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
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
University 231 232 233. The King is Patron in that case 232 233. And shall present alone 172. 233. Difference between a Bond to the King and a Bond to the Kings use 182. Licences by the King 116. 139. 155. 206. 223. Dispensation by the King where void 44. 243. Fine and Imprisonment at the Kings pleasure by whom to be inflicted 97. Lapse see Notice Laws See Ecclesiastical Iurisdiction Statutes What is meant by the Kings or Queens Laws 95. The Ecclesiastical Laws are the Kings Laws 5 6. Ecclesiastical and Temporal Laws are to be administred distinctly 6. The Laws of Scotland or Ireland not obligative to England 189. Lease See Confirmation Trust Licence See Abjuration Bishop Councel Iustices of Peace King Schoolmaster What Licence a Popish Recusant may have to travel out of the compass of five miles and from whom 206. 208. To what Popish Recusants such Licence may be granted 206 207. What is a good Licence and what not 206. Where it may be granted without any particular cause shewed and where not 206 207 208. 210. Where it ought to be averred that the cause contained in the Licence is true 211. Where the Licence must be under hand and where under hand and seal both 206 207 208. Where there must be a person to assent as well as persons to Licence and where not 206 207 208 209 210. Where the Lieutenant or a Deputy Lieutenant may assent to such Licence and where not 206 208 209 210. They who Licence and he who assents must be all distinct persons 209. The Licence and Assent may be both in one writing 209. The person assenting must be resident in the County 209 210. Where the Recusant Licenced must take an Oath and what Oath and before whom and where not 206 207 208 210 211. Lieutenant see Licence Ligeance see Subjection London see Recusants Mayor see Corporations Mansion See Recusants Mansion-house what 173. Marriage see Baron Feme Marshalsie Is the ordinary Prison of the Court of Kings Bench 251. Masse Saying and hearing of Masse and the Penalties 24 25 26. 45. 59. 200 201. Miles How to be accounted 130 131. Minister See Common Prayer Ecclesiastical Persons Misprision of Treason 51. 59. Mittimus see Indictments Month. How to be accounted 13 14. 61. Mortgage see Chattels Mother See Administration Kin. Naturalization See Alien Naturalization is a Fiction in Law 185. It s effect 185. It includes Denization 128 129. What they ought to do who are to be naturalized 240. Natural King Natural King and natural Subject are Correlatives 185. Next of Kin see Kin Nobility See Councel Nobility by Birth is Character indelebilis 247. Nobility gotten by Marriage may be lost by marriage 198. 247. Where a Nobleman or Noblewoman may be committed to prison for refusing the Oath of Allegiance 250 251. Nomination See Recusants Vniversity The Presentment is in him who hath the right of Nomination to a Benefice 229. He is in effect the Patron and may have a Quare Impedit 228. Nonsuit See Informers King Notice Aiders or Relievers of an offender not punishable unless they had notice of the offence 17. Where a lapse will incur upon Deprivation without notice to the Patron 23. All men are bound to take notice of an Act of Parliament 23. To what cases only the clause in 13 Eliz. 12. of notice to the Patron extends 23. Number Pluralis numerus est duobus contentus 238. Oaths See Bishop Councel Indictments Iustices of Peace Nobility Oath of Abjuration see Abjuration and Coroner Oath of Supremacy 9. Called the Oath of Obedience 147. How to be expounded 43. Who must take it and before whom 8 10 11. 38 39 40. 43 44. 92. 95. 149. 186. 240. 261 262. 264. 266. The Penalties for refusing or neglecting to take it 9 10. 40. 42 43 44. 263. see Disability He that hath an Office of Inheritance if he refuse it and afterwards take it shall be restored 11. The penalty for not certifying the refusal of it 40. Where the party refusing it is to be tried 41. Where the Refusal of it upon the second tender is not Treason 45. Who not bound to take it 44. Oath of Allegiance 176 177 178 179. Sequitur personam non locum 246. 249. Who is to give it and who must take it and in what cases 173 174 175 176. 181 182 183. 186. 195 196 197 198. 215. 224. 240 241 242 243 244 245 246 247 248. 261 262. 264. 266 267. Where the party taking it must set to his name or mark 179. Where and whither the taking of it is to be certified and the Certificate recorded 174. 249 250. The penalties for refusing it or not taking it 174 175 176. 181 182. 195 196. 215. 224. 243. 250 251. 263. see Disability The party refusing it shall be committed to Gaol and by whom 174 175. 250 251. He may be committed either until the Assizes or Sessions at the discretion of him who tenders it 175. In that case sureties cannot be taken 175. Where a married woman refusing it shall be imprisoned till she takes it 175. 250. What tender and refusal of it shall be binding and what not 251 Refusal of any word of it is a refusal of the whole 179. Serving or going to serve a forraign Prince c. without first taking the said Oath is Felony 181 182. What service is there meant 182. Who shall give the Oath in that case 183. 198. The penalty for not certifying it and on whom 183 184. 198 199. The penalty for not certifying the Oaths of Supremacy and Allegiance taken by a person submitting 186. Certificate of Oaths taken by a Jesuite c. or a person returning from a Seminary see Conformity An Office of Inheritance saved to him who takes not the Oaths of Supremacy and Allegiance 265 266. Where and before whom persons who are to be restored in Blood or naturalized are to take the said Oaths 240. Oath by a Popish Recusant licenced to travel 206 207 208. 210 211. Obedience See Oaths Perswading or withdrawing the Kings Subjects from their Natural Obedience or being perswaded or withdrawn is High Treason 57 58. 184 185 186. What is Natural Obedience 185. A Jesuite c. submitting must continue in his due Obedience 95. Obligation See King Service Offence see Iudgment Office Where necessary before seizure 104. Offices and Officers See Excommengement Oaths Port. Recusants Where the Husband of a Popish Recusant convict shall not bear any Office 211 212. Officers of the Exchequer 71. Officers shall answer for their Deputies 184. What persons are disabled to bear office and in what cases 10. 43 44. 211 212. 243. 251. 257 258. 263 264. The penalty on him who executes any Office and doth not receive the Sacrament and take the Oaths and Test injoined by 25 Car. 2. 2. 263 264 265. A saving of some Offices 265 266 267. Ordinary See Probate Ordinary who 45. The King is supream Ordinary 6 7. The name c. of
from the last day of this Session of Parliament deemed and remain utterly repealed void and of none effect to all intents and purposes Any thing in the said several Acts or any of them contained or any other matter or cause to the contrary notwithstanding Stat. Sect. 4. The abolishing of Forreign Authority And to the intent that all usurped and Forreign Power and Authority Spiritual and Temporal may for ever be clearly extinguished and never to be used or obeyed within this Realm or any other your Majesties Dominions or Countries may it please your Highness That it may be further enacted by the Authority aforesaid That no Forreign Prince Person Prelate State or Potentate Spiritual or Temporal shall at any time after the last day of this Session of Parliament use enjoy or exercise any manner of Power Iurisdiction Superiority Authority Preheminence or Priviledge Spiritual or Ecclesiastical within this Realm or within any other your Majesties Dominions or Countries that now be or hereafter shall be but from thenceforth the same shall be clearly abolished out of this Realm and all other your Highnesses Dominions for ever Any Statute Ordinance Custom Constitutions or any other matter or cause whatsoever to the contrary in any wise notwithstanding By the abrogating the Jurisdiction of any Forreign Prelate Archbishop of Canterburies concurrent Jurisdiction abrogated all Jurisdiction derived from such Forreigner is abrogated likewise And therefore the concurrent Jurisdiction which the Archbishop of Canterbury is supposed to have in the inferiour Diocesses ought not now to be exercised by him but is utterly taken away by this Act For he had it not as Archbishop but as Legatus natus to the Pope and if continued to be exercised is a meer Usurpation Hobart 17. Dr. James's Case And that also it may likewise please your Highness Stat. Sect. 5. Ecclesiastical Jurisdiction annexed to the Crown that it may be established and enacted by the Authority aforesaid that such Iurisdictions Priviledges Superiorities and Preheminences Spiritual and Ecclesiastical as by any Spiritual or Ecclesiastical Power or Authority hath heretofore béen or may lawfully be exercised or used for the Visitation of the Ecclesiastical State and Persons and for Reformation Order and Correction of the same And of all manner of Errors Heresies Schisms Abuses Offences Contempts and Enormities shall for ever by Authority of this present Parliament be united and annexed to the Imperial Crown of this Realm Sir Edward Coke 4. Inst 325. calls this an Act of Restitution of the ancient Jurisdiction Ecclesiastical which always belonged of Right to the Crown of England That is a restitution of the exercise of it For in truth this Statute is not introductory of a new Law The Kings ancient Jurisdiction Ecclesiastical but declaratory of the old and annexes not any Jurisdiction to the Crown but that which was or of right ought to be by the ancient Laws of this Realm parcel of the Kings Jurisdiction By which Laws the King as supream Head hath full and intire Power in all causes Ecclesiastical as well as Temporal For the Ecclesiastical Laws are the Kings Laws as well as the Temporal And the Judges of either of those Laws derive their Authority from him alone Co. 5.8 9. Cawdries Case where are several instances of Ecclesiastical Jurisdiction exercised by the Kings of this Realm in several Ages Moore 755. b. 1043. The King is Persona mixta And in this respect the King is said to be Persona mixta and Persona mixta unita cum Sacerdotibus for that he hath both Ecclesiastical and Temporal Jurisdiction 10 H. 7.18 Co. 2.44 Bishop of Winchesters Case Coke 13.17 Case of Modus Decimandi Vid. Co. lib. 6. Praefac ' And supream Ordinary The King is the supream Ordinary and by the ancient Laws of this Realm may without any Act of Parliament make Ordinances and Institutions for the Government of the Clergy and may deprive them if they obey not Moore 755. C. 1043. Cro. Trin. 2. Jac. 37. And if there be a controversie between Spiritual Persons concerning their Jurisdiction the King is Arbitrator and 't is a right of his Crown to distribute to them and to declare their Bounds Hobart 17. Dr. James's Case Laws to be administred distinctly And yet although these Jurisdictions Ecclesiastical and Temporal are both in the King they are not to be confounded For although both Laws are the Kings Laws yet they are to be administred distinctly so that he who hath Ecclesiastical Jurisdiction derived from the King ought not to usurp upon the temporal Law And the Ecclesiastical Judge who meddles in Temporal Causes or Suits and draws the Interest or Cause of the Subject which ought to be determined by the Common Law ad aliud examen viz. to be decided by the Ecclesiastical Law offends contra Coronam dignitatem Regiam In confounding those Jurisdictions of the King which ought to be kept separate and distinct Prohibition And in such Cases not only a Prohibition lies but the Ecclesiastical Judge if the Cause originally belongs to the Common Law Pramunire and not to the Ecclesiastical Court incurs a Praemunire for depriving the Subject of the benefit of the Common Law which is his Birthright Co. 12.37 38 39 40. Co. 3. Inst 120. And therefore it was Resolved That if a man be excommunicated in the Bishops Court for a matter which belongs to the determination of the Common Law 't is no less than a Praemunire Praemunire And that by force of the word elsewhere in the Statute of 16 R. 2. cap. 5. Stat. 16 R. 2. 5. If any man pursue in the Court of Rome or elsewhere c. 5 E. 4.6 The King may do what the Pope might by the Canon Law By this and the former Clause which restores to the King the Title and Exercise of the Power of Supream Head of the Church of England and annexes to the Crown all Ecclesiastical Jurisdiction heretofore exercised by any Forreigner The King as supream Head may do whatever the Pope might formerly do within this Realm by the Canon Law And upon this ground it was resolved Trin. 39 Eliz. in Hollingworths Case in the Kings-Bench That notwithstanding the Statute of 25 H. 8. cap. 19. Stat. 25 H. 8. 19 which makes the sentence of the Delegates definitive and saith that no further Appeal shall be had yet the King after such definitive Sentence may grant a Commission of Review Commission ad revidendum For that after a definitive Sentence the Pope as supream Head by the Canon Law used to grant a Commission ad revidendum Co. 4. Inst 341. Upon this ground it was likewise resolved in the Case of Grendon versus the Bishop of Lincoln al' That the King with the consent of the Patron and without the Bishop may make an Appropriation Appropriation And in such Case the King doth it Authoritate sua regia
Common Law preferred or other Law or Laws used or allowed within this Realm c. This takes in so much of the Canon and Civil Law as is allowed here But the Common Law as the peculiar Law of this Kingdom is here preferred and particularly mentioned and not the Canon Law as is erroneously said in the late Additions to Dalton Cap. 81. tit Recusants Sect. 11. As have or shall have Authority by Common use c. Who are to administer the Oath The Statute saith not That those who belong not to any Court shall take the Oath before those who are authorized by Common use to give it as Wingate tit Crown numb 20. mistakes the meaning of this Clause For this being then a new Oath devised by the makers of the Act of 1 Eliz. no person could have Authority by Common use to administer it And the Act plainly enough speaks of those who have Authority by Common use to admit the party to the Office and not Authority by Common use to give the Oath And also Stat. Sect. 5. The Bishop may tender the Oath to any Spiritual person Be it Enacted by the Authority of this present Parliament That every Archbishop and Bishop within this Realm and Dominions of the same shall have full Power and Authority by virtue of this Act to tender or minister the Oath aforesaid to every or any Spiritual or Ecclesiastical person within their proper Diocess as well in Places and Iurisdictions exempt as elsewhere If a man be Indicted for refusing this Oath before him who is reputed to be Bishop of the Diocess Bishop or not Bishop and he plead to the Indictment Non culp he may upon that issue give in Evidence Quod non fuit Episcopus tempore oblationis Sacramenti Dyer 6 7 Eliz. 234. Bonners Case Stat. Sect. 6. The Lord Chancellor may direct Commissions to take the Oath of any person And be it Enacted by the Authority aforesaid That the Lord Chancellor or Kéeper of the Great Seal of England for the time being shall and may at all times hereafter by vertue of this Act without further Warrant make and direct Commission or Commissions under the Great Seal of England to any person or persons giving them or some of them thereby Authority to tender and minister the Oath aforesaid to such person or persons as by the aforesaid Commission or Commissions the said Commissioners shall be authorized to tender the same Oath unto The penalty for the first refusal of the Oath And be it also further Enacted by the Authority of this present Parliament That if any person or persons appointed or compellable by this Act or by the said Act made in the said first year to take the said Oath Or if any person or persons to whom the said Oath by any such Commission or Commissions shall be limited and appointed to be tendred as is aforesaid do or shall at the time of the said Oath so tendred refuse to take or pronounce the said Oath in manner and form aforesaid that then the party so refusing and being thereof lawfully Indicted or presented within one year next after any such refusal and convicted or attainted at any time after according to the Laws of this Realm shall suffer and incur the dangers penalties pains and forfeitures ordained and provided by the Statute of Provision and Praemunire aforesaid made in the 16th year of the Reign of King Richard the second Stat. Sect. 7. Certificate of Refusal into the Kings-Bench And furthermore be it Enacted by the Authority aforesaid That all and every such person and persons having Authority to tender the Oath aforesaid shall within forty days next after such refusal or refusals of the said Oath if the Term be then open and if not then at the first day of the full Term next following the said forty days make true Certificate under his or their Seal or Seals of the names places and degrees of the person or persons so refusing the same Oath before the Quéen her Heirs or Successors in her or their Court commonly called the Kings-Bench upon pain that every of the said persons having such Authority to tender the said Oath making default of such Certificate shall for every such default forfeit 100 l. to the Queens Highness her Heirs or Successors And that the Sheriff of the County where the said Court commonly called the Kings-Bench shall for the time be holden shall or may by vertue of this Act impannel a Iury of the same County to enquire of and upon every such refusal and refusals Indictment of the Offender Which Iury shall or may upon every such Certificate and other Evidence to them in that behalf to be given by vertue of this Act proceed to Indict the person and persons so offending in such sort and degree to all intents and purposes as the same Iury may do of any Offence or Offences against the Queens Majesties Peace perpetrated committed or done within the same County of and for the which the same Iury is so Impannelled Terme When the Term Term. is open and which is the first day of full Term Vide supra Sect. 3. Make true Certificate c. in the Kings-Bench Certificate of refusal by whom brought in not material It is not necessary that it be mentioned of Record in the Kings-Bench how or by whom the Certificate was brought in thither And in Bonners Case where the Bishop of Winchester certified the refusal of this Oath And exception was taken that the Certificate was entred to be brought into Court per A. B. Cancellarium dicti Episcopi but not per mandatum Episcopi the exception was dissallowed for that reason Dyer 6. 7. Eliz. 234. Impannel a Iury of the same County to inquire A Jury of the County where the Kings-Bench is And a Jury of the County where the Kings-Bench is can do no more in this Case then inquire that is Indict the party refusing the Oath unless where the refusal is in the same County Horne Bishop of Winchester tendred this Oath in Surrey parcel of his Diocess to Bonner then late Bishop of London By what Jury the Offender shall be Tryed who refused to take it and this was certified by the Bishop of Winchester into the Kings-Bench then sitting at Westminster in the County of Middlesex where Bonner was Indicted by a Jury of that County according to this Act the Question was by what County he should be Tryed whether by a Jury of Middlesex where the Indictment was taken or by a Jury of Surrey where the offence was committed And it was resolved that he should be Tryed by a Jury of Surrey for this Statute extendeth to the Indictment only and leaveth the Trial to the Common Law which appoints it to be where the Offence is committed for regularly by the Common Law debet quis juri subjacere ubi deliquit Dyer 6. 7. Eliz. 234. Co. 3.
