or required to abjure Vide Stat. 35 Eliz. cap. 1. Sect. 2. Abjure this Realm of England c. The Oath of Abjuration may be in this form or to this effect Oath of Abjuration You shall swear that you shall depart out of this Realm of England and out of all other the Kings Majesties Dominions And that you shall not return hither or come again into any of his Majesties Dominions but by the Licence of our said Sovereign Lord the King or of his Heirs So help you God Stamford 119. 120. Co. 3. Inst 217. Wilkinson P. 66. hath set down another form upon this Statute much resembling that heretofore used at the Abjuration of a Felon mutatis mutandis in these words This hear you Sir Coronor that I J. M. of H. in the County of S. am a Popish Recusant and in Contempt of the Laws and Statutes of this Realm of England I have and do refuse to come to hear Divine Service there read and exercised I do therefore according to the intent and meaning of the Statute made in the 35th year of Queen Elizabeth late Queen of this Realm of England abjure the Land and Realm of King Charles now King of England Scotland France and Ireland and I shall hast me towards the Port of P. which you have given and assigned to me And that I shall not go out of the highway leading thither nor return back again and if I do I will that I be taken as a Felon of our said Lord the King And that at P. I will diligently seek for passage and I will tarry there but one Flood and Ebb if I can have passage and unless I can have it in such space I will go every day into the Sea up to my Knees assaying to pass over So God me help and his holy Judgment But in alluding to the old Oath in Case of abjuration for Felony which began with the Confession of the particular offence for which the Felon was abjured as Ego A. B. sum latro unius Equi vel homicida unius hominis or the like as the Case was Wilkinson is mistaken in the very offence for which the Popish Recusant is to abjure by force of this Statute for the offence is not his refusal to hear Divine Service for that is but only one of the precedent Qualifications of the person But the Offence it self is of another nature viz. his not repairing to the place the Statute appoints him or his removal from thence contrary to the Statute or his not presenting himself and delivering his true name as aforesaid Either of these if he be a Popish Recusant within the meaning of this Act is a crime for which he ought to abjure unless he prevents his Abjuration by a timely Submission Nor is the Popish Recusant bound to swear that he will not go out of the High way or return back or will tarry but one flood and ebb or go into the Sea up to his knees nor ought the Coroner or Justices of Peace to require any such Oath of him For this is a new offence made by a Statute Law which doth not require the strict form of Abjuration as in Case of Felony And although the Felon were tied to these circumstances yet the Recusant is not nor shall be a Felon for omitting them But 't is sufficient if he simply abjure as the Act directs and go from the appointed Port within the time limited and not return without Licence into any of the Kings Dominions He that thus abjures the Realm doth yet owe the King his Ligeance and remaineth within the Kings Protection He that abjures yet oweth the King his Ligeance Qui abjurat Regnum amittit regnum sed non Regem amittit Patriam sed non patrem patriae Co. 7. 9. Calvins Case And if any such Offender Stat. Sect. 7. The punishment for refusing to abjure not departing or returning without Licence which by the tenour and intent of this Act is to be abjured as is aforesaid shall refuse to make such Abjuration as is aforesaid or after such Abjuration made shall not go to such Haven and within such time as is before appointed and from thence depart out of this Realm according to this present Act or after such his departure shall return or come again into any her Majesties Realms or Dominions without her Majesties special Licence in that behalf first had and obtained That then in every such Case the person so offending shall be adjudged a Felon and shall suffer and lose as in Case of Felony without benefit of Clergy And within such time c. and from thence depart When and whence the Offender must depart The Offender is strictly tied to depart from the same Haven assigned him and within the time appointed him by the Justices of Peace or Coroner so that if he depart the Realm from any other Haven or Port or over stay his time and depart afterwards yet he is a Felon within this Act. Or return or come again into any her Majesties Realms or Dominions An Offender within this Act abjures in form aforesaid and departs this Realm and afterwards goes into Ireland without Licence Return and then returns into England with Licence such going into Ireland seems to be Felony by this Act. But quaere how the offence shall be tried How triable not in Ireland for this Statute binds not that Kingdom nor can be taken notice of there nor yet can it be tried in England for that the offence was done elsewhere So that this is casus omissus and cannot be punished for that no way of Trial is appointed Stat. Sect. 8. A Jesuit or Priest refusing to answer shall be imprisoned And be it further Enacted and Ordained by the Authority aforesaid That if any person which shall be suspected to be a Iesuit Seminary or Massing Priest being examined by any person having lawful Authority in that behalf to examine such
Profession or Calling whatsoever or repair in or to any the same to be instructed perswaded or strengthned in the Popish Religion or in any sort to profess the same every such person so sending or causing to be sent any Child or other person beyond the Seas to any such purpose or intent shall for every such Offence forfeit to his Maiesty his Heirs and Successors the sum of one hundred pounds and every such person so passing or being sent beyond the Seas to any such intent and purpose as is aforesaid shall by Authority of this present Act as in respect of him or her self only and not to or in respect of any of his Heirs or Posterity be disabled and made uncapable to inherit purchase take have or enjoy any Mannors Lands Tenements Annuities Profits Commodities Hereditaments Goods Chattels Debts Duties Legacies or Sums of money within this Realm of England or any other his Majesties Dominions And that all and singular Estates Terms and other Interests whatsoever hereafter to be made suffered or done to or for the use or behoof of any such person or persons or upon any trust or confidence mediately or immediately to or for the benefit or relief of any such person or persons shall be utterly void and of none effect to all intents constructions and purposes Publick Colledges c. only here intended To any Colledge c. This Act extends only to publick Houses or Colledges but not to such as are bred beyond the Seas in any private Popish Family And therefore the Statute of 3 Car. 1. cap. 2. Stat. 3 Car. 1. 