singular persons which shall offend within any their Iurisdictions or Diocess after the said Feast of the Nativity of St. John Baptist next coming against this Act and Statute Any other Law Statute Priviledge Liberty or Provision heretofore made had or suffered to the contrary notwithstanding Not necessary to go to the Parish Church The Ordinary or Ecclesiastical Judge cannot legally punish any man for not coming to the Church of that Parish where he inhabits if he goes to any other although he shews not any reasonable Lett. For it shall be a good Plea for the party to say that that is not his Parish Church but that he had used to frequent another Church and did resort thereunto And if the Ecclesiastical Court will not receive this plea the party shall have a Prohibition Prohibition For the Spiritual Court hath no power to judge what shall be said to be a mans Parish Church And so it was resolved by the whole Court of Kings-Bench Trin. 9. Jac. Bulstrode 1. 159. Nor can the Spiritual Court try the limits or bounds of Parishes but they shall be tried by the Common Law Co. 13. 17. Stat. Sect. 10. What Justices may punish these Offences And it is ordained and enacted by the Authority aforesaid That all and every Iustices of Oyer and Determiner or Iustices of Assize shall have full Power and Authority in every of their open and general Sessions to enquire hear and determine all and all manner of Offences that shall be committed or done contrary to any Article contained in this present Act within the limits of the Commission to them directed and to make process for the execution of the same as they may do against any person being indicted before them of Trespass or lawfully convicted thereof Provided always and be it enacted by the Authority aforesaid A Bishop may joyn with the Justices to enquire of Offenders That all and every Archbishop and Bishop shall or may at all time and times at his liberty and pleasure joyn and associate himself by vertue of this Act to the said Iustices of Oyer and Determiner or to the said Iustices of Assize at every of the said open and general Sessions to be holden in any place within his Diocess for and to the enquiry hearing and determining of the Offences aforesaid Provided also and be it enacted by the Authority aforesaid At whose charges the Book of Common Prayer shall be gotten That the Books concerning the said Services shall at the Costs and Charges of the Parishioners of every Parish and Cathedral Church be attained and gotten before the said Feast of the Nativity of St. John Baptist next following and that all such Parishes and Cathedral Churches or other places where the said Books shall be attained and gotten before the said Feast of the Nativity of St. John Baptist shall within thrée weeks next after the said Books so attained and gotten use the said Service and put the same in ure according to this Act. And be it further enacted by the Authority aforesaid Within what time the Offenders shall be impeached That no person or persons shall be at any time hereafter Impeached or otherwise molested of or for any the Offences above-mentioned hereafter to be committed or done contrary to this Act unless he or they so offending be thereof Indicted at the next general Sessions to be holden before any such Iustices of Oyer and Determiner or Iustices of Assize next after any Offence committed or done contrary to the tenour of this Act. Provided always Trial of Peers and be it ordained and enacted by the Authority aforesaid That all and singular Lords of the Parliament for the third Offence above-mentioned shall be tried by their Peers Provided also Stat. Sect. 11. Chief Officers of Cities and Boroughs shall enquire of Offenders and be it ordained and enacted by the Authority aforesaid That the Mayor of London and all other Mayors Bayliffs and other head Officers of all and singular Cities Boroughs and Towns Corporate within this Realm Wales and the Marches of the same to the which Iustices of Assize do not commonly repair shall have full Power and Authority by virtue of this Act to enquire hear and determine the Offences aforesaid and every of them yearly within fifteen days after the Feast of Easter and St. Michael the Archangel in like manner and form as Iustices of Assize and Oyer and Determiner may do These words In like manner and form appoint in what manner the Offences shall be enquired of Mayors and Head Officers of Corporations heard and determined by Mayors and Head Officers of Corporations c. by Indictment for so much enquire imports and Trial and Verdict of twelve men or such other Legal proceedings upon the said Indictment as are used by the Justices of Oyer and Determiner and Assizes in their general Sessions For the Mayor or Head Officer is not left by this Act to his own Arbitrary Will or Discretion in the hearing and determining the Offence but must proceed according to the rules and forms of Law in the Conviction of the Offender And the Statute saith To which Justices of Assize do not commonly repair So that the Mayor or Head Officer of such places were only intended in the lieu and room of Justices of Assize and are therefore to proceed by the same Rules as they do in the Counties at large Within what time to proceed But these words extend not to the point of time limited for Indicting such Offender nor are Mayors and Head Officers tied to their next Sessions as the Justices of Oyer and Determiner and of Assize are as Wingate tit Service and Sacraments numb 26. mistakes the meaning of the Statute For in like manner and form is intended in such respects only where 't is not otherwise provided for by the Statute But 't is expresly provided here that Mayors and Head Officers of Corporations shall enquire of these Offences only twice in the year viz. within fifteen days after Easter and Michaelmas and not at their next general Sessions unless it happen to be the Sessions after one of those two Feasts To whom the Bishop cannot associate himself Nor can the Archbishop or Bishop associate himself in this Case to any Mayor or Head Officer of a Corporation as Wingate tit Service and Sacraments number 25. mistakes Stat. Sect. 12. The Ordinaries Jurisdiction in these Cases Provided always and be it ordained and enacted by the Authority aforesaid That all and singular Archbishops and Bishops and every of their Chancellors Commissaries Archdeacons and other Ordinaries having any peculiar Ecclesiastical Iurisdiction shall have full Power and Authority by virtue of this Act as well to enquire in their Visitation Synods and elsewhere within their Iurisdiction at any other time and place to take Accusations and Informations of all and every the things above-mentioned done committed or perpetrated within the limits of
c. Jones 193. And such a construction hath been made of those words Court of Record upon several Statutes Stat. 4 5 Ph. Mar. 5. as that of 4 5 Ph. Mar. cap. 5. of Woollen Cloathes Co. 6. 19 20. Gregories Case 21 H. 8. 13. Moore 600. C. 827. The same Case Stat. 21 H. 8. cap. 13. Of Non-residence Cro. Mich. 4. Car. 146. Greene versus Guy 23 H. 8. 4. Stat. 23 H. 8. cap. 4. of Brewers Cro. Trin. 4. Car. 112 113. Farrington versus Keymer Hutton 99. the same Case Stat. 7 E. 6. cap. 5. 7 E. 6. 5. of Selling Wine without Licence Styles 340. Buckstone against Shurlock 5 Eliz. 4. Stat. 5 Eliz. cap. 4. of Trades and Apprentices Cro. Hill 42 Eliz. 737. Barnabee versus Goodale Cro. Trin. 17 Jac. 538. Millers Case Styles 383. Hodges Case the Statutes of Tanning of Leather Moore 421. C. 581. and divers others It was held Mich. 6 7 Eliz. by all the Justices but three That where a Statute appoints a penalty for any Offence made thereby which was not an Offence at the Common Law to be recovered in any of the Queens Courts of Record by Action of Debt and no other Court is appointed The Statute intends the four ordinary Courts of Record at Westminster and the offence and penalty cannot be punished and determined by Commissioners of Oyer and Terminer in Patriam Dyer 236. But Dyer makes a Quaere hereupon and Sir Edward Coke in Scarlets Case 10 Jac. lib. 12.98 saith That the Opinion of Catlin Sanders and Whiddon which were the three dissenting Justices before mentioned is at this day held for good Law And the Opinion aforesaid of the rest of the Justices that any Courts of Record are restrained to the Ordinary Courts of Record at Westminster is not held for Law Continual experience saith he being against it For that Justices of Assize in respect of their Commission of Oyer and Terminer have always enquired of Offences where the penalty is appointed to be sued in any Court of Record as upon the Statutes of 33 H. 8. 9. of unlawful Games 35 H. 8. 17. of Woods 5 E. 6. 14. of Forestallers 33 H. 8. 9. 35 H. 8. 17. 5 E. 6.14 Ingrossers and Regrators and other Statutes But under favour although Commissioners of Oyer and Terminer may take Indictments for the doing of that which is made malum prohibitum by a Statute Law yet that part of the Opinion in Dyer which relates to the Action of Debt and the Courts of Record where such Action must be brought is good Law and where only Courts of Record are named such Action cannot be brought in any other Court than the four ordinary Courts of Record at Westminster as appears by the several Cases and Resolutions before recited By the Statute of 21 Jac. cap. 4. it is enacted 21 Jac. 4 That all Offences to be committed against any penal Statute for which any common Informer or Promoter may lawfully ground any popular Action Bill Plaint Suit or Information before Justices of Assize Justices of Nisi prius or Goal delivery Justices of Oyer and Terminer or Justices of Peace in their General or Quarter Sessions shall be prosecuted tried and determined by way of Action Plaint Bill Information or Indictment before the said Justices of the Counties or Liberties where such offences shall be committed in any of the Courts places of Judicature or liberties aforesaid respectively and not elsewhere save only in the said Counties or places usual for those Counties or any of them And that in all Informations Bills Counts Plaints and Declarations in any Action or Suit by or on the behalf of the King or any other concerning any Offence committed against any penal Statute the Offence shall be laid alledged to have been committed in the County where such Offence was in truth committed and not elsewhere But this Act shall not extend to any Information or Suit grounded upon any Law against Popish Recusants Suits against Recusants there excepted or such who do not frequent the Church and hear Divine Service nor to any Information or Suit for other Offences named in the said Statute of 21. but that such Offences may be laid or alledged to be in any County at the pleasure of any Informer Sir Edward Coke 3. Inst 193. and 4 Inst 174. saith That this Exceptiom of Recusancy in the said Statute of 21 Jac. doth not extend to the Courts wherein the Informer is to sue but only to the County where the Offence is to be laid so that notwithstanding that exception the Kings Bench Chancery Common Pleas Exchequer or Exchequer Chamber cannot receive or hold Plea of any Information for Recusancy either by the Kings Attorney or any common Informer but the matter shall be heard and determined before Justices of Assize Nisi prius Goal delivery or Oyer and Terminer or Justices of Peace in their general Sessions according to this Statute of 21 Jac. But the Informer if it be for Recusancy may by force of that Exception lay or alledge such Offence in what County he will For the said Exception extends only to the County and not to the Courts where the Informer is to sue Which Opinion of his touching the extensiveness of the Exception is probable enough viz. That it shall extend only to the County and not to the Courts where the Informer is to sue for the latter part of it speaks only of the County But this is unaptly applied to popular Informations upon this Statute of 23 Eliz. for Recusancy for they are not within the meaning of that Branch of 21 Jac. touching the Courts where the Informer is to sue For that part of the Statute which speaks of the Courts In what Courts an Informer may sue meddles not with Informations upon those penal Laws which give the Informer no other remedy for recovery of the penalty but by Action of Debt Bill Plaint or Information in the Courts of Record at Westminster nor doth it give the Justices of Assize or other Justices there named any new or further power than they had before but only appoints that where Informations might have been brought before them or in the Courts of Westminster at the Election of the Informer now they shall be brought before Justices of Assize Nisi prius Goal delivery or Oyer and Terminer or at the Sessions of the Peace in the County where the Offence was committed for the ease of the Subjects who are Defendants and not in the Courts at Westminster Cro. Trin. 4 Car. 112 113. But in our Case of Recusancy there is no such Election given the Informer by this Statute of 23 Eliz. or any other Statute but he is strictly tied to take his Remedy by Action of Debt Bill Plaint or Information in one of the Courts at Westminster and therefore 21 Jac. extends not to it in that branch touching the Courts where the Informer is to
the Reign of our most gracious Soveraign Lady the Quéens Majesty Entituled An Act to retain the Queens Majesties Subjects in their due Obedience Be it Enacted by Authority of this present Parliament That every Feoffment Gift Grant Conveyance Alienation Estate Lease Incumbrance and Limitation of use of or out of any Lands Tenements or Hereditaments whatsoever had or made at any time since the beginning of the Quéens Majesties Reign or at any time hereafter to be had or made by any person which hath not repaired or shall not repair to some Church Chappel or usual place of Common Prayer but hath forborn or shall forbear the same contrary to the tenor of the said Statute and which is or shall be revocable at the pleasure of such offender or in any wise directly or indirectly meant or intended to or for the behoof relief or maintenance or at the disposition of any such offender or wherewith or whereby or in consideration whereof such Offender or his Family shall be maintained relieved or kept shall be déemed and taken to be utterly frustrate and void as against the Queéns Majesty for or concerning the levying and paying of such sums of money as any such person by the Laws or Statutes of this Realm already made ought to pay or forfeit for not coming or repairing to any Church Chappel or usual place of Common Prayer or for saying hearing or being at any Mass and shall also be seized and had to and for her Majesties use and behoof as hereafter in this Act is mentioned Any pretence colour faigned consideration or expressing of any use to the contrary notwithstanding Stat. Sect. 2. Conviction of Recusancy shall be certified into the Exchequer And further be it Enacted by the Authority aforesaid That every Conviction heretofore recorded for any Offence before-mentioned not already estreated or certified into the Quéens Majesties Court of Exchequer shall from the Iustices before whom the Record of such Conviction shall be remaining be estreated and certified into the Queéns Majesties Court of Exchequer before the end of Easter Term next coming in such convenient certainty for the time and other circumstances as the Court of Exchequer may thereupon award out Process for seizure of the Lands and Goods of every such Offender as hath not paid their said forfeitures according to the Laws and Statutes in such Case provided In what Courts Conviction of Recusancy shall be And that every Conviction hereafter for any offence before mentioned shall be in the Court commonly called the Kings Bench or at the Assizes or general Goal delivery and not elsewhere and shall from the Iustices before whom the Record of such Conviction shall remain be estreated and certified into the said Court of Exchequer before the end of the Term next ensuing after every such Conviction in such convenient certainty as is aforementioned Sir Edward Coke in Dr. Fosters Case lib. 11. 61. saith That by this Clause as hath been well observed the Statute of 23 Eliz. cap. 1. Stat. 33 Eliz. 1 In what Courts the Informer Qui tam c. may sue is altered in a material point viz. That whereas by 23. the Informer might sue the Recusant for the penalty in any Court of Record he is now by this Statute of 29. restrained from suing in the Common Pleas or Exchequer But this is utterly denied to be Law as the constant practice and experience ever since the making of this Statute sufficiently testifies And the Lord Chief Justice Hobart in his Report of Pie and Lovells Case saith That that Observation was made as he takes it by Sir Edward Coke himself But however this passage or observation as he calls it came to be inserted by Sir Edward Coke into his Report Sergeant Rolles in his Report of that Case of Dr. Foster lib. 1. 93. C. 41. brings him in speaking in another Language and more consonant to Law viz. That the Conviction here mentioned is intended of Convictions upon Indictments only and that no other sort of Convictions or proceedings upon the Statute of 23 Eliz. are mentioned or intended throughout this whole Act of 29. And if so then the Informer is not concerned in this Act nor restrained thereby as to the Courts wherein he is to sue but that he may sue still in the Common Pleas or Exchequer And so was it resolved in point in that Case of Pie and Lovell Hobart 204 205. where the Opinion of Sir Edward Coke reported by Rolles touching what sort of Conviction is meant here is confirmed and allowed for Law this Statute being made only for the benefit of the Queen in her Suits by Indictment and that other Opinion in the 11 Report exploded And the true reason is there given why those negative words and not elsewhere were added here viz. not to exclude the Informer out of the Common Pleas or Exchequer but to restrain Justices of Peace from proceeding to convict any person upon Indictments for Recusancy or for saying hearing or being at Mass which they were enabled to do by 23 Eliz. but again disenabled by those negative words in this Act and the hearing and determining of those offences committed only to the Justices of the Kings Bench Assizes and general Goal delivery But for Informations by a common Informer they were never intended here and the Justices of Assize and Goal delivery cannot hold Plea of such Informations as was resolved by the Judges Mich. 4 Car. 1. Jones 193. And yet this Statute did not wholly abrogate the power of the Justices of Peace Justices of P. may take Indictments for some offences against 23 El. 1 or of any other Justices to whom Authority was given by the Statute of 23 Eliz. in relation to the Offences of Recusancy or of saying or hearing Mass but that they might after this Statute of 29. take Indictments notwithstanding the negative words here For this Statute restrains them only from proceeding to Conviction but not from taking Indictments as was held in Edward Plowdens Case cited in Dr. Fosters Case Co. 11. 63. And now by the Statute of 3 Jac. cap. 4. And hear and determine the offence of not coming to Church Stat. 3 Jac. 4. The power of Justices of Peace to hear and determine the Offence of not coming to Church is again restored to them Vide that Statute Sect. 5. And be it also Enacted by the Authority aforesaid Stat. Sect. 3. At what time the money forfeited for not going to the Church shall be paid That every such Offender in not repairing to Divine Service but forbearing the same contrary to the said Estatute as hath beén heretofore convicted for such Offence and hath not made submission and béen conformable according to the true meaning of the said Statute shall without any other Indictment or Conviction pay into the Receipt of the said Exchequer all such sums of money as according to the Rate of twenty pounds for every month sithence the same