persons authorized or claiming Authority by or from the said Bishop or Seé of Rome to Consecrate or Hallow the same which said Agnus Dei is used to be specially Hallowed and Consecrated as it is termed by the said Bishop in his own person and the said Crosses Pictures Beads and such like superstitious things been also hallowed either by the same Bishop or by others having power or pretending to have power from him or his said Sée and divers Pardons Immunities and Exemptions granted by the Authority of the said Sée to such as shall receive and use the same and that if the same person or persons so bringing in as is aforesaid such Agnus Dei and other like things as have been before specified shall deliver or cause or offer to be delivered the same or any of them to any Subject of this Realm or of any the Dominions of the same to be worn or used in any wise that then as well the same person and persons so doing as also all and every other person or persons which shall receive and take the same to the intent to use or wear the same being thereof lawfully Convicted and Attainted by the order of the Common Laws of this Realm shall incur into the dangers penalties pains and forfeitures ordained and provided by the Statute of Praemunire and Provision made in the sixteenth year of the Reign of King Richard the Second Bringers in offerers and deliverers And that if the same Person or Persons so bringing in A man brings into the Kings Dominions such Agnus Dei or other like superstitious things and another offers or delivers them It seems that neither he that brings them in nor he that offers or delivers them is within this Act or liable to the penalty for by the express words it must be the same person So that neither the bringer in unless he offer or deliver them or cause them to be delivered nor he who delivers them or causeth or offereth them to be delivered unless he be the person who brought them in is an Offender within the Act. To whom an Agnus Dei c. may not be offered or delivered To any Subject of this Realm c. The offer or delivery of such Agnus Dei or other superstitious thing to any sort of person is not an offence within this Act as Wingate supposes it to be tit Crown Numb 37. But to make it an Offence it must be delivered or offered to a Subject of this Realm or of the Dominions of the same The intent material To be worn or used c. to the intent to use or wear the same The Intent is material in this Case an◠therefore If a man be Indicted upon this Statute for bringing in and offering or delivering such Agnus Dei c. or receiving the same the intent must be mentioned in the Indictment as it must be in Indictments upon all Statutes where the intent as here is made part of the offence So in an Indictment upon the Statute of 5 E. 6. cap. 4. Stat. 5 E. 6. 4. it is not enough to say the party drew his Dagger in the Church against J. S. but it must be averred that he did it with an intent to strike him as was Resolved by the Court of Kings-Bench Trin. 33 Eliz. in Penhalls Case Leonard 4. 49. C. 127. It seems by the words of this Statute that to make the Receiver of such superstitious things an offender within it there must be a concurrence of intentions for the using or wearing them both in the giver and receiver And that therefore if a person coming from beyond the Seas brings into this Realm any such superstitious things but with no intent that they should be worn or used and gives them to his friend at his request who receives them with an intent to wear or use them this is penal to neither Not to the giver for he had no superstitious intent and the intent is material nor to the receiver for that the offering or delivering them to be worn or used is expresly made in the Statute a condition precedent to the obliquity of the fact in receiving them for the Statute saith Then as well the person so doing as also every other person receiving them to that intent shall incur a Praemunire So that then only when the person delivering them so doth that is delivers them to be worn or used the person receiving them to that intent shall incur a Praemunire But yet there needs not any such concurrence of intentions in the giver and receiver to make the giver an offender And therefore if a man brings into the Realm such superstitious things and delivers them to be worn or used though the party receive them not to the intent to use or wear them but defaces burns or otherwise destroies them yet he that gave or delivered them incurs a Praemunire for the words in the Act relating to the Offerer or Deliverer are intire in themselves and have no dependance on the subsequent words relating to the receiver but generally make all Offenders who bring them in and either offer or deliver them to a superstitious intent without any respect to the intent of the party who receives or is offered them Provided nevertheless Stat. Sect. 7. Apprehending an Offender or disclosing his name and be it further Enacted by the Authority aforesaid That if any person or persons to whom any such Agnus Dei or other the things aforesaid shall be tendered and offered to be delivered shall apprehend the party so offering the same and bring him to the next Iustice of Peace of that Shire where such tender shall be made if he shall be of power and able so to do or for lack of such ability shall within the space of three days next after such offer made as is aforesaid disclose the name or names of such person or persons as so shall make the same offer and the dwelling place or place of resort of the same person or persons which he shall indeavor himself to know by all the ways and means he can to the Ordinary of that Diocess or to any Iustice of Peace of that Shire where such person or persons to whom such offer shall be made as is aforesaid shall be resiant And also Delivering of Agnus Dei received to the Ordinary or a Justice of Peace if such person or persons to whom such offer shall be made shall happen to receive any such Agnus Dei or other thing above remembred and shall within the space of one day next after such receipt deliver the same to any Iustice of Peace within the same Shire where the party so receiving shall be then resiant or shall happen to be That then every such person or persons doing any the Acts or things in this Proviso above mentioned in forme above declared shall not by force of this Statute incur any danger or penalty appointed by this Statute or
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
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
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
cap. 1. Sect. 9. in that part touching the Informer and the Cases there cited to prove that no other Suits are restrained by that Statute to a year and a day but only Suits by Indictment By Action of Debt Bill Plaint Information If the King sue by any of these ways no Proclamation Proclamation can be made thereupon For the Proclamation given by the Statutes of 29 Eliz. 6. 3 Jac. 4. Stat. 29 Eliz. 6 3 Jac. 4 in Case of Recusancy at the Kings Suit is upon Indictment only Co. 11. 62. Dr. Fosters Case The Kings-Bench Common-Pleas or Exchequer This Statute adds two other Courts where the King may sue for Recusancy Two Courts added where the King may sue Stat. 29 Eliz. 6 or for saying or hearing of Mass For by 29 Eliz. cap. 6. the Queen was limited to the Kings-Bench the Assizes or general Goal delivery and that only by way of Indictment but now by this Statute she might sue not only in those Courts by Indictment but in the Kings-Bench Common-Pleas or Exchequer by Action of Debt Bill Plaint or Information Co. 11. 61. Dr. Fosters Case But whereas 't is there said that this Statute of 35 takes not off the restriction of the Informer Qui tam c. by the Statute of 29 Eliz. cap. 6. to the Courts there mentioned viz. the Kings-Bench Assizes and general Goal delivery This passage was occasioned by an opinion there held in the said Case of Dr. Foster that the Informer Qui tam c. was restrained by 29. to those Courts The Informer not restrained by 29 Eliz. 6. But that opinion is not Law nor was there ever any such restriction of the Informer for the Statute of 29 Eliz. intends only Suits by Indictment but touches not the popular Action or Information Vide Stat. 29 Eliz. cap. 6. Sect. 2. As c. any other Debt c. should or may be recovered Before this Statute the Queen had no way to recover of the Husband the intire forfeiture for the Recusancy of his Wife For if the Wife had been Indicted of Recusancy at the Queens Suit and convicted thereupon this had not affected the Husband who shall never be charged for the Act or default of his Wife but where he may be made party to the Action or Suit as in an Action of Debt Trespass Action of the Case for scandalous words by the Wife c. but not upon an Indictment And in this respect the Queen having before this Statute no remedy for recovery of the forfeiture but by Indictment where the Husband could not be charged for his Wife the Informer was then in better Case then the Queen For he may charge the Husband and Wife both for the Recusancy of the Wife and shall recover the forfeiture of him by force of the Statute of 23 Eliz. cap. 1. Stat. 23 Eliz. 1 Vide that Stat. Sect. 9. But upon the Conviction of the Wife upon Indictment the Queen must have staid till the death of the Husband before she could have levied the forfeiture and if the Wife had died before her Husband it was utterly lost in most Cases Baron and Feme may be charged for Recusancy of the feme But by this Act the Queen might and the King may at this day charge the Husband and Wife joyntly by Action of Debt Bill Plaint or Information for the Recusancy of the Wife in such sort as he may be charged in any other Action at Common Law for the Debt or Trespass of his Wife and the forfeiture for her Recusancy shall be recovered of him And this was the principal end and scope of making this Branch of the Statute and to this purpose were these words added here In such sort and in all respects as by the ordinary course of the Common Laws of this Realm any other Debt due by any such person in any other Case should or may be recovered Co. 11. 61 62. Dr. Fosters Case Rolles 1. 233 234. Roy versus Law son feme Savile 25. C. 59. Provided always Stat. Sect. 9. How the third part of the Penalties shall be imployed That the third part of the penalties to be had or received by vertue of this Act shall be imployed and bestowed to such good and charitable uses and in such manner and form as is limited and appointed in the Statute made in the 28. year of her Majesties Reign touching Recusants The Statute here mentioned Stat. 29 Eliz. 6 and called the Statute of 28 Eliz. is the same with 29 Eliz. cap. 6. before recited It being in some Books called the Statute of 28 in others of 29 but as it seems more properly 29. For the Session wherein it was made was by Prorogation held the 15 of February 29. Eliz. Provided also That no Popish Recusant Stat. Sect. 10. Popish Recusant or Feme Covert not to abjure Popish recusant or Feme Covert shall be compelled or bound to abjure by vertue of this Act. No Popish Recusant Here Wingate tit Crowne n. 77. leads his Reader into a great mistake for he mentions only a Feme Covert leaving out the Popish Recusant Feme Covert not here excepted in all Cases Or Feme Covert In the late additions to Dalton cap. 81. tit Recusants Sect. 7. 't is said that no married Woman is punishable by this Statute but are thereout excepted whereas in truth they are no where excepted throughout this Statute save only that they shall not be compelled or bound to abjure For if a married Woman comes not to Church but forbears for a month and goes to Conventicles or any other Meetings or Assemblies under colour or pretence of the exercise of Religion contrary to Law whether they be Popish or other or perswades others so to do or to forbear the Church or to impugne the Kings Authority in Causes Ecclesiastical she shall be imprisoned by force of this Act until she conform and submit her self but she cannot be further proceeded against so as to require her to abjure A married Woman with her Husband is likewise punishable by this Act for her Recusancy by Action of Debt c. brought against her and her Husband at the Kings Suit so that 't is a great mistake to say she is not punishable by this Statute Stat. Sect. 11. The forfeiture of him that abjures or refuses to abjure The Wise shall lose no Dower nor the heir any Land for these Offences Provided also That every person that shall abjure by force of this Act or refuse to abjure being thereunto required as aforesaid shall forfeit and lose to her Majesty all his goods and chattels forever and shall further lose all his Lands Tenements and Hereditaments for and during the life only of such offender and no longer and that the Wife of any Offender by force of this Act shall not lose her dower nor that any corruption of Blood shall grow or be by reason of any offence
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
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
be a Popish Recusant convict at any time after his or her conviction shall exercise any publick Office or Charge in the Commonwealth but shall be utterly disabled to exercise the same by himself or by his Deputy except such Husband himself and his Children which shall be above the age of nine years abiding with him and his Servants in houshold shall once every month at the least not having any reasonable excuse to the contrary repair to some Church or Chappel usual for Divine Service and there hear Divine Service And the said Husband and such his Children and Servants as are of méet age receive the Sacrament of the Lords Supper at such times as are limited by the Laws of this Realm and do bring up his said Children in true Religion This Clause extends not to all sorts of Recusants who are convicted or have Wives who are Recusants convicted as is mistaken in the late additions to Dalton cap. 81. tit Recusants Sect. 46. To whom this clause extends But at this day only to the Popish Recusant convicted or having a Wife who is a Popish Recusant convicted To whom not A Popish Recusant not convicted hath a Wife who is convicted of Recusancy but is no Popish Recusant The Husband is not disabled by this Statute to exercise any publick Office or Charge for that neither the Husband is a convicted Recusant nor the Wife a Popish Recusant A person who is convicted of Recusancy but is no Popish Recusant hath a Wife who is a Popish Recusant but not convicted The Husband is out of this Branch of the Statute for that neither the Husband is a Popish Recusant nor the Wife convicted Stat. Sect. 11. A Married Woman being a Popish Recusant And be it also Enacted by the Authority aforesaid That every Married Woman being or that shall be a Popish Recusant convict her Husband not standing convicted of Popish Recusancy which shall not conform her self and remain conformed but shall forbear to repair to some Church or usual place of Common Prayer and there to hear Divine Service and Sermon if any then be and within the said year receive the Sacrament of the Lords Supper according to the Laws of this Realm by the space of one whole year next before the death of her said Husband shall forfeit and loose to the Kings Majesty his Heirs and Successors the issues and profits of two parts of her Ioynture and two parts of her Dower in thrée parts to be divided during her life of or out of any the Lands Tenements or Hereditaments which are or were her said Husbands and also be disabled to be Executrix or Administratrix of her said Husband and to have or demand any part or portion of her said late Husbands Goods or Chattels by any Law custom or usage whatsoever The issues and profits of two parts of her Ioynture and two parts of her Dower A Woman may have Joynture and Dower both And not of two parts of her Joynture or Dower as Wingate tit Crown numb 134. For there are divers Cases where notwithstanding the Statute of 27 H. 8. cap. 10. the Wife shall have her Dower and Joynture both And forfeit two parts of both And if she offend against this branch she shall forfeit the profits of two parts of both And that not only where the Joynture made to her is not warranted by that Statute but in some Cases where the Joynture is pursuant and according to the Statute she shall have her Dower and Joynture both Of the first sort are these Where the Joynture is not warranted by Stat. 27 H. 8. 10. If an Estate be made of Lands to the Wife for the life of another Co. 4. 3. Vernons Case Or for a thousand years or for a thousand years if she live so long Co. 1. Inst 36. Or if a Rent be granted to the Wife for the life of another or for years or any other way not pursuant to that Statute Vide Anderson 1. 288. c. 296. Bickley's Case Anderson 2. 30 31. c. 20. Wentworths Case Or if an Estate be made to others in fee or for the Wives life upon Trust for her benefit Co. 1. Inst 36. Or if a man Covenant to stand seized to the use of himself in Tail the Remainder to the use of his Wife for life Pasch 16. Jac. B. R. Woods Case Or if the Husband make a Feoffment in see to the use of himself for life the remainder to another for life or years the remainder to the Wife for her life Co. 4. 2. 3. Hutton 51. Sherwells Case In all these Cases although the Lands or Rent were conveyed to the Wife for her Joynture yet the Estate not being within the Statute of 27 H. 8. her acceptance thereof shall not bar her Dower but she shall have such Joynture and her Dower also And the reason why in the two last Cases the Wife shall not be barred of her Dower although there be an Estate limited to her for her life is because the Estate is not in its first Creation appointed to take immediately after the death of the Husband And no matter which arises ex post facto can salve this or make it a Joynture within that Statute to bar her Dower And therefore if in the first of those two Cases the Husband Tenant in Tail dies without issue or if in the last Case he in the remainder die before the Husband or the term for years determines in the Husbands life time so that the Wife may enter presently after his death yet because the Estate to the Wife for her life was not originally limited to take immediately after his death it shall not bar her Dower For quod ab initio non valet in tractu temporis non convalescet Co. 4. 2 3. Hutton 51. And as in all the Cases before mentioned if the Estate were made for her Joynture the Wife shall have such Joynture and her Dower both so if she be an Offender within this branch of the Act and conform not within the year next before her Husbands death she shall forfeit the profits of two parts of both Of what Lands she shall not forfeit the profits But otherwise it is where an Estate is given or limited by the Husband to the Wife and it s neither expressed nor can be averred and proved to be given or limited for her Joynture or in recompence of her Dower And therefore if any of the Estates before mentioned which are not within the Statute of 27 H. 8. be granted or limited to the Wife by the Husband or any other Estate for her life or otherwise which would be a good Joynture within the said Statute if it were intended for a Joynture as if a man before or after Marriage Covenants to stand seized of Lands to the use of himself for life the Remainder to his Wife for her life and it is neither expressed in the Deed nor can be averred and
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