2. was made to supply that defect Stat. Sect. 6. They who are in Seminaries c. shall return And be it further Enacted by the Authority aforesaid That if any person born within this Realm or any the Kings Majesties Dominions be at this present in any Colledge Seminary House or place in any parts beyond the Seas to the end to be instructed or strengthned in the Popish Religion which shall not make return into this Realm or some of his Majesties Dominions within one year next coming after the end of this Session of Parliament and submit himself as is aforesaid shall be in respect of himself only and not to or in respect of any of his Heirs or Posterity utterly disabled and uncapable to inherit have or enjoy any Mannors Lands Tenements Hereditaments Goods Chattels Debts or other things aforesaid within this Realm or any other his Majesties Dominions Stat. Sect. 7. Remedy for such as return into the Realm and become conformable Provided always That if any such person or Child so passing sent sending or now being beyond the Seas as aforesaid to such intent as is before mentioned shall after become Conformable and Obedient unto the Laws and Ordinances of the Church of England and shall repair to the Church and there remain and be as is aforesaid and continue in such Conformity according to the true intent and meaning of the said Statutes and Ordinances That in every such Case every such person and Child for and during such time as he or she shall continue in such Conformity and Obedience shall be fréed and discharged of all and every such disability and incapacity as is before mentioned And be it further Enacted by the Authority of this present Parliament That no Woman Stat. Sect. 8. No Woman or Child shall pass over the Seas without Licence except c. nor any Child under the age of one and twenty years except Sailers or Ship-boys or the Apprentice or Factor of some Merchant in Trade of Merchandize shall be permitted to pass over the Seas except the same shall be by Licence of the King his Heirs or Successors or of some six or more of the Kings Privy Council thereunto first had under their hands upon pain that the Officers of the Port that shall willingly or negligently suffer any such to pass The forfeiture of the Officer of the Port. Owner of the Ship or shall not enter the names of such Passengers licensed shall forfeit his Office and all his Goods and Chattels And upon pain that the Owner of any Ship or Vessel that shall wittingly or willingly carry any such over the Seas without Licence as is aforesaid shall forfeit his Ship or Vessel and all the Tackle and every Master or Marriner Master and Marriners of or in any such Ship or Vessel offending as aforesaid shall forfeit all their Goods and suffer Imprisonment by the space of twelve months without Bail or Mainprize And be it further Enacted by the Authority aforesaid Stat. Sect. 9. The forfeiture for being or keeping a Schoolmaster contrary to this Act. That no person after the Feast of St. Michael the Archangel next shall kéep any School or be a Schoolmaster out of any of the Vniversities or Colledges of this Realm except it be in some publick or frée Grammar School or in some such Noblemans or Noblewomans or Gentlemans or Gentlewomans House as are not Recusants or where the same Schoolmaster shall be specially licensed thereunto by the Archbishop Bishop or Guardian of the Spiritualties of that Diocess upon pain that as well the Schoolmaster as also the party that shall retain or maintain any such Schoolmaster contrary to the true intent and meaning of this Act shall forfeit each of them for every day so wittingly offending forty shillings Note All Grammar Schools are not here excepted Grammar Schools Gentlemens Houses but only publick or free Grammar Schools nor yet all Gentlemens Houses but only of such as are not Recusants in both which respects this Statute is defectively recited in the late Additions to Dalton cap. 87. tit Schoolmaster Sect. 1. Stat. Sect. 10. The forfeitures how to be recovered The one half of all the penalties and sums of money before-mentioned to be forfeited to be to the King his Heirs and Successors the other to him or them that shall or will sue for the same in any the Courts of Record in Westminster by Action of Debt Bill Plaint or Information in which no Essoign Protection or Wager of Law shall be allowed Stat. iii Jac. cap. iv An Act for the better discovering and repressing of Popish Recusants FOrasmuch as it is found by daily experience that many his Majesties Subjects Stat. Sect. 1. that adhere in their hearts to the Popish Religion by the infection drawn from thence and by the wicked and devillish Counsel of Iesuites Seminaries and other like persons dangerous to the Church and State Some Popishly affected do repair to the Church are so far perverted in the point of their Loyalties and due Allegiance unto the Kings Majesty and the Crown of England as they are ready to entertain and execute any treasonable conspiracies and practices as evidently appears by that more then barbarous and horrible attempt to have blown up with Gunpowder the King Queén Prince Lords and Commons in the House of
Conspiracies That then the said Obligation to be void And that for the due execution of this branch of this present Law Stat. Sect. 17. Who shall take the Obligation and minister the Oath it shall and may be lawfull to and for the Customer and Controller of every Port Haven or Creek or one of them and their or either of their Deputy or Deputies and none other to receive and accept all and every such Bond and Obligation to and for the uses aforesaid and to minister and give the Oath aforesaid according to the true intent of this Statute taking for such Bond six pence and no more and for the said Oath no Fée at all which said Customer and Controller shall Register and Certifie all and every such Bond and Oath so taken into the Court of Exchequer at Westminster once every year upon pain of five pounds for every Bond not so certified Forfeiture for not certifying and twenty shillings for every Oath not so certified Which said Customer and Controller These words Who is bound to certifie who not 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 punished for not certifying no more is the Customer if the Controller take them For each of them shall forfeit for his own default and not for the default of the other And it cannot be reasonably presumed that one of them is privy to the doings of the other And therefore these words must be construed disjunctively Customer or Controller that is he of the two who takes the Bond and Oath is to certifie them into the Court of Exchequer or to forfeit c. For where the literal sense will ingender 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 a disjunctive for a Copulative vide Plowden 289. Chapman versus Dalton Ib. 363. Lord Zouches Case But if the Deputy 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 although he had no notice from his Deputy of the taking of the said Bond or Oath For he is answerable for all the defaults of his Deputy vide Dyer 7 Eliz. 238 239. where 't was held that the Customer should forfeit the treble value of the Merchandize upon the Statute of 3 H. 6. cap. 3. Stat. 3 H. 6. 3. for his Deputies concealing of the payment of the Customs So a Sheriff shall answer for all Officers under him Co. 4. 33. Mittons Case Crompton Jurisdict tit Court d'Eschequer 110. And so generally shall all other Officers answer for their Deputies Co. 9. 48. Earl of Shrewsburies Case Co. 9. 98. Sir George Reynells Case Termes de la Ley 111. Deputy Brooke forfeiture 27. 39 H. 6. 34. Penalty Five pounds for every Bond. Note in the late Additions to Dalton cap. 81. tit Recusants Sect. 38. this penalty for not certifying the Bond is mistaken and there said to be fifty pounds instead of five pounds Stat. Sect. 18. Provided always That this last mentioned Branch shall not extend to any person or persons which are already gone or shall go beyond the Seas to serve any Forreign Prince State or Potentate before the Tenth day of June next coming for his said going or passing before the said Tenth day of June Stat. Sect. 19. Putting in practice to absolve or withdraw any from his Obedience or to reconcile them to the Pope And further be it Enacted by the Authority aforesaid That if any person or persons at any time after the said Tenth day of June shall either upon the Seas or beyond the Seas or in any other place within the Dominions of the Kings Majesty his Heirs or Successors put in practice to absolve perswade or withdraw any of the Subjects of the Kings Majesty or of his Heirs and Successors of this Realm of England from their natural Obedience to his Majesty his Heirs or Successors or to reconcile them to the Pope or Sée of Rome or to move them or any of them to promise Obedience to