which it shall be commanded that the body of every such Offender shall be rendred to the Sheriff of the same County or Bailiff or other kéeper of the Goal of the Liberty before the next Assizes and general Goal delivery or before the next general or Quarter Sessions respectively to be holden for the said Shire Limit Division or Liberty And if at the said next Assizes and general Goal delivery or Sessions the same Offender so proclaimed shall not make appearance of Record Conviction of a Recusant That then upon every such Default recorded the same shall be as sufficient a Conviction in Law of the said Offence whereof the party shall stand Indicted as aforesaid as if upon the same Indictment a Trial by Verdict thereupon had proceéded and béen found against him or her and recorded General or Quarter Sessions Stat. 23 Eliz. 1 Power of Justices of Peace revived Stat. 23 Eliz. 1 29 Eliz. 6. At their said Sessions c. General or Quarter Sessions c. What Sessions are here meant vide 23 Eliz. cap. 1. Sect. 7. To enquire hear and determine This is intended of Indictments only and revives the power of Justices of Peace given them by the Statute of 23 Eliz. cap. 1. and taken from them by the negative words of the Statute of 29 Eliz. cap. 6. so that now the Justices of Peace may proceed to Judgment against the Recusant upon 23. or convict him upon Proclamation and default of appearance and so may the Justices of Assize and Goal-delivery Justices of Assize and Goal delivery proceed either way For the words of this Statute and that of 29. which give the Proclamation being in the affirmative The Proclamation may be waved do not take away the proceedings upon 23. but that the Justices may wave the Conviction by Proclamation if they please Nor is the Informers Informer popular Suit taken away by 29. or by this Statute Co. 11.61 Dr. Fosters Case vide Stat. 23 Eliz. cap. 1. Sect. 7. Against any Person either for not repairing to Church This branch extends to all Recusants c. So that this Branch of the Statute which gives the Conviction by Proclamation extends to other Recusants besides Popish Recusants and is not restrained to this latter sort but is misrecited in this particular by Dalton V. cap. 110. tit Forfeiture for Felony Shall be rendred to the Sheriff c. before the next Assizes c. In an Action brought against Sir John Webb and his Wife for recovery of twenty pounds per month for the Recusancy of the Wife The Defendants plead that the Feme was before that time convicted for the same absence upon Indictment at the Kings Suit Proclamation erroneous and Proclamation made that she should render her self at the next Assizes and default of appearance thereupon But it was resolved by the Court of Kings Bench That the Plea was ill and that this was not a Conviction according to Law and therefore was in effect as no Conviction For the Proclamation was erroneous in two points 1. In the person to whom the Statute saith it shall be proclaimed that the Offenders body shall be rendred to the Sheriff c. But this Proclamation was That she should render her self to the Justices of Assize For the rendring of the body to the Sheriff is a material point And the intent of the Statute is not pursued in this Proclamation For the intent was that Recusants being dangerous members of the Commonwealth should be in the Custody of the Sheriff c. ne nocere valeant 2. In the time when The Proclamation was that she should render her self at the next Assizes but the Statute saith before the next Assizes And when the Proclamation is ill the Conviction for default of appearance thereupon cannot be good nor shall bar the King or the Informer of their Action And although by the subsequent Clause in this Act That no Proclamation shall be avoided for any defect c. the Recusant perhaps may be estopped to take such exception to the Proclamation yet the King is not Palmer 40.41 Bridgman 122. Rolles 2.108 Note that Palmer in his Report of this Case hath stated the first difference between the Statute and Proclamation as 't is here laid down and so the truth of the Case was But in reciting Bridgmans Argument he reports it quite contrary viz. That the Proclamation was That the Recusants body should be rendred to the Sheriff and that it ought to have been that it should be rendred to the Justices of Assize But this is a mistake and contrary to the Statute and the truth of the Case Or other kéeper of the Goal Keeper of a Goal A keeper of a Goal may be by usage or prescription Lib. Assiz 259. A. 42. Pl. 7. Co. 1. Inst 114. And if the person indicted for Recusancy live in a Corporation where the Sheriff hath not to do and he be Proclaimed upon this Statute he may render himself to the keeper of the Goal there Shall not make appearance of Record And if the Recusant do appear of Record at the Assizes Appearance shall save the default Goal delivery or general or quarter Sessions it shall be sufficient to save his default although he did not render himself to the Sheriff upon the Proclamation and this is clear by the words of the Statute which is grosly mistaken in this particular by Wingate tit Crowne numb 102. who saith the Recusant shall be convicted if he render not his Body to the Sheriff or Bailiff of the Liberty and that default be recorded Appearance how to be made This appearance must be in proper person and not by Attorney for none can at first appear by Attorney unless enabled by some Statute and all appearances by the Defendant in any Court ought by the Common Law to be in person Co. 10.101 Bewfages Case But after a Plea pleaded to an Indictment an Attorney may be admitted at the discretion of the Court if they think fit but not otherwise and in some Cases not without a special Writ directed to the Justices to that purpose Vide 16 E. 4. 5. Fitz. N. B. 26. It must be entred of record The party Indicted and Proclaimed who appears at the Assizes or Sessions must take care that his appearance be entred of Record For if the Clerk of the Assizes or Clerk of the Peace should mistake and instead thereof record his default he hath no way to avoid his standing convicted Action upon the Case But is put to his Action upon the Case against such Clerk of the Assizes or Peace Vide Popham 29. Keilway 180. What is a good appearance and what not The personal presence at the next Assizes or Sessions of the party indicted of Recusancy and Proclaimed although he continue there from the beginning to the ending is no sufficient ground to record his appearance nor shall save his default For
Recusant was absent from Church from the 10 of September 15 Jac. unto the 9 of Sept. 16. Jac. and demanded Two hundred and twenty pounds for eleven monthes upon non culp pleaded it was found against the Defendant And it was resolved that although the Informer had demanded less then by his own shewing was due for the time mentioned in the Information was thirteen months compleat except one day yet the Information was well enough For the Recovery shall be intended to be for the eleven months when the Recusant was first absent and the addition of more time is not material Cro. Pasch 17 Jac. 529. 530. Rolles 2. 90. Parker versus Sir John Curson and his Wife And this is not like the Case of Bawderock versus Mackaller where the Informer Qui tam c. upon the Statute of Symony demanded less than the penalty and the Court seemed to be of Opinion that although it was good enough for the King notwithstanding that misprision yet it was not so for the Informer and compared it to the Case of Agard and Candish where an Information was brought upon the Statute of Liveries after the year and it was Adjudged to be good for the King but not for the Informer Cro. Mich. 9. Car. 331. For upon the Statute of Symony which gives one intire penalty for the offence if less be demanded the Statute is not pursued And there is a clear variance between that and the Information But in the Case of Recusancy when he demands Two hundred pound for eleven moneths the Statute is pursued and though it appears by the Information that the Recusant was absent for a longer time yet the Informer is at liberty whether he will demand the penalty for his absence during that supernumerary time The Informer demands for 13 months and the Jury find for 12. If it be shewed in the Information that the Recusant was absent from Church from a day certain to a day certain which in all makes 13 months and the penalty is demanded for that time and the Jury find the party guilty for 12 months It hath been held by some that the Verdict shall be good for 12 months But whether for the first 12 months is a question For in Sir J. Cursons Case supra the demand was but for 11 months And when the Jury finds the Defendant guilty it shall be intended to be for the 11 months for which the penalty is demanded and that shall be accounted from the 10 of September which was the first day of absence alledged in the Information and the rest of the time to the ninth of September following after the first eleven months is to be accounted as Surplusage But in this Case where the Jury abridges the time for which the penalty is demanded it may be questioned whether the Verdict shall be intended to be for the first twelve months of the thirteen And the Judges of the Kings Bench to salve a question of the like nature in an Information brought by Donner against Smith upon the Statute of Liveries seemed to be of Opinion That it is not material which were the twelve months wherein the party offended Cro. Trin. 43 Eliz. 835. But if that Opinion be Law it must follow that the party can never be punished for the thirteenth month but that must be remitted to him because it 's left uncertain which of the thirteen shall be accounted the month not found by the Jury And it rather seems for this reason That the Verdict is void for the uncertainty which twelve months of the thirteen the party offended unless it shall be intended of the first twelve Mr. Shephard in his Sure Guide cap. 6. Sect. 5. raises this Question viz. Stat. 1 Eliz. 2. This Statute having reference to that of 1 Eliz. cap. 2. which saith every one shall come to Church every Sunday and Holy-day whether he that is not at Church every Holy-day doth not rigore juris forfeit 20 l. a month by force of this Statute of 23. But this Question seems altogether needless The forbearance from Church must be for a whole month or no forfeiture of 20 l. For 't is clear by the express words here that it must be a forbearance from Church contrary to 1 Eliz. for a whole month together that makes the party liable to the forfeiture of 20 l. and if he comes to Church on any Sunday or Holy-day within the month he is freed from the penalty of 20 l. although not from the twelve pence by 1 Eliz. for the days of his absence if he comes not every Sunday and Holy-day both Be bound Some have made a question Recusants where to be bound to the good behaviour and among them Mr. Shephard in his Sure Guide cap. 6. Sect. 5. by whom or in what Court the Recusant shall be bound to the good behaviour by force of this Statute For that the Court is not expresly mentioned And Wingate in his Abridgment of this Clause tit Crown numb 44. hath stumbled upon a Conceit That after Certificate made into the Kings Bench a Justice of Assize Goal delivery or Peace shall bind the party to the good behaviour and misrecites the Statute accordingly But it seems That the intention of the Law-makers was that he should be bound in the Kings Bench and of that Opinion is Dalton V. cap. 75. title Good Behaviour For where any proceedings are appointed to be upon or after a Certificate sent to any Court there by common Intendment the proceedings are to be in that Court to whom the Certificate is sent if no other Court be named And it cannot be presumed by any reasonable construction of this Act That the Certificate into the Kings Bench is to any other end than for the Justices there to proceed in such manner as the Act directs to be done after such Certificate as no question they may in this Case as well as upon Certificate of a Presentment or of refusal of the Oath of Supremacy against the Statute of 5 Eliz. cap. 1. Stat. 5 Eliz. 1. quod vide supra And 't is a rule in construction of Statutes that where the intention plainly appears the Law ought to be advanced according to its end though the words be short and imperfect especially Laws made for Religion as is held in Colt and Glovers Case Hobart 157. and Magdalen Colledge Case Co. 11. Vide Bulstrode 2. 155. the Case of Griffith and others Popish Recusants convict not sufficient sureties Sufficient sureties Popish Recusants convicted are not to be reputed sufficient sureties and therefore were refused by the Court of Kings Bench in the Case of Griffith and other Recusants who were brought thither to be bound to their good Behaviour Bulstrode 2. 155. And be it further Enacted That if any person or persons body Politick or Corporate Stat. Sect. 6. The forfeiture for keeping of a Schoolmaster not repairing to Church or allowed by the Ordinary after
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
perswades others so to do and not then neither unless he hath been absent from Church by the space of a month Where this Act extends to Popish Recusants Vnder colour or pretence of any exercise of Religion Although this Act is commonly called the Act against Sectaries as distinguished from those of the Romish profession yet in truth it extends to all Recusants whatsoever as well Popish as other except in the point of abjuration For the Popish service is performed under colour or pretence of exercise of Religion and the Assembly or Meeting of Popish Recusants under such colour or pretence is an Assembly or Meeting contrary to the Laws and Statutes And they as well as others may be Indicted upon this Statute if they forbear to come to Church for the space of a moneth and be present at any part of the Popish service or move or perswade ut supra And may be imprisoned without Bail until they conform and make submission as by this Act is appointed But they cannot be required to abjure unless they offend against the Statute of 35 Eliz. cap. 2. Stat. 35 Eliz. 2 A Popish Recusant is likewise subject to the Action of Debt c. given to the Queen by this Statute Being thereof lawfully convicted That is What conviction sufficient convicted both of his absence from Church and of that other Offence which makes him punishable by this Act viz. going to Conventicles or moving or perswading c. for his absence from Church for a month must be laid down precisely in the Indictment for without that the other is no Offence within this Act as hath been said And 't is not necessary that the party be convicted of such absence upon any Prior Indictment for although there was never any former conviction of him for Recusancy yet if he offend against this Act in any of the other particulars he may be convicted both of that Offence and of his absence upon one and the same Indictment And so was the Indictment in the Case of Lee and others who were Indicted upon this Statute at the Sessions of the Peace in Essex for absenting themselves for a month from Church and resorting to Conventicles To which they pleaded not guilty and the Indictment was removed into the Kings-Bench to be tried there Cro. Mich. 16 Car. 593. Trial. Provided always Stat. Sect. 2. An Offender not conforming himself abjure shall the Realm and be it further Enacted by the Authority aforesaid That if any such person or persons which shall offend against this Act as aforesaid shall not within thrée months next after they shall be convicted for their said Offence conform themselves to the obedience of the Laws and Statutes of this Realm in coming to the Church to hear Divine Service and in making such publick Confession and Submission as hereafter in this Act is appointed and expressed being thereunto required by the Bishop of the Diocess or any Iustice of the Peace of the County where the same person shall happen to be or by the Minister or Curate of the Parish That in every such Case every such Offender being thereunto warned or required by any Iustice of the Peace of the same County where such Offenders shall then be shall upon his and their Corporal Oath before the Iustices of the Peace in the open Quarter Sessions of the same County or at the Assizes and Goal delivery of the same County before the Iustices of the same Assizes and Goal delivery abjure this Realm of England and all other the Queéns Majesties Dominions forever unless her Majesty shall licence the party to return And thereupon shall depart out of this Realm at such Haven or Port and within such time as shall in that behalf be assigned and appointed by the said Iustices before whom such abjuration shall be made unless the same Offender be letted or stayed by such lawful and reasonable means or causes as by the Common Laws of this Realm are permitted and allowed in Cases of abjuration for felony And in such cases of let or stay then within such reasonable and convenient time after as the Common Law requireth in Case of abjuration for Felony as is aforesaid And that the Iustices of Peace before whom any such abjuration shall happen to be made as is aforesaid shall cause the same presently to be entred of Record before them and shall certifie the same to the Iustices of Assizes and Goal delivery of the County at the next Assizes of Goal delivery to be holden in the same County In what case the offender is not bound to abjure Being thereunto required by the Bishop c. or any Iustice of the Peace c. But put the Case that the Offender is convicted and the Three months next after his Conviction elapse before he is required by the Bishop or any Justice of Peace or the Minister or Curate of the Parish to conform and make the submission here appointed and afterwards he is required by one of them so to do It seems in this Case such request comes too late for he ought to conform and submit within the three months if he be required but if he be not required he is not bound to abjure for omitting it although he shall remain in prison till he conforms and submits But if within the three months he be required to conform and submit and refuse there is no question but he may be at any time afterwards warned or required to abjure Abjuration Abjure this Realm of England c. Vide Stat. 35 Eliz. cap. 2. Sect. 6. Stat. Sect. 3. The punishment for refusing to abjure not departing or returning without Licence And if any such Offender which by the tenor and intent of this Act is to be abjured as is aforesaid shall refuse to make 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 as in Case of Felony without benefit of Clergy Vide Stat. 35 Eliz. cap. 2. Sect. 7. Stat. 35 Eliâ— â— And furthermore be it Enacted by the Authority of this present Parliament Stat. Sâ—ct 4. An Offender shall be discharged upon his open submission That if any person or persons that shall at any time hereafter offend against this Act shall before he or they be so warned or required to make Abjuration according to the tenor of this Act repair to some Parish Church on some Sunday or other Festival day and then and there hear Divine Service And at Service time before the Sermon or reading of the Gospel make