the 1 2 Ph. M. 8. and all and every Branches Clauses and Articles therein contained other than such Branches and Sentences as hereafter shall be excepted may from the last day of this Session of Parliament by Authority of this present Parliament be repealed and shall from thenceforth be utterly void and of none effect The Statute of 1. and 2. Ph. Mar. here mentioned repealed The King declared supream Head Stat. 1 2. Ph. Mar. 8. 26 H. 8. 1. 35 H. 8. 3. the Statutes of 26 H. 8. cap. 1. and 35 H. 8. cap. 3. By both which King Henry the Eighth his Heirs and Successors were declared supream Head of the Church of England And by the repeal of that of 1. and 2. Ph. Mar. those other of 26 and 35 H. 8. were revived and are again in force Co. 4. Inst 325. Vide Sect. 5. Stat. Sect. 3. A reviver of several Stat. And that also for the reviving of divers of the said good Laws and Statutes made in the time of your said dear Father it may also please your Highness That one Act and Statute made in the three and twentieth year of the Reign of the said late King Henry the Eighth entituled An Act that no person shall be cited out of the Diocess where he or she dwelleth except in certain Cases And one other Act made in the Four and Twentieth year of the Reign of the said late King entituled An Act that Appeals in such cases as hath been used to be pursued to the See of Rome shall not be from henceforth had ne used but within this Realm And one other Act made the five and twentieth year of the said late King concerning restraint of payment of Annates and First-fruits of Archbishopricks and Bishopricks to the See of Rome And one other Act in the said five and twentieth year entituled An Act concerning the submission of the Clergy to the Kings Majesty And also one Act made in the five and twentieth year entituled An Act restraining the payment of Annates or First-fruits to the Bishop of Rome and of the Electing and Consecrating of Archbishops and Bishops within this Realm And one other Act made in the said five and twentieth year entituled An Act concerning the Exoneration of the Kings Subjects from Exactions and Impositions heretofore paid to the See of Rome and for having Licences and Dispensations within this Realm without suing further for the same And one other Act made in the six and twentieth year of the said late King entituled An Act for Nomination and Consecration of Suffragans within this Realm And also one other Act made in the eight and twentieth year of the Reign of the said late King entituled An Act for the Release of such as have obtained pretended Licences and Dispensations from the See of Rome And all and every Branches Words and Sentences in the said several Acts and Statutes contained The Sentences and Branches in the aforesaid Statutes shall extend to the Queen by Authority of this present Parliament from and at all times after the last day of this Session of Parliament shall be revived and shall stand and be in full force and strength to all intents constructions and purposes And that the Branches Sentences and Words of the said several Acts and every of them from thenceforth shall and may be judged déemed and taken to extend to your Highness your Heirs and Successors as fully and largely as ever the same Acts or any of them did extend to the said late King Henry the Eighth your Highnesses Father And that it may also please your Highness that it may be enacted by the Authority of this present Parliament That so much of one Act or Statute made in the two and thirtieth year of the Reign of your said dear Father King Henry the Eighth entituled An Act concerning Precontracts of Marriages and touching degrees of Consanguinity as in the time of the late King Edward the sixth your Highnesses most dear Brother by one other Act or Statute was not repealed And also one Act made in the seven and thirtieth year of the Reign of the said late King Henry the Eighth entituled An Act that Doctors of the Civil Law being married may exercise Ecclesiastical Jurisdiction And all and every Branches and Articles in the said two Acts last mentioned and not repealed in the time of the said late King Edward the sixth may from henceforth likewise stand and be revived and remain in their full force and strength to all intents and purposes Any thing contained in the said Act of repeal before mentioned or any other matter or cause to the contrary notwithstanding What Stat. repealed by the Stat. of 1 2 P. M. 8. shall continue repealed And that it may also please your Highness that it may be further enacted by the Authority aforesaid That all other Laws and Statutes and the Branches and Clauses of any Act or Statute repealed and made void by the said Act of Repeal made in the time of the said late King Philip and Quéen Mary and not in this present Act specially mentioned and revived shall stand remain and be repealed and void in such like manner and form as they were before the making of this Act any thing herein contained to the contrary notwithstanding A reviver of the Stat. of 1 Ed. 6. 1. And that it may also please your Highness That it may be enacted by the Authority aforesaid that one Act and Statute made in the first year of the Reign of the late King Edward the sixth your Majesties most dear Brother entituled An Act against such persons as shall unreverently speak against the Sacrament of the Body and Blood of Christ commonly called the Sacrament of the Altar and for the receiving thereof under both kinds and all and every Branches Clauses and Sentences therein contained shall and may likewise from the last day of this Session of Parliament be revived and from thenceforth shall and may stand remain and be in full force strength and effect to all intents constructions and purposes in such like manner and form as the same was at any time in the first year of the Reign of the said late King Edward the Sixth any Law Statute or other matter to the contrary in any wise notwithstanding A repeal of the Statute of 1 2 P. M. 6. and several other Statutes And that also it may please your Highness That it may be further established and enacted by the Authority aforesaid that one Act and Statute made in the first and second years of the late King Philip and Queen Mary entituled An Act for the reviving of three Statutes made for the punishment of Heresies and also the said three Statutes mentioned in the said Act and by the same Act revived And all and every Branches Articles Clauses and Sentences contained in the said several Acts and Statutes and every of them shall be
said Oath And that it may likewise be further enacted by the Authority aforesaid That if any such person or persons as at any time hereafter shall be promoted preferred or collated to any such Promotion Spiritual or Ecclesiastical Benefice Office or Ministry or that by your Highness your Heirs or Successors shall be promoted or preferred to any Temporal or Lay Office Ministry or Service shall and do peremptorily and obstinately refuse to take the same Oath so to him to be offered that then he or they so refusing shall presently be judged disabled in the Law to receive take or have the same Promotion Spiritual or Ecclesiastical or the same Temporal Office Ministry or Service within this Realm or any other your Highnesse Dominions to all intents constructions and purposes He that sues Livery or 〈…〉 And that it may be further enacted by the Authority aforesaid that all and every person and persons Temporal suing Livery or Oustre le maine out of the hands of your Highness your Heirs or Successors before his or their Livery or Oustre le maine sued forth and allowed He that doth homage to the Queen He that shall be received into the Queens service and every Temporal person or persons doing any homage to your Highness your Heirs or Successors or that shall be received into Service with your Highness your Heirs or Successors shall make take and receive the said Corporal Oath before mentioned before the Lord Chancellor of England or the Lord Keeper of the Great Seal for the time being or before such person or persons as by your Highness your Heirs or Successors shall be named and appointed to accept or receive the same And that also all and every person and persons taking Orders He that taketh Orders He that taketh Degrees in any University and all and every other person and persons which shall be promoted or preferred to any Degree of Learning in any Vniversity within this your Realm or Dominions before he shall receive or take any such Orders or be preferred to any such Degree of Learning shall make take and receive the said Oath by this Act set forth and declared as is aforesaid before his or their Ordinary Commissary Chancellor or Vice-Chancellor or their sufficient Deputies in the said Vniversity Provided always He that having an Estate of Inheritance in a temporal Office first refuseth and then taketh the Oath and that it may be further enacted by the Authority aforesaid That if any person having any Estate of Inheritance in any Temporal Office or Offices shall hereafter obstinately and peremptorily refuse to accept and take the said Oath as is aforesaid and after at any time during his life shall willingly require to take and receive the said Oath and so do take and accept the same Oath before any person or persons that shall have lawful Authority to minister the same that then every such person immediately after he hath so received the same Oath shall be vested judged and deemed in like estate and possession of the said Office as he was before the said refusal and shall and may use and exercise the said Office in such manner and form as he should or might have done before such refusal Any thing in this Act contained to the contrary in any wise notwithstanding And for the more sure Observation of this Act Stat. Sect. 8. The penalty of the maintenance of Forreign Authority and the utter Extinguishment of all Forreign and usurped Power and Authority may it please your Highness that it may further be enacted by the Authority aforesaid That if any person or persons dwelling or inhabiting within this your Realm or in any other your Highnesses Realms or Dominions of what Estate Dignity or Degree whatsoever he or they be after the end of 30 days next after the determination of this Session of this present Parliament shall by Writing Printing Teaching Preaching express words deed or act advisedly maliciously and directly affirm hold stand with set forth maintain or defend the Authority Preheminence Power or Iurisdiction Spiritual or Ecclesiastical of any Forreign Prince Prelate Person State or Potentate whatsoever heretofore claimed used or usurped within this Realm or any Dominion or Country being within or under the Power Dominion or Obeysance of your Highness or shall advisedly maliciously and directly put in ure or execute any thing for the extolling advancement setting forth maintenance or defence of any such pretended or usurped Iurisdiction Power Preheminence or Authority or any part thereof that then every such person and persons so doing and offending their abettors aiders procurers and Counsellors being thereof lawfully convicted and attainted according to the true order and course of the Common Laws of this Realm for his or their first offence shall forfeit and lose unto your Highness your Heirs and Successors all his and their Goods and Chattels as well real as personal The forfeiture for the first Offence And if any person so convicted or attainted shall not have or be worth of his proper Goods and Chattels to the value of twenty pounds at the time of his Conviction or Attainder That then every such person so convicted and attainted over and besides the forfeiture of all his said Goods and Chattels shall have and suffer Imprisonment by the space of one whole year without Bail or Mainprise And that also all and every the Benefices Prebends and other Ecclesiastical Promotions and Dignities whatsoever of every spiritual person so offending and being attainted shall immediately after such Attainder be utterly void to all intents and purposes as though the Incumbent thereof were dead And that the Patron and Donor of every such Benefice Prebend spiritual Promotion and Dignity shall and may lawfully present unto the same or give the same in such manner and form as if the said Incumbent were dead The forfeiture for the second Offence And if any such Offender or Offenders after such Conviction or Attainder do eftsoons commit or do the said Offences or any of them in manner and form aforesaid and be thereof duly convicted and attainted as is aforesaid That then every such Offender and Offenders shall for the same second Offence incur into the dangers penalties and forfeitures ordained and provided by the Statute of Provision and Praemunire made in the sixteenth year of the Reign of King Richard the second The forfeiture for the third Offence And if any such Offender or Offenders at any time after the said second Conviction and Attainder do the third time commit and do the said Offences or any of them in manner and form aforesaid and be thereof duly convicted and attainted as is aforesaid That then every such Offence or Offences shall be deemed and adjudged High Treason and that the Offender or Offenders therein being thereof lawfully convicted and attainted according to the Laws of this Realm shall suffer pains of death and other penalties forfeitures and losses as in
Act of Repeal made in the said first and second years of the Reigns of the said late King Philip and Quéen Mary as doth in any wise touch or concern any matter or cause of Praemunire or that doth make or ordain any matter or cause to be within the Case of Praemunire but that the same for so much only as toucheth or concerneth any Case or matter of Praemunire shall stand and remain in such force and effect as the same was before the making of this Act Any thing in this Act contained to the contrary in any wise notwithstanding Provided also and be it enacted by the Authority aforesaid Offences committed against Statutes revived That this Act or any thing therein contained shall not in any wise extend or be prejudicial to any person or persons for any Offence or Offences committed or done or hereafter to be committed or done contrary to the tenour and effect of any Act or Statute now revived by this Act before the end of thirty days next after the end of the Session of this present Parliament Any thing in this Act contained or any other matter or cause to the contrary notwithstanding Stat. Sect. 11. Trial of Peers And if it happen that any Peér of this Realm shall fortune to be indicted of and for any Offence that is revived or made Praemunire or Treason by this Act that then he so being indicted shall have his Trial by his Péers in such like manner and form as in other Cases of Treason hath been used Provision for Trial of Peers The provision made in this and other Acts of Parliament for the Trial of a Peer by his Peers in case of Treason where he was to be tried according to the course of the Common Law is Ex abundanti and he should have such Trial if no such Proviso were inserted the like in the Case of Felony Stamford Pl. Coron 153. Stat. Sect. 12. No matter of Religion c. made by this Parliament shall be adjudged Error Heresie or Schism Provided always and be it enacted as is aforesaid That no manner of Order Act or Determination for any matter of Religion or cause Ecclesiastical had or made by the Authority of this present Parliament shall be accepted deémed interpreted or adjudged at any time hereafter to be any Error Heresie Schism or schismatical Opinion Any Order Decreé Sentence Constitution or Law whatsoever the same be to the contrary notwithstanding What things the Commissiners may adjudge to be Heresie Provided always and be it enacted by the Authority aforesaid That such person or persons to whom your Highness your Heirs or Successors shall hereafter by Letters Patents under the Great Seal of England give Authority to have or execute any Iurisdiction Power or Authority Spiritual or to visit reform order or correct any Errors Heresies Schisms Abuses or Enormities by virtue of this Act shall not in any wise have Authority or Power to Order determine or adjudge any matter or cause to be Heresie but only such as heretofore have been determined ordered or adjudged to be Heresie by the Authority of the Canonical Scriptures The Scripture Four general Counsels or by the first four general Counsels or any of them or by any other general Counsel wherein the same was declared Heresie by the express and plain words of the said Canonical Scriptures or such as hereafter shall be ordered judged or determined to be Heresie by the high Court of Parliament of this Realm with the assent of the Clergy in their Convocation Any thing in this Act contained to the contrary notwithstanding None shall be indicted or arraigned but by Witnesses And be it further enacted by the Authority aforesaid That no person or persons shall be hereafter indicted or arraigned for any of the Offences made ordained revived or adjudged by this Act unless there be two sufficient Witnesses or more to testifie and declare the said Offences whereof he shall be indicted or arraigned And that the said Witnesses or so many of them as shall be living and within this Realm at the time of Arraignment of such person so indicted shall be brought forth in person face to face before the party so arraigned and there shall testifie and declare what they can say against the party so arraigned if he require the same Provided also A Proviso for them that give relief to Offenders and be it further enacted by the Authority aforesaid That if any person or persons shall hereafter happen to give any relief aid or comfort or in any wise be aiding helping or comforting to the person or persons of any that shall hereafter happen to be an Offender in any matter or case of Praemunire or Treason revived or made by this Act that then such relief aid or comfort given shall not be judged or taken to be any Offence unless there be two sufficient Witnesses at the least that can and will openly testifie and declare that the person or persons that so give such relief aid or comfort had notice and knowledge of such Offence committed and done by the said Offender at the time of such relief aid or comfort so to him given or ministred Any thing in this Act contained or any other matter or cause to the contrary in any wise notwithstanding And where one pretenced sentence hath heretofore béen given in the Consistory in Pauls before certain Iudges De Legate by the Authority Legantine of the late Cardinal Poole by reason of a Forreign usurped Power and Authority against Richard Chetwood Esq and Agnes his Wife Chetwoods Appeal to the Court of Rome by the name of Agnes Woodhull at the suit of Charles Tyrrel Gent. in a Cause of Matrimony solemnized betweén the said Richard and Agnes as by the same pretended Sentence more plainly doth appear from which Sentence the said Richard and Agnes have appealed to the Court of Rome which Appeal doth there remain and yet is not determined May it therefore please your Highness that it may be enacted by the Authority aforesaid That if Sentence in the said Appeal shall happen to be given at the said Court of Rome for and in the behalf of the said Richard and Agnes for the reversing of the said pretenced Sentence before the end of threéscore days next after the end of this Session of this present Parliament that then the same shall be judged and taken to be good and effectual in the Law and shall and may be used pleaded and allowed in any Court or Place within this Realm Any thing in this Act or in any other Act or Statute contained to the contrary notwithstanding And if no Sentence shall be given at the Court of Rome in the said Appeal for the reversing of the said pretenced Sentence before the end of the said thréescore days that then it shall and may be lawful for the said Richard and Agnes and either of them at any time hereafter to