any pretended Authority to the Sée of Rome or to any other Prince State or Potentate That then every such person their Procurers Counsellors Aiders and Maintainers knowing the same shall be to all intents adjudged Traytors and being thereof lawfully convicted shall have Iudgment suffer and forfeit as in Cases of High Treason And if any such person as aforesaid Being withdrawn or reconciled at any time after the said Tenth day of June shall be either upon the Seas or beyond the Seas or in any other place within the Dominions of the Kings Majesty his Heirs or Successors willingly absolved or withdrawn as aforesaid or willingly reconciled or shall promise Obedience to any such pretended Authority Prince State or Potentate as aforesaid That every such person and persons their Procurers and Counsellers Aiders and Maintainers knowing the same shall be to all intents adjudged Traytors and being thereof lawfully convicted shall have Iudgment suffer and forfeit as in Cases of High Treason Withdraw any of the Subjects of the Kings Majesty Kings Subjects who here meant c. from their natural Obedience By the Kings Subjects are to be understood here natural Subjects only that is such whose Subjection is natural and absolute due by nature and birthright and which begins with their birth And not Aliens although 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 King Natural Subject Natural Prince and natural Subject being correlatives And an Indictment of High Treason Indictment of High Treason against an Alien born who resides here although it shall be contra ligeantiae suae debitum and contra dominum Regem in respect of his local ligeance yet naturalem shall be omitted out of the Indictment And so it was 2 3 Ph. Mar. in the Case of Sherley a Frenchman and 36 Eliz. in the Cases of Stephano Ferrara de Gama and Emanuel Lewes Tinoco two Portugals who conspired with Dr. Lopez 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 Naturalization it self which is by Act of Parliament and the highest priviledge an Alien is capable of yet cannot create this natural Subjection or Obedience which is not due by any Law
or Constitution of man Naturalization being but a fiction in Law which confers the priviledges of a natural Subject but cannot make him a natural Subject who was none before For then he would have two natural Princes one where he was born and the other where Naturalized Vaughan 279 280. 283. Craw versus Ramsey Co. 7. 5 6 7. 25. Calvins Case Dyer 3 4 Ph. Mar. 145. Hobart 171. Curteenes Case so that to absolve perswade withdraw or reconcile an Alien born whose Subjection to the King began not with his birth or for any such to be absolved perswaded withdrawn or reconciled seems not to be Treason within this Act. But this Subjection is not to be understood locally Subjection not to be understood locally or in respect of the place of a mans Birth but in respect of the Prince to whom Subjection is due at the time of his Birth And therefore if a Scot or Irishman be absolved or reconciled in England although the Offence be committed in another Kingdom then that where his Subjection begun yet being born a Subject to the King of England its Treason in the absolver or person reconciling and in him that is absolved or reconciled Nor is it necessary in all Cases that the party be born in the Kings Dominions but that he may be a natural Subject notwithstanding and consequently within this Act as in the Case of an Embassador vide Co. 7. 18. Calvins Case Vide Stat. 23 Eliz. cap. 1. Stat. 23 Eliz. 1 Sect. 2. Stat. Sect. 20. A reconciled person taking the Oath Provided nevertheless That the last mentioned Clause of this Branch or any thing therein contained shall not extend or be taken to extend to any person or persons whatsoever which shall hereafter be reconciled to the Pope or Sée of Rome as aforesaid for and touching the point of so being reconciled only that shall return into this Realm and thereupon within six days next after such return before the Bishop of the Diocess or two Iustices of Peace joyntly or severally of the County where he shall arrive submit himself to his Majesty and his Laws and take the Oath set forth by Act in the first year of the Reign of the late Quéen Elizabeth commonly called the Oath of Supremacy as also the Oath before set down in this present Act which said Oaths the said Bishop and Iustices respectively shall have Power and Authority by this present Act to minister to such persons as aforesaid And the said Oaths so taken the said Bishop and Iustices before whom such Oaths shall be so taken respectively shall certifie at the next General or Quarter Sessions of the Peace to be holden within the said Shire Limit Division or Liberty wherein such person as aforesaid shall submit himself and take the said Oaths as aforesaid upon pain of every one neglecting to certifie the same as aforesaid the sum of Forty pounds Submission in case of Treason Which shall hereafter be reconciled In the late Additions to Dalton cap. 140. tit High Treason Sect. 12. is intimated that this Clause which provides in Case of Submission extends to no Cases of Treason or Misprision of Treason for there in reciting this part of the Statute the Cases of Treason and Misprision of Treason are excepted which is a great mistake For the Submission here spoken of is only in the Case of a declared Treason scil being reconciled to the Pope or See of Rome For and touching the point of so being reconciled only In the latter part of the former Section there are three several sorts of Offences made Treason Reconciled to the Pope c. what meant thereby 1. To be willingly absolved or withdrawn from a mans natural Obedience 2. To be willingly reconciled to the Pope or See of Rome 3. To promise Obedience to any pretended Authority of that See or to any other Prince State or Potentate but in this Clause only the second of these Offences is remitted in Case of Submission viz. the being reconciled to the Pope or Sée of Rome By which I conceive to be meant the forsaking of the Religion established by Law and embracing that which is professed and maintained by the Pope and See of Rome And in that sense those words are commonly taken at this day And that this is the meaning of those words appears by the Statute of 23 Eliz. cap. 1. which makes it Treason to absolve or withdraw the Subjects from their natural Obedience or to withdraw them from the Religion Established to the Romish Religion or to move them to promise Obedience to the See of Rome or any other Prince c. to answer which follows in that Act three other sorts of Treason viz. to be absolved or withdrawn or to be reconciled or to promise such Obedience so that the Offence of being reconciled answers to the Offence of withdrawing the Subjects from the Religion Established to the Romish Religion which explains what is meant by such Reconciliation viz. the being so withdrawn from the one Religion to the other But by this Clause 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 Offences not within this Proviso or promising Obedience to the pretended Authority of the See of Rome or any other Prince State or Potentate besides his natural King such Submission and taking the Oaths shall not absolve him from that guilt but he shall have Judgment and suffer for the same as in Case of High Treason notwithstanding such Submission c. Dalton V. cap. 89. tit High Treason is therefore clearly mistaken in extending the benefit of this Submission c. generally to all who have been willingly absolved withdrawn or reconciled or have promised such Obedience Submit himself to his Majesty and his Laws The Kings Laws Stat. 27 Eliz. 2 What Laws are here meant vide Stat. 27 Eliz. cap. 2. Sect. 7. Stat. Sect. 21. Where the Trial shall be And be it further Enacted That all and every person and persons that shall offend contrary to this present branch of this Statute shall be Indicted tried and proceéded against by and before the Iustices of Assize and Goal delivery of that County for the time being or before the Iustices of the Court of Kings Bench and be there procéeded against according to the Laws and Statutes of this Realm against Traitors as if the said Offence had béen committed in the same County where such person or persons shall be so taken Any Law Custom or Statute to the contrary in any wise notwithstanding In what County The Offender may be proceeded against by force of this Act in any County where he shall be imprisoned for