Curate of the Parish That in every such Case every such Offender being thereunto warned or required by any two Iustices of the Peace or Coroner of the same County where such offender shall then be shall upon his or their corporal Oath Abjuration before any two Iustices of the Peace or Coroner of the same County abjure this Realm of England and all other the Queéns Majesties Dominions forever And thereupon shall depart out of this Realm at such Haven and Port and within such time as shall in that behalf be assigned and appointed by the said Iustices of Peace or Coroner before whom such abjuration shall be made unless the same Offenders be letted or stayed by such lawful and reasonable means or causes as by the Common Laws of this Realm are permitted and allowed in Cases of abjuration for felony And in such Cases of let or stay then within such reasonable and convenient time after as the Common Law requireth in Case of abjuration for felony as is aforesaid Abjuration to be entred of Record and certified And that every Iustice of Peace and Coroner before whom any such abjuration shall happen to be made as is aforesaid shall cause the same presently to be entred of Record before them and shall certifie the same to the Iustices of Assizes or Goal delivery of the said County at the next Assizes or Goal delivery to be holden in the same County If any such person or persons being a Popish Recusant That is any Popish Recusant within the former Branches of the Statute and none but such What Popish Recusants are within this Branch and which not Dalton V. cap. 45. tit Recusants applies this Clause to Popish Recusants convicted as if it concerned them and them only and so both at once extends and restrains the Statute contrary to its true meaning For these words any such person or persons neither extend to all that are convicted nor are restrained to such only as are convicted For the Popish Recusant who hath a certain place of aboad within this Realm although he be convicted is not within this Statute unless he were a Popish Recusant and in England at the time of his Conviction And the Popish Recusant who hath no certain place of aboad within this Realm is within this Statute although he were never convicted so that either of these sorts of Popish Recusants who have an Estate under value viz. he who hath no certain place of aboad and he who having a certain place of aboad was convicted when a Popish Recusant and in England and no other are liable by this Act to Abjuration Of the clear yearly value Clear yearly value of Twenty marks above all Charges A Rent-charge of 40 l. per Annum is issuing out of Lands worth 100 l. per Annum a Popish Recusant liable to be confined by this Statute purchases for his Life or in Fee parcel of the Lands of the clear yearly value of Twenty marks over and above what his proportion of the said Rent-charge comes to This is an Estate of the clear yearly value of Twenty marks within the meaning of this Act and shall free him from abjuration For although in strictness of Law his Estate be not clearly so much above all charges For that 't is chargeable with an yearly Rent of Forty pounds yet in equity he shall pay no more then his proportion of it which the Land he purchased will discharge and yet yield Twenty marks per Annum clearly besides Or Goods and Chattels This Statute being in the disjunctive Lands or Goods an Estate partly of Lands Goods and Lands not to be valued together and partly of Goods will not satisfie the intent thereof And therefore if a Popish Recusant who offends against this Act hath fifteen Marks per Annum clearly in Lands and be worth Thirty pounds in goods although this taken together be in truth an Estate of more value then is here required yet it shall not free him from Abjuration For the Statute doth not warrant any valuation of the Lands and Goods together so as to supply the defect of the yearly value of the Lands by the Goods or the defect of the value of the Goods by the Lands and therefore the Recusant must have such an Estate in the one or the other as will answer the Statute And this is not like the Case of Jurors upon the Statute of 2 H. 5. Stat. 2 H. 5. 3. cap. 3. where 't is said That the Iuror shall have Lands of the clear yearly value of Forty shillings if the Debt or Damage declared amount to Forty marks in which Case although it be in the disjunctive debt or damage yet it hath been adjudged that where the debt and damages both amount to Forty marks it is sufficient and the Juror must have Forty shillings per Annum Co. 1. Inst 272. For in that Case the word or is cumulative and debt or damage both amount to no more then one intire thing viz. the value of the Cause or Action depending And it appears plainly to be the intent of the makers of the Law that no Cause declared to be of the value of Forty marks shall be tried by Jurors of a less Estate but in our Case the Lands and Goods are things of different nature one real the other personal and cannot be regularly reduced under one and the same head and therefore shall not be valued together unless the Act had expresly appointed such a Valuation But yet if a Popish Recusant hath a Lease for years But leases for years and personal goods may and personal Goods and both do amount in value to above Forty pounds he shall be out of the danger of Abjuration For although the Lease is in the realty and the Goods are personal yet they shall in this Case be valued together For that by this Copulative and the Statute expresly so appoints without distinguishing between the values of either but makes it sufficient if both of them be of that value Money secured upon a Mortgage Mortgage of Lands is within the meaning of these words Goods and Chattels And if the Popish Recusant hath above Forty pounds owing to him upon such Mortgage he cannot be required to abjure Within three months next after such person shall be apprehended or taken Wingate in abridging this Clause tit Crowne numb 80. clearly mistakes the meaning of it For he saith that a Popish Recusant whose estate is under value must make the submission prescribed by this Act within three months next after his arrival at his place of aboad which is a complicated Error For he quite leaves out him who is to repair to the place where he was born or his Father or Mother dwels He makes the party liable to such submission before he becomes an offender by not repairing or not presenting himself and giving in his true name or travelling above five miles He speaks nothing of his being
person which shall be so suspected shall refuse to answer directly and truly whether he be a Iesuit or a Seminary or Massing Priest as is aforesaid every such person so refusing to answer shall for his Disobedience and Contempt in that behalf be committed to Prison by such as shall examine him as is aforesaid and thereupon shall remain and continue in Prison without Bail or Mainprize until he shall make direct and true answer to the said Questions whereupon he shall be so examined Cause of suspicion Suspected Although the party be no Jesuit Seminary or Massing Priest yet if there be cause to suspect him and he refuse to answer whether he be so or no such suspicion and refusal is ground enough for his Commitment Having lawful Authority in that behalf This Clause seems to refer to the Statute of 27 Eliz. cap. 2. Stat. 27 Eliz. 2. which appoints that the discovery of a Popish Priest or Jesuit shall be made to some Justice of Peace or higher Officer who is to give Information thereof to some of the Privy Council c. under the penalty of two hundred marks Who shall examine a Jesuit c. which Statute of 27. though it do not in express terms say that the Justice of Peace or other higher Officer shall examine the Priest or Jesuit so discovered yet inasmuch as it gives him power to take Cognizance of the matter it seems implicitely to impower him to inform himself of the truth whether the party be a Priest or Jesuit or not as well by examination of the party as otherwise that he may be the better enabled to give Information thereof to some of the Privy Council c. And one Justice of Peace having by 27. lawful Authority to examine him he hath Authority likewise by this Statute of 35. to commit him And commit him if he be suspected to be a Priest or Jesuit and refuses to answer whether he be such or no. As for Mr. Shephards Opinion in his Sure Guide cap. 14. Sect. 5. that there must be two Justices of Peace to Commit a man by force of this Statute who is suspected to be a Jesuit or Priest till he answers directly I see no ground at all for it Answer to the said Questions That is To what point he may be examined whether he be a Jesuit Seminary or Massing Priest for he is not bound to answer to any other question nor can be committed by force of this Act for his Refusal Provided nevertheless Stat. Sect. 9. Licence to travel above five miles Alt. 3 Jac. 5. and be it further Enacted by the Authority aforesaid That if any of the persons which are hereby limited and appointed to continue and abide within five miles of their usual dwelling place or of such place where they were born or where their Father and Mother shall be dwelling as is aforesaid shall have necessary occasion or business to go and Travel out of the compass of the said five miles That then and in every such Case upon Licence in that behalf to be gotten under the hands of two of the Iustices of Peace of the same County with the privity and assent in writing of the Bishop of the Diocess or of the Lieutenant or of any Deputy Lieutenant of the same County under their hands it shall and may be lawful for every such person to go and Travel about such their necessary business and for such time only for their travelling attending and returning as shall be comprised in the same Licence Any thing before in this Act to the contrary notwithstanding This Clause is repealed Repeal Stat. 3 Jac. 5. and a new form of Licence appointed by the Statute of 3 Jac. cap. 5. which see there Sect. 8. Provided also Stat. Sect. 10. Persons urged by Process or commanded to appear That if any such person so restrained as is aforesaid shall be urged by Process without fraud or covin or be bounden without fraud or covin to make appearance in any her Majesties Courts or shall be sent for commanded or required by any thrée or more of her Majesties Privy Council or by any four or more of any Commissioners to be in that behalf nominated and assigned by her Majesty to make appearance before her Majesties said Counsel or Commissioners That in every such Case every such person so bounden urged commanded or required to make such appearance shall not incur any pain forfeiture or loss for travelling to make appearance accordingly nor for his abode concerning the same nor for convenient time for his return back again upon the same Vrged by Process If a Popish Recusant restrained by this Act be summoned by Warrant of a Justice of Peace to appear before him the Recusant ought not to travel to such Justice out of his compass of 5 miles For although a Justice of Peace his Warrant be the Kings Process Wha◠Process is here meant yet it is not intended here For these words urged by Process are restrained by the subsequent words to such Process as requires the Recusants appearance in some one of the Kings Courts and extend not to all Cases of Summons and Process as Wingate tit Crown numb 83. mistakes But if in the Case aforesaid the Warrant be to Arrest the Recusant and by force thereof he be carried by the Constable c. out of the compass of five miles there he is excused and shall forfeit nothing for that it was done by compulsion And yet if there be any Covin between the Recusant and the Justice of Peace or Officer it may be otherwise The Kings Courts In any her Majesties Courts All Courts wherein the proceedings are directed by the Kings Laws are the Kings Courts and therefore a Court Leet Court Leet though of an inferiour nature and kept in the Lords name yet is the Kings Court Co. 5. 39. Cawdries Case Hetley 18. Ecclesiastical Court If a Popish Recusant restrained by this Act be cited into the Ecclesiastical Court he may by force of this Proviso Travel out of the compass of five miles to appear there for all Ecclesiastical Courts are the Kings Courts and the Laws by which they proceed there are the Kings Laws Vide Cawdries Case supra Vide Stat. 3 Jac. cap. 5. Sect. 7. Stat. Sect. 11. Persons which are to yield their bodies to the Sheriff And be it further provided and enacted by the Authority aforesaid That if any such person or persons so restrained as is aforesaid shall be bound or ought to yield and render their bodies to the Sheriff of the County where they shall happen to be upon Proclamation in that behalf without fraud or covin to be made That then in every such Case every such person which shall be so bounden or ought to yield and render their body as aforesaid shall not incur any pain forfeiture or loss for Travelling for that intent and purpose only without any fraud
the Exchequer in the Case of Sir Edward Lenthal Cro. Hill 12 Jac. 365. Shall for every such offence lose and forfeit Thréescore pounds Receiving the Sacrament and neglecting it afterwards If a Popish Recusant once receive the Sacrament after his Conformity and afterwards neglect so to do within the time prescribed by this Act and is guilty of such neglect for two years together although he was never convicted for the first year yet an Information lies against him and he shall forfeit Threescore pounds for the second year For he is liable to pay so much for every offence that is for every year wherein he neglects to receive the Sacrament after he hath once received it The Informer may sue for any year and the Informer is at his liberty for which offence or year he will inform whether for the first second c. And the reason of this is because here are no steps or gradations to increase the penalty for the second or third offence but the penalty is equal and a like in this Case for every offence It is observable that the Popish Recusant who after his conformity receives the Sacrament and afterwards neglects so to do for the space of one or more years is in worse Condition then he who conforms and receives it not at all For in this last Case he shall forfeit but Twenty pounds for the first and Forty pounds for the second year But if he once receive the Sacrament and afterwards neglect it for the space of two years he shall forfeit for each of those years Threescore pounds To him that will sue for the same An Information upon this Branch of the Statute must be brought by an Informer Qui tam c. within a year after the offence or neglect Within what time he must sue or he can take no advantage thereof For such an Information is within the Statute of 31 Eliz. cap. 5. Stat. 31 Eliz. 5 Cro. Hill 12 Jac. 366. Vide Statute 23 Eliz. cap. 1. Sect. 9. Before whom a Common Informer cannot sue Or before Iustices of Assize c. Note that notwithstanding these words an Information on this Statute by an Informer Qui tam c. for not receiving the Sacrament cannot be brought before Justices of Assize or Goal delivery or Justices of Peace For no Common Informer can sue for the King and himself before any of those Justices but must sue in one of the Courts of Record at Westminster as was resolved Mich. 4. Car. 1. Jones 193. Vide Stat. 23. Eliz. cap. 1. Stat. 23 Eliz. 1 Sect. 9. Stat. Sect. 3. Presenting the monthly absence from Church of a Recusant And be it further Enacted by the Authority of this present Parliament That the Churchwardens and Constables of every Town Parish or Chappel for the time being or some one of them or if there be none such then the chief Constables of the Hundred where such Town Parish or Chappel is or shall be or one of them as well in places exempt as not exempt shall once in every year present the monthly absence from Church of all and all manner of Popish Recusants within such Towns and Parishes and shall present the names of every of the Children of the said Recusants being of the age of nine years and upwards abiding with their said Parents and as near as they can the age of every of the said Children A Recusants Children and Servants as also the names of the Servants of such Recusants at the general or Quarter Sessions of that Shire limit division or liberty Of all and all manner of Popish Recusants Whose monthly absence from Church must be presented and whose not As this Act is penned it seems that the Churchwardens and Constables are not bound thereby to present the monthly absence from Church of any of the Children or Servants of a Popish Recusant although such Children or Servants be Recusants unless they are Popish Recusants And that 't is sufficient to satisfie the Statute to present their names without taking any notice of their absence from Church But if they be Popish Recusants they fall within the general words of the Act and their monthly absence ought to be presented as well as that of their Parents or Masters Wingate in his Abridgment of this Statute tit Crown numb 100. hath clearly mistaken the meaning thereof in this particular for he tells us that the monthly absence of all the Children and Servants of a Popish Recusant ought to be presented At the general or Quarter Sessions General or Quarter Sessions Stat. 23 Eliz. 1 What is meant by those words vide Stat. 23 Eliz. cap. 1. Sect. 7. And be it further Enacted by the Authority aforesaid Stat. Sect. 4. The presentments recorded That all such presentments shall be accepted entred and recorded in the said Sessions by the Clerk of the Peace or Town-Clerk for the time being or his Deputy without any Fée to be had asked or taken for the same And in default of such presentment to be made the said Churchwardens Constables or High Constables respectively shall for every such default forfeit twenty shillings And in default of such accepting entring and recording without Feé as aforesaid the said Clerk of the Peace or Town-Clerk shall for every such Offence forfeit and lose forty shillings And that upon every Presentment of such monthly absence as aforesaid The reward of the Church-wardens and Constables whereupon such party so presented shall after happen to be Indicted and Convicted not being for the same absence before presented Then the said Churchwardens Constables or High Constables respectively so making such Presentments shall have a reward of forty shillings to be levied out of the Recusants Goods and Estate in such manner and form as by the more part of the said Iustices shall be by Warrant under their Hands and Seals then and there ordered and appointed Stat. Sâ—ct 5. What Justices shall hear and determin these Offences And be it further Enacted by the Authority aforesaid That the Iustices of Assize and Goal delivery at their Assizes and the said Iustices of Peace at their said Sessions shall have Power and Authority by virtue of this Act to enquire hear and determine of all Recusants and Offences as well for not receiving the Sacrament aforesaid according to the true meaning of this Law as for not repairing to Church according to the meaning of former Laws in such manner and form as the said Iustices of Assize and Goal delivery do or may now do by former Laws in the Case of Recusancy for not repairing to Church And also shall have power at their Assizes and Goal delivery and at the Sessions in which any Indictment against any person either for not repairing to Church according to former Laws or not receiving the said Sacrament according to this Law The effect of the Proclamation shall be taken to make Proclamation By
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