commence take sue and prosecute their said Appeal from the said pretenced Sentence and for the reversing of the said pretenced Sentence within this Realm in such like manner and form as was used to be pursued or might have béen pursued within this Realm at any time since the xxiv year of the Reign of the said late King Henry the Eighth upon Sentences given in the Court or Courts of any Archbishop within this Realm And that such Appeal as so hereafter shall be taken or pursued by the said Richard Chetwood and Agnes or either of them and the Sentence that herein or thereupon shall hereafter be given shall be judged to be good and effectual in the Law to all intents and purposes any Law Custom Vsage Canon Constitution or any other matter or cause to the contrary notwithstanding An Appeal between Richard Harcourt and Anthony Fydell Provided also and be it enacted by the Authority aforesaid That where there is the like Appeal now depending in the said Court of Rome betweén one Richard Harcourt Merchant of the Staple and Elizabeth Harcourt otherwise called Elizabeth Robins of the one party and Anthony Fydell Merchant Stranger on the other party that the said Robert Elizabeth and Anthony and every of them shall and may for the prosecuting and trying of their said Appeal have and enjoy the like remedy benefit and advantage in like manner and form as the said Richard and Agnes or any of them hath may or ought to have and enjoy this Act or any thing therein contained to the contrary in any wise notwithstanding Stat. i Eliz. cap. ii An Act for the Vniformity of Common Prayer and Service in the Church and the Administration of the Sacraments WHere at the death of our late Soveraign Lord King Edward the Sixth Stat. Sect. 1. there remained one uniform Order of Common Service and Prayer and of the Administration of Sacraments Rites and Ceremonies in the Church of England which was set forth in one Book Intituled The Book of Common Prayer and Administration of Sacraments and other Rites and Ceremonies in the Church of England Authorized by Act of Parliament holden in the Fifth and Sixth years of our said late Sovereign Lord King Edward the Sixth Intituled An Act for the Vniformity of Common Prayer and Administration of the Sacraments the which was repealed and taken away by Act of Parliament in the First year of the Reign of our late Sovereign Lady Quéen Mary to the great decay of the due honour of God and discomfort to the Professors of the Truth of Christ's Religion Be it therefore Enacted by the Authority of this present Parliament That the said Estatute of Repeal A repeal of the Statute of 1 M. 2. And the Book of Common Prayer shall be in force and every thing therein contained only concerning the said Book and the Service Administration of the Sacraments Rites and Ceremonies contained or appointed in or by the said Book shall be void and of none effect from and after the Feast of the Nativity of Saint John Baptist next coming And that the said Book with the Order of Service and of the Administration of Sacraments Rites and Ceremonies with the alteration and additions therein added and appointed by this Estatute shall stand and be from and after the said Feast of the Nativity of Saint John Baptist in full force and effect according to the tenor and effect of this Estatute Any thing in the aforesaid Estatute of Repeal to the contrary notwithstanding Stat. Sect. 2. The Book of Common Prayer shall be used And further Be it Enacted by the Queens Highness with the assent of the Lords and Commons in this present Parliament assembled and by the Authority of the same That all and singular Ministers in any Cathedral or Parish Church or other place within this Realm of England Wales and the Marches of the same or other the Quéens Dominions shall from and after the Feast of the Nativity of Saint John Baptist next coming be bounden to say and use the Mattens Evensong Celebration of the Lords Supper and Administration of each of the Sacraments and all the Common and open Prayer The alteration of the Book set forth 5 6 Ed. 6. in such Order and Form as is mentioned in the said Book so Authorized by Parliament in the said Fifth and Sixth years of the Reign of King Edward the Sixth with one alteration or addition of certain Lessons to be used on every Sunday in the year and the Form of the Letany altered and corrected and two sentences only added in the delivery of the Sacrament to the Communicants and none other or otherwise The forfeiture of those which use any other Service then the Book of Common Prayer And that if any manner of Parson Vicar or other whatsoever Minister that ought or should sing or say Common Prayer mentioned in the said Book or Minister the Sacraments from and after the Feast of the Nativity of Saint John Baptist next coming refuse to use the said Common Prayers or to Administer the Sacraments in such Cathedral or Parish Church or other places as he should use to Minister the same in such Order and Form as they be mentioned and set forth in the said Book or shall wilfully or obstinately standing in the same use any other Rite Ceremony Order Form or Manner of celebrating the Lords Supper openly or privily or Mattens Evensong Administration of the Sacraments or other open Prayers then is mentioned and set forth in the said Book open Prayer in and throughout this Act is meant that Prayer which is for others to come unto or hear either in common Churches The Penalty for depraving the Book of Common Prayer or private Chappels or Oratories commonly called the Service of the Church or shall Preach Declare or Speak any thing in the Derogation or Depraving of the said Book or any thing therein contained or of any part thereof and shall be thereof lawfully convicted according to the Laws of this Realm by Verdict of twelve Men or by his own Confession or by the notorious Evidence of the Fact shall loose and forfeit to the Queens Highness her Heirs and Successors for his first offence the profit of all his Spiritual Benefices or Promotions coming or arising in one whole year next after his conviction And also that the person so convicted shall for the same Offence suffer Imprisonment for the space of Six months without Bail or Mainprize That ought or should sing or say Common Prayer c. What Minister is here meant Although the first part of this Clause viz. All and singular Ministers in any Cathedral or Parish Church or other place seems to intend a local Minister only and not one who is neither Parson Vicar or Stipendiary Chaplain yet the next words If any Parson Vicar or other Minister that ought to say Common Prayer or minister the Sacraments c. clearly comprehend all lawful
Ministers and Priests whatsoever For 't is held in our Law that as he is Sacerdos he ought and is bound jure divino celebrare Coenam Dominicam dictae Coenae orationes c. And if he be indicted upon this Statute with the addition of Clericus that word implies him to be a Priest or Minister within the meaning thereof Dyer 3. Eliz. 203. Note That by the Statute of 14 Car. 2. Stat. 14 Car. 2. This and all other Laws which were then in force for the Uniformity of Prayer and Administration of the Sacraments within the Realm of England are now applicable to the Book of Common Prayer Book of Common Prayer authorized by that Act of 14 Car. and are to be put in ure with relation to the said Book Wilfully or obstinately standing in the same These words wilfully or obstinately standing in the same seem to restrain the Law to such other Prayers as are used in hindrance of or opposition to the Common Prayer or after admonition or warning to the contrary Prayers in the Pulpit and therefore the Prayers used in the Pulpit before Sermon seem not to be within the meaning of this Law nor to be forbidden by it because generally tolerated by those in Authority and so not obstinately used And were those words wanting although the words of the Statute are general any other form or open Prayers yet they ought to have a particular construction according to reason and the intent of the makers of the Law viz. That no Minister shall use any other form to the hindrance of or in opposition to this For a penal Law shall not always be construed according to the words of it but according to the intent of the makers of it Plowden 18. Fogassa's Case Ib. 465 466 467. Eyston versus Studd Ibib. 109 110. Fulmerston versus Stewarde And the words of a Law may be infringed and yet the Law it self may not be infringed unless the intent be likewise Plowden 18. which intent shall never be construed to be against reason For many things are excepted out of Statutes by the Law of reason which yet are not excepted by express words Plowden 13. Fogassa's Case And 't is a general Rule to be allowed in construction of Statute Laws Quamvis Lex-generaliter loquitur restringenda tamen est ut cessante ratione ipsa cesset cum enim ratio sit anima vigorque ipsius Legis non videtur Legislator id sensisse quod ratione careat etiamsi verborum generalitas aliter suadeat Co. 4. Inst 330 331. Stat. Sect. 3. The penalty for the second Offence And if any such person once convict of any Offence concerning the premisses shall after this first conviction eftsoons offend and be thereof in form aforesaid lawfully convict that then the same person shall for his second offence suffer imprisonment by the space of one whole year and also shall therefore be deprived ipso facto of all his spiritual Promotions and that it shall be lawful to all Patrons or Donors of all and singular the same spiritual Promotions or of any of them to present or collate to the same as though the person or persons so offending were dead The penalty for the third Offence And that if any such person and persons after he shall be twice convicted in form aforesaid shall offend against any of the premisses the third time and shall be thereof in form aforesaid lawfully convicted that then the person so offending and convicted the third time shall be deprived ipso facto of all his spiritual Promotions and also shall suffer Imprisonment during his Life Where the second Indictment must mention the first conviction where not For his second Offence One is Indicted upon this Statute for administring Baptism in other form than is thereby prescribed And is convicted and afterwards he is again indicted for the like Offence By the Opinion of Clench Justice B. R. the second Indictment must mention the first Conviction or the Judgment cannot be for the second Offence viz. Imprisonment for a year and deprivation But Wray Chief Justice held That if both Indictments were before the same Justices they are to take notice of the first Conviction although it be not mentioned in the second Indictment and ought to give Judgment accordingly But if the second Indictment be taken by other Justices then without mention therein of the first Conviction they cannot give Judgment for the second Offence Leonard 1. 295. C. 403. The Benefice void without any Sentence To present or collate c. If the Offender against this Branch of the Act be judicially convicted of Record for the second or third Offence It seems that there needs not any Sentence declaratory by the Ecclesiastical Judge but his Benefices or spiritual Promotions are void ipso facto upon such Conviction For although the word void be not here as it is in the Statute of 21 H. 8. Stat. 21 H. 8. 13 13 Eliz. 12. c 13. of Pluralities And of 13 Eliz. cap. 12. about reading the 39 Articles Upon which Statutes 't is resolved that a Sentence declaratory is not necessary but that the Benefice is actually void without it Co. 4. 75. Hollands Case Co. 4. 79. Digbies Case Co. 6. 29. Greens Case yet the words here that the Patron may present or collate as if the person so offending were dead are tantamount and of as large an extent as if it had been said that his spiritual Promotions should be void And therefore if a Parson be convicted for the second or third Offence against this Statute and after such Conviction sues the Parishioners for Tythes it s a good plea to say that he stands convicted c. For he is thereby no longer Parson nor can sue for the Tythes no more than if he neglected to read the 39 Articles And that he is disabled in this last Case was adjudged Trin. 30 Eliz. in a Prohibition inter Morrice Eaton Vide Leonard 2. 212. C. 267. Wiggen and Arscotts Case nor will the Kings Pardon The Kings Pardon help or restore an Offender against this Act after the second or third Conviction no more than it will him who neglects to read the 39 Articles Vide Cro. Trin. 41 Eliz. 679 680. Baker versus Brent Robinson The Patron must at his peril take notice of a Conviction of the Incumbent upon this Statute Notice to the Patron not necessary For if he present not within six months after a Lapse will incur against him although no notice be given him For all men at their perils ought to take notice of an Act of Parliament to which every one is party 39 E. 3. 7. Bishop of Chichesters Case Dyer 7 Eliz. 237. Co. Hollands Case and Digbies Case supra In which three last Cases it was held That no notice to the Patron is necessary upon an avoidance by the Statute of 21 H. 8. of Pluralities Vide Termes de la
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
their Iurisdictions and Authority and to punish the same by admonition excommunication sequestration or deprivation and other censures and process in like form as heretofore hath béen used in like Cases by the Quéens Ecclesiastical Laws Provided always and be it enacted None shall be punished twice for the same Offence That whatsoever persons offending in the premisses shall for their offences first receive punishment of the Ordinary having a Testimonial thereof under the said Ordinaries Seal shall not for the same Offence eftsoons be convicted before the Iustices And likewise receiving for the said first Offence punishment by the Iustices shall not for the same Offence eftsoons receive punishment of the Ordinary Any thing contained in this Act to the contrary notwithstanding This Clause being in the affirmative doth not abrogate the Jurisdiction Ecclesiastical Ecclesiastical Jurisdiction not abrogated which was in the Ecclesiastical Judge before the making of the Statute for that no Negative words are here added as that he should proceed no otherwise or in no other manner or form than this Statute directs And therefore if any Parson Vicar c. deprave or observe not the Book of Common Prayer although this Act inflicts only the forfeiture of a years value and six months Imprisonment for the first Offence yet the Ecclesiastical Judge may for the first Offence deprive him notwithstanding this Act as he might have done if no form of punishment had been here appointed And the said Book being enjoined by Authority the Offence of depraving or non-observing it is punishable by the Ecclesiastical Judge according to the Ecclsiastical Law without the further aid of any Temporal Law then the commanding it to be observed Co. 5.5 6. Cawdries Case And in such Case the Sentence of Deprivation given by the Ecclesiastical Judge though it exceed the punishment inflicted by the Temporal Law is not to be questioned by the Temporal Judges but they ought to give Faith and Credit to it For cuilibet in sua arte perito est credendum Cawdries Case fol. 7. Co. 4.29 Bunting and Heppingwells Case Provided always and be it enacted Stat. Sect. 13. Ornaments of the Church and Ministers That such Ornaments of the Church and of the Ministers thereof shall be retained and be in use as was in this Church of England by Authority of Parliament in the second year of the Reign of King Edward the Sixth until other Order shall be therein taken by the Authority of the Quéens Majesty with the advice of her Commissioners appointed and authorized under the Great Seal of England for Causes Ecclesiastical or of the Metropolitan of this Realm And also That if there shall happen any Contempt or Irreverence to be used in the Ceremonies or Rites of the Church by the mis-using of the Orders appointed in this Book the Queéns Majesty may by the like advice of the said Commissioners or Metropolitan ordain and publish such further Ceremonies or Rites as may be most for the advancement of Gods Glory the Edifying of his Church and the due Reverence of Christs holy Mysteries and Sacraments All Laws and Ordinances made for other Service shall be void And be it further Enacted by the Authority aforesaid That all Laws Statutes and Ordinances wherein or whereby any other Service Administration of Sacraments or Common Prayer is limited established or set forth to be vsed within this Realm or any other the Queéns Dominions or Countries shall from henceforth be utterly void and of none effect Stat. v Eliz. cap. i. An Act for the Assurance of the Queens Majesties Royal Power over all States and Subjects within her Dominions FOR preservation of the Queéns most Excellent Highness her Heirs and Successors Stat. and the Dignity of Sect. 1 the Imperial Crown of this Realm of England And for the avoiding both such hurts perils dishonors and inconveniencies as have before time befallen as well to the Quéens Majesties noble Progenitors Kings of this Realm as for the whole Estate thereof by means of the Iurisdiction and Power of the Sée of Rome unjustly Claimed and Vsurped within this Realm and the Dominions thereof and also of the dangers by the fauters of the said usurped Power at this time grown to marvelous outrage and licentious boldness and now requiring more sharp restraint and correction of Laws than hitherto in the time of the Queéns Majesties most mild and merciful Reign have béen had used or established Be it therefore Enacted Ordained and Established Stat. by the Quéen our Soveraign Lady and the Lords Spiritual and Sect. 2 Temporal The Penalty for maintaining the Authority of the Bishop or See of Rome and the Commons in this present Parliament assembled and by Authority of the same That if any Person or Persons dwelling inhabiting or resiant within this Realm or within any other the Quéens Dominions Seigniories or Countries or in the Marches of the same or elsewhere within or under her Obeysance and Power of what Estate Dignity Preheminence Order or Condition soever he or they be after the first day of April which shall be in the year of our Lord God One thousand five hundred sixty thrée shall by Writing Typhering Printing Preaching or Teaching Déed or Act advisedly and wittingly hold or stand with to extol set forth maintain or defend the Authority Iurisdiction or Power of the Bishop of Rome or of his Sée heretofore claimed used or usurped within this Realm or in any Dominion or Country being of within or under the Queéns Power or Obeisance or by any Spéech open Déed or Act advisedly and wittingly attribute any such manner of Iurisdiction Authority or Preheminence to the said Sée of Rome or to any Bishop of the same Sée for the time being within this Realm or in any the Quéens Dominions or Countries that then every such Person or Persons so doing or offending their Abbettors Procurers and Counsellors and also their aiders assistants and comforters upon purpose and to the intent to set forth further and extol the said usurped Power Authority or Iurisdiction of any of the said Bishop or Bishops of Rome and every of them being thereof lawfully Indicted or Presented within one year next after any such Offences by him or them Committed and being lawfully Convicted or Attainted at any time after according to the Laws of this Realm for every such Default and Offence shall incur into the dangers penalties pains and forfeitures Ordained and Provided by the Statute of Provision and Praemunire made in the Sixtéenth year of the Reign of King Richard the Second Hold or stand with c. or attribute The Printers of any Book which attributes to the Pope or See of Rome any such Authority or Jurisdiction within this Realm Printing bringing in offering and delivering of Books c. and the utterers thereof in most Cases are within the danger of this Law and if any man bring over such Books Written beyond the Seas knowing the
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