Vide Rolles abridg tit Temps 521. Counsel and Trial by Peers Praemunire In the aforesaid Case of the Lord Vaux who was Indicted of a Praemunire for refusing this Oath the Court of Kings Bench denied him 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 four Cases only viz. Treason Felony Misprision of Treason and Misprision of Felony but not to be allowed in the Case of a Praemunire for that in effect it is no more then a Contempt Bulstrode 1. 197 198 199. Stat. Sect. 32. Who shall take the Oath in the Cinque Ports Provided also and be it Enacted by Authority of this Parliament That where any person or persons shall go or pass out of the Cinque Ports or any Member thereof to any parts beyond the Seas to serve any Forreign Prince State or Potentate that in every such Case the Lord Warden of the Cinque Ports for the time being or any person by him in that behalf appointed or to be appointed shall have full Power and Authority by virtue hereof to take the Bond and minister the Oath to such Passengers as is above mentioned If the Warden of the Cinque Ports Warden of the Cinque Ports do take such Bond and minister such Oath and do not certifie them into the Exchequer this seems to be Casus omissus and not provided for by the Act For he shall not be liable to the penalty inflicted on the Customer and Controller For that although it be within the same mischief there are no express words here to reach him And penal Statutes shall not be taken or construed by Equity Lee 77. Bishop of Chichester versus Freeland Rolles 2. 420. Jones versus Lord Sheffeild Ratcliffe Yelverton 22. Brode versus Owen Plowden 17. Fogassa's Case Et 86. Partridges Case Co. 1. Inst. 238. Keilwey 96. Stat. iii Jac. cap. v. An Act to prevent and avoid dangers which may grow by Popish Recusants Stat. Sect. 1. WHereas divers Iesuits Seminaries and Popish Priests dayly do withdraw many of his Majesties Subjects from the true Service of Almighty God and the Religion established within this Realm to the Romish Religion and from their Loyal Obedience to his Majesty and have of late secretly perswaded divers Recusants and Papists and encouraged and emboldened them to commit most damnable Treasons tending to the overthrow of Gods true Religion the destruction of his Majesty and his Royal Issue and the overthrow of the whole State and Commonwealth if God of his goodness and mercy had not within few hours before the intended time of the execution thereof revealed and disclosed the same wherefore to discover and prevent such secret damnable conspiracies and Treasons as hereafter may be put in ure by such evil disposed persons if remedy be not therefore provided Stat. Sect. 2. The reward of him which discovereth a Popish Priest or Mass Be it Enacted by the Kings most Excellent Majesty the Lords Spiritual and Temporal and the Commons in this present Parliament Assembled and by the Authority of the same That such person as shall first discover to any Iustice of Peace any Recusant or other person which shall entertain or relieve any Iesuite Seminary or Popish Priest or shall discover any Mass to have beén said and the persons that were present at such Mass and the Priest that said the same or any of them within threé days next after the offence committed and that by reason of such discovery any of the said Offenders be taken and Convicted or Attainted That then the person which hath made such discovery shall not only be fréed from the danger and penalty of any Law for such offence if he be an Offender therein but also shall have the third part of the forfeiture of all such sums of Money Goods Chattels and Debts which shall be forfeited by such offence so as the same total forfeiture exceéd not the sum of One hundred and fifty pounds and if it excéed the sum of One hundred and fifty pounds the said person so discovering the said offence shall have the sum of Fifty pounds only for every such discovery And such person so discovering the same after conviction of the offender shall have a Certificate from the Iudges or Iustices of Peace before whom such Conviction shall happen to be directed to the Sheriff or other Officer of the same County Limit or Place that shall seize the Goods or levy the said forfeiture commanding the said Sheriff or other Officer to pay the same accordingly to him that so discovered the same out of the monies to be levyed by vertue of the said forfeitures which Warrant and payment shall be effectual in the Law for that purpose and a sufficient discharge in that behalf for the Sheriff or other Officer upon his Accompt Within threé days next after the Offence committed Discovery within what time So that if three days next after the Offence committed elapse before the discovery is made the discoverer shall have no benefit by this Act. And therefore if the person discovering had no notice of the Offence till the three days expire although he discovers it presently upon such notice given him yet he comes too late much less shall he have three days after notice as Wingate tit Crowne numb 128. mistakes the meaning of this Clause Commanding the said Sheriff or other Officer to pay the same In the late additions to Dalton cap. 81. tit Recusants Who is to pay the discoverer Sect. 57. 't is said that the Sheriff is to grant his Warrant for the payment of the discoverer but that is a misrecital of the Statute for the Sheriff himself is to pay him And whereas the repair of such evil affected persons to the Court or to the City of London may be very dangerous to his Majesties person and may give them more liberty to méet Stat. Sect. 3. A Popish Recusant shall not come to Court consult and plot their Treasons and practices against the State then if they should be restrained and confined unto their private Houses in the Country For remedy hereof Be it Enacted by the Authority aforesaid That no Popish Recusant Convicted or to be Convicted shall come into the Court or House where the Kings Majesty or his Heir apparent to the Crown of England shall be unless he be commanded so to do by the Kings Majesty his Heirs and Successors or by Warrant in writing from the Lords and others of the most Honourable Privy Council of the Kings Majesty his Heirs and Successors or any of them upon pain to forfeit for every time so offending one hundred pounds the one moiety to the Kings Majesty his Heirs and Successors the other moiety to him that will discover and sue for the same by Action of Debt Bill Plaint or Information in any one of his Majesties Courts of Record wherein no Essoign protection or wager