the person Co. 1. Inst 128. Plea in disability is peremptory The Defendant in Debt upon an Obligation pleads that the Plaintiff is a Popish Recusant Convict who replies nul tiel Record Such Plea in disability of the person is peremptory and nul tiel Record is an Issue and Judgment shall be given against the Defendant upon failer of the Record Hetley 18. But yet if there be a Plea of a Conviction of Recusancy had before Justices of Gaol delivery and the Defendant mistakes and takes out a Certiorari Certiorari to the Justices of Peace this shall not be a failer of the Record Failer of Record although the Defendant hath it not at the day For that the issuing of the Certiorari was the Award of the Court But a Certiorari shall be awarded de novo to the Justices of Gaol delivery before whom the Plaintiff was convicted Hobart 135. Pye against Thrill Note if the Defendant be sued in the Common Pleas or any other of the principal Courts at Westminster and he plead a Conviction of Recusancy before Justices of Gaol delivery or Justices of Peace he need not take his Certiorari Certiorari out of what Court out of the Chancery and so bring it by Mittimus But the Court may send a Certiorari immediately to that inferiour Court where the Plaintiff was convicted as was held in that Case of Pye and Thrill vide 19 H. 6. 19. And the Justices themselves And by whom before whom the Conviction was had must certifie and therefore if the Conviction was before Justices of Peace the Certificate cannot be by the Custos Rotulorum Custos rotulorum alone though he keep the Records for the Certiorari is in such Case directed to the Justices of Peace Hobart 135. A Popish Recusant is convicted of Recusancy in a popular Suit and after such Conviction sues the Informer Qui tam c. Who may take advantage of this disability Informer upon some other matter or cause of Action arising between them Quaere whether the Defendant may plead such Conviction in disability of the Recusant For this Conviction disables the Recusant to sue as if he were excommunicated and no otherwise Now if a Bishop Excommunicate any one and the Bishop Bishop be afterwards sued at Law for any other matter or cause by the person so excommunicated the Bishop cannot plead this Excommunication in disability of the Plaintiff who sues him Co. 1. Inst 134. Swinborne Part 5. Sect. 6. p. 305. And the reason given for this in Trollops Case Co. 8. 68. is because the Bishop was a party to the Excommunication and therefore shall take no advantage by it which reason seems to hold likewise in the Case of an Informer Qui tam c. who is a party to the Conviction of the Recusant upon the popular Suit which Conviction renders the Recusant disabled to all intents as an Excommunicant person And therefore he being a party to it by the same Rule shall not take advantage of it in disability of the Recusant in any Action brought by the Recusant against him But yet notwithstanding I conceive the Informer Qui tam c. at whose Suit the Recusant was convicted may well take advantage of this Conviction and plead it in disability of the person of the Recusant And that the true reason why the Bishop shall not be admitted to plead an Excommunication pronounced by himself in disability of the person Excommunicated is not because he is a party to the Excommunication but because in matters of Excommunication the Bishop acts as a Judge and 't is by his Sentence and Authority that the party is Excommunicated and he shall not take advantage in another Suit of a Sentence given by himself judicially And this will not hold in the Case of an Informer who though he be a party to the Suit in which the Recusant is disabled as an Excommunicate person yet is no Judge in the Case whether the party Sued shall be disabled or no as the Bishop is in the other Case where the party is actually Excommunicated by him And if the Bishop should be barred to Plead and take advantage of such Excommunication because he is a party thereunto it would follow that the person who Sues in the Spiritual Court and at whose instance the person Sued is Excommunicated should be barred likewise to take advantage of such disability in the Plaintiff at Law for he is a party to the Excommunication for that he is a party to the Suit upon which the Excommunication is originally founded But the contrary to this is strongly implied in 14 H. 4. 14. where the Case was A. was Excommunicated in a Suit depending between him and B. and afterwards A. Sues B. upon the Statute of Praemunire who pleads this Excommunication in disability of the Plaintiff Here the Plea was disallowed because the principal Suit on which the Excommunication depended was brought before the Pope But in the debate of the Case there was not the least word of exception to the Plea upon this ground because the Excommunication was at the instance of the Defendant or that the Defendant should not take advantage of the Plaintiffs disability for that he was a party to the Excommunication which disabled him Executor or Administrator disabled If an Executor or Administrator becomes a Popish Recusant convict it seems he is disabled by this Act to Sue in either of those Capacities For the Act saith He shall be disabled to all intents as an Excommunicate person Now a person actually Excommunicated cannot Sue as Executor or Administrator as is held in 21 E. 4. 49. 21 H. 6. 30. 14 H. 6. 15. Co. 1. Inst 134. Although there are some opinions to the contrary Vide Finch 27. Stat. Sect. 13. What Suits a Popish Recusant may prosecute Provided nevertheless That it shall and may be lawful for any such person so disabled for and notwithstanding any thing in this Law contained to sue or prosecute an Action or Suit for or concerning only such of his or her Lands Tenements Leases Rents Annuities and Hereditaments or for the Issues and Profits thereof which are not to be seized or taken into the Kings hands his Heirs or Successors by force of any Law for or concerning his or her Recusancy or any part thereof Which are not to be seized or taken into the Kings hands c. These words are not restrained to such Lands Lands seized into the Kings hands c. as cannot be seized into the Kings hands for Recusancy For then the Recusant could in no case Sue for more then the third part for that the King may if he please make his Election and seize the other two parts in lieu of the Twenty pounds per month But they are intended of all Lands c. of the Recusant which neither the King hath seized nor are by Law to be seized by vertue of any thing
or principal Secretary for the time being to be one And if such person or persons live and reside in the Country distant above thirty miles from London then before the Lord Bishop of the Diocess or such other person or persons as the Lord Chancellor or Lord Kéeper of the Great Seal for the time being shall thereto by Writ of Dedimus potestatem Authorize The sworn Servants of the King Queen Prince c. And all and every the sworn Servants ordinary and extraordinary of your Highness the Quéens Grace or of the Houshold of the Prince of Wales and of the rest of your Highness Children before the Lord Steward the Lord Chamberlains and Vicechamberlains to your Highness and the Quéen the Treasurer and Controller of your Highness Houshold the Master of your Highness Horse the Dean of the Chappel and the Knight Marshal for the time being the Officers of the Gréen-cloth or any thrée of them Temporal Judges Ministers of Justices They which receive any Fée of the King All and every temporal Iudge Iustices of Peace Sheriffs Escheators Feodaries and other Officers and Ministers of Iustice in this present Act not specially mentioned and every other person or persons that doth or shall receive any Fée of your Highness your Heirs and Successors before the Lord Chancellor or Lord Kéeper of the Great Seal Lord Treasurer Lord Admiral Lord Warden of the Five Ports for the time being or one of them or before one of the Chief Iustices either of your Majesties Bench or of the Common Pleas or before Iustices of Assize of the same County where the parties reside or other such persons as the Lord Chancellor or Keeper of the Great Seal shall thereto Authorize Chief Officers of Cities and Towns Corporate And all Mayors Bailiffs or other chief Officers of Cities and Towns Corporate by what name soever they be called or known before such person or persons as usually administer the Oath to them at their first entrance into their said Offices And all and every the Knights Citizens Burgesses and Barons of the Five Ports of the Commons House of Parliament Stat. Sect. 2. Knights Citizens Burgesses and Barons of the Commons House of Parliament at any Parliament or Session of Parliament hereafter to be Assembled before he or they shall be permitted to enter into the said House before the Lord Steward for the time being or his Deputy or Deputies The King cannot dispence with any Member of the Commons House of Parliament from taking this Oath The Kings dispensation void For that he is here declared to be persona inhabilis until he take it Vaughan 355. Thomas and Sorrel's Case And the Master of the Ordnance Lieutenant of the Tower Stat. Sect. 3. Master of the Ordnance Lieutenant of the Tower c. of London and Mint-master there the four principal Officers of your Navy under the Lord Admiral before the Lord Chancellor or Lord Keeper of the Great Seal and the Lord Admiral for the time being or any of them And all the Officers Ministers Officers and Servants in the Tower Servants and others within your said Tower of London before the Lieutenant of the Tower And all the Vice-Admirals Captains Masters Officers Ministers and Souldiers in your Highness Ships or any of them before the said four principal Officers of your Navy or any two of them And all persons having charge of Castles Fortresses Captains of Castles and Souldiers Block-houses or Garrisons and all Captains who shall have Charge of Souldiers within this your Highness Realm before the Iustices of Assize of the same County or before two Iustices of the Peace of the same County City or Liberty where the same Castles Fortresses or Block-houses shall stand or the Charge of Souldiers shall be All Doctors Advocates and Proctors of the Civil Law Doctors Advocates and Proctors of the Civil Law and their Clerks before the Bishop of the Diocess where they shall for the most part dwell or reside And all and every person or persons Temporal that hereafter shall Sue Livery or Ouster le maine Suers of Livery and Ouster le maine out of the Hands of your Highness your Heirs or Successors before his or their Ouster le maine Sued forth and allowed before the Master of the Wards and Liveries or before the Surveyor and Attorney of your Highness said Court in open Court Sergeants at Law and the Judges Servants All the Sergeants at Law Servants to the Iudges in your Highness Courts at Westminster and all other in the Sergeants Inns before the Chief Iustice of your Majesties Bench the Chief Iustice of the Common Pleas and the Chief Baron of your Exchequer or some or one of them Gentlemen of the Inns of Court Principals and Treasurers of the Inns of Chancery All your Highness Subjects in the Inns of Court or that hereafter shall be admitted thereinto and the Principals and Treasurers of every Inn of Chancery before the Readers and Benchers of the several houses whereto they belong or four of them at the least in their open Halls All others of the Inns of Chancery All other your Majesties Subjects as well Ancients as other not being Principal or Treasurer that now are or hereafter shall be admitted into any Inn of Chancery before the Principal or Treasurer and Ancients of the several Inns of Chancery or four of them in their open Halls Prothonotaries Philizers Officers Attorneys Clerks All Prothonotaries Philizers Officers Ministers Attorneys and Clerks that now are or hereafter shall be admitted to write or practice in any of your Highness Courts at Westminster or in any other Court of Record before the Iudge or Iudges of the same Court Clerks and Officers of the Chancery All Clerks of the Chancery and all their under-clerks and all other Officers of the said Court of Chancery and their Clerks before the Master of the Rolls for the time being or before two of the Masters of the said Court of Chancery Parsons Vicars Curates persons in Orders Schoolmaster Usher All Parsons Vicars and Curats and all other persons Ecclesiastical taking Orders and all and every School-master or Vsher before the Bishop of the Diocess or other Ordinary in the same sitting in open Court The Vice-chancellors of both the Universities Heads of Colledges and Halls Proctors Beadles The Vice-Chancellors of both the Vniversities for the time being and the Presidents Wardens Provosts Masters of Colledges and Halls and all other Heads and Principals of Houses Proctors and Beadles of the Vniversities publickly in the Convocation before the Senior Masters there present Persons taking Degrees in School And all and every other persons whatsoever that is or shall be promoted to any Degrée in School before the Vice-Chancellor of the said Vniversity for the time being in the Congregation house Fellows and Schollers of Halls or Colledges All Fellows of Houses and all Schollers of Halls or
go out of the compass of five miles if required to appear before the Privy Councel 141. Three Privy Councellors may grant him a Licence to travel out of that compass 206 207 208. The nature of such Licence 207 208. The Privy Councel may send for a Popish Recusant confined to come to Court 201. To whom Privy Councellors are to give the Oath of Allegiance 195 196 197. 242. 245 246 247. They may commit the party to Prison for refusing it 250. Where a Privy Councellor may commit a married Noble woman convicted as a Popish Recusant and where not 252 253. County See Iustices of Peace Trial. Court see Recusants Courts See Certiorari Ecclesiastical Courts Informers Iustices Courts of Record what Courts are meant 82 83. 85. What Courts are the Kings Courts 142. In what Courts the King may sue for the penalties given him by 23 Eliz. 1. 122. Court of Kings Bench. See Informers Marshalsie The Justices of the Kings Bench are the Soveraign Justices of Oyer and Terminer and Goal-delivery 66. What offences they may hear and determine 35 36. 94. 188. 193 194. 258. To whom they may give the Oath of Supremacy 261 262. To whom they may tender and give the Oath of Allegiance 251. 261 262. Court of Exchequer see Exchequer High Commission Court Taken away by Act of Parliament 8. Cura animarum A Donative may be cum Cura animarum 233. A Deanry Archdeaconry Prebend are not Benefices with cure of Souls 233. Custom Custom for the Wife to have a part of the husbands goods where in force 222. Day FRactions of a day rejected in Law 198. Death see Recusants Default See Appearance Conviction Denizen Who 128. Naturalization includes Denization 128 129. Deprivation See Notice Pardon Deprivation ipso facto 12. 22 23. Sentence declaratory by the Ecclesiastical Judge where not necessary 22 23. Where a sentence of Deprivation by the Ecclesiastical Judge ought not to be questioned by the temporal Judge 31. Deputy see Officers Deputy Lieutenant see Licences Dignities Ecclesiastical see Cura animarum Disability See Plea Recusants A Popish Recusant convict is disabled as a person Excommunicate 193. 215 216. 223. Is disabled to sue 215 216 217 218 219 220. Such Disability is but quousque c. 216. Disabled to bear office 211 212. To be Executor 212. 234 235. Or Administrator 212. 234 235. Or Guardian 234. To be a witness 216. Or surety for the good behaviour 64. To present or nominate to a Benefice or Donative or to grant the next avoidance 226 227 228 229. Where disabled to be Tenant by the Courtesie 220. Or to have Dower 220. Or Jointure 220 221. Or any Goods by Custom 212 213. 220. 222. The Husband of a Popish Recusant convict where disabled to bear Office 211 212. A Recusant convict to what intents disabled 211. Disabilities inflicted on such as go beyond Seas without Licence 223 224. Or educate their Children in the Popish Religion or are so educated 264. Or send any person beyond Seas to be so educated or are so sent 257 258. Or who refuse the Oath of Supremacy 10. 43 44. Or the Oath of Allegiance 243. 251. Or execute any Office without taking the Oaths and Test injoined by 25 Car. 2.2.263 264. Discharge See Conformity Indictments Seizure Discontinuance see Informations Discovery See Iustices of Peace The reward of him who discovers the entertainer or reliever of a Jesuite or Popish Priest or Mass to have been said c. 200 201. To whom and within what time the discovery must be made 200 201. How the Reward shall be recovered 201. Disjunctive Where a Disjunctive shall be taken for a Copulative 184. Dispensation Dispensation by the King where void 44.243 Distribution see Penalty Donative See Recusants A Donative may be cum cura animarum 233. Dower See Baron Feme Dower in what cases saved 43.124 194. Where a woman shall be disabled to have any Dower 220. Ecclesiastical Courts and Iurisdiction See Church Deprivation Heresie King Parish FOrraign Ecclesiastical Jurisdiction abrogated 4 5. The Ecclesiastical Judge ought not to usurp upon the Temporal Law 6. The nature of his offence if he so usurps 6. The Queen might grant Commissions for the exercise of Ecclesiastical Jurisdiction 7 8. And that without the aid of 1 Eliz. 1.8 Archbishops and Bishops shall punish absence from Church and other offences against 1 Eliz. 2. by Ecclesiastical Censures 28. 30. Ecclesiastical Court not restrained by 1 Eliz. 2.31 Ecclesiastical Jurisdiction saved to Archbishops Bishops c. 88. 194. 239. Ecclesiastical Laws see Laws Ecclesiastical Persons See Common Prayer Clericus what it implies 21. Every Priest or Minister is Clericus 45. Election See Executors King Enquiry See Iustices What is meant by Enquire 68. Equity see Statutes Examination see Iustices of Peace Error see Alien Exchequer Principal Officers of the Court of Exchequer who 71. Principal Officers of the Receipt of Exchequer who 71. Excommengement See Recusants Where the Sheriff or other Officer may break the House to take one Excommunicated for Recusancy 193. Recusant Excommunicate i. e actually Excommunicate 223. Excommunication cannot be pleaded by the Bishop who Excommunicated the party and the reason of it 217 218. A person Excommunicate cannot sue as Executor or Administrator 218. Executors See Excommengement The offender hath his Election to pay the Forfeiture or be imprisoned and dies Quaere whether his Executors shall be charged 25 26. A man grants the Administration of his Goods and Chattels to J. S. thereby J. S. is made Executor 235. Who is disabled to be an Executor 212. 234 235. 258. 263. Failer of Records WHere Judgment shall be given on Failer of the Record 217 Where the not having the Record at the day shall be no Failer of the Record 217. Felony 90 91. 117. 139 140. 181 182 183. 194. See Vniversity Feme see Baron Feme Fine see Iustices Forfeiture See Abjuration Baron Feme Copyholds Penalty Recusants Forfeiture how a gift in Law 232. Forfeiture given without saving to whom shall be to the King 61. 70. Forfeiture in a Praemunire 46. 152. Forfeiture for Treason 152. Forfeiture of Lands generally shall not include intailed Lands 46. 152. Forraign see Iurisdiction Fraud See Covin Recusants Fraudulent Conveyances void 86 87. 99 100. 105. 231. Gaol see Imprisonment Goods See Seizure What is included within the word Goods 105. Grants by the King see King Grants by a Recusant See Covin Recusants Guardian See Kin. Recusants Who is disabled to be a Guardian 234. 263. Who shall be Guardian where the Recusant is disabled so to be 234 235. Heir Where there shall be no disherison of the Heir 42. 124. 194. Where the Conformity of the Heir of a Recusant shall discharge the arrears incurred in the Ancestors life time and where not 148 149 150. Hereditament What passes by Hereditament 106. 171 172. Heresie What the Ecclesiastical Commissioners might adjudge to be Heresie 16. What shall not be deemed Heresie or