Periam Justices of Assize by vertue of their Commission of Oyer and Terminer For the Certificate here mentioned which is to be sent into the Kings Bench is required only of the Justices of Assize and Justices of Peace And of Oyer and Terminer But Justices of Oyer and Terminer upon Indictments taken before them may proceed to hear and determine as Manwood and Periam did in that Case as well for the first as second Offence Savile 46. 47. C. 99. For which first Offence in extolling the Bishop of Romes Authority it seems the Justices of Assize who have a Commission of Oyer and Terminer have their election either as Justices of Assize to inquire only and then they must certifie the Presentment or Indictment into the Kings Bench or to inquire hear and determine as they are Justices of Oyer and Terminer and then they are not bound to certifie For Commissioners of Oyer and Terminer are not within the meaning of this Branch of the Statute as was held in that Case of Slade and Bodye By what hath been said it appears that the question there put by Ayloffe scil how they could proceed upon such an Indictmen not certified into the Kings Bench within forty days was grounded upon a double mistake 1. That Justices of Oyer and Terminer were bound to certifie into the Kings Bench all Indictments for extolling the Authority of the Bishop of Rome taken before them 2. That Indictments for the second Offence were within the meaning of this Branch of the Statute For he speaks there of the second Indictment which was for High Treason Every Presentment Presentment what By Presentment here is to be understood not only that which is properly so called which the Jurors find and present to the Court without any former Indictment delivered them but also an Indictment which is drawn and ingrossed in form of Law and delivered to the Jurors to be inquired of which Indictment the Justices here named have power to take by force of the word inquire and is included within the word Presentment being a species of it For every Indictment found by the Jurors is a Presentment and the Record saith Juratores praesentant c. when they find an Indictment But every Presentment is not an Indictment Co. 2. Inst. 739. And as well the one as the other touching the Offences aforesaid must be certified into the Kings Bench. If the Term be then open First day of the Term. The Essoin day is the first day of the Term properly so called and on that day the Term is open At the first day of full Term. That is Quarto die post Full Term. which is the usual day of appearance and the first day of every Term in common reputation For the Essoin day is the first day of the Term only to some particular intents and 't is not full Term till quarto die post Savile 124. Co. 193. Matthew vers Harcourt So that if the Forty days expire on the day before the Essoin day the Presentment need not be certified until quarto die post Presentments when to be certified which is the day of appearance but if they expire on the Essoin day or afterwards and before the quarto die post the Justices here named must not stay till the quarto die post but are bound to certifie by the last day of the Forty days under the penalty here limited for the Term was then open Stat. Sect. 4. Who shall take the Oath set forth A◠1 E. 1. And moreover be it Enacted by the Authority aforesaid That as well all manner of Persons expressed and appointed in and by the Act made in the first year of the Quéens Majesties Reign that now is intituled an Act restoring to the Crown the antient Iurisdiction over the estate Ecclesiastical and Spiritual and abolishing all Forraign Powers repugnant to the same to take the Oath expressed and set forth in the same As all other Persons which have taken or shall take Orders commonly called Ordines Sacros or Ecclesiastical Orders have béen or shall be promoted preferred or admitted to any Degreé of Learning in any Vniversity within this Realm or Dominions to the same belonging And all Schoolmasters and publick and private Teachers of Children as also all manner of Person and Persons that have taken or hereafter shall take any Degreé of Learning in or at the Common Laws of this Realm as well utter Barristers as Benchers Readers Ancients in any House or Houses of Court and all principal Treasurers and such as be of the grand Company of every Inn of Chancery and all Attorneys Prothonotaries and Philizers towards the Laws of this Realm and all manner of Sheriffs Escheators and Feodaries and all other Person and Persons which have taken or shall take upon him or them or have béen or shall be admitted to any Ministry or Office in at or belonging to the Common Law or any other Law or Laws of to or for the Execution of them or any of them used or allowed or at any time hereafter to be used or allowed within this Realm or any of the Dominions or Countries belonging or which hereafter shall happen to belong to the Crown or Dignity of the same and all other Officers or Ministers of or towards any Court whatsoever and every of them shall take and pronounce a Corporal Oath upon the Evangelists before he or they shall be admitted allowed or suffered to take upon him or them to use exercise supply or occupy any such Vocation Office Degrée Ministry Room or Service as is aforesaid and that in the open Court whereunto he doth or shall serve or belong And if he or they do not or shall not serve or belong to any Ordinary or open Court then he or they shall take and pronounce the Oath aforesaid in an open place before a convenient Assembly to witness the same and before such Person or Persons as have or shall have Authority by common use or otherwise to admit or call any such Person or Persons as is aforesaid to any such Vocation Office Ministry Room or Service or else before such Person or Persons as by the Queéns Highness her Heirs or Successors by Commission under the Great Seal of England shall be named or assigned to accept and take the same according to the tenor effect and form of the same Oath Verbatim which is and as it is already set forth to be taken in the aforesaid Act made in the First year of the Queéns Majesties Reign Admitted to any Ministry or Office What Officers are to take the Oath of Supremacy All persons who are preferred to any such Ministry or Office whether of the gift of the King or of a Subject are bound to take this Oath and not only such as are preferred by the King as 't is restrained in the late Additions to Dalton Cap. 81. tit Recusants Sect. 9. Belonging to the Common Law
not extend to compell any Temporal person of or above the degrée of a Baron of this Realm to take or pronounce the Oath abovesaid nor to incur any penalty limited by this Act for not taking or refusing the same Any thing in this Act to the contrary in any wise notwithstanding Where he ought to take it This Act. Although by this Act no Temporal person of or above the degree of a Baron is compellable to take this Oath yet if he be made a Justice of Peace he ought to take it by force of the Statute of 1 Eliz. cap. 1. Jones 152 153. Earl of Lincolns Case Stat. 1 Eliz. 1. A Bishop must take it Temporal Person By these words and the Preamble Forasmuch as c. Archbishops and Bishops although their possessions be Temporalties are excluded out of this Proviso and therefore are to take the Oath For every person who is of the degree of a Baron is not excused as Wingate tit Crown numb 29. mistakes but only the Temporal Lords of Parliament Stat. Sect. 12. Charitable giving Alms to Offenders shall be no cause of forfeiture Provided and be it Enacted by the Authority aforesaid That charitable giving of reasonable Alms to any of the Offender or Offenders above specified without fraud or covin shall not be taken or interpreted to be any such abettment procuring counselling aiding assisting or comforting as thereby the giver of such Alms shall incur any pain penalty or forfeiture appointed in this Act. Peers offending shall be tried by their Peers Provided also and be it Enacted by the Authority of this present Parliament That if any Peér of this Realm shall hereafter offend contrary to this Act or any Branch or Article thereof that in that and all such Case and Cases they shall be tried by their Péers in such manner and form as in other Cases of Treasons they have used to be tried and by none other means Provided also further and be it Enacted Stat. Sect. 13. Who only shall be compelled to take the Oath upon the second tender That no person shall be compelled by vertue of this Act to take the Oath above-mentioned at or upon the second time of offering the same according to the form appointed by this Statute except the same person hath beén is or shall be an Ecclesiastical person that had hath or shall have in the time of one of the Riegns of the Queéns Majesties most Noble Father Brother or Sister or in the time of the Reign of the Queéns Majesty her Heirs or Successors Charge Cure or Office in the Church Or such person or persons as had hath or hereafter shall have any Office or Ministry in any Ecclesiastical Court of this Realm under any Archbishop or Bishop in any the times or Reigns aforesaid Or such person or persons as shall wilfully refuse to observe the Orders and Rites for Divine Service that be authorized to be used and observed in the Church of England after that he or they shall be publickly by the Ordinary or some of his Officers for Ecclesiastical Causes admonished to kéep and observe the same Or such as shall openly and advisedly deprave by words writings or any other open fact any of the Rites and Ceremonies at any time used and authorized to be used in the Church of England Or that shall say or hear the private Mass prohibited by the Laws of this Realm and that all such persons shall be compellable to take the Oath upon the second tender or offer of the same and incur the Penalties for not taking of the said Oath and none other Charge Cure or Office in the Church What Clergy-men are punishable upon the second tender and refusal So that every Clergy-man or Person in Orders is not within the danger of this Law upon the second tender and refusal of the Oath as Wing tit Crown n. 30. mistakes For every Priest or Minister is Clericus Dyer 3 Eliz. 203. and yet shall not incur the penalty of High Treason upon the second refusal unless he be a local Minister or have some Charge Cure or Office in the Church By the Ordinary Ordinary what Ordinary in the Common Law is properly taken for the Bishop of the Diocess but yet usually in the Common Law and in Statutes for every Commissary or Official of the Bishop or other Judge that hath Ordinary Jurisdiction within his limits in Causes Ecclesiastical Stat. W. 2. cap. 19. Stat. 31 E. 3. cap. 11. Termes de la Ley 212. Ordinary 8 H. 6. 3. Co. 1. Inst 344. Or hear the private Mass Hearing Mass If a man once in his life time heareth private Mass it seems he is within this qualification and incurs High Treason upon the second refusal of the Oath and not only if he used to hear it as Wingate tit Crown numb 30. misrecites the Statute Stat. Sect. 14. It shall not be lawful to slay any one attainted in a Praemunire And forasmuch as it is doubtful whether by the Laws of this Realm there be any punishment for such as kill or slay any person or persons attainted in or upon a Praemunire Be it therefore Enacted by Authority aforesaid That it shall not be lawful to any person or persons to slay or kill any person or persons in any manner attainted or hereafter to be attainted of in or upon any Praemunire by pretence reason or authority of any Iudgment given or hereafter to be given in or upon the same or by pretence reason or force of any word or words thing or things contained or specified in any Statute or Law of Provision and Praemunire or in any of them Any Law or Statute or Opinion or Exposition of any Law or Statute to the contrary in any wise notwithstanding Punishments inflicted by former Laws Saving always the due execution of all and every person and persons attainted or to be attainted for any Offence whereupon Iudgment of death now is or ought to be or hereafter may lawfully be given by reason of this Statute or otherwise And saving always all and every such pains of death or other hurt or punishment as heretofore might without danger of Law be done upon any person or persons that shall send or bring into this Realm or any other the Queéns Dominions or within the same shall execute any Summons Sentence Excommunication or other Process against any person or persons from the Bishop of Rome for the time being or by or from the See of Rome or the Authority or Iurisdiction of the same See The Judgment in a Praemunire The Judgment in a Praemunire is to be out of the Kings Protection his Lands Tenements Goods and Chattels to be forfeited to the King and that his body shall remain in Prison at the Kings pleasure Co. 1. Inst 129 130. Co. 3. Inst. 218. Rastal Entr. 466. Judgment But his entailed Lands he shall forfeit only during his Life For this Forfeiture must
be understood of such an Estate as he may lawfully forfeit And the general words of the Statute of Praemunire Stat. 16 R. 2. 5. W. 2. 1. 16 R. 2. c. 5. scil Lands and Tenements shall not take away the force of the Statute de donis Conditionaelibus Co. 1. Inst 130. 391. Co. 11. 63. Godbolt 308. Lord Sheffeild and Ratcliffe And the person attainted in a Praemunire is disabled to be a Witness in any Cause Co. 1. Inst 6. or to Sue For Attainder in a Praemunire is a good plea in disability of the Plaintiff A person attainted in a Praemunire was out of the Kings Protection Sc. 25 E. 3. 22. according to Littleton 41. By the Statute of 25 E. 3. cap. 22. which saith That a man attainted in a Praemunire shall be out of the Kings Protection and it may be done with him as with the Kings Enemy It seemeth that any man might have lawfully slain such a person as was held 24 H. 8. Bro. Coron 196. Vide Bulstrode 2. 299. Sir Anthony Mildmay's Case And this Sir Edward Coke Co. 7. 14. Calvins Case Co. 12. 38. seemeth to allow for Law before this Statute of 5 Eliz. and positively affirms it to have been Law in his 1 Inst 130. and yet in the same Case of Calvin he saith that in that Statute of 25 E. 3. is intended only a legal Protection according to Littleton 41. and so likewise he expounds it in his 3d Inst. 126. But yet that the party attainted was still under that Protection which the Law of Nature giveth to the King which he explains to be such a Protection as a person attainted of Felony or Treason is under notwithstanding his Attainder so that if any man had killed him without Warrant he should have been punished by Law as a manslayer And this sort of Protection by the Law of Nature saith he is indelebilis immutabilis which the Parliament could not take away But yet under favour if a man attainted in a Praemunire were before this Act of 5 Eliz. under that indeleble and immutable Protection of the King given by the Law of Nature then the Opinion held in Brooke and allowed by himself was not Law But if that Opinion in Brooke were Law and any man might before this Statute have killed a man attainted in a Praemunire and that by force of the Statute of 25 E. 3. it follows that the Protection which the Law of Nature giveth is not indelebilis or immutabilis but that an Act of Parliament might in a particular Case take it away But there is now no further need of this Question in the Case of a Praemunire For if this Protection by the Law of Nature were taken away by 25 E. 3. it is now restored by this Statute and no man can lawfully slay a person attainted in a Praemunire no more than he can without Warrant a man attainted of Felony or Treason Provided always Stat. Sect. 15. Upon what proof only any person may be indicted and be it Enacted by the Authority aforesaid That no person or persons shall hereafter be Indicted for assisting aiding maintaining comforting or abetting of any person or persons for any the said Offences in extolling setting forth or defending of the usurped Power and Authority of the Bishop of Rome unless he or they be thereof lawfully accused by such good and sufficient testimony or proof as by the Iury by whom he shall so be Indicted shall be thought good lawful and sufficient to prove him or them guilty of the said Offences Stat. xiii Eliz. cap. ii An Act against the bringing in and putting in Execution of Bulls Writings or Instruments and other Superstitious things from the See of Rome Stat. Sect. 1. A rehearsal of the Stat. of 5 El. 1. touching the abolishing of the Authority of the Bishop and See of Rome WHere in the Parliament holden at Westminster in the fifth year of the Reign of our Sovereign Lady the Quéens Majesty that now is by one Act and Statute then and there made Intituled An Act for the Assurance of the Queens Majesties Royal Power over all States and Subjects within her Highness Dominions it is among other things very well ordained and provided for the abolishing of the usurped Power and Iurisdiction of the Bishop of Rome and of the See of Rome heretofore unlawfully claimed and usurped within this Realm and other the Dominions to the Quéens Majestie belonging That no person or persons shall hold or stand with to set forth maintain defend or extol the same usurped Power or attribute any manner of Iurisdiction Authority or Preheminence to the same to be had or used within this Realm or any the said Dominions upon pain to incur the danger penalties and forfeitures ordained and provided by the Statute of Provision and Praemunire made in the sixteenth year of the Reign of King Richard the second as by the same Act more at large it doth and may appear And yet nevertheless divers seditious and very evil disposed people without respect of their Duty to Almighty God or of the Faith and Allegiance which they ought to bear and have to our said Sovereign Lady the Quern and without all fear and regard had to the said good Law and Statute or the pains therein limited but minding as it should seem very seditiously and unnaturally not only to bring this Realm and the Imperial Crown thereof being in very deed of it self most free into the thraldom and subjection of that Forreign usurped and unlawful Iurisdiction Preheminence and Authority claimed by the said See of Rome but also to estrange and alienate the minds and hearts of sundry her Majesties Subjects from their dutiful obedience and to raise and stir Sedition and Rebellion within this Realm to the disturbance of the most happy peace thereof have lately procured and obtained to themselves from the said Bishop of Rome The effect of Bulls brought from Rome and his said Sée divers Bulls and Writings the effect whereof hath been and is to absolve and reconcile all those that will be contented to forsake their due obedience to our most gracious Sovereign Lady the Queens Majesty and to yield and subject themselves to the said fained unlawful and usurped Authority and by colour of the said Bulls and Writings the said wicked persons very secretly and most seditiously in such parts of this Realm where the people for want of good instruction are most weak simple and ignorant and thereby farthest from the good understanding of their Duties towards God and the Quéens Majesty have by their lewd and subtile practises and perswasion so far forth wrought that sundry simple and ignorant persons have been contented to be reconciled to the said usurped Authority of the See of Rome and to take absolution at the hands of the said naughty and subtile practicers whereby hath grown great dissobedience and boldness in many not only to withdraw and absent themselves from all
one year and from thence forth till he have paid the said sum of Two hundred Marks And that every person which shall willingly hear Mass shall forfeit the sum of One hundred Marks and suffer Imprisonment for a year One hundred Marks And not Two hundred pounds Forfeiture as 't is mistaken in the late Additions to Dalton cap. 81. tit Recusants Sect. 59. Be it also further Enacted by the Authority aforesaid Stat. Sect. 5. The penalty for not coming to the Church by the space of a Month. That every person above the age of sixteen years which shall not repair to some Church Chappel or usual place of Common Prayer but forbear the same contrary to the tenor of a Statute made in the first year of her Majesties Reign for uniformity of Common Prayer and being thereof lawfully convicted shall forfeit to the Quéens Majesty for every month after the end of this Session of Parliament which he or she shall so forbear twenty pounds of lawful English money and that over and besides the said forfeitures every person so forbearing by the space of twelve months as aforesaid shall for his or her obstinacy after Certificate thereof in writing made into the Court commonly called the Kings-Bench by the Ordinary of the Diocess a Iustice of Assize and Goal-delivery or a Iustice of Peace of the County where such offender shall dwell or be be bound with two sufficient sureties in the sum of Two hundred pounds at the least to the good behaviour and so to continue bound until such time as the persons so bound do conform themselves and come to the Church according to the true meaning of the said Statute made in the said first year of the Queéns Majesties Reign Existens aetatis c. shall refer to the time of absence Above the age of sixteen years Talbot was Indicted upon this Statute Quod existens aetatis 16 annorum amplius non accessit ad Ecclesiam c. The question was whether the Existens aetatis 16 annorum should refer to the time of his Indictment or to the time of his absence And the Judges conceived that the Indictment was well enough and pursuant to the Statute And that Existens should in this Case refer to the time of his absence Moore 606. C. 838. Recusancy consists in omission Not repair c. but forbear This offence Consists not in committing but in omitting and is but a nonfeasance and therefore cannot be said to be in any certain place And for this reason in a Popular Action brought by the Informer qui tam c. there needs no place be alledged in the Declaration Anderson 1. 139. C. 190. Cuffe versus Vachel nor is Recusancy within that Branch of the Statute of 31 Eliz. cap. 5. Stat. 31 El. 5. which saith That the offence shall be laid in the proper County where it was done or committed For to speak properly it was not committed any where Hobart 251. Grimstone versus Molineux Vide infra Sect. 9. Conviction in the same Suit sufficient Being thereof lawfully convicted By this is not meant that the party must be convicted in some former Suit But a conviction upon the same Indictment or Information which is brought against him for the recovery of the 20 l. per month is a sufficient conviction within the meaning of this Statute And so are all penal Statutes which have in them those words being thereof lawfully convicted to be understood that is of a conviction in the same Suit whereupon the penalty is to be recovered For the meaning only is that the Offender shall forfeit nothing before conviction which is no more then the Law implies And therefore in truth these words are but superfluous and might have been as well omitted Co. 11. 59. Rolls 1. 90. C. 41. Dr. Fosters Case Rolls 1. 234. C. 6. Bulstrode 3. 87. The King against Law Nor is Conviction here intended only of a Convicton by Verdict What Conviction is here meant And therefore if the Offender be convicted upon his Confession of the fact and Judgment thereupon be had and consequently if Judgment be had against him upon a Demurrer which is a Confession of the matter of fact or if Judgment be given against him on nihil dicit for any other Cause any of these are sufficient Convictions whereupon to recover this Penalty For Convicted is here to be taken for Attainted as 't is in many other Cases For until Judgment he shall forfeit nothing And although he that is Convicted is not therefore Attainted yet every one who is Attainted or Adjudged is Convicted And of such a Conviction is this Statute to be understood Dr. Fosters Case Rolles 1. 89. 90. C. 41. Co. 11. 60. where several Cases are cited which prove that Convicted is oftentimes put for Attainted Shall forfeit to the Queens Majesty Shall forfeit i. e. to the King These words to the Queens Majesty are but surplusage and import no more than the Law would have given the Queen without them for where a Statute gives a forfeiture and limits it not to any particular person the King shall have it by Construction of Law as was agreed in the Case of Agard and Tandish Anderson 2. 128. C. 73. and so should he have this whole 20 l. per month if the Statute had staid here and had not afterwards made another express appointment Vid. Sect. 9. For every month Month what It seems that the month here mentioned shall be accounted secundum numerum singulorum dierum allowing but 28 days to a month For so are all Statutes to be understood which speak of the month unless W. 2. cap. 5. W. 2. 5. 2 3 E. 6. 13 for the account of a Lapse and 2 3 E. 6. of proving a suggestion Co. 1. Inst 135. Cro. Trin 5 Jac. 166. 167. Bishop of Peterburgh versus Catesby Yelverton 100. Catesby versus Baker Hobart 179. Copley versus Collins And of this Opinion the Court of Kings-Bench seemed to be upon Construction of the Statute of Liveries in the Case of Donner and Smith Trin. 43 Eliz. Cro. 835. The Recusant may forfeit for 13 months in a year so that by this account the Recusant shall forfeit thirteen score pounds in the whole year In an Information brought by Parker Qui tam Conformity in part not available c. against Sir John Curson and his Wife for the Recusancy of the Wife for eleven months and non culp pleaded It was proved at the Trial B. R. Pasch 17. Jac. that she conformed and came to Church for part of the time in the Information yet forasmuch as she was a Recusant both before and after it was said by the Court that her Conformity for some part of the time should not excuse her and she was found guilty for the whole time Cro. Jac. 529. The Informer demands less then is due The Informer shewed that the