which the King hath already done or in respect of what the Recusant after his conviction hath omitted to do And therefore if a man be convicted of recusancy upon a popular Suit or an Action of Debt at the Kings Suit alone in which Cases the penalty of Twenty pounds per month is not appropriated to the King for the time to come and he pays the penalty recovered or if he be Convicted upon Indictment and after such Conviction duly pays the Twenty pounds per month into the Exchequer and the King makes no Election to take the two third parts of his Estate in lieu thereof such Recusant may by this Proviso in either of those Cases Sue or Prosecute for any of his Lands Tenements Leases Rents Annuities or Hereditaments whatsoever notwithstanding his Conviction For when the penalty recovered is satisfied or the forfeiture appropriated to the King is duly paid into the Exchequer his Lands c. are not to be seized by force of any Law for Recusancy unless the King make his Election to have the two parts And until that Election they cannot in the sense of this Proviso be said to be Lands to be seized or taken into the Kings hands for that the King cannot have the two parts and the Twenty pounds per month both But if the King make no such Election and the Twenty pounds per month be duly paid into the Exchequer the Recusant is to hold and enjoy all his Lands Tenements c. as if he had never been convicted And during that time there can be no distinction made between the two parts and the Recusant's third part so that in this Case the Recusant must either be enabled to Sue and Prosecute for all his Lands c. or none and to think the latter of these were to render this Proviso nugatory and vain But when once the King hath seized the two thirds for recusancy either by way of Election or for nonpayment of the penalty then the Recusant is enabled to Sue only for the other third part whether in the hands of the King or of a common person Stat. Sect. 14. And for that Popish Recusants are not usually Married nor their Children Christned nor themselves Buried according to the Law of the Church of England but the same are done superstitiously by Popish Persons in secret whereby the days of their Marriages Births and Burials cannot be certainly known Stat. Sect. 15. Marriages of Popish Recusants Be it further Enacted by Authority of this present Parliament That every man being or which shall be a Popish Recusant convicted and who shall be hereafter Married otherwise then in some open Church or Chappel and otherwise then according to the Orders of the Church of England by a Minister lawfully Authorized shall be utterly disabled and excluded to have any Estate of Fréehold into any the Lands Tenements and Hereditaments of his Wife as Tenant by the Courtesie of England And that every Woman being or which shall be a Popish Recusant convicted and who shall be hereafter Married in other form then as aforesaid shall be utterly excluded and disabled not only to claim any Dower of the Inheritance of her Husband whereof she may be endowable or any Iointure of the Lands and Hereditaments of her Husband or any of his Ancestors but also of her Widows Estate and Frank-bank in any Customary Lands whereof her Husband died seized and likewise be disabled and excluded to have or enjoy any part or portion of the goods of her said Husband by vertue of any custom of any County City or Place where the same shall lie or be And if any such man shall be Married with any Woman contrary to the intent and true meaning of this Act which Woman hath or shall have no Lands Tenements or Hereditaments whereof he may be intituled to be Tenant by the Curtesie Then such man so Marrying as aforesaid shall forfeit and lose One hundred pounds the one half thereof to be to the Kings Majesty his Heirs and Successors and the other moiety to such person or persons as shall Sue for the same by Action of Debt Bill Plaint or Information in any of the Kings Majesties Courts of Record wherein no Essoin Protection or Wager of Law shall be admitted or allowed Where the Husband is no offender Every man being or which shall be a Popish Recusant Convicted A Man who is no Popish Recusant Convicted marries a Woman who is a Popish Recusant Convicted in other form then is here appointed He shall not forfeit any thing or be disabled by this Act. By a Minister lawfully Authorized Minister lawfully Authorized In an Information upon this Statute for being married otherwise then is here appointed it is sufficient for the Defendant to say that he was married c. by a Minister lawfully Authorized without shewing in particular how or where or when but if a Traverse come of the other side then the Defendant is in his Rejoynder to shew the time and place Vide Bulstrode 2. 50. 52. Creswich against Rookesby Every Woman being or which shall be a Popish Recusant Convicted A Woman who is no Popish Recusant Convicted Where the Wife is no offender marries a Man who is a Popish Recusant Convicted in other form than is here appointed she shall not be disabled by this Branch of the Act For the forfeiture or disability extends only to the Popish Recusant Convicted and as in the Case before recited the Woman only shall be disabled so in this Case the Man only shall forfeit or be disabled Or any Ioynture of the Lands and Hereditaments of her Husband or any of his Ancestors Joynture A Feme who is a Popish Recusant Convicted and married otherwise then is appointed by this Act is not therefore disabled to have any sort of Joynture as Wingate tit Crowne n. 136. mistakes but only such Joynture as is of the Lands or Hereditaments of her Husband or some of his Ancestors and therefore if in consideration of some service done or for some other consideration and for the advancement of A. in marriage Lands are setled upon his intended Wife for her Joynture by some person besides A. who is not any of the Ancestors of A. such Joynture is not within this Act nor shall the Wife although a Popish Recusant Convicted and married otherwise c. be disabled by any strained construction of this Law to enjoy the Lands after her Husbands death For a penal Law shall be taken strictly and not by equity or intendment especially where the intent of the Lawmakers doth not appear to the contrary and the Case such as doth but rarely happen And 't is a good Rule in the construction of Statute Laws which the late Lord Chief Justice Vaughan hath laid down in his Argument of Bole and Hortons Case Mich. 25. Car. 2. viz. when the words of a Law extend not to an inconvenience rarely happening and do to those which often
happen it is good reason not to strain the words farther then they reach but to say it is casus omissus and that the Law intended quae frequentius accidunt Vaughan 373. And yet there is no question but such Lands are a Joynture The extent of the word and if made with the Wives assent before marriage shall bar her Dower by the Statute of 27 H. 8. cap. 10. which speaks of an Estate or purchase made to the Wife for her Joynture generally not saying by whom Mr. Sheapard therefore in his Epitome p. 523. falls very short of the full description of a Joynture when he limits it only to be of the Franktenement of her Husband which restriction dayly experience confutes For that it is commonly made by the Ancestor of the Husband of Lands in which the Husband never had any Franktenement nor perhaps ever shall have Custom By vertue of any custom of any County City or Place And not of Cities only as 't is restrained in the late additions to Dalton cap. 85. tit Recusants Sect. 48. Where in force The Custom here mentioned viz. that the Wife shall have a certain portion of her Husbands goods after his decease is of force throughout the whole Province of York and in divers other places of England and if he gives them away from her by his Will the bequest is void Vide Swinburne Part 3. cap. 14. p. 151. 