Contents thereof or secretly deliver out such Books to others he knowing the Contents thereof unless in this last Case he be a Trader in them and deliver them out upon that Account without any act or attribution by conference or allowance he is an Offender within this Act by the words Hold and stand with to maintain c. and so is the receiver likewise if he afterwards Reads and Confers upon any such Book with any other person and in his Conference by any Words or Speeches allows the Book to be good or conveys it secretly to his Friend to the intent he should Read it and be perswaded to be of that Opinion or if a man hear of the Contents of such Book by the report of others and doth by any overt Speech commend or affirm it to be good In all these Cases the Person so doing especially he that reads it and then allows of it is an Offender within this Act and shall for the first Offence incur a Praemunire and for the second be Guilty of high Treason So likewise if any Book to that effect be made and Written within the Realm and sent over Seas as if it were made out of the Realm and be afterwards Bought Read or Conference be had thereupon ut supra such Offences are within the danger of this Law Dyer 11 El. 281. 282. vide Co. l. 6. Praefat ' Vpon purpose and to the intent The intent material A. was Indicted upon this Statute and that of 13 Eliz. cap. 2. of a Praemunire for aiding one B. knowing him to be a principal maintainer of the Authority and Jurisdiction of the Bishop and See of Rome contra formam Statut ' praedict ' and the Indictment was certified into the Kings Bench And it was held by the greater part of the Justices that the Indictment was insufficient for want of those words Vpon purpose and to the intent to set forth and extol the Authority c. And contra formam Statut ' will not supply that defect Trin. 20 Eliz. Dyer 363. Note in the Report of this Case the Statute of 1 Eliz. is mistaken for this of 5 Eliz. there being no mention of the intent in that of Primo Stat. 1 Eliz. 1. The intent is a hidden thing and lies in the Heart and therefore there must be some overt Act or Speech which declares the intent for the intent it self is not traversable What traversable but that by which it is made manifest as was adjudged in Boothes Case Co. 5. 77. And it is also Enacted by the Authority aforesaid Stat. That as well Iustices of Assize in their Circuits as Iustices of Peace within Sect. 3 the limits of their Commission and Authorities What Justices may inquire of and certifie the Offences aforesaid or two of every such Iustices of Peace at the least whereof one to be of the Quorum shall have full Power and Authority by vertue of this Act in their Quarter or open Sessions to inquire of all Offences Contempts and Transgressions perpetrated committed or done contrary to the true meaning of the Premises in like manner and form as they may of other Offences against the Quéens Peace and shall certifie every Presentment before them or any of them had or made concerning the same or any part thereof before the Queén her Heirs and Successors in her or their Court commonly called the Kings Bench within forty days next after any such Presentment had or made if the Term be then open and if not at the first day of the full Term next following the said forty days upon pain that every of the Iustices of Assize or Iustices of the Peace The Penalty for default of Certificate of the said Offences before whom such Presentment shall be made making default of such Certificate contrary to this Statute to lose and forfeit for every such default One hundred pounds to the Quéens Highness her Heirs and Successors And it is Enacted by the Authority aforesaid The Justices of the Kings Bench may hear and determine the Offences aforesaid That the Iustices of the Kings Bench as well upon every such Certificate as by enquiry before themselves within the limits of their Authorities shall have full Power and Authority to hear order and determine every such Offence done or committed contrary to the true meaning of this present Act according to the Laws of this Realm in such like manner and form to all intents and purposes as if the Person or Persons against whom any Presentment shall be had upon this Estatute had beén Presented upon any matter of offence expressed in the said Estatute made in the said Sixteenth year of King Richard the Second All Offences c. contrary to the true meaning of the Premises That is the Offences in holding or standing with to extol c. the Jurisdiction of the See or Bishop of Rome or attributing such Jurisdiction c. or Procuring Counselling c. which is here for the first Offence made a Praemunire For these are the only Premises in the Act and this Clause extends not to the Oath of Supremacy or any Offence in refusing of it much less to all Offences against this Act as 't is mistaken in the late Additions to Dalton cap. 140. tit High Treason Sect. 11. Nor doth it seem to be the intent of the Statute to give the Justices of Peace any Power to inquire of any Offence made High Treason thereby The Power of Justices of Peace herein For the Power here given to the Justices of Peace is only to inquire of Offences contrary to the true meaning of the Premises and the Premises extend only to those Offences made a Praemunire And this clearly appears by the subsequent words viz. That the Presentment thereof shall be certified into the Kings Bench who shall hear and determine every such Offence as if the Offender had been Presented upon any matter in the Statute of 16 R. 2. Now that cannot be intended of High Treason And of Justices of Assize The like may be said of Justices of Assize for as they are meerly Justices of Assize they cannot by force of this Act inquire of either the first or second Offence in refusing the Oath of Supremacy nor of the second Offence in extolling the Bishop of Romes Authority only for the first Offence of this last kind they may inquire and take Indictments thereof and certifie them into the Kings Bench but then by their Commission of Oyer and Terminer they may not only inquire of the first or second Offence in extolling the Bishop of Romes Authority or refusing the Oath of Supremacy but may hear and determine them And accordingly were Slade and Bodye Indicted Arraigned and Tried in the County of Southampton of a Praemunire for the first Offence in extolling the Bishop of Romes Authority upon which they were Attainted and afterwards of Treason for the second Offence before Sir Roger Manwood and Justice
had never béen had nor made Any thing herein contained to the contrary thereof notwithstanding Stat. xxiii Eliz. cap. i. An Act to retain the Queens Majesties Subjects in their due Obedience WHere sithence the Statute made in the thirteénth year of the Reign of the Queén our Soveraign Lady Entituled Stat. Sect. 1. An Act against the bringing in and putting in Execution of Bulls Writings and Instruments and other Superstitious things from the See of Rome divers evil affected persons have practised contrary to the meaning of the said Statute by other means than by Bulls or Instruments Written or Printed to withdraw divers the Queéns Majesties Subjects from their natural Obedience to her Majesty and to obey the said usurped Authority of Rome and in respect of the same to perswade great numbers to withdraw their due Obedience to her Majesties Laws established for the due Service of Almighty God For Reformation whereof Stat. Sect. 2. Treason to withdraw any from the Religion Established to the Romish Religion and to declare the true meaning of the said Law Be it declared and enacted by the Authority of this present Parliament That all persons whatsoever which have or shall have or shall pretend to have power or shall by any ways or means put in practice to absolve perswade or withdraw any of the Queéns Majesties Subjects or any within her Highnesses Realms and Dominions from their natural Obedience to her Majesty or to withdraw them for that intent from the Religion now by her Highnesses Authority established within her Highnesses Dominions to the Romish Religion or to move them or any of them to promise any Obedience to any pretended Authority of the Seé of Rome or of any other Prince State or Potentate to be had or used within her Dominions or shall do any overt act to that intent or purpose and every of them shall be to all intents adjudged to be Traytors And being thereof lawfully convicted shall have Iudgment suffer and forfeit as in case of High Treason And if any person shall after the end of this Session of Parliament by any means be willingly absolved or withdrawn as aforesaid or willingly be reconciled It shall be Treason to be reconciled or withdrawn to the Romish Religion or shall promise any Obedience to any such pretended Authority Prince State or Potentate as is aforesaid that then every such person their Procurers and Counsellors thereunto being thereof lawfully convicted shall be taken tried and judged and shall suffer and forfeit as in Cases of High Treason Perswade or withdraw It was held in Lovett and Faulkners Case Mich. 12. Jac. B. R. That if a man were Indicted for endeavouring and practising voluntarie felonice proditorie to perswade and withdraw any of the Kings Subjects from his Obedience unto the Romish Religion and was afterwards debito modo acquietatus yet an Action upon the Case in nature of a Conspiracy would not lye against the party who procured him to be Indicted Cro. Mich. 12. Jac. 357 358. Rolls 1. 209. C. 49. Bulstrode 2. 271. and the main reason given was That forasmuch as every man is bound to discover Treason and 't is dangerous to conceal any thing which may tend to Treason therefore the procuring one to be Indicted concerning it was no Cause of Action And in that Case Coke Chief Justice said That such an Action was never before that time brought But later Resolutions have been to the contrary of this Opinion Action lies for indicting a man of High Treason And 't is held for Law at this day That if a man procures another to be Indicted of High Treason an Action upon the Case in nature of Conspiracy lies against him that procures it as well as if it were for Felony The first leading Case of this nature which was resolved upon any solemn argument or debate was that of Smith versus Cranshaw or Crashaw and others where it was adjudged upon great deliberation by all the Four Judges of the Court of Kings Bench Hill 1. Car. 1. That an Action in nature of a Conspiracy doth well lye in such Case and that not only in Case of Acquittal upon Trial but upon the exhibiting a Bill of Indictment for High Treason to the Court or Jury if the Jury bring in Ignoramus although in this last Case a Writ of Conspiracy lyeth not And Lovett and Faulkners Case was denied to be Law Addition to Bendloes 152. Latch 79 80. Jones 93 94 95. And Justice Dodderidge who concurred in Opinion with the other Judges in the Case of Lovett and Faulkner changed his Opinion in that of Smith and Cranshaw and held that the Action was maintainable Bulstrode 2. 271 272. so that whosoever of meer malice without probable cause causes any person to be Indicted upon this Statute Stat. 3. Jac. 4. or that of 3 Jac. cap. 4. for endeavouring or practising so to perswade or withdraw any Subject or prefers a Bill to the Court or Jury for that purpose is liable to an Action of the Case for so doing if the party be acquitted or the Jury bring in Ignoramus as in other Cases of Felony Any of the Queens Majesties Subjects Queens Subjects Stat. 3 Jac. 4. What is meant by the Queens Subjects Vide Stat. 3 Jac. cap. 4. Sect. 19. And be it likewise Enacted and declared Stat. Sect. 3. The penalty of aiders maintainers and concealers That all and every person and persons that shall wittingly be aiders or maintainers of such persons so offending as is above expressed or of any of them knowing the same or which shall conceal any offence aforesaid and shall not within twenty days at the furthest after such persons knowledge of such offence disclose the same to some Iustice of Peace or other higher Officer shall be taken tried and judged and shall suffer and forfeit as Offenders in misprision of Treason These words And shall not within twenty days Aiders or maintainers punishable though discoverers c. disclose the same have no reference to those who are aiders or maintainers of the Offender but only to those who have barely a knowledge of the Offence without aiding or maintaining the party And therefore if such as are aiders or maintainers of the person offending discover the offence within twenty days yet such discovery shall not free them from the guilt of misprision of Treason as Wingate mistakes in his Abridgment of this Clause tit Crown numb 42. but if they once aid or maintain the party knowing him to be an Offender they are guilty whether they disclose or conceal the offence and shall have no benefit of the twenty days And be it likewise Enacted Stat. Sect. 4. The forfeiture for saying or hearing of Mass That every person which shall say or sing Mass being thereof lawfully convicted shall forfeit the sum of Two hundred Marks and be commited to Prison in the next Goal there to remain by the space of
the Feast of Pentecost next coming shall kéep or maintain any School-master which shall not repair to Church as is aforesaid or be allowed by the Bishop or Ordinary of the Diocess where such School-master shall be so kept shall forfeit and lose for every month so kéeping him ten pounds Provided That no such Ordinary or their Ministers shall take any thing for the said allowance The penalty on such School-master And such School-master or Teacher presuming to teach contrary to this Act and being thereof lawfully convict shall be disabled to be a Teacher of youth and shall suffer Imprisonment without Bail or Mainprize for one year Any School-master An Usher Usher or Assistant in teaching is a Master in the School and seemeth to be included within the word School-master And the following words here or Teacher explain who is intended viz. every Teacher of Youth A School-master conforms or is licensed either of them sufficient Stat. 1 Jac. 4. 14 Car. 2. What he must do by Stat. 14 Car. 2. Repair to Church as is aforesaid or be allowed This Clause being in the dis-junctive It seems That although a School-master doth not come to Church yet if he be licensed by the Bishop or Ordinary it shall excuse the penalty And this is not altered in that particular either by the Statute of 1 Jac. cap. 4. Sect. 9. quod vide postea nor by the Statute of 14 Car. 2. But then he must by that of 14 Car. 2. among other things for which Vide the Statute at large subscribe a Declaration or Acknowledgment that he will conform to the Liturgie of the Church of England as it is now by Law Established or he shall for the first Offence suffer three months Imprisonment without Bail and for the second and every other Offence shall suffer three months Imprisonment without Bail and also forfeit five pounds But if he be licenced and subscribe and do as aforesaid and so cannot be punished by this or either of the other said Acts yet now by the Statute of 17 Car. 2.2 unless he take the Oath there mentioned and frequent Divine Service established by the Laws of this Kingdom and carry himself there as in the said Statute is appointed he shall forfeit for every offence 40 l. So that now Conformity in repairing to Church is necessarily required of every such School-master No such Ordinary c. shall take anything Twelve pence for a Licence But now by the Statute of 14 Car. 2. there may be 12 pence taken for such Licence And be it likewise Enacted Stat. Sect. 7. What Justices may enquire of Offences done against the Stat. of 1 Eliz. 1. 5 El. 1. 13 El. 2. That all and every Offences against this Act or against the Acts of the first fifth or thirtéenth years of her Majesties Reign touching acknowledging of her Majesties Supream Government in Causes Ecclesiastical or other matters touching the Service of God or coming to Church or Establishment of true Religion in this Realm shall and may be inquirable as well before Iustices of Peace as other Iustices named in the same Statutes within one year and a day after every such Offence committed Any thing in this Act or in any other Act to the contrary notwithstanding Be it likewise Enacted That Iustices of Oyer and Terminer and Iustices of Assize and of Gaol delivery in their several limits shall have power to enquire hear and determine of all Offences against this Statute And Iustices of Peace in their open Quarter Sessions of Peace shall have power by vertue of this Act to enquire hear and determine of all Offences against this Act except Treason and misprision of Treason Within one year and a day Where the Indictment of the Offender was to have been within a year and day Stat. 1 Eliz. 1. 5 Eliz. 1. 13 Eliz. 2. This limitation of time extends not to any Offence made Treason by this Act but only to such Offences mentioned in this Act or those of 1 5 and 13 Eliz. as concern the Kings Supremacy in Causes Ecclesiastical the Service of God coming to Church or Establishment of Religion and for those touching Religion this Statute enlarges the time limited by 1 Eliz. cap. 2. which saith the party must be Indicted the next Sessions or if in a Corporation within fifteen days after Easter or Michaelmas for now he may be Indicted at any time within the year and day In what cases he may be Indicted afterwards But for absolving or withdrawing or for being absolved withdrawn or reconciled which are here made Treason no time is limited for the prosecution but the Offender may be Indicted at any time after the year and day For the latter part of this Clause speaks of those Offences of Treason which the Justices of Peace cannot hear and determine and there no time is limited although there be in the former part for those Offences which are inquirable by Justices of Peace Leonard 1. 238. C. 322. Guilfords Case Vide Stat. 1 Eliz. cap. 1. Sect. 9. infra Sect 9. touching the Informer Justices of Oyer and Terminer who Iustices of Oyer and Terminer and Iustices of Assize and of Gaol delivery c. and Iustices of Peace The Justices of the Court of Kings Bench are the Soveraign Justices of Oyer and Terminer and Gaol-delivery Co. 9. 118. Lord Sanchars Case and therefore may enquire of hear and determine the Offences against this Act although they be not here especially named Two Indictments before several Justices If an Indictment be preferred upon this Statute before Justices of Oyer and Terminer or of Assize for any offence not made Treason or misprision of Treason and there is an Indictment before Justices of Peace likewise for the same Offence The Judgment of the Justices who do first enquire hear and determine the same shall stand and the Judgment given by the other shall be void as was held in the like Case upon the Statute of Inmates Co. 2. Inst 739. Justices of Peace may hear and determine the Offence of not coming to Church Stat. 29 Eliz. 6. 3 Jac. 4. The power here given the Justices of Peace in their open Quarter Sessions to hear and determine the Offence of not coming to Church is in force at this day notwithstanding the Statute of 29 El. c. 6. which saith That every Conviction for not coming to Church shall be in the Kings Bench or at the Assizes or general Gaol-delivery and not elsewhere for the Statute of 3 Jac. cap. 4. hath given power to Justices of Peace in their general or quarter Sessions to enquire hear and determine of all Offences for not coming to Church according to former Laws in such manner as the Justices of Assize and Gaol delivery might do by former Laws in the Case of Recusancy for not repairing to Church which is clearly a reviver of the Power of Justices of Peace given to them by this