but the other Justices may Stat. Sect. 8. Provided alway That every person guilty of any offence against this Statute other then Treason and misprision of Treason which shall before he be thereof Indicted or at his Arraignment or Trial before Iudgment A remedy for a guilty person conforming himself submit and conform himself before the Bishop of the Diocess where he shall be resident or before the Iustices where he shall be Indicted Arraigned or Tryed having not before made like submission at any his Tryal being Indicted for his first like offence shall upon his Recognition of such submission in open Assizes or Sessions of the County where such person shall be resident be discharged of all and every the said Offences against this Act except Treason and misprision of Treason and of all pains and forfeitures for the same Before Iudgment submit and conform himself Conformity after judgment saves the penalty Stat. 1 Jac. 4. But now by the Statute of 1 Jac. cap. 4. if the Recusant conforms after Judgment it seems it shall be time enough to save the forfeiture Vide that Statute Sect. 2. A man is convicted of Recusancy according to the Statute of 29 Eliz. cap. 6. upon Proclamation and default of appearance 29 Eliz. 6. and afterwards submits and conforms he shall by force of this Clause be discharged of the forfeiture of Twenty pounds per month for this is a submission and conformity before Judgment Conviction upon Proclamation no Judgment the conviction upon Proclamation being no Judgment but only in nature of a conviction by Verdict as was resolved by all the Judges Mich. 37 38 Eliz. vide Dr. Fosters Case Rolls 1. 94 C. 41. Certain persons Indicted upon this Statute for not coming to Church were Outlawed upon the Indictment Submission after Outlawry the Court of Kings-Bench would not in this Case receive their submission but advised them to purchase their pardon for the Outlawry which they did and then their submission was accepted of and they were discharged Leonard 4. 54. n. 138. Note in the Report of this Case the Statute of 13 Eliz. is mistaken for this of 23 Eliz. for no Indictment for not coming to Church lies on 13. Stat. 13 Eliz. 2 Before the Bishop of the Diocess Conformity where and how to be pleaded If a man be Indicted for Recusancy before Justices of Pcace and he submits and conforms before the Bishop of the Diocess he may remove the Indictment by Certiorari into the Kings-Bench and there plead his conformity by Certificate under the Bishops Hand and Seal Vide Styles 26. For the manner of a Recusants submission and conformity before the Bishop after conviction Submission and Certificate and the Bishops certificate thereupon Vide Co. lib. intr 569. Stat. Sect. 9. Who shall have the money forfeited by this Statute And be it likewise Enacted That all forfeitures of any sums of money limited by this Act shall be divided in thrée equal parts whereof one third part shall be to the Queéns Majesty to her own use one other third part to the Queens Majesty for the relief of the Poor in the Parish where the offence shall be committed to be delivered by Warrant of the principal Officers in the Receipt of the Exchequer without further Warrant from her Majesty and the other third part to such person as will sue for the same in any Court of Record by Action of Debt Bill Plaint or Information In which Suit no Essoin Protection or Wager of Law shall be allowed And that every person which shall forfeit any sums of money by vertue of this Act He shall be imprisoned that is not able or doth not pay the forfeiture and shall not be able or shall fail to pay the same within thrée months after Iudgment thereof given shall be committed to Prison there to remain until he have paid the said sums or conform himself to go to Church and there do as is aforesaid Distribution of the penalties All forfeitures of any sums of money limited by this Act. So that the distribution here appointed extends not only to the forfeitures of Two hundred and One hundred Marks for saying or hearing Mass and the Ten pounds a month for keeping a Schoolmaster contrary to this Act but likewise to the Twenty pounds per month for not repairing to Church In which last Case the Informer Qui tam c. shall have the third part as well as in the other Cases For although by the foregoing clause the whole Twenty pounds per month is given to the Queen which the other forfeitures are not in express words yet that will not alter the Case nor make void the express appointment made here in what manner and to whom all the forfeitures limited by this Act shall be disposed of And 't is usual in Acts of Parliament to give the whole penalty for any criminal matter to the King and afterwards in the same Act to make distribution thereof and give part to him that will sue as in the Statutes of 3 H. 6. Stat. 3 H. 6. 3. 3 H. 7. 7. cap. 3. and 3 H. 7. cap. 7. and others And the subsequent distribution shall always stand good notwithstanding the precedent words of limitation of the whole to the King For those words in penal Statutes To the King or to the Queen are upon the matter but void and superfluous and give the King or Queen no other or stricter Interest then they would have had if they had been omitted and it had been only said shall forfeit without appointing to whom And the reason is for that the Law devolves the forfeiture upon the King where no other person is appointed and shall forfeit without more saying is as much as shall forfeit to the King But when afterwards in the same Statute a particular appointment is made how the penalty shall be distributed that qualifies the former general words and such distribution shall be made as the Statute appoints Co. 11. 60. Rolles 1. 89. 90. C. 41. Dr. Fosters Case Anderson 1. 139. 140. C. 190. Cuff against Vachell Vide supra Sect. 5. For relief of the Poor in the Parish Scot was Indicted upon this Statute for Recusancy Anno 26 Eliz. by the name of William Scot of Southwark Gent. and exception was taken to the Indictment for that within Southwark are several Parishes and the third part of the penalty is to be applied to the relief of the Poor of the Parish where the offence was committed But in this Case the Recusant being named generally of Southwark non potest constare Curiae where the Offence was nor to what Parish the third part of the penalty belongs But the whole Court of Kings-Bench were clear of Opinion The Parish need not be mentioned that the Indictment was good enough notwithstanding 't is not said of what Parish the Recusant was For the whole penalty of
year after the Offence committed The Informer must sue within the year otherwise he shall not have any part of the penalty Godbolt 158. C. 216. Cro. Hill 12 Jac. 366. Sivedale versus Sir Edward Lenthall But popular Suits upon the Statute of Tillage are excepted and not upon the Statute of Tallage as 't is mistaken in the late Additions to Dalton cap. 191. tit Informations Sect. 3. In Dr. Fosters Case Co. 11.65 it 's said That the Informer hath no Remedy for recovery of the forfeiture for Recusancy after the year and day is expired for that time is limited in certain by this Act But yet with submission it seems the Clause in this Act which limits to a year and a day And hath not a year and a day relates to Indictments only And so it was held in this very Case of Dr. Foster Co. 11. 60. Rolles 1.93 C. 41. and in Pie and Lovells Case Hobart 205. and there was no limitation of time for the Informer Qui tam c. upon this Statute until the said Statute of 31 Eliz. which limits him to a year after the Offence committed and not a year and a day And although this Offence of Recusancy cannot in strictness be said to be committed for that in truth it is but a bare omission as hath been said and therefore there needs not be any place alledged yet in common parlance it will pass well enough for an Offence committed To what intent Recusancy may be said to be committed and seems to be within the meaning of that Branch of 31 Eliz. which limits the time of prosecution And in this very Clause of the Statute of 23 Eliz. it 's said the third part of the forfeiture for Recusancy shall be to the Poor in the Parish where the Offence is committed Now if it be objected That if Recusancy be not an Offence which is to be laid in the proper County by that Statute of 31 Eliz. because 't is not an Offence which can be properly said to be committed By the same reason the Informer who is restrained by that Statute to a year after the Offence committed is not restrained in the Case of Recusancy Nor the Poor of any Parish can take any benefit by this Statute as to the third part of the forfeiture for that there is no Parish wherein Recusancy can be said to be committed I answer there is a great difference between those Cases For in the Cases of limitation of time when the Offence must be prosecuted and that of the Poor of the Parish where the forfeiture is to be distributed the word committed is no part of the substance of the matter and 't is no more then if the Statutes had said within a year after the Offence and to the Parish where the Offence was And there committed may be taken well in that sense And to what intent not but it cannot be so in that other Case about the proper County For the Statute of 31 Eliz. which appoints that in any Declaration or Information the Offence against any penal Statute shall not be laid to be done in any other County but where the matter alledged to be the Offence was in truth done and the Defendant may traverse and alledge that the Offence supposed to be committed was not committed in such County where the Offence is alledged c. makes the Commission of the Offence matter of substance and whether it were committed or not committed in the County where it is laid in the Information or popular Suit goes now to the merits of the Cause For if it were not committed in that County and the Defendant alledge and traverse it and it be found for him the Plaintiff shall be barred And those words that he may traverse that it was not committed clearly shew that Offences which consist only in omission were not intended For otherwise neither Recusancy nor any other Offence of that nature could be punished by any Information or popular Action For the Jury upon their Oaths must of necessity find that it was not committed in any County for that in truth and propriety of speech it was not committed at all Vide supra Sect. 5. Suit by the King within what time Stat. 31 Eliz 5. By the said Statute of 31 Eliz. if the Informer Qui tam c. doth not prosecute within a year after the Offence yet the King may at any time within two years after that year ended And therefore it was resolved in the Case of Syvedale and Sir Edward Lenthall before recited where an Information was brought in the Court of Exchequer Tam pro Domino Rege quam pro seipso upon the Statute of 3 Jac. cap. 4. 3 Jac. 4. for three years forbearance to receive the Sacrament after Conformity that although it was not good for the Informer yet it was well enough as to the King Cro. Jac. 366. A natural born Subject or a Denizen being Defendant in any Suit upon a penal Law in the Kings Bench Common Pleas Special Bail or Exchequer is not compellable to put in special Bail but may appear by Attorney Stat. 29 Eliz. cap. 5.31 Eliz. cap. 10. St. 29 Eliz. 5 31 Eliz. 10. Yelverton 53. St. Georges Case An Action of Debt or Information Tam pro Domino Rege quam c. lies upon this Statute against the Husband and Wife for the Recusancy of the Wife Baron and Feme and the Husband in that Case is liable to pay the 20 l. per month notwithstanding he himself be no Recusant Bulstrode 3. 87. The King against Law Rolles 1. 93. C. 41. Dr. Fosters Case Hobart 97. Moore versus Hussey Savile 25. C. 59. But the Wife cannot appear by Supersedeas alone without her Husband for both must appear or both be out-lawed Hobart 179. Lovedens Case Nor can she plead or join issue without her Husband Must both plead Rolles 2. 90. Sir George Curson and his Wives Case And therefore where in an Information brought against the Husband and Wife for the Recusancy of the Wife the Record was entred praedict J. M. veniunt praedicta M. dicit quod ipsa non est inde culpabilis de hoc ponit se super Patriam this was adjudged to be ill for the Husband pleads not at all But in this Case the Dockett being Quod J. C. M. uxor ejus c. placitant non culp and it being manifest that they both appeared Record amended the Record was amended by the Dockett after Verdict For it was but the misprision of the Clerk in drawing the Plea Cro. Pasch 17 Jac. 530. Parker versus Sir John Curson and his Wife which is the same Case with that in Rolles only the Christian name of the Husband varies At the end of the Report of this Case in Croke there is a subsequent note added that if Sir John Curson and his Wife had pleaded Quod ipsi
Sorrell Leonard 1.119 C. 161. Stretton and Taylors Case Cro. Trin. 31 Eliz. 138. the same Case Ibid. Mich. 39 40 Eliz. 583. Hammon versus Griffith 1 H. 7. 3. Co. 3. Inst 194. Such Entry of a non vult prosequi by the Attorney General hath the same effect with a Nonsuit of a private person The King cannot be non-suited But the King cannot be said properly to be nonsuited because he is in Judgment of Law ever present in Court Co. 1. Inst. 139.227 Hutton 82. Goldsborough 53. Leighs Case Savile 56. C. 119. Weare versus Adamson Where upon the demise of the King the proceedings shall be void Upon the death of Queen Elizabeth it was resolved by the Judges That where an Information tam pro Domina Regina quam c. was brought upon a penal Statute and pending the same and before Judgment the Queen died the Information it self should stand for that otherwise the Suit might be lost there being a time limited for the bringing of it but all the proceedings thereupon were lost and void and the Defendant should plead de novo Cro. Pasch 1 Jac. 14. Co. 7. 30 31. Case Of discontinuance of Process And to that purpose the Case of Pasch 5 E. 6. Rot. 38. is there cited where in a popular Action the King died after Demurrer upon the Evidence and before Judgment and the Defendant pleaded de novo And where not But yet in a popular Action of Debt brought upon this Statute against Prince and his Wife where the Defendants demurred upon the Declaration and the Plaintiff Qui tam c. joyned in Demurrer in Hillary Term and King James died the Vacation following It was resolved that not only the Writ and Declaration but all the other proceedings thereupon should stand notwithstanding the Demise of the King For that in such Case it is meerly the Suit of the party Stat. 1 E. 6. 7. and is aided by the Statute of 1 E. 6. cap. 7. of Discontinuances and he only joyned in Demurrer Cro. Trin. 1 Car. 10. 11. Lionell Farringtons Case Hobart 82. the same Case Which Resolutions are in appearance flatly contrary each to other for that upon the death of the Queen seems to take in all popular Suits whatsoever and as well a popular Action of Debt as an Information But yet 't is observable that in Farringtons Case the Plaintiff only joyned in Demurrer and not the Kings Attorney And this seems to be the reason why in that Case the proceedings should stand notwithstanding the Demise of the King For where the party alone joynes in Demurrer or Replies and not the Kings Attorney there the Suit may properly be said to be depending between party and party and within the express words of 1 E. 6. which provides that although the King die all proceedings in Suits depending between party and party shall stand But the Resolution of the Judges upon the death of the Queen is to be understood of such Cases where after a Plea or Demurrer by the Defendant the Attorney General alone replies or joyns in Demurrer there the proceedings shall be void and the Defendant shall plead de novo But the Information it self shall stand to avoid a manifest inconvenience for that the Informer is limited to a certain time wherein to exhibit his Information And so I conceive are these two Opinions which seem so contrary to be reconciled An Informer Qui tam Nonsuit release c. of the Informer c. may be nonsuited although the King cannot Co. 1. Inst 139. Hutton 82. Farrington versus Arundell If pending the popular Action or Information the Plaintiff or Informer Qui tam c. be nonsuited or release or enter a nolle prosequi or dye none of these shall Bar the King but the Attorney General may proceed upon the Information for the Kings part Leonard 1. 119. C. 161. Stretton and Taylors Case No Bar for the Kings part Cro. Trin. 31 Eliz. 138. The same Case Ibid. Mic. 39 40 Eliz. 583. Hammon versus Griffith Co. 3. Inst 194. Moore 541. C. 715. Co. 11.66 Dr. Fosters Case Bulstrode 2. 261 262. Sir Thomas Waller versus Hanger Rolles 2.33 Smith versus Carter And therefore the Opinions in 37 H. 6.5 and 38 H. 6. 2. That if the Plaintiff in a Decies tantum which is a popular Action be nonsuit the King is without Remedy but by Indictment or if such Plaintiff will relinquish his Suit the King hath nothing further to do seem not to be Law at this day Information in a wrong Court And if a popular Information be brought upon a penal Statute in a wrong Court where the Informer cannot sue yet it was held in Agar and Candishes Case that the King should not for that lose his advantage of the Suit but the Information should be good for his part of the penalty Moore 564 565 566. C. 770. Stat. 18 Eliz. 5. By the Statute of 18 Eliz. cap. 5. if an Informer or Plaintiff upon a penal Statute where any forfeiture is generally limited to him that will sue shall delay or discontinue his suit or be non-suit The Informer shall pay costs or shall have the trial or matter pass against him by Verdict or Judgment of Law he shall pay to the Defendant his Costs Charges and Damages Vide Addition to Bendloes 141. Rhobotham versus Vincent and if it be upon special Verdict or Demurrer those Cases are within the Statute and he shall pay Costs by force thereof Hutton 36. Pies Case But not find Sureties But an Informer is not compellable to find Sureties to answer Costs howbeit the Court if they see cause may order him to appear in person before the Defendant answer the Information Bulstrode 2.18 Martin and Gunnystons Case It was held in the Exchequer Chamber That if a Writ of Error Writ of Error be brought upon a Judgment given for the King at the Suit of an Informer a Scire facias Scire facias ought to be awarded against the Informer Savile 10. C. 26. Wilkes Case Courts of Record in penal Statutes are the four Courts at Westminster In any Court of Record By any Court of Record is here meant the four Ordinary Courts of Record at Westminster For they are the general Courts of Record and the Courts where the Kings Attorney may acknowledge or deny and the words of this Statute being general are left to the construction of Law where the Rule is verba aequivoca in dubio posita intelliguntur in digniori potentiori sensu And in this sense shall these words Court of Record be construed in all penal Statutes where the penalty is to be recovered in a popular Suit So that the Informer Qui tam c. cannot sue before Justices of Assize Goal delivery or Oyer and Terminer or Justices of Peace as in Borough or Corporate Towns or in a Court of Pipowders Stannary Courts