152. What goods are not within the Act. A Woman is an offender within this Branch and her Husband by his last will gives her all or part of his goods not claimable by custom she is not by this Act disabled to enjoy them after his death For the words here are plainly restrictive to such goods as she claims by custom Where not Tenant by Curtesie not One hundred pounds forfeited Whereof he may be intituled to be Tenant by the Curtesie A Popish Recusant convicted marries an Inheritrix in other form then is appointed by this Act The Wife dies without issue born alive of the marriage In this Case although the Husband is not intituled to be Tenant by the Courtesie yet the possibility which he once had to be so intituled seems to satisfie the intent of the Act and he shall not forfeit the hundred pounds So that here is another Casus omissus For it may so happen that a Popish Recusant Convict may have a great Portion in money with his Wife and but a small Estate in Lands with her perchance but a few Acres yet if he be an Offender within this branch the Lands for that he may be intituled to be Tenant of them by the Courtesie shall save his hundred pounds and if his Wife die having had no issue born alive he is wholly exempted out of the Act and cannot be punished either way Stat. Sect. 16. Baptism of Popish Recusants Children And that every Popish Recusant which shall hereafter have any Child born shall within one month next after the Birth thereof cause the same Child to be baptized by a lawful Minister according to the Laws of this Realm in the open Church of the same Parish where the Child shall be born or in some other Church near adjoyning or Chappel where Baptism is usually administred or if by infirmity of the Child it cannot be brought co such place then the same shall within the time aforesaid be baptized by the lawful Minister of any of the said Parishes or places aforesaid upon pain that the Father of such Child if he be living by the space of one month next after the Birth of such Child or if he be dead within the said month then the Mother of such Child shall for every such Offence forfeit one hundred pounds of lawful money of England one third part whereof to be to the Kings Majesty his Heirs and Successors one other third part to the Informer or him that will sue for the same and the other third part to the Poor of the said Parish to be recovered by Action of Debt Bill Plaint or Information in any of the Kings Majesties Courts of Record wherein no Essoign Protection or Wager of Law shall be admitted or allowed And if any Popish Recusant man or woman Stat. Sect. 17. Burial of Popish Recusants not excommunicate not being Excommunicate shall be buried in any place other than in the Church or Churchyard or not according to the Ecclesiastical Laws of this Realm That the Executors or Administrators of every such person so buried knowing the same or the party that causeth him to be so buried shall forfeit the sum of twenty pounds the one third part whereof shall be to our Soveraign Lord the King the other third part to the Informer or him or them that will sue for the same and the other third part to the Poor of the Parish where such person died to be recovered by Action of Debt Bill Plaint or Information in any of the Kings Majesties Courts of Record wherein no Essoign Protection or Wager of Law shall be admitted or allowed The Exception here of a Popish Recusant Excommunicate That is not actually Excommunicate is intended only of one actually Excommunicated and not of him who is a Popish Recusant convicted who shall not be reputed as a person Excommunicate to this intent but only as to the point of a disability as hath been said Sect. 12. So that if any Popish Recusant not actually Excommunicate be buried elsewhere or otherwise then is here mentioned although he were convicted yet 't is an Offence punishable by this Law And be it further Enacted by this present Parliament Stat. Sect. 18. Children departing the Realm That if the Children of any Subject within this Realm the said Children not being Soldiers Mariners Merchants or their Apprentices or Factors to prevent their good Education in England or for any other cause shall hereafter be sent or go beyond Seas without Licence of the Kings Majesty or six of his Honourable Privy Council whereof the principal Secretary to be one under their Hands and Seals The forfeiture of such as depart That then all and every such Child and Children so sent or which shall so go beyond the Seas shall take no benefit by any gift conveyance descent devise or otherwise of or to any Lands Tenements Hereditaments Leases Goods or Chattels until he or they being of the age of eighteén years or above take the Oath mentioned in an Act of Parliament made this present Session Intituled An Act for the better discovering and repressing of Popish Recusants before some Iustice of Peace of the County Liberty or Limit where such Parents of such Children as shall be so sent did or shall inherit and dwell And that in the mean time the next of his or her kin which shall be no Popish Recusant shall have and enjoy the said Lands Tenements Hereditaments Leases Goods and Chattels so given conveyed descended or devised until such time
Privy Council of your Highness your Heirs or Successors or by the Bishop of the Diocess if she be a Baroness or if she be under that Degrée by two Iustices of the Peace of the same County whereof one to be of the Quorum there to remain without Ball or Mainprize until she shall conform her self and come to Church and receive the Sacrament of the Lords Supper unless the Husband of such Wife shall pay to the Kings Majesty his Heirs or Successors for the Offence of his said Wife for every month ten pounds of lawful money of England or else the third part in thrée parts to be divided of all his Lands and Tenements at the choice of the Husband whose Wife is so convicted as aforesaid for and during so long time as she remaining a Recusant convicted shall continue out of Prison during which time and no longer she may be at liberty What Conviction is here meant Stat. 23 Eliz. 1. Being lawfully convicted as a Popish Recusant That is upon Indictment at the Kings Suit or a popular Action or Information on the Statute of 23 Eliz. 1. or an Action of Debt at the Kings Suit alone according to the Statute of 35 Eliz. 1. 35 Eliz. 1. In which two last Cases the former Laws are somewhat altered by this Statute For by the former Laws if a person had been convicted of Recusancy any other way then by Indictment no more could have been demanded either by the King or Informer then for the months mentioned in the Information or Count And the penalty should not have run on in such Case For that the Statutes of 29 Eliz. 6. and 3 Jac. 4. 29 Eliz. 6. 3 Jac. 4. which appropriate the penalty to the King after Conviction intend no other Conviction then by Indictment as hath been there said Baron and seme But by this Statute if a popular Action or Information or an Action of Debt c. at the Kings Suit alone be brought against the Husband and Wife for the Recusancy of the Wife and Judgment be had against them the Husband shall not only pay for the time contained in the Information or Count but the Wife shall be imprisoned ever afterwards unless she conform or the Husband pay ten pounds per month or yield the third part of his Lands to the King And yet this Statute doth not after such Conviction of the Wife in a popular Suit Suits upon former Statutes not taken away or Action of Debt c. at the Kings Suit take away the popular Action or Information from the Informer or the Action of Debt c. from the King for the time to come but that they may be brought against the Husband and Wife for the Recusancy of the Wife for any month or months wherein she is absent from Church after such Conviction For this Statute and 23 Eliz. 1. and 35 Eliz. 1. Stat. 23 Eliz. 1 35 Eliz. 1 are all affirmative Laws and may well stand together so that any of the three remedies given by these Statutes may be pursued This Statute not abrogating any former Law but only providing another way of punishment for the Wife after she is once convicted Howbeit she shall not be punished by any more then one of these three ways Co. 11. 63 64. Rolles 1. 