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
aforesaid Stat. Sect. 5. Sending relief to any Jesuit Priest or other person abiding in a Seminary If any person under her Maiesties Subjection or obedience shall at any time after the end of the said forty days by way of Exchange or by any other shift way or means whatsoever wittingly and willingly either directly or indirectly convey deliver or send or cause or procure to be conveyed or delivered to be sent over the Seas or out of this Realm or out of any other her Majesties Dominions or Territories into any Forreign parts or shall otherwise wittingly and willingly yield give or contribute any money or other relief to or for any Iesuit Seminary Priest or such other Priest Deacon or Religious or Ecclesiastical person as is aforesaid or to or for the maintenance or relief of any Colledge of Iesuits or Seminary already erected or ordained or hereafter to be erected or ordained in any the parts beyond the Seas or out of this Realm in any forreign parts or of any person then being of or in any the same Colledges or Seminaries and not returned into this Realm with submission as in this Act is expressed and tontinuing in the same Realm That then every such person so offending for the same offence shall incur the danger and penalty of Praemunire mentioned in the Statute of Praemunire made in the sixteenth year of the Reign of King Richard the Second Convey Deliver Conveying or delivering relief to a Jesuite c. So that he who is barely a Messenger or Instrument to convey or deliver such money or other relief is within the danger of this Law as well as the sender or giver Then being of or in the same Colledges or Seminaries To what persons this extends to what not This Clause extends not to every person brought up in such Colledge or Seminary as Wingate tit Crowne n. 54. mistakes For if such person afterwards quits his Colledge or Seminary and hath no longer any relation thereunto but abides elsewhere beyond the Seas he who gives or conveys relief or maintenance to him is not within this branch of the Statute because the person relieved or maintained is not then of or in any Colledge or Seminary And yet perhaps this may be an offence within the Statute of 3 Car. 1. Stat. 3 Car. 1. 2 cap. 2. quod vide postea Stat. Sect. 6. None shall send his Child or other beyond the Seas without licence And be it further Enacted by the Authority aforesaid That it shall not be lawful for any person of or under her Highness obedience at any time after the said forty days during her Majesties life which God long preserve to send his or her Child other person being under his or her Government into any the parts beyond the Seas out of her Highness obedience without the special Licence of her Majesty or of four of her Highness Privy Councel under their hands in that behalf first had or obtained except Merchants for such only as they or any of them shall send over the Seas only for or about his her or their Trade of Merchandize or to serve as Mariners and not otherwise upon pain to forfeit and lose for every such their offence the sum of One hundred pounds Where the Offences committed against this Act shall be inquired of and determined And be it also Enacted by the Authority aforesaid That every offence to be committed or done against the tenor of this Act shall and may be enquired of heard and determined as well in the Court commonly called the Kings-Bench in the County where the same Court shall for the time be as also in any other County within this Realm or any other her Highness Dominions where the offence is or shall be committed or where the Offendor shall be apprehended and taken Transporting of Jesuits Priests c. Provided also and be it Enacted by the Authority aforesaid That it shall and may be lawful for and to every Owner and Master of any Ship Bark or Boat at any time within the said forty days or other time before limited for their departure to Transport into any the parts beyond the Seas any such Iesuit Seminary Priest or other such Priest aforesaid so as the same Iesuit Seminary Priest or other Priest aforesaid so to be Transported do deliver unto the Mayor or other Chief Officer of the Town Port or Place where he shall be taken in to be transported his Name and in what Place he received such Order and how long he hath remained in this Realm or in any other her Highness Dominions being under her Obedience Stat. Sect. 7. A Jesuit or Priest submitting himself taking the oath and obeying the Laws Provided also That this Act or any thing therein contained shall not in any wise extend to any such Iesuit Seminary Priest or other such Priest Deacon or Religious or Ecclesiastical person as is before mentioned as shall at any time within the said forty days or within threé days after that he shall hereafter come into this Realm or any other her Highness Dominions submit himself to some Archbishop or Bishop of this Realm or to some Iustice of Peace within the County where he shall arrive or Land and do thereupon truly and sincerely before the same Archbishop Bishop or such Iustice of Peace take the said Oath set forth in Anno primo and by writing under his hand confess and acknowledge and from thenceforth continue his due obedience unto her Highness Laws Statutes and Ordinances made and provided or to be made or provided in Causes of Religion Continue his due Obedience The person submitting must continue his obedience The taking of the Oath by such Jesuit Priest or other Ecclesiastical person and his acknowledgment of his due obedience doth not exempt him from the danger of this Law as Wingate mistakes tit Crowne numb 57. but he must continue his due obedience to the Laws made in Cases of Religion And this seems to be clearly the meaning of the makers of this Law so that if afterwards he shew his disobedience to any of those Laws by forbearing to come to Church c. he may be indicted as a Traitor for coming into the Realm as if he had never made any such submission and acknowledgment Vnto her Highness Laws That is Where King or Queen includes successors the Laws of her and her Successors and not only those which were made in her own time but such likewise as should be made afterwards For in Acts of Parliament King or Queen if a Sovereign includes Successors unless there be express words of restraint to that individual person Plowden 176. Hill versus Grange Co. 6. 27. Cases de Soldiers Co. 12. 109. Co. 1. Inst 9. 2. Inst 742. 3. Inst 6. 4. Inst. 352. And so it is of the Kings Grants if in his politick capacity for there his Successor shall be charged though the Grant mention neither
Heir or Successor as was adjudged in the Case of an Annuity granted to Sir Thomas Wroth during his life Plowden 457. Provided always Stat. Sect. 8. Trial of a Peer If it happen at any time hereafter any Péer of this Realm to be Indicted of any Offence made Treason Felony or Praemunire by this Act That he shall have his Trial by his Péers as in other Cases of Treason Felony or Praemunire is accustomed Provided nevertheless and it is declared by authority aforesaid That if any such Iesuit Seminary Priest or other Priest abovesaid shall fortune to be so weak or infirm of Body that he or they may not pass out of the Realm by the time herein limited without eminent danger of life and this understood as well by the Corporal Oath of the party as by other good means unto the Bishop of the Diocess and two Iustices of Peace of the same County where such person or persons do dwell or abide That then and upon good and sufficient Bond of the person or persons with Sureties of the sum of Two hundred pounds at the least with condition that he or they shall be of good behavior towards our Sovereign Lady the Queén and all her liege people Then he or they so licensed and doing as is aforesaid shall and may remain and be still within this Realm without any loss or danger to fall on him or them by this Act for so long time as by the same Bishop and Iustices shall be limited and appointed so as the same time of aboad exceed not the space of six months at the most And that no person or persons shall sustain any loss or incur any danger by this Act for the receiving or maintaining of any such person or persons so licensed as is aforesaid for and during such time only as such person or persons shall be so licensed to tarry within this Realm Any thing contained in this Act to the contrary notwithstanding Stat. Sect. 9. One knowing a Jesuit or Priest to remain in the Realm must discover it to a Justice of Peace or higher Officer And be it also further Enacted by Authority aforesaid That every person or persons being Subject of this Realm which after the said forty days shall know and understand that any such Iesuit Seminary Priest or other Priest abovesaid shall abide stay tarry or be within this Realm or other the Queéns Dominions and Countries contrary to the true meaning of this Act and shall not discover the same unto some Iustice of Peace or other higher Officer within twelve days next after his said knowledge but willingly conceal his knowledge therein that every such Offender shall make Fine and be imprisoned at the Quéens pleasure And that if such Iustice of Peace or other such Officer to whom such matter shall be so discovered do not within Eight and twenty days then next following give Information thereof to some of the Quéens Privy Councel or to the President or Vice-president of the Quéens Councel established in the North or in the Marches of Wales for the time being That then he or they so offending shall for every such Offence forfeit the sum of two hundred marks And be it likewise Enacted by the Authority aforesaid That such of the Privy Councel President or Vice-president to whom such Informations shall be made shall thereupon deliver a note in writing subscribed with his own Hand to the party by whom he shall receive such Information testifying that such Information was made unto him Being Subject of this Realm And not any person as Wingate tit Crowne numb 59. mistakes What is meant by a Subject of this Realm Subject of this Realm who Vide Stat. 3 Jac. cap. 4. Sect. 23. Vnto some Iustice of Peace or other higher Officer Vide Stat. 35 Eliz. cap. 2. Sect. 8. At the Quéens pleasure Fine and imprisonment at the Queens pleasure In this Case the Offender must be proceeded against according to the course of Law for he cannot be fined or imprisoned at the Kings pleasure by force of this Statute before he be Indicted Convicted and Judgment given against him And so were the proceedings against Sir Thomas Figet for going armed contrary to the Statute of 2 E. 3. Stat. 2 E. 3. 3 cap. 3. For the Book 24 E. 3. 33. saith that he was arraigned c. And if in this Case the Offender be committed to prison in order to his Trial and conviction yet before Judgment or at least before conviction he may be let to mainprize and the Fine shall be imposed by the Justices before whom he is convicted Justiciarii per eorum discretionem assessent finem non Dominus Rex per se in Camera sua nec aliter coram se nisi per Justiciarios suos haec est voluntas Regis viz. per Justiciarios suos legem suam unum est dicere 2 R. 3. 11. vide Co. 4. Inst. 71. 179. Note Sir Robert Brook in abridging the forementioned Case of Sir Thomas Figet saith that he was committed to the Prison of the Marshalsey and could not be mainprized until the King had signified his pleasure but omits the principal matter worthy of observation viz. That he was first arraigned c. Bro. Contempts 6. And be it also Enacted That all such Oaths Stat. Sect. 10. All Oaths Bonds and submissions to be certified into the Chancery Bonds and Submissions as shall be made by force of this Act as aforesaid shall be certified into the Chancery by such parties before whom the same shall be made within thrée months after such submission upon pain to forfeit and lose for every such Offence One hundred pounds of lawful English money the said forfeiture to be to the Quéen her Heirs and Successors None submitting himself shall come within ten miles of the Queen And that if any person so submitttng himself as aforesaid do at any time within the space of Ten years after such submission made come within Ten miles of such place where her Majesty shall ve without especial Licence from her Majesty in that behalf to be obtained in writing under her Hand that then and from thenceforth such person shall take no benefit of his said submission but that the same submission shall be void as if the same had never béen Stat. xxix Eliz. cap. vi An Act for the more speedy and due Execution of certain Branches of the Statute made in the 23 d. year of the Queens Majesties Reign Entituled An Act to retain the Queens Majesties Subjects in their due Obedience FOr avoiding of all Frauds and Delays heretofore practised Stat. Sect. 3. Certain assurances made by Recusants shall be void against the Queen or hereafter to be put in ure to the hindrance of the due and spéedy Execution of the Statute made in the Session of Parliament holden by Prorogation at Westminster the sixtéenth day of January in the thrée and twentieth year of
Verdict pass against him these are Convictions in Law but yet by these Convictions he forfeits nothing until Judgment nor shall the penalty of 20 l. per month run on or be appropriated to the King until Judgment be given By Convicted therefore is here to be understood convicted by Proclamation and Default or convicted by Verdict Confession c. and adjudged for so the word is here to be taken viz. for adjudged or attainted unless it be in Case of Conviction upon Proclamation And in such a sense it is to be taken in divers other Cases Stat. 23 Eliz. 1 Vide Stat. 23 Eliz. cap. 1. Sect. 5. When the 20 l per month is to be paid In such of the Terms of Easter or Michaelmas That is the Term of Easter or Michaelmas which shall first happen and not the next Easter and Michaelmas Terms both For the Recusant ought to pay the whole penalty for the time contained in the Indictment in the very first of those Terms next after his Conviction See for this Stat. 3 Jac. 4. Stat. 3 Jac. 4. Sect. 6. From what time the said penalty shall run on Stat. 23 Eliz. 1. 3 Jac. 4. For every month after such Conviction For what time the penalty of 20 l. per month shall run on after the Recusant is indicted and convicted and in what Cases the Informer and all others but the King shall be barred after such Conviction Vide Stat. 23 Eliz. cap. 1. antea Stat. 3 Jac. cap. 4. Sect. 6. postea Office Take seize and enjoy But as to Lands and Tenements there must first be an Office found for the King for regularly before the finding of such Office Lands or Tenements cannot be seized into the Kings hands Co. 2. Inst 573. Co. 8. 169. Paris Stoughters Case Bro. tit Office 17. 55. Plowden 486. Nicholls Case By this Statute the Queen was to have and enjoy two parts of the Recusants Lands and Hereditaments nomine poenae or districtionis The two parts not satisfactory of the twenty pounds per month until he had in some other manner satisfied her of the whole forfeiture of the Twenty pounds per month incurred for his Recusancy And the profits of those two parts should not have been accompted to go to the payment of any part of the said debt or forfeiture For the Statute inflicted this forfeiture upon him meerly as a farther penalty for his neglect of payment of the Twenty pounds per month as was resolved by the two Chief Justices and Chief Baron Trin. 43 Eliz. in Gages Case Cro. Eliz. 845. 846. and by all the Judges The Law now altered in that point 3 Jac. at Russell House Jones 24. Standen versus Vniversity d'Oxon Whitton But now the Law is altered in this point by the Statute of 1 Jac. cap. 4. Vide the Stat. infra Sect. 4. Stat. 1 Jac. 4 All the goods A Recusant is Indicted and Convicted Recusants goods when forfeited and then fails of payment of the Twenty pounds per month yet his goods are not forfeited to the King by this Statute before seizure For the King hath his Election whether he will seize them or no. By Coke Chief Justice B. R. 12. Jac. Rolles 1. 7. C. 8. Cullom versus Sherman A Recusant lends money Recognizance forfeited and for security hath a Rent-charge granted him in Fee by Deed indented with condition of redemption and takes likewise a Recognizance for performance of Covenants in the said Indenture The Recognizance is forfeited and afterwards he is Indicted and Convicted of Recusancy and fails of payment of the Twenty pounds per month In this case the King shall have the Recognizance by force of this Act for when forfeited to the Recusant it is but a chattel personal What is given to the King by this word Goods and shall pass to the King by this word goods For in an Act of Parliament where the Offenders goods are given to the King all debts and personal Chattels and Actions are thereby given him as well as goods in possession And here in this Act as take and seize refer to two parts of the Recusants Lands and Tenements so enjoy refers to goods And the King shall enjoy the debt due by the Recognizance Nor doth it alter the Case for that the Recognizance was acknowledged for performance of Covenants in an Indenture concerning a Rent-charge in fee which seems to savour of the realty for it was originally for the loan and forbearance of money which is personal Co. 12. 1. 2. Ford and Sheldons Case If a man who is a Recusant take such a Recognizance in the name of another Recognizance taken in anothers name forfeited the King upon his Conviction shall have the Recognizance for when the Recusant was such at the time of taking the Recognizance and so continued until the time of his Conviction it shall be intended that it was done by Covin and that he took it in the name of another with an intent to prevent the King of the levying of the forfeiture and such Covin shall not bar the King Co. 12. 2. 3. the same Case The Kings grant If a Recognizance or Obligation be forfeited to the King by force of this Act he may grant it over as he may any other Chattel in Action under his private Seal Rolles 1. 7. C. 8. Cullom versus Sherman Hereditaments Rent Advowson in gross Hereditaments A Rent of Inheritance and an Advowson in gross are comprehended under this word But whether the King may seize such an Advowson as part of his two parts and present by vertue thereof since the Stat. of 3 Jac. c. 5. which gives the Presentation to the Universities Stat. 3 Jac. 5 Vide that Stat. infra Sect. 19. All other the Lands Tenements and Hereditaments liable to such seisure or to the penalties aforesaid It hath been much disputed whether Copyhold Lands are within this Branch of the Statute Copyhold Lands if seizable for regularly in Acts of Parliament which are Enacted for forfeiture of Lands Tenements and Hereditaments Copyholds shall not be forfeited but only Lands Tenements and Hereditaments which are such at the Common Law and not those which are such by custom only as Copyholds are And it was agreed in Heydons Case Co. 3. 8. That where an Act of Parliament alters the service or tenure or other thing in prejudice of the Lord there general words in the Act shall not extend to Copyholds Vide Savile 67. C. 138. And if the King should seize them by force of the general words here viz. Lands Tenements and Hereditaments the Lord would during the time they are in the Kings hands lose his Seigniory Customs and Services But yet it was held by Manwood Chief Baron and Baron Clark in the Case of Sulherd and Everet Mich. 30 Eliz. That Copyholds are within this Act and although Manwood seemed to grant that they are not within