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
Conviction do yet remain unpaid in form as hereafter ensueth that is to say the one moiety thereof before the end of the next Trinity Term and the other moiety thereof before the end of the next Hillary Term or at any such other times as by the Lord Treasurer Chancellor and Chief Baron of the Exchequer or any two of them shall by composition upon good Bond and Surety taken be limited before the end of the said next Trinity Term if any such Composition shall happen to be And shall also in every Easter and Michaelmas Term until such time as the same person do make Submission and be Conformable according to the true meaning of the said Statute pay into the said Receipt of the Exchequer twenty pounds for every month which shall incur in all that mean time Stat. Sect. 4. And be it also Enacted by the Authority aforesaid That every such Offender in not repairing to Divine Service but forbearing the same contrary to the said Estatute as hereafter shall fortune to be thereof once convicted shall in such of the Terms of Easter or Michaelmas as shall be next after such Conviction pay into the said Receipt of the Exchequer after the rate of twenty pounds for every month which shall be contained in the Indictment whereupon such Conviction shall be And shall also for every month after such Conviction without any other Indictment or Conviction pay into the Receipt of the Exchequer aforesaid at two times in the year that is to say in every Easter Term and Michaelmas Term as much as then shall remain unpaid after the rate of Twenty pounds for every month after such Conviction The Queen may take all the Goods and two parts of the Lands and Leases of the Offender who pays not 20 l. a month And if default shall be made in any part of any payment aforesaid contrary to the form herein before limited that then and so often the Quéens Majesty shall and may by Process out of the said Exchequer take seize and enjoy all the Goods and two parts as well of all the Lands Tenements and Hereditaments Leases and Farms of such Offender as of all other the Lands Tenements and Hereditaments liable to such seizure or to the penalties aforesaid by the true meaning of this Act leaving the third part only of the same Lands Tenements and Hereditaments Leases and Farms to and for the maintenance and relief of the same Offender his Wife Children and Family What Conviction is here meant and when the penalty is appropriated to the King Once convicted This Statute meddles not with any other way of Conviction then at the Queens Suit by Indictment as hath been said And so is the Conviction here mentioned to be understood For this Statute is not introductory of a new Law nor gave the Queen any new or other remedy then what she had against the Recusant by the Statute of 23 Eliz. cap. 1. that is by Indictment but only gave her a more speedy way of proceeding upon that fundamental remedy Co. 11. 60. Dr. Fosters Case Rolles 1. 93. C. 41. the same Case so that a Conviction upon an Information against the Recusant upon 23. or any other way save by Indictment doth not appropriate the penalty of twenty pounds per month to the King for the time to come by force of this Statute Hobart 205. Pye and Lovells Case nor for the same reason by force of that 3 Jac. cap. 4. where the same words are used and a Conviction by Indictment only intended as here In that Case of Pye and Lovell its said That if a man at the making of this Statute had been convicted of Recusancy by any other means then by Indictment he had not been bound by this Law to pay the twenty shillings It should be twenty pounds a month from the Conviction And if a man be now convicted in the Kings Bench by Indictment or otherwise he cannot be proclaimed nor otherwise his penalty run on which last words infer that the Conviction here intended is only a Conviction according to this Statute by Proclamation upon default But if we compare together this Clause which speaks of a Conviction after the making of this Statute and the former Clause which speaks of a Conviction before this Statute the contrary will evidently appear For the former Clause touching Conviction before this Statute must necessarily be intended of Convictions according to 23 Eliz. cap. 1. without any Proclamation For the Proclamation in the Case of Recusancy was not given until 29. And if a man had been convicted of Recusancy upon Indictment in the Kings Bench or elsewhere before this Act the forfeiture of 20 l. per month should by force of this Act have run on from the time of such Conviction that 's clear by the express words of the former Clause Then comes this Clause which provides what shall be done upon Convictions for the future and appoints in that Case likewise the forfeiture of 26 l. per month to run on from the time of Conviction Both which Convictions as well before as after this Statute are granted to be meant only of Convictions upon Indictment And there is no difference between the penning of these two Clauses but that one respects the time past and the other the time to come but both appoint the penalty to run on Now there is no reason to suppose that the makers of the Law intended the word Convicted in a more restrained sense in this Clause then in the former Clause where the penalty should have run on upon any conviction whatsoever upon Indictment or that the conviction in the former Clause by Indictment upon 23. without Proclamation should be wholly shut out of the later Clause By Conviction therefore in these two Clauses seems to be meant such Convictions upon Indictment as were warranted by the Statutes in force at the several and respective times here mentioned That is in the former which speaks of the time foregoing a Conviction upon 23 Eliz. without Proclamation and in this later which speaks of the time to come a Conviction either with or without a Proclamation In either of which Cases the penalty of 20 l. per month shall run on by force of this Act and consequently it shall run on if the Recusant be Indicted Convicted and adjudged in the Kings Bench although he cannot be proclaimed there And accordingly it was agreed in Dr. Fosters Case that where the Recusant is convicted upon Indictment the penalty should ever after run on and be appropriated to the King Roiles 1. 93. C. 41. And 't is not restrained there to a Conviction upon Proclamation only But yet although this Clause extends as well to a Conviction upon 23 Eliz. as to a Conviction by Proclamation yet every Conviction upon 23 Eliz. is not here intended For if a man Indicted of Recusancy do upon his Arraignment confess the Indictment to be true and plead guilty or upon Trial a
it directly by express words yet they both conceived they were within the intent of the Act by reason as Manwood said of these words all other the Lands c. liable to such seizure or to the penalties aforesaid But it was granted on all hands that by these general words here the King hath not any estate given him in the Recusants Copyhold Lands but only a right or title to two thirds of the profits By the Kings receiving of which the Lord cannot be impeached of his Customs and Services as he would be if the King should seize the Land it self And a difference was there taken between an Act of Parliament which transfers an Estate to the King and an Act of Parliament which gives him only the profits of the Estate For in the first Case the Rule in Heydons Case that Copyhold Lands shall not pass by general words shall stand good for the prejudice that may otherwise accrew to the Lord But where the Lords Seigniory Customs and Services are not to be Impeached or taken away as here they will not by the Kings bare receiving of the profits there it was said Copyholds shall be included within the general words of Lands Tenements and Hereditaments Leonard 1. 97. C. 126. And yet Vide Owen 37. where this Case is otherwise reported and that it was at length after great debate adjudged that Copyhold Lands are not within this Statute nor are seizable for the Kings two parts And according to this Judgment I take the modern practice of the Exchequer to have been that neither the Land it self nor the profits of Copyhold Lands are liable to such seizure And for the more spéedy conviction of such Offender Stat. Sect. 5. The Indictment sufficient though it be not mentioned that the party is within the Realm in not repairing to Divine Service but forbearing the same contrary to the said Estatute Be it Enacted by the Authority aforesaid That the Indictment of every such Offender mentioning the not coming of such Offender to the Church of the Parish where such person at any time before such Indictment was or did keép House or Residence nor to any other Church Chappel or usual place of Common Prayer shall be sufficient in the Law And that it shall not be neédful to mention in any such Indictment that the party Offender was or is inhabiting within this Realm of England or any other the Queens Majestis Dominions But if it shall happen any such Offender then not to be within this Realm or other her Majesties Dominions that in such case the party shall be relieved by Plea to be put in in that behalf and not otherwise And that upon the Indictment of such Offender Stat. Sect. 6. A Proclamation that the party Indicted shall render his Body to the Sheriff a Proclamation shall be made at the same Assizes or Goal delivery in which the Indictment shall be taken if the same be taken at any Assize or Goal delivery by which it shall be commanded that the body of such Offender shall de rendred to the Sheriff of the same County before the said next Assizes or general Goal delivery to be holden in the same County And if at the said next Assizes or Goal delivery the same Offender so proclaimed shall not make appearance of Record that then upon such default Recorded the same shall be as sufficient a conviction in Law of the said Offence whereof the party so standeth Indicted as is aforesaid as if upon the same Indictment a Trial by Verdict thereupon had proceeded and been recorded If the same be taken at any Assize or Goal delivery For if the Indictment had been taken before Justices of Peace Proclamation by whom to be made no Proclamation thereupon could have been made upon this Statute by the Justices of Assize or Goal delivery as was resolved in the Case of Edward Plowden And therefore upon such an Indictment for Recusancy taken before Justices of Peace the Court was to remove the Indictment into the Kings-Bench And there process might have been made out against the Recusant and he convicted For the Justices of Peace could do no more then Indict all other proceedings being taken away from them by this Statute Co. 11. 63. Dr. Fosters Case Rolles 1. 94. C. 41. the same Case But now by the Statute of 3 Jac. cap. 4. the Law is altered in this point Stat. 3 Jac. 4. and the Justices of Peace upon Indictments taken before them may proceed to proclaim and convict the Recusant as well as Justices of Assize and Goal delivery Shall be rendred to the Sheriff Vide Stat. 3 Jac. cap. 4. Sect. 5. Before the said next Assizes or general Gaol delivery Vide Stat. 3 Jac. cap. 4. Sect. 5. Appearance Make appearance of Record What appearance will serve in this Case Vide Stat. 3 Jac. cap. 4. Sect. 5. Vpon such default That is upon his default of appearance of Record at the next Assizes or Goal delivery For if he makes such appearance Default saved that shall save his default of not rendring his Body to the Sheriff and the not rendring himself to the Sheriff shall be no conviction as Wingate would make it to be Tit. Crowne numb 66. As sufficient a Conviction in Law That is as if he were convicted by Verdict Conviction upon Proclamation no Judgment but not as sufficient as if a Judgment were had against the Recusant For although by force of this and other Statutes the conviction upon Proclamation and default of appearance make the Recusant liable to divers penalties and incapacities and is in those respects as forceable as a Judgment yet it shall not in other Cases have the force or effect of a Judgment And therefore it was resolved 37 38 Eliz. in the Case of the general pardon Anno 35 Eliz. where there is an exception of all penalties and forfeitures due to the Queen and converted to a debt by Judgment that notwithstanding that exception a Recusant convicted upon Proclamation was within the pardon and the forfeitures due upon such conviction were thereby pardoned For the debt was not due to the Queen by Judgment but upon conviction only But otherwise it had been if he had been convicted according to the Statute of 23 Eliz. cap. 1. Stat. 23 Eliz. 1 without Proclamation and Judgment had been given thereupon Vide Co. 11. 65. Dr. Fosters Case Stat. Sect. 7. Provided always That whensoever any such Offender as is aforesaid shall make submission and become conformable according to the form limited by the same Estatute made in the thrée and twentieth year of the Quéens Majesties Reign The Offender submitting or dying no forfeiture shall ensue or be continued or shall fortune to die that then no forfeiture of twenty pounds for any month or seizure of the Lands of the same Offender from and after such Submission and Conformity or Death and full satisfaction of all
the contrary thereof in any wise notwithstanding This Branch seems not to extend to all forfeitures for Recusancy For the power here given the Lord Treasurer To what cases of Conviction this Clause extends and to what not c. is only in relation to those forfeitures which are by this Act appointed to be paid into the Receipt of the Exchequer which are the forfeitures due to the Queen by Conviction upon Indictment for this Act meddles with no other so that if the twenty pounds per month be recovered in a popular Suit by the Informer Qui tam c. one third part thereof ought still to be paid to the Poor of the Parish only according to 23 Eliz. cap. 1. notwithstanding this Act. Provided always That this Act Stat. Sect. 9. Assurances made bona fide not to be impeached or any thing therein contained shall not in any wise extend or be construed to make void or impeach any Grant or Lease heretofore to be made bona fide without fraud or covin whereupon any yearly Rent or payment is reserved or payable or any Grant or Lease hereafter to be made bona fide without fraud or covin whereupon the accustomed yearly Rent or more shall be reserved or any other Conveyance Assurance or Assignment whatsoever heretofore made bona fide upon good consideration and without fraud or covin which is not or shall not be revokable at the pleasure of such Offender otherwise then to give benefit and title to her Majesty her Heirs and Successors to have perceive and enjoy such Rents and Payments during the continuance of such Lease or Grant according to the true meaning of this Act. Seizure of Lands whereof the Offender hath but an Estate for life or in his Wives right And provided also That this Act or any thing therein contained shall not in any wise extend or be construed to continue any seizure of any Lands or Tenements of such Offender in her Majesties hands or in the hands of her Heirs or Successors after the said Offenders death which Lands or Tenements he shall have or be seized of only for term of his life or in the Right of his Wife Any thing in this Act to the contrary in any wise notwithstanding Stat. xxxv Eliz. cap. i. An Act to retain the Queens Majesties Subjects in their due Obedience FOR preventing and avoiding of such great inconveniencies and perils as might happen and grow by the wicked and dangerous practices of seditious Sectaries and disloyal persons Stat. Sect. 1. The penalty of a Recusant perswading others to impugne the Queens Ecclesiastical power Be it Enacted by the Queéns most Excellent Majesty and by the Lords Spiritual and Temporal and the Commons in this present Parliament assembled and by the Authority of the same That if any person or persons above the age of sixteen years which shall obstinately refuse to repair to some Church Chappel or usual place of Common Prayer to hear Divine Service established by her Majesties Laws and Statutes in that behalf made and shall forbear to do the same by the space of a month next after without any lawful cause shall at any time after forty days next after the end of this Session of Parliament by Printing Writing or express words or speéches advisedly or purposely practise or go about to move or perswade any of her Majesties Subjects or any other within her Highness Realms or Dominions to deny withstand and impugne her Majesties Power and Authority in cases Ecclesiastical united and annexed to the Imperial Crown of this Realm or to that end or purpose shall advisedly and maliciously move or perswade any other person whatsoever to forbear or abstain from coming to Church to hear Divine Service Or to forbear coming to Church or to receive the Communion according to her Majesties Laws and Statutes aforesaid or to come to or to be present at any unlawful Assemblies Conventicles or Meétings under colour or pretence of any exercise of Religion Or to be present at unlawful Conventicles contrary to her Majesties said Laws and Statutes Or if any person or persons which shall obstinately refuse to repair to some Church Chappel or usual place of Common Prayer and shall forbear by the space of a month to hear Divine Service as is aforesaid shall after the said forty days either of him or themselves or by the motion perswasion inticement or allurement of any other willingly joyn in or be present at any such Assemblies Conventicles or Méetings under colour or pretence of any such exercise of Religion contrary to the Laws and Statutes of this Realm as is aforesaid That then every such person so offending as aforesaid and being thereof lawfully convicted shall be committed to Prison there to remain without Bail or Mainprize until they shall conform and yield themselves to come to some Church Chappel or usual place of Common Prayer and hear Divine Service according to her Majesties Laws and Statutes aforesaid and to make such open submission and Declaration of their said Conformity as hereafter in this Act is declared and appointed Which shall obstinately refuse to repair c. shall c. by Printing c. Wingate in abridging of this Statute tit Crowne numb 70. saith that if any person above sixteen years of age obstinately refuses to come to Church for a month or impugnes the Queens Authority in Causes Ecclesiastical he shall be committed to Prison which is a great mistake for no man shall be punished by this Act for either of those Causes only The not coming to Church being only a precedent Qualification required in the person whom the Act makes liable to the penalties thereof for the other offences therein mentioned Who may be an offender within this Act and who not And therefore if a man never comes to Church yet he is no offender within this Act unless he advisedly or purposely move or perswade another to deny or impugne the Kings Authority in Causes Ecclesiastical or to that end or purpose advisedly and maliciously move or perswade some other to forbear to come to Church or receive the Communion or to be present at Conventicles c. or he himself be present at such Conventicles c. And on the other hand if a man move or perswade any other to deny or impugne the Kings Authority in Causes Ecclesiastical or to forbear to come to Church or receive the Communion or to be present at Conventicles c. or if he himself be present at any Conventicles c. yet he is no Offender within this Act if he goes to Church once within the compass of a month so that the party must both forbear to come to Church and be guilty of some other of the offences here enumerated or he is not punishable by this Act And as for the denying or impugning the Kings Authority in Causes Ecclesiastical it s no offence within this Statute unless the party moves or