94. Doctor Fosters Case Cro. Pasch 17 Jac. 529. Parker versus Curson And therefore if the King bring an Action of Debt c. upon 35 Eliz. against the Husband and Wife Where the Wife shall not be imprisoned or the Informer sue them upon 23 Eliz. for any absence of the Wife from Church after she is once convicted by either of those ways and recover the Privy Counsellor Bishop or Justices of Peace here mentioned cannot imprison her by force of this Act for the non-payment of the ten pounds per month by the Husband for those months for which the King or Informer hath recovered or for his not yielding the thirds of his Lands to the King And the reason is for that when the Husband stands charged with the penalty of twenty pounds per month for the absence of the Wife the intent of the Act is satisfied in respect of those months of her absence for which he stands so charged For if he pay not the twenty pounds per month so recovered the King or Informer hath the ordinary remedy after Judgment by Process of Capias against them both both And the intent of the Act was no more then that the Husband should pay for the Recusancy of his Wife or the Wife be imprisoned And if in this Case the Privy Counsellor Bishop or Justices of Peace should have power to imprison the Wife unless the Husband would pay ten pounds for the months for which the King or Informer hath recovered it would follow that the Husband hath his Election whether he will pay ten pounds per month to the King by force of this Act or the twenty pounds per month so recovered against him by the King or Informer For he shall not pay both the one and the other for that were bis puniri pro uno delicto And if he shall have his Election the King or Informer might by this device be eluded of the penalty of twenty pounds per month so recovered which could not be the intent of the makers of this Law The King and Informer barred by her Imprisonment But if the Wife be after such Conviction imprisoned by force of this Act neither the King or Informer can so sue the Husband and Wife for the Recusancy of the Wife For she is already punished by this Act and must remain in Prison until the Husband pay the ten pounds for every month or yield the thirds of his Lands to the King or the Wife conforms Or if the Husband yields the thirds So if the Husband yields the thirds of his Lands to save his Wives imprisonment he is already punished by this Act and shall not again be punished or Sued by the King or Informer either upon 23 Eliz. or 35 Eliz. Or pay Ten pounds per month And if after such conviction of the Wife he pay Ten pounds per month to save her imprisonment he cannot be sued with his Wife for the Twenty pounds per month upon either of those Statutes by the King or Informer for those months of her absence from Church incurred after her conviction for which he hath paid the Ten pounds monthly to the King for he shall not Bis puniri pro uno delicto Hitherto hath been spoken of the Conviction of the Wife at the Suit of the King alone by Action of Debt c. or by the Informer Qui tam c. which doth not appropriate the penalty to the King by 29 Eliz. 6. or 3 Jac. 4. Conviction upon Indictment If the Wife be convicted of Recusancy upon an Indictment it hath been much debated whether that doth not so appropriate the
his Warrant to bring the party before him 246. But the house cannot be broken by virtue of such Warrant 246. To whom one Justice of Peace may tender or give the Oath of Allegiance 224. 245 246. 247 248 249. Where he may commit the party refusing it 250. To what Justice of Peace the person offering an Agnus Dei c. must be brought or his name disclosed 53 54. The Justice of Peace not declaring the same incurs a Praemunire 55 56. Next Justice of Peace who meant 54. Certificate of Recusancy to be made by a Justice of Peace 60. One Justice of Peace may take the submission of a Jesuite or Popish Priest 95. He may examine a person suspected to be such and commit him if he refuse to answer 140 141. Discovery of a Jesuite or Popish Priest to a Justice of Peace 96. What the Justice of Peace is to do thereupon 96. The penalty if he neglects so to do 96. What Certificate he shall have for his discharge 96 97. Discovery of the entertainer or reliever of a Jesuite or Popish Priest or of Masse said must be to a Justice of Peace 200. One Justice of Peace may require the submission on 35 Eliz. 1. of Conventicles 115. And may require the offender to abjure 115 116. One Justice of Peace may require the submission on 35 Eliz. 2. of Popish Recusants confined 135. One Justice of Peace may cause the 12 d. per Sunday to be levied for absence from Church 188 189. Within what time the party must be called into question 189. Where the Justice of Peace is sole Judge of the parties excuse 190. One Justice of Peace may give the Oath to a Popish Recusant confined by 35 Eliz. 2. 210 211. Any two Justices of Peace may take the submission of a person returning from a Seminary 91 92. And of a person reconciled to the Pope or See of Rome 186. And minister to him the Oaths of Supremacy and Allegiance 186. Where they must certifie the Oaths so taken 186. To what other persons any two Justices of Peace may give the Oath of Allegiance 243. They may require the offender against 35 Eliz. 2. of Popish Recusants to abjure and may give him the Oath of Abjuration 135. Where they may imprison him who keeps the Arms of a Popish Recusant Convict or hinders their delivery and where not 237 238 239. To whom two Justices of Peace Quorum unus c. may tender and give the Oath of Allegiance 174. 196 197 198. 245 246. 249 250. Where they must certifie the taking of it to the Sessions 174. 249 250. And commit such as refuse to take it 174 175. 250. They have their Election to commit the party to the Assizes or Sessions 175. Where they may imprison a married woman convicted as a Popish Recusant and where not 252 253 254. Four Justices of Peace may grant a Licence to a Popish Recusant to travel beyond five miles 206 207 208 209 210 211. And no less then four 208. Where four Justices of Peace by warrant at their Sessions may seize a Popish Recusants Arms and where not 237 238. What arms they may allow Popish Recusants to have 237. The power of the Justices of Peace in their Sessions revived in the case of Recusancy 66 67. 101. 162. They may now proceed there to convict the Recusant upon Proclamation and default 108. 162. At what Sessions they may hear and determine Recusancy 67. In what case they are to discharge the Recusant 68 69. They may at their Sessions give the Oath of Abjuration on 35 Eliz. 1. of Conventicles 116. And must record and certifie it 116. Where upon Conviction before them they are to give a Certificate to the discoverer of the offender 201. Popish Recusants are to be presented at the Sessions of the Peace 160 161. The Presentments are to be entred and recorded there 161. To whom the Justices of Peace in their Sessions are to minister the Oath of Supremacy 262. 264. 266 267. And the Oath of Allegiance 262. 264. 266 267. They are to tender the said Oath at their Sessions to such as have before refused it 175. 250. And are to commit Women Covert till they take it 175. 250. They may there tender it to any of competent age and under the degree of Nobility 175 176. 196. Kin. In what case and how long the next of Kin shall have the Lands and Goods of him who goes beyond Seas without Licence 224 225. Whether he shall have the Lands or only the profits 225. In whom the state of the Land vests 225. The Mother of Kin to the Child and shall be preferred before the Brother or Sister 224 225. Next of Kin or Blood shall be accounted as in the case of a purchase 225. Jus Propinquitatis Jus Representationis 225. Where the next of Kin shall be Guardian and where not 234 235. King See Advowson Baron Feme Courts Forfeiture Informations Pardon The King is the supream Head of the Church of England 2. 5 6 7. Ecclesiastical Jurisdiction restored to the Crown 5. The Kings ancient Ecclesiastical Jurisdiction 5 6. The King is Persona mixta unita cum Sacerdotibus 6. He is the supream Ordinary 6 7. He is Arbitrator between spiritual Persons touching their Jurisdiction 6. He may do what the Pope might by the Canon Law 6 7. He may grant a Commission of Review notwithstanding 25 H. 8. 19. 