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
or covin nor for convenient time taken for their return back again upon the same This extends to all Cases in general where the Popish Recusant ought to render his body to the Sheriff upon Proclamation Proclamation and is not restrained to a Proclamation upon an Indictment for Recusancy And therefore if a Popish Recusant confined by this Act had been proclaimed upon the Statute of Marlebridge in a Plea de Custodia as a Deforceor he might lawfully have gone out of the compass of five miles The like he may do at this day upon any other Proclamation commanding him to render his body to the Sheriff Vide Stat. 3 Jac. cap. 5. Sect. 7. And furthermore be it Enacted by the Authority of this present Parliament Stat. Sect 12. An Offender upon open submission shall be discharged That if any person or persons that shall at any time hereafter offend against this Act shall before he or they shall be thereof convicted come to some Parish Church on some Sunday or other Festival day and then and there hear Divine Service And at Service time before the Sermon or reading of the Gospel make publick and open Submission and Declaration of his and their Conformity to her Majesties Laws and Statutes as hereafter in this Act is declared and appointed That then the same Offender shall thereupon be clearly discharged of and from all and every pains and forfeitures inflicted or imposed by this Act for any of the said Offences in this Act contained Before he or they shall be thereof convicted Where submission will save abjuration A Popish Recusant confined by this Act whose Estate is under value is apprehended for offending against this Act and before the expiration of three months next after his apprehension is convicted of such Offence and then before the said three months expire conforms and makes such Submission and Declaration as is here and in the former branch appointed In this Case although he comes too late after Conviction to save the forfeiture of his Lands and Goods yet he shall not be compelled to abjure For the affirmative words here that upon such Conformity Submission and Declaration before Conviction he shall be discharged of all pains and forfeitures do not carry in them the force of a negative viz. That if it be after Conviction he shall not be discharged of any of them And by the former branch of the Statute he is not compellable to abjure if at any time within three months next after his apprehension he conforms confesses and submits as is there appointed To some Parish Church It must be in some Parish Church It seems clear that no Submission Confession or Declaration can discharge the Popish Recusant who is an Offender within this Act from any pain or forfeiture thereby inflicted unless it be performed in some Parish Church For there is a great difference between the penning of this Statute and that branch of 35 Eliz. cap. 1. Stat. 35 Eliz 1. where 't is said That the Offender shall be committed to Prison until he come to some Church Chappel or usual place of Common Prayer and hear Divine Service and make such open Submission and Declaration of his Conformity as in the Act is appointed For there there is an express designation of the place where such Submission and Declaration shall be viz. in any Church Chappel or usual place of Common Prayer whither the Offender comes and this shall free him from his Imprisonment Vide that Statute Sect. 4. supra But here where 't is said in the former part of this Act That he shall abjure unless he comes usually to Church and make such Confession and Submission as is therein afterwards appointed and expressed His coming usually to Church cannot be applied to his Confession and Submission for that is to be made but once and not usually and therefore there being there no place appointed where this Confession and Submission shall be made we must necessarily have recourse to this later branch of the Act where a place is appointed viz. some Parish Church so that the coming usually to Church without this formal Submission and Confession or Declaration in some Parish Church frees not the Offender here in any Case from abjuration although the coming to any Church Chappel or usual place of Common Prayer and hearing Divine Service and making open Submission and Declaration there shall free an Offender within the Statute of 35 Eliz. cap. 1. from Imprisonment Parish Church What is a Parish Church Vide Stat. 35 Eliz. cap. 1. Sect. 4. supra Two several Submissions Submission If a Popish Recusant Indicted upon this Statute makes his Submission and brings with him into the Court of Kings Bench a Testimonial thereof it s the course of that Court to cause him there to make his Submission again upon his knees which the Clerk of the Crown reads to him And so was it done in the Case of one Thoroughgood Pasch 2. Car. 1. But Justice Jones said there was no Statute to compell him to this second Submission And Thoroughgood complained that he was not therein dealt with according to Law Latch 16. Stat. Sect. 13. The same Submission to be as hereafter followeth that is to say The form of the Submission I A. B. do humbly confess and acknowledge that I have grievously offended God in contemning her Majesties godly and lawful Government and Authority by absenting my self from Church and from hearing Divine Service contrary to the Godly Laws and Statutes of this Realm and I am heartily sorry for the same and do acknowledge and testifie in my Conscience that the Bishop or See of Rome hath not nor ought to have any Power or Authority over her Majesty or within any her Majesties Realms or Dominions And I do promise and protest without any dissimulation or any colour or means of any Dispensation That from henceforth I will from time to time obey and perform her Majesties Laws and Statutes in repairing to the Church and hearing Divine Service and do my uttermost endeavour to maintain and defend the same Over her Majesty or within any her Majesties Realms or Dominions What Authority of the Pope is to be renounced And not over her Majesty within any her Dominions as Wingate tit Crown numb 85. grosly misrecites this Submission For that denies only the Popes or See of Romes Authority over her Majesty but not any other Authority which they might claim over her Subjects And 't is clear by the disjunctive or which Wingate omits that both these Authorities are intended to be denied by this Submission Or any colour or means of any Dispensation Dispensation These words which are a very material part of the Submission are likewise omitted by Wingate Her Majesties Laws and Statutes The Queens Laws Stat. 27 Eliz. 2. What is meant by her Majesties Laws Vide Stat. 27 Eliz. cap. 2. Sect. 7. And that every Minister or
Parliament Assembled tending to the utter subversion of the whole State lately undertaken by the instigation of Iesuits and Seminaries and in advancement of their Religion by their Schollers taught and instructed by them to that purpose which attempt by the only goodness of Almighty God was discovered and defeated And where divers persons Popishly affected do nevertheless the better to cover and hide their false hearts and with the more safety to attend the opportunity to execute their mischievous designs repair sometimes to Church to escape the penalty of the Laws in that behalf provided For the better discovery therefore of such persons and their evil affections to the Kings Majesty and the State of this his Realm Stat. Sect. 2. to the end that being known their evil purpose may be the better prevented 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 every Popish Recusant convicted or hereafter to be convicted which heretofore hath conformed him or her self or which shall hereafter conform him or her self and repair to the Church and continue there during the time of Divine Service according to the Laws and Statutes in that behalf made and provided shall within the first year next after the end of this Session of Parliament if he or she be conformed as aforesaid before the end of this Session of Parliament or within the first year next after that he or she shall after this Session of Parliament so conform him or her self and repair to Church as aforesaid and after the said first year shall once in every year following at the least receive the blessed Sacrament of the Lords Supper in the Church of that Parish where he or she shall most usually abide or be within the said year wherein by the true meaning of this Statute he or she ought so to receive The forfeiture of a conformed Recusant which doth not receive the Sacrament of the Lords Supper yearly And if there be no such Parish Church then in the Church next adjoyning to the place of his or her such most usual abode And if any Recusant so conformed shall not receive the said Sacrament of the Lords Supper accordingly he or she shall for such not receiving lose and forfeit for the first year Twenty pounds and for the second year for such not receiving Forty pounds and for every year after for such not receiving thréescore pounds until he or she shall have received the said Sacrament as is aforesaid And if after he or she shall have received the said Sacrament as is aforesaid and after shall eftsoons at any time offend in not receiving the said Sacrament as is aforesaid by the space of one whole year that in every such Case the person so offending shall for every such offence lose and forfeit Threescore pounds of lawful English money the one moiety to be to our Soveraign Lord the Kings Majesty his Heirs and Successors and the other moiety to him that will sue for the same And to be recovered in any of the Kings Courts or Record at Westminster or before Iustices of Assize or general Goal delivery or before Iustices of the Peace at their general Quarter Sessions by Action of Debt Bill Plaint or Information wherein no Essoin Protection or wager of Law shall be allowed Popish Recusants Every Popish Recusant convicted Wingate tit Crowne numb 98. speaks indefinitely as if this extended to all Recusants whatsoever which is contrary to the express words of the Statute Conviction must be shewed in certain In an Information upon this Statute for not receiving the Sacrament the Conviction of the party for Recusancy ought to be shewed in certain before whom in what Court c. For before he is convicted of Recusancy he is not liable to the penalty inflicted by this Act for not receiving And yet if it be only generally shewed in the Information that the Defendant was convicted in due form of Law and the Defendant doth not demur thereto but pleads not guilty and it be found against him there Judgment shall not be stayed for this defect for he hath lost his advantage and by his Plea hath admitted the point of Conviction and at the Trial the only thing in issue was whether he had received the Sacrament and not whether he was convicted Tanfeild Chief Baron compared this Case to that of Debt upon an Obligation and in the Declaration no place is shewn That is not good But if the Defendant Pleads a Release he shall never afterwards take advantage of the Defect in the Declaration Cro. Hill 12. Jac. 365.366 Sivedale versus Sir Edward Lenthall Which shall hereafter conform him or her self Conformity generally shewed sufficient c. This conformity need not be set forth in the Information in every particular circumstance as when or before whom the Popish Recusant conformed himself For 't is sufficient if it be said that he went to Church and continued there during Divine Service and afterwards neglected to receive the Sacrament c. And upon such Conformity and neglect he is liable to the penalty inflicted by this Act although he never went before the Ordinary Ordinary Cro. Hill 12. Jac. 366. And for every year after for such not receiving thréescore pounds Note the Statute saith not that the Offender shall forfeit for the first second and third offence but for the first and second year and for every year after for if it had been said he should have forfeited Twenty pounds for the first offence Forty pounds for the second and Threescore pounds for the third he must have been convicted and have had Judgment of the first offence before he could have incurred the penalty for the second and of the second before he could have incurred the penalty for the third And every one of these offences must have appeared judicialiter which could not be ante Judicium But here where 't is said he shall forfeit Twenty pounds for the first year Forty pounds for the second and Threescore pounds for every year after it is otherwise And the Offender shall forfeit Threescore pounds for the third year although he was never convicted for the first or second year In an Information for the third year conviction for the first or second year not necessary And therefore in an Information brought upon this Statute for Threescore pounds against a Popish Recusant convicted for Recusancy who hath conformed and neglected to receive the Sacrament the third year after his Conformity It 's sufficient to set forth that he was a Popish Recusant and was convicted and conformed himself and went to Church c. two years before such a day and that after the said day he failed for a whole year to receive the Sacrament without mentioning what he did the first or second year after his conformity And so was the Information in
one as conceals his true Name or Quality or cannot give a good Accompt what he is For so it must be reasonably intended and not of all Travellers through the Country as Wingate tit Crowne numb 106. mistakes for it appears by the other qualifications here enumerated that the intent of the Act is that it shall be offered by the Bishop or two Justices to such only of whom there is any just cause of suspition Stat. Sect. 11. Refusal of the Oath And be it further Enacted That if any such person or persons other than Noblemen or Noblewomen shall refuse to answer upon Oath to such Bishop or Iustices of Peace examining him or her as aforesaid or to take the said Oath so duly tendred unto him or her by such Bishop or two such Iustices of Peace out of Sessions that then the said Bishop or Iustices of Peace shall and may commit the same person to the common Goal there to remain without Bail or Mainprize until the next Assizes or General or Quarter Sessions to be holden for the said Shire Division Limit or Liberty where the said Oath shall be again in the said open Assizes or Sessions required of such person by the said Iustices of Assize or Iustices of Peace then and there present or the greater number of them And if the said person or persons or any other person whatsoever other then Noblemen or Noblewomen of the age of Eightéen years or above shall refuse to take the said Oath being tendred unto him or her by the Iustices of Assize and Goal delivery in their open Assizes or the Iustices of Peace or the greater part of them in their said general Quarter Sessions every person so refusing shall incur the danger and penalty of Praemunire mentioned in the Statute of Praemunire Praemunire made in the sixtéenth year of the Reign of King Richard the Second except Women Covert Women Covert who upon refusal of the said Oath shall be by the said Iustices of Assize in their open Assize or Iustices of Peace in their General or Quarter Sessions for the said Offence committed only to the common Goal there to remain without Bail or Mainprize till they will take the said Oath There to remain without Bail or Mainprize Sureties cannot be taken The Bishop or two Justices cannot take Sureties of him who refuses the Oath for his appearance at the Assizes or Sessions as Wingate tit Crowne numb 107. mistakes but must commit him immediately to Goal nor can any other Court or Justices Bail him in this Case Vntil the next Assizes or General or Quarter Sessions This being in the Disjunctive Commitment till Assizes or Sessions the Bishop or two Justices have their election to commit the party refusing the Oath either until the next Assizes or until the next Sessions as they shall think fit For some may be more aptly committed until the next Assizes and some until the next Sessions Co. 12. 131 132. What Sessions is here meant Sessions Stat. 23 Eliz. 1 Vide Stat. 23 Eliz. cap. 1. Sect. 7. And if the said person or persons or any other person whatsoever c shall refuse These words any other person whatsoever are exclusive of the said person or persons who are committed for refusal For 't is here in the disjunctive To whom the Oath may be tendred so that it seems that if any person whatsoever of the age of eighteen years or above and under the degree of a Nobleman or Noblewoman be at the Assizes or general Quarter Sessions of the Peace whether voluntarily or brought in upon Process on an Indictment of Recusancy or for any other matter and be there tendred this Oath and refuse to take it although it were never tendred to him before yet upon his refusal there he incurs a Praemunire And in this respect this Statute is more extensive then that of 7 Jac. cap. 6. Stat. 7 Jac. 6. where there must be a Prior tender and refusal of this Oath otherwise a refusal of it at the Assizes or Sessions doth not make a Praemunire by that Act. Vide Co. 12. 131. Shall incur the danger and penalty of Praemunire If a man be committed by the Bishop or two Justices of Peace for refusal of this Oath and the tender and refusal be expressed in the Mittimus the Justices of Assize or Justices of Peace in their Sessions are bound to take notice of this tender and refusal and after they have there made the party a second tender of the Oath and he refuses it Indictments of Praemunire upon this Statute by which he incurs a Praemunire the Indictment against him to convict and attaint him of a Praemunire must contain all the special matter viz. that he stood Convicted or Indicted of Recusancy or that he had not received the Sacrament twice within the year next before or that passing through the Country and unknown being examined upon Oath he confessed or denied not c. as the Case is and that the Oath was tendred to him by the Bishop or two Justices of Peace Quorum unus c. and he refused it and that it was again tendred to him in open Court and he again refused it For in this Case the Mittimus Mittimus is the ground upon which he must be proceeded against at the Assizes or Sessions But if the first tender and refusal be not expressed in the Mittimus or Warrant of commitment there although there was a tender and refusal of the Oath before the Bishop or two Justices yet the Justices of Assize or Justices of Peace in their Sessions can take no notice of it But they must there tender him the Oath without reference to any Prior tender which they may do by force of the said general words any other person whatsoever and if he refuse it he incurs a Praemunire And in this Case the Indictment may be short and general scil that he was tendred the Oath in open Court and refused it c. And so it must be in all Cases where in truth there was never any Prior tender and refusal Co. 12. 131 132. Stat. 7 Jac. 6. Justices of Peace Vide the Statute of 7. Jac. cap. 6. whereby the power of the Justices of Peace is in some particular Cases inlarged in reference to this Oath Stat. Sect 12. The Oath of Allegiance The form of which Oath hereafter followeth I A. B. do truly and sincerely acknowledge profess testifie and declare in my Conscience before God and the World That our Sovereign Lord King James is Lawful and Rightful King of this Realm and of all other his Majesties Dominions and Countries and that the Pope neither of himself nor by any Authority of the Church or See of Rome or by any other means with any other hath any Power or Authority to depose the King or to dispose any of his Majesties Kingdoms or Dominions or to Authorize any Foreign Prince to