7. He may make an Appropriation without the Bishop 7. A resignation made to him of a Deanry good 7. The Penalty for perswading others to impugne his power in cases Ecclesiastical 113 114. He cannot be nonsuited 80. Covin shall not bar him 79. 105 106. An Audita Querela lies not against him 148. King where it includes his Successors 95. Who is a mans natural King 185. Within what time the King is to prosecute upon poenal Laws 74 75. 121 122. Where he is barred of the Forfeiture and where not 79. 81 82. 253 254 255. The Recusants remedy upon his Conformity as to the King 148. Where the King may pardon release c. the Forfeiture upon a poenal Law and where not 80. How he may grant a Recognisance or Obligation forfeited 106. He cannot grant the Penalty on a poenal Law to a Subject 165. Action of Debt c. given to the King 120. In what Courts the King may sue for the Penalties given him by 23 El. 1. 122. Where the Penalty for Recusancy shall run on and be appropriated to the King and where not 102 103 104. 166 167 168. 219. 252. 254. The King may seize two thirds of a Recusants Lands presently after Conviction 168. Election given to the King to take the 20 l. per month or two thirds of a Recusants Lands 170 171. 173. 219. But he shall not have the two parts and the 20 l. per month both 219. Where the King having seized an Advowson as part of his two parts shall present and not the
University 231 232 233. The King is Patron in that case 232 233. And shall present alone 172. 233. Difference between a Bond to the King and a Bond to the Kings use 182. Licences by the King 116. 139. 155. 206. 223. Dispensation by the King where void 44. 243. Fine and Imprisonment at the Kings pleasure by whom to be inflicted 97. Lapse see Notice Laws See Ecclesiastical Iurisdiction Statutes What is meant by the Kings or Queens Laws 95. The Ecclesiastical Laws are the Kings Laws 5 6. Ecclesiastical and Temporal Laws are to be administred distinctly 6. The Laws of Scotland or Ireland not obligative to England 189. Lease See Confirmation Trust Licence See Abjuration Bishop Councel Iustices of Peace King Schoolmaster What Licence a Popish Recusant may have to travel out of the compass of five miles and from whom 206. 208. To what Popish Recusants such Licence may be granted 206 207. What is a good Licence and what not 206. Where it may be granted without any particular cause shewed and where not 206 207 208. 210. Where it ought to be averred that the cause contained in the Licence is true 211. Where the Licence must be under hand and where under hand and seal both 206 207 208. Where there must be a person to assent as well as persons to Licence and where not 206 207 208 209 210. Where the Lieutenant or a Deputy Lieutenant may assent to such Licence and where not 206 208 209 210. They who Licence and he who assents must be all distinct persons 209. The Licence and Assent may be both in one writing 209. The person assenting must be resident in the County 209 210. Where the Recusant Licenced must take an Oath and what Oath and before whom and where not 206 207 208 210 211. Lieutenant see Licence Ligeance see Subjection London see Recusants Mayor see Corporations Mansion See Recusants Mansion-house what 173. Marriage see Baron Feme Marshalsie Is the ordinary Prison of the Court of Kings Bench 251. Masse Saying and hearing of Masse and the Penalties 24 25 26. 45. 59. 200 201. Miles How to be accounted 130 131. Minister See Common Prayer Ecclesiastical Persons Misprision of Treason 51. 59. Mittimus see Indictments Month. How to be accounted 13 14. 61. Mortgage see Chattels Mother See Administration Kin. Naturalization See Alien Naturalization is a Fiction in Law 185. It s effect 185. It includes Denization 128 129. What they ought to do who are to be naturalized 240. Natural King Natural King and natural Subject are Correlatives 185. Next of Kin see Kin Nobility See Councel Nobility by Birth is Character indelebilis 247. Nobility gotten by Marriage may be lost by marriage 198. 247. Where a Nobleman or Noblewoman may be committed to prison for refusing the Oath of Allegiance 250 251. Nomination See Recusants Vniversity The Presentment is in him who hath the right of Nomination to a Benefice 229. He is in effect the Patron and may have a Quare Impedit 228. Nonsuit See Informers King Notice Aiders or Relievers of an offender not punishable unless they had notice of the offence 17. Where a lapse will incur upon Deprivation without notice to the Patron 23. All men are bound to take notice of an Act of Parliament 23. To what cases only the clause in 13 Eliz. 12. of notice to the Patron extends 23. Number Pluralis numerus est duobus contentus 238. Oaths See Bishop Councel Indictments Iustices of Peace Nobility Oath of Abjuration see Abjuration and Coroner Oath of Supremacy 9. Called the Oath of Obedience 147. How to be expounded 43. Who must take it and before whom 8 10 11. 38 39 40. 43 44. 92. 95. 149. 186. 240. 261 262. 264. 266. The Penalties for refusing or neglecting to take it 9 10. 40. 42 43 44. 263. see Disability He that hath an Office of Inheritance if he refuse it and afterwards take it shall be restored 11. The penalty for not certifying the refusal of it 40. Where the party refusing it is to be tried 41. Where the Refusal of it upon the second tender is not Treason 45. Who not bound to take it 44. Oath of Allegiance 176 177 178 179. Sequitur personam non locum 246. 249. Who is to give it and who must take it and in what cases 173 174 175 176. 181 182 183. 186. 195 196 197 198. 215. 224. 240 241 242 243 244 245 246 247 248. 261 262. 264. 266 267. Where the party taking it must set to his name or mark 179. Where and whither the taking of it is to be certified and the Certificate recorded 174. 249 250. The penalties for refusing it or not taking it 174 175 176. 181 182. 195 196. 215. 224. 243. 250 251. 263. see Disability The party refusing it shall be committed to Gaol and by whom 174 175. 250 251. He may be committed either until the Assizes or Sessions at the discretion of him who tenders it 175. In that case sureties cannot be taken 175. Where a married woman refusing it shall be imprisoned till she takes it 175. 250. What tender and refusal of it shall be binding and what not 251 Refusal of any word of it is a refusal of the whole 179. Serving or going to serve a forraign Prince c. without first taking the said Oath is Felony 181 182. What service is there meant 182. Who shall give the Oath in that case 183. 198. The penalty for not certifying it and on whom 183 184. 198 199. The penalty for not certifying the Oaths of Supremacy and Allegiance taken by a person submitting 186. Certificate of Oaths taken by a Jesuite c. or a person returning from a Seminary see Conformity An Office of Inheritance saved to him who takes not the Oaths of Supremacy and Allegiance 265 266. Where and before whom persons who are to be restored in Blood or naturalized are to take the said Oaths 240. Oath by a Popish Recusant licenced to travel 206 207 208. 210 211. Obedience See Oaths Perswading or withdrawing the Kings Subjects from their Natural Obedience or being perswaded or withdrawn is High Treason 57 58. 184 185 186. What is Natural Obedience 185. A Jesuite c. submitting must continue in his due Obedience 95. Obligation See King Service Offence see Iudgment Office Where necessary before seizure 104. Offices and Officers See Excommengement Oaths Port. Recusants Where the Husband of a Popish Recusant convict shall not bear any Office 211 212. Officers of the Exchequer 71. Officers shall answer for their Deputies 184. What persons are disabled to bear office and in what cases 10. 43 44. 211 212. 243. 251. 257 258. 263 264. The penalty on him who executes any Office and doth not receive the Sacrament and take the Oaths and Test injoined by 25 Car. 2. 2. 263 264 265. A saving of some Offices 265 266 267. Ordinary See Probate Ordinary who 45. The King is supream Ordinary 6 7. The name c. of