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
Recusant not Convicted who hath no certain place of aboad as of the Popish Recusant Convicted And the benefit of having Licences from the King or three Privy Counsellors by force of this Act is intended as well to the one as the other although the Convicted only are mentioned in the recital and this will plainly appear first by the following words here which impower the Justices of Peace to grant Licences and expresly extend to all persons confined by vertue of the said Statute that is the Statute of 35 Eliz. now it cannot be presumed that the makers of the Law intended any difference between the persons to be licenced by the King or Privy Counsellors and the persons to be Licensed by the Justices of Peace the only difference being in the manner of granting the Licence the power given to the King or Privy Counsellors being more absolute and not under such precautions as is that which is given to the Justices of Peace For the King or Privy Counsellors may grant a Licence to the Recusant to travel without any particular cause shewn in the Licence or the assent of any other person and without any Oath to be made by the Recusant which the Justices of Peace cannot do And there is no reason to think that the Power here given to the King or Privy Counsellors which in all other particulars is so much more absolute and extensive then that given to the Justices of Peace should be yet less extensive as to the persons to be Licensed Secondly It were absurd to think that the Makers of the Law intended to confer a greater priviledge upon the Recusant convicted whose Offence appears upon Record then to such as are not convicted Et ealis interpretatio in ambiguis semper fienda est ut evitetur inconveniens absurdum But if by such Recusant should be meant only such as are mentioned in the recital viz. those Convicted and not all who are Confined by 35 Eliz. It would follow that the Convicted Recusant who is the more notorious Offender may have a Licence without any cause shewn or Oath made But he who is not Convicted is barred of that priviledge and can apply himself only to the Justices of Peace for a Licence clogged with divers circumstances which are not required in a Licence granted by the King or the three Privy Counsellors Shall not impeach 35 El. 2. Much less shall this Recital of the Statute of 35 Eliz. impeach the express words of that Statute as if no other Popish Recusants were intended to be confined thereby but only such as are Convicted because no other are mentioned in the Recital For the Recital of an Act of Parliament in another Act of Parliament being only by way of Preface or Introduction cannot add to or diminish the Act recited or make it liable to any other construction then what shall naturally flow from the Act it self Vide Co. 4. Inst 331. Vide Stat. 35 Eliz. cap. 2. Sect. 3. Without any other cause to be expressed Here is one difference between a Licence by the King or three of the Privy Counsel Necessary business where requisite to a Licence where not and a Licence by Justices of Peace For by these it ought not to be granted unless the Popish Recusant hath necessary occasions or business But the Kings or Privy Counsellors Licence may be granted in any Case at the Recusants request Seals and Subscription Vnder the Hands and Seals An Indictment was brought upon the Statute of 35 Eliz. 2. for travelling out of the compass of five miles The Recusant pleaded a Licence under the Seals of four Justices of Peace and exception was taken to the Plea For that the Licence ought to have been under their Hands as well as their Seals Cro. Mich. 12 Jac. 352. Maxfeilds Case And this is a good exception for a Licence by Justices of Peace although in Writing is not sufficient without Seals and Subscription both Rolles 1. 108. C. 47. Mucclefields Case Four Justices Peace Of four of the Iustices of Peace And a Licence from less then four will not now serve since the repeal of the aforesaid Branch of 35 Eliz. touching Licences Stat. 35 Eliz. 2 and therefore the Case of Mucclefield Mich. 12 Jac. in Rolles 1. 108. C. 47. is misreported in that particular For there mention is made of a Licence from two Justices of Peace as if no more were then requisite and that Case could not be grounded upon the Proviso in 35 Eliz. which required only two Justices as well for the distance of time being nine years after the Repeal of the said Proviso as for that in the said Case of Mucclefield there is mention of a Licence under the Seals of the Justices of Peace and of the Oath to be taken by the Recusant neither of which was appointed by the said Proviso in 35 Eliz. but by this Statute of 3 Jac. which must therefore necessarily be there intended and not any Statute of 1 Jac. which is another mistake in the Report of that Case Vide the Case and the objections urged against the Licence there in question With the privity and assent in Writing of the Bishop c. the Lieutenant or of any Deputy Lieutenant An Information was brought against a Popish Recusant Convict for removing above five miles from the place of his confinement who pleaded a Licence from four Justices of Peace but the Plea was disallowed saith the Reporter because he did not set forth that the Licence was granted with the privity of the Bishop or Lieutenant Mich. 12 Jac. Moore 836. C. 1127. Mansfields Case Assent of a Deputy Lieutenant sufficient But yet if it had been granted with the assent of any Deputy Lieutenant residing in the County there 's no doubt but it had been good enough The Bishop Lieutenant or Deputy Lieutenant Five persons viz. four to Licence and one to assent who gives his assent must be a distinct person from the Justices of Peace who grant the Licence And therefore if one and the same person be a Justice of Peace and Deputy Lieutenant he cannot Act herein in both Capacities For una persona non potest supplere vicem duarum And if he Sign and Seal the Licence as a Justice of Peace the assent of some other Deputy Lieutenant or of the Bishop or Lieutenant must be had thereto or the Licence is void Cro. Mich. 12 Jac. 352. Maxfields Case Moore 836. C. 1127. Mansfields Case Rolles 1. 108. C. 47. Mucclefields Case And although the Rule be Quando duo jura concurrunt in una persona aequum est ac si essent in diversis yet that Rule holds not in such Cases where distinct persons are necessarily required by the Law Co. 7. 14. Calvins Case and here four persons are necessarily required to grant the Licence and another person to assent to it In Maxfields Case B. R. one exception to the Licence was Licence and
assent in one Writing that the assent of the Deputy Lieutenant was contained in the Licence granted by the four Justices of Peace and was not separate and distinct by it self Cro. Jac. supra but to this the Court made no answer And it seems that such an Assent is well enough though in the same Writing with the Licence if it be expressed that the four Justices do Licence and the Deputy Lieutenant doth assent and such Writing be under the Hands and Seals of all five Residing within the said County or Liberty Residence in the County These words seem to refer as well to the Bishop and Lieutenant as to the Deputy Lieutenant so that if a Bishops Diocess extends into divers Counties and he resides in one of them His assent can be good only for the Popish Recusants of that County where he resides and not for those of any other part of his Diocess so if a Lieutenant reside out of the County whereof he is Lieutenant his assent to such Licence is void And that these words residing within the said County or Liberty cannot be restrained to the Deputy Lieutenant only appears by those next beforegoing viz. of the same County which clearly relate to the Lieutenant as well as to the Deputy Lieutenant and by consequence so must the word immediately subsequent viz. Residing And as to the Bishop the inconvenience is the same as in the Case of the Lieutenant For by their remoteness they are disabled to judge of the condition and behaviour of the Recusant to be Licenced and of the circumstances wherein he stands and whether such Licence may be granted to him without hazard of the publick safety which seems to be the reason of this restriction to the County or Liberty where the party who is to assent resides and holds as well in the Case of the Bishop or Lieutenant as of any Deputy Lieutenant residing out of the County Particular cause of the Licence The particular cause of the said Licence In Maxfields Case B. R. another exception to the Licence granted by the four Justices was that it was said to be granted for certain urgent Causes but no particular Cause for the Recusants travel was expressed in the Licence Cro. Jac. supra And this seems to be a good exception for the inserting into the Licence that the Popish Recusant hath urgent or necessary occasion or business answers only the former part of this Proviso which gives the four Justices power to Licence him if he hath necessary occasion or business to travel out of the compass of five miles but withal it ought to be mentioned in the Licence particularly what that occasion or business is which is the cause of the Licence for so this Act here expresly appoints And therefore that form of a Licence for the Recusant to Travel which Dalton V. cap. 124. tit Licences hath set down wherein no other Cause is mentioned but urgent and necessary business seems too short and general and is not to be relied on which defect the Author of the late Additions to Dalton would have done well to have rectified Oath of Allegiance First taking his Corporal Oath In Mansfields Case Moore 836. C. 1127. There is another Oath mentioned for the Popish Recusant to take before he can be Licensed to Travel and that is the Oath of Allegiance prescribed by the Stat. of 3 Jac. cap. 4. Stat. 3 Jac. 4. For it s there said That in an Information brought against the Recusant for Travelling out of the compass of five miles the Defendant pleaded a Licence from four Justices of Peace and his Plea was disallowed because among other things he did not shew that before the Licence he had taken the Oath of Allegiance yet Quaere of this and by what Law the omitting to take that Oath makes the Licence void But I rather think it to be a mistake and that such an exception might be moved but the Plea not disallowed for that reason One Justice may give the Recusant his Oath Before the said four Iustices of the Peace or any of them Mr. Sheapard thinks that no less then two of the four Justices of Peace can minister this Oath to the Recusant Sure guide cap. 14. Sect. 5. But I take it to be clear that any one of the four Justices may minister the Oath in this Case And there is a great difference between any Justices for that denotes the plural number as in the subsequent Clause about Armor where any Justices may imprison the Offender that is any two Justices or more and any of the Justices as here which denotes the singular number and the following words who shall have Authority by vertue of this Act to minister the same may be well enough applied to any one Justice of Peace That he hath truly informed them of the cause of his Iourney Averment that the cause is true If an Information be brought against a Popish Recusant for travelling out of his compass of five miles and he plead a a Licence from four Justices of Peace it seems necessary that he aver in his Plea that the Cause contained in his Licence was true and real Vide Moore 836. C. 1127. And be it further Enacted by the Authority aforesaid Stat. Sect. 9. A Recusant disabled to execute certain Offices and Functions That no Recusant convict shall at any time after the end of this Session of Parliament practise the Common Law of this Realm as a Chancellor Clerk Attorney or Solicitor in the same nor shall practise the Civil Law as Advocate or Proctor nor practise Physick nor exercise or use the Trade or Art of an Apothecary nor shall be Iudge Minister Clerk or Steward of or in any Court or kéep any Court nor shall be Register or Town Clerk or other Minister or Officer in any Court nor shall bear any Office or Charge as Captain Lieutenant Corporal Sergeant Ancient-bearer or other Office in Camp Troup Band or Company of Souldiers nor shall be Captain Master Governor or bear any Office or Charge of or in any Ship Castle or Fortress of the Kings Majesties his Heirs and Successors but be utterly dissabled for the same and every person offending herein shall also forfeit for every such offence One hundred pounds the one moity whereof shall be to the Kings Majesty his Heirs and Successors and the other moiety to him that will 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 And be it also Enacted by the Authority aforesaid Stat. Sect. 10. No Popish Recusant shall be a publick Officer That no Popish Recusant convict nor any having a Wife being a Popish Recusant convict shall at any time after the end of this Session of Parliament or any Popish Recusant hereafter to be convict or having a Wife which hereafter shall
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
he erroneously restrains the power of tendring the Oath in this Case to the Justice of Peace to whom the complaint is made as if no other Justice of Peace of that County could proceed therein which is contrary to the express words as well as meaning of the Statute Note that Dalton V. cap. 45. tit Recusants speaking first of the Certificate to be made by force of 3 Jac. 4. Stat. 3 Jac. 4 Certificate of taking the Oath saith It seems requisite That the Justice or Justices of Peace do make like Certificate at the next Assizes or Quarter Sessions of such persons as have taken this Oath before them by force of this Statute of 7 Jac. 6. But upon what ground Mr. Dalton thought this requisite to be certified at the Assizes I know not seeing there is no such Certificate to be made by the Statute of 3 Jac. 4. to the Assizes but only to the General or Quarter Sessions of the Peace and as for the Sessions I conceive neither the Justices of Peace if they proceed upon this Statute and not upon 3 Jac. are bound to make such Certificate nor the Clerk of the Peace or Town-Clerk to Record it for 't is not here required to be done But yet in such Cases where the same persons are impowred by both these Statutes to require and Minister this Oath as where the party is Convicted or Indicted of Recusancy in which Case two Justices of Peace Quorum unus c. may require the Oath by force either of the special words in 3 Jac. or of the general words in this Clause of 7 Jac. viz. any person or persons of Eighteen years or above under the degree of a Baron or Baroness And it doth not appear upon which of these Statutes they proceed as it may sometimes so happen There if the party take it it will be safest for the two Justices to make such Certificate to the next General or Quarter Sessions as is appointed by 3 Jac. and for the Clerk of the Peace or Town-Clerk to Record it Stat. Sect. 5. The penalty for refusing to take the said Oath And that if any person or persons being of the age of Eighteén years or above shall refuse to take the said Oath duely tendred to him or her according to the true intent and meaning of this Statute That then the persons authorized by this Law to give the said Oath shall and may commit the same Offender to the Common Gaol there to remain without Bail or Mainprize until the next Assizes or General Quarter Sessions to be holden for the said Shire Division Limit or Liberty where the said Oath shall be again in the said open Sessions required of such person by the said Iustices of Assize or Iustices of the Peace then and there present or the greater number of them And if the said person or persons of the age of Eightéen years or above shall refuse to take the said Oath being tendred to him or her by the said Iustices of Assize or Gaol-delivery in their open Assizes or Gaol-delivery or the Iustices of Peace or the greater part of them in their General or Quarter Sessions Every person so refusing shall incur the danger and penalty of Praemunire mentioned in a Statute made in the sixteénth year of the Reign of King Richard the Second Except Women Covert who shall be committed only to Prison there to remain without Bail or Mainprize till they will take the said Oath If any person or persons This Clause is general and extends to all before so that if any of the Nobility The Nobility may be committed refuse this Oath they may be committed to the Common Gaol c. by such as are by this Act authorized to tender it Co. 12. 131. Shall refuse to take the said Oath duly tendred to him or her If the persons authorized to tender this Oath What is a good tender what not ask the party whether he will take it and he saith he will not Quaere whether this be such a tender and refusal as shall make the refuser liable to be imprisoned and proceeded against by force of this Act unless he or they who tender it have in readiness both the form of the Oath and the Book to swear on For it is to be presumed that the Act intends all requisite circumstances ready to enable the one to minister and the other to take the Oath And 't is held by some The Oath read that before there can be any such refusal of this Oath as is here intended it ought to be read or offered to be read to the party especially if he be illiterate or if he be not yet that at least it ought to be offered to him for himself to read it For perhaps the party never saw or heard it And in such Case it would be against reason that the refusal should be penal And therefore in 9 Jacobi upon the tender of this Oath at Sergeants Inn in Fleetstreet it was read by Order of the Judges there To the Common Gaol The Justices of the Court of Kings Bench Refusal in the Kings Bench. have used to tender this Oath in Court as Justices of Peace of Middlesex and upon refusal the party is to be committed to the Prison of the Marshalsie which is the Ordinary Prison of that Court until the next Sessions Bulstrode 2. 155. The King against Griffith and others Vide Dyer 297. General Quarter Sessions Sessions Stat. 23 Eliz. 1. c. and General or Quarter Sessions What Sessions are here meant vide Stat. 23 Eliz. cap. 1. Sect. 7. Praemunire Indictment of Praemunire Stat. 3. Jac. 4. For the form of the Indictment upon refusal of this Oath Vide Stat. 3 Jac. cap. 4. Sect. 11. And be it further Enacted That every person Stat. Sect. 6. Disabled to execute or practice certain Offices or Sciences refusing to take the said Gath as above shall be disabled to all intents and purposes to execute any publick place of Iudicature or bear any other Office being no Office of Inheritance or Ministerial Function within this your Highness Realm of England or to use or practise the Common Law or Civil Law or the Science of Physick or Surgery or the Art of an Apothecary or any Liberal Science for his or their gain within this Realm until such time as the same person shall receive the same Oath according to the intent of this Statute Stat. Sect. 7. The penalty of a married woman who is a Popish Recusant convicted And be it further Enacted That if any married Woman being lawfully Convicted as a Popish Recusant for not coming to Church shall not within threé months next after such Conviction conform her self and repair to the Church and receive the Sacrament of the Lords Supper according to the former Laws and Statutes made and provided in that behalf touching Recusants that then she shall be committed to prison by one of the