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 the penalties and punishments inflicted or imposed by this Act for any of the Offences aforesaid The former part of this Statute appoints the Conformity and Submission to be at any Church Submission where to b◠made Chappel or usual place of Common Prayer but this limits it to be at some Parish Church the meaning whereof seems to be That if a man be an Offender against this Act and convicted he may within the three months after his Conviction conform and submit in any Church Chappel or usual place of Common Prayer where there is Common Prayer and either a Sermon or the Gospel read But if he be required within the three months to Conform and make Submission and he refuses so to do but the three months expire then his Conformity and Submission must be more solemn and publick viz. in some Parish Church where it is presumed there will be the greatest number of People to be Witnesses thereof And by this construction the seeming difference between these two branches of the Statute one whereof limits the Offender to a Parish Church and the other leaves him at large to any Church Chappel or usual place of Common Prayer is reconciled And this construction naturally flows from the Order wherein these two branches are placed For the Statute speaks of a Church Chappel or usual place of Common Prayer before it mentions the parties refusal to conform and submit within three months next after Conviction But when it hath mentioned such refusal then it speaks of the Parish Church only And the second time here limited to the Offender when he may conform and submit viz. before he be warned or required to abjure presupposes his refusal to conform and submit within the three months For otherwise he could not be required to abjure But if the Offender be not required within the three months according to this Act to conform and submit it seems he is not afterwards limited to some Parish Church but may do it according to the former branch of this Act in any Church Chappel or usual place of Common Prayer for he is then in no danger of Abjuration and his Conformity and Submission is then to no other end but to free himself from the Imprisonment inflicted on him upon his Conviction And in that Case the Act saith he may conform and submit in any Church Chappel or usual place of Common Prayer Of this difference between the places of Conformity and Submission no notice is taken in the late Additions to Dalton but any Church or Chappel is made to serve the turn in all Cases cap. 81. tit Recusants Sect. 13. What is a Parish Church By Parish Church is to be understood not only that which hath been always the Mother Church and never belonged to any other but every Church which hath the Administration of Sacraments and Sepulture For that in Law is a Parish Church although it anciently belonged to another Church Co. 2. Inst. 363. where the issue was whether it had Baptisterium Sepulturam And the Church of Stoke Goldenham though the Town was parcel of the Rectory of Hinckley whose Church was anciently the Mother Church yet having all Parochial Rights and Church-wardens was adjudged a Parish Church and within the meaning of the Statute of 43 Eliz. cap. 2. of the Poor Hutton 93. Hilton and Paules Case Stat. Sect. 5. 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 in using and frequenting disordered and unlawful Conventicles and Assemblies under pretence and colour of Exercise of Religion And I am heartily sorry for the same and do acknowledge and testifie in my Conscience that no other person hath or ought to have any Power or Authority over her Majesty 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 Or any colour or means of any Dispensation Dispensation These words are omitted by Wingate tit Crown numb 72. And the form there set down faulty in several other particulars and not to be relied upon 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 Curate of every Parish where such Submission and Declaration of Conformity shall hereafter be so made by any such Offender as aforesaid Stat. Sect. 6. The Minister shall enter the Submission into a Book shall presently enter the same into a Book to be kept in every Parish for that purpose and within ten days next following shall certifie the same in writing to the Bishop of the same Diocess Provided nevertheless The Offender submitting and falling into Relapse That if any such Offender after such Submission made as is aforesaid shall fall into Relapse or eftsoons obstinately refuse to repair to some Church Chappel or usual place of Common Prayer to hear Divine Service and shall forbear the same as aforesaid or shall come or be present at any such Assemblies Conventicles or Méetings under colour or pretence of any exercise of Religion contrary to her Majesties Laws and Statutes That then every such Offender shall lose all such benefit as he or she might otherwise by virtue of this Act have or enjoy by reason of their said Submission And shall thereupon stand and remain in such plight condition and degrée to all intents as though such Submission had never beén made And for that every person having House and Family Stat. Sect. 7. The forfeiture for relieving or keeping a Recusant after notice Rep. 3 Jac. 4. is in duty bounden to have special regard to the good Government and ordering of the same Be it Enacted by the Authority aforesaid That if any person or persons shall at any time hereafter relieve maintain retain or keép in his or their House or otherwise any person which shall obstinately refuse to come to some Church Chappel or usual place of Common Prayer to hear Divine Service and shall forbear the same by the space of a mouth together contrary to the Laws and Statutes of this Realm That then every person which shall so relieve maintain retain or keép any such person offending
as aforesaid after notice thereof to him or them given by the Ordinary of the Diocess any Iustice of Assizes of the Circuit or any Iustice of Peace of the County or the Minister Curate or Churchwardens of the Parish where such person shall then be or by any of them shall forfeir to the Queéns Majesty for every person so relieved maintained retained or kept after such notice as aforesaid ten pounds for every month that he or they shall so relieve maintain retain or kéep any such person so offending What sort of Recusants may be reliev'd or kept Rep. 3 Jac. 4. Provided nevertheless That this Act shall not in any wise extend to punish or impeach any person or persons for relieving maintaining or kéeping his or their Wife Father Mother Child or Children Wards Brother or Sister or his Wives Father or Mother not having any certain place of habitation of their own or the Husbands or Wives of any of them or for relieving maintaining or keéping any such person as shall be committed by Authority to the custody of any by whom they shall be so relieved maintained or kept Any thing in this Act contained to the contrary notwithstanding Repeal Stat. 3 Jac. 4. This Branch is repealed by the Statute of 3 Jac. cap. 4. Quod vide infra Sect. 24. Stat. Sect. 8. The Queens Remedy to recover forfeitures c. And for the more spéedy levying and recovering for and by the Quéens Majesty of all and singular the pains duties forfeitures and payments which at any time hereafter shall accrue grow or be payable by virtue of this Act or of the Statute made in the threé and twentieth year of her Majesties Reign concerning Recusants Be it Enacted by the Authority aforesaid That all and every the said pains duties forfeitures and payments shall and may be recovered and levied to her Majesties use by Action of Debt Bill Plaint Information or otherwise in any of the Courts commonly called the Kings Bench Common Pleas or Exchequer in such sort and in all respects as by the ordinary course of the Common Laws of this Realm any other Debt due by any such person in any other Case should or may be recovered or levied wherein no essoign protection or wager of Law shall be admitted or allowed A new remedy given to the Queen Stat. 23 Eliz. 1 All and every the said pains duties forfeitures and payments These words are not to be understood simpliciter or exclusive as if the forfeitures upon the Statute of 23 Eliz. cap. 1. could be recovered no other way then what is prescribed here But only they give the Queen a new remedy for the recovery of them which she had not before and take not away the Remedy given by 23 Eliz. upon Indictment 29 Eliz. 6. nor that by the Statute of 29 Eliz. cap. 6. upon Indictment and Proclamation nor the Informers popular Suit given him by 23. For all these three are affirmative Laws and do not abrogate one the other The former Laws not abrogated but may well stand together And the meaning of them taken together is That if the Informer recover the forfeiture upon that of 23. he shall have his part thereof But if the Offender were Indicted at the Queens Suit and Judgment had against him upon 23. or if he were convicted upon Proclamation and default upon 29. The Queen should have the whole penalty excluding the Informer for he shall not be punished again for the same offence at the Suit of the Informer But if the offender were neither Indicted nor Sued by the Informer Qui tam c. the Queen should have another Remedy to recover the intire forfeiture by Action of Debt c. upon this Statute and the Informer shall have no part thereof So that the Remedies given by these three Statutes are Cumulative and not Privative and there is no Repugnancy or disagreement between them but they have a dependance on each other The informer not aided here But as this Statute doth not abrogate any of the former Laws touching Recusancy nor takes away the Informers popular Suit so it adds nothing as to the Informer nor gives him any more speedy remedy for the recovery of the forfeiture but leaves him in the same condition as he was in before to take his remedy upon 23. Co. 11. 61 62. Rolles 1. 90 91 93. c. 41. Dr. Fosters Case Cro. Pasch 16 Jac. 481. Bridgman 121. 122. Parker vesus Webb To her Majesties use A more speedy remedy here given Stat. 23 Eliz. 1 Before this Statute the Queen had no other way to recover the intire penalty for Recusancy or any other offence within the Statute of 23 Eliz. cap. 1. but by Indictment only but by this Statute a more speedy remedy was given her by Action of Debt Bill Plaint or Information Vide the Cases before cited Shall and may be recovered The King by the Statute of 31 Eliz. cap. 5. 31 Eliz. 5. Within what time the King must sue is restrained in this Case to three years after the offence committed within which time he must pursue the remedy here given him for the recovery of the forfeiture but it seems that he is not restrained to two years for where the forfeiture is limited to the King and him that will sue there the Informer hath one year and the King the next two years if the Informer doth not sue within the first year of the three and the restraint in 31. of the King to 2 years next after the Offence committed where the forfeiture is limited to the King extends not to this Case For although the King is enabled by this Statute to sue for the intire forfeiture yet the intire forfeiture was not originally limited to the King only for the Informer may sue upon 23 Eliz. as well as the King may upon this Act. And where the Informer may sue it was not the meaning of 31 Eliz. to limit the King to two years after the offence committed but he may stay if he please till the Informers year is expired and then the Statute gives him two years afterwards to sue for the penalty Where the King is limited to a year and a day where not Much less is the King limited to sue upon this Statute within a year and a day and what is said in Dr. Fosters Case Co. 11. 65. viz. that for any forfeiture before the year and day neither the King nor the Informer hath any remedy for that that time is limited in certain by 23 Eliz. is a clear mistake of the meaning of that Statute of 23. touching the year and day for the limitation there of a year and a day extends only to the Kings Suits by Indictment and not to the popular Suit given by 23. much less to the Action of Debt c. given to the King by this Statute See more of this matter supra in the Statute of 23 Eliz.
mentioned in this Act but that the heir of every such Offender by force of this Act shall and may after the death of every Offender have and enjoy the Lands Tenements and Hereditaments of such Offender as if this Act had not beén made Every Abjuration Abjuration as well as that for Felony is an Exile or Banishment and if perpetual and by Authority of Parliament amounts to a civil death and therefore the Wife of a Man banished or abjured forever might sue or be sued without her Husband Suit as was ruled in the Case of the Lady Maltravers 10 E. 3. and of the Lady Belknap 1 H. 4. 1. 2 H. 4. 7. And if a man be perpetually banished by Authority of Parliament unless is be for Felony or by force of this Act his Wife shall be endowed living the Husband And if he had been perpetually banished or abjured for Felony the Wife should have had her joynture Jointure presently although not her Dower Dower as was resolved in Weylands Case 19 E. 1. and the reason is because though the Husband be naturally living yet he is civilly and in the Eye of the Law as a dead man But yet these Cases are to be understood of a Banishment or abjuration forever and not of a Relegation or Exile for a time For in such Case neither could the Wife sue or be sued without her Husband nor could she have her Dower or Joynture during the natural life of her Husband Co. 1. Inst 132. 133. Co. 2. Inst 47. Bulstrode 3. 188. Rolles 1. 400. C. 27. Wilmores Case Moore 851. C. 1159. Wilmots Case But if a man be abjured by force of this Act What dower is here saved the Wife shall not have her Dower or Joynture during the natural life of her Husband although he be abjured forever but she is in worse Case then the Wife of a person perpetually banished was at the Common Law For this Act by express words gives his Lands Tenements and Hereditaments to the Queen during his life which is to be understood of his natural life And the saving here of the Wives Dower is not intended of the Dower which she might claim at Common Law presently upon the abjuration of her Husband nor shall make void the former words of the Act by which all his Lands are given to the Queen during his natural life but is only the usual Provision made in Acts of Parliament which create any new Felony for the saving of the Dower of the Wife after the death of the Husband So that the meaning of this Branch is that if the Husband refuse to abjure or abjure and refuse to depart according to this Act or return without lieence yet the Wife shall be endowed and the heir inherit his Lands after he is naturally dead And this Act to continue no longer than to the end of the next Session of Parliament Stat. Sect. 12. Note this Act being at first but temporary This Act at first but temporary was afterwards discontinued Hutton 61. 62. but is since revived by the Statute of 3 Car. 1. c. 4. and is in full force at this day And in such Case it hath been questioned if a Statute be discontinued and afterwards revived how an Indictment thereupon shall conclude whether contra formam Statuti or Statutorum Where if a Statute be discontinued and revived it shall be contra formam Statuti and where contra formam Statutorum For if a Statute be temporary and afterwards continued for a longer time or made perpetual and never discontinued there without doubt it shall be contra formam Statuti but it hath been held by some that where it was once discontinued and then revived there it is as if there were two several and distinct Statutes and the Indictment shall conclude contra formam Statutorum Palmers Case 9 Eliz. But others have held the contrary and that there is not any difference in the Case of a Statute at first temporary and afterwards before any discontinuance continued for a longer time or made perpetual and a Statute discontinued and then revived but that it shall in both Cases be held but as one Statute and the conclusion shall be contra formam Statuti and not Statutorum unless where the Act of Reviver makes any addition to the former Act or increaseth the penalty or forfeiture For then there is no doubt but they are two distinct Acts of Parliament And according to this later opinion hath the practice been in Informations upon the Statute of 5 Eliz. cap. 9. of Perjury Stat. 5 Eliz. 9 which determined 14 Eliz. and was revived 29 Eliz. And yet all Informations thereupon conclude Contra formam Statuti And so as it seems ought all Indictments upon this Statute of 35. notwithstanding its discontinuance and reviver Vide Owen 135. Wests Case Stat. xxxv Eliz. cap. ii An Act for the restraining of Popish Recusants to some certain place of abode FOr the better discovering and avoiding of such Traiterous and most dangerous Conspiracies and Attempts as are daily devised and practiced against our most gracious Soveraign Lady the Queéns Majesty Stat. Sect. 1. and the happy estate of this Common-weal by sundry wicked and seditious persons who terming themselves Catholicks and being indéed spies and intelligencers not only for her Majesties forreign Enemies but also for Rebellious and Traiterous Subjects born within her Highness Realms and Dominions and hiding their most detestable and divellish purposes under a false pretext of Religion and Conscience do secretly wander and shift from place to place within this Realm to corrupt and seduce her Majesties Subjects and to stir them to Sedition and Rebellion Be it Ordained and Enacted by our Soveraign Lady the Quéens Majesty and the Lords Spiritual and Temporal A Popish Recusant convicted and the Commons in this present Parliament assembled and by the Authority of the same That every person above the age of sixtéen years born within any of the Quéens Majesties Realms and Dominions or made Denizen being a Popish Recusant and before the end of this Session of Parliament convicted for not repairing to some Church Chappel or usual place of Common Prayer to hear Divine Service there but forbearing the same contrary to the tenor of the Laws and Statutes heretofore made and provided in that behalf and having any certain place of dwelling and abode within this Realm shall within forty days next after the end of this Session of Parliament if they be within this Realm and not restrained or stayed either by Imprisonment or by her Majesties Commandment or by order or direction of some six or more of the Privy Council or by such sickness and infirmity of body as they shall not be able to Travel without imminent danger of Life and in such Cases of absence out of the Realm restraint or stay then within 20 days next after they shall return into the Realm and be
enlarged of such Imprisonment or Restraint and shall be able to Travel repair to their place of dwelling where they usually heretofore made their common abode and shall not at any time after pass or remove above five miles from thence Stat. Sect. 2. Or to be convicted shall repair to his usual dwelling and not remove above five miles And also That every person being above the age of sixtéen years born within any her Majesties Realms or Dominions or made Denizen and having or which hereafter shall have any certain place of dwelling and abode within this Realm which being then a Popish Recusant shall at any time hereafter be lawfully convicted for not repairing to some Church Chappel or usual place of Common Prayer to hear Divine Service there but forbearing the same contrary to the said Laws and Statutes and being within this Realm at the time that they shall be convicted shall within forty days next after the same Conviction if they be not restrained or stayed by Imprisonment or otherwise as is aforesaid and in such Cases of restraint and stay then within twenty days next after they shall be enlarged of such Imprisonment or Restraint and shall be able to Travel repair to their place of usual dwelling and abode and shall not at any time after pass or remove above five miles from thence The punishment of an Offender upon pain that every person and persons that shall offend against the tenor and intent of this Act in any thing before mentioned shall lose and forfeit all his and their Goods and Chattels and shall also lose and forfeit to the Quéens Majesty all the Lands Tenements and Hereditaments and all the Rents and Annuities of every such person so doing or offending during the Life of the same Offender What Popish Recusants are not within this Act Born within any her Majesties Realms or Dominions or made Denizen So that all Popish Recusants are not within this Branch as Wingate tit Crown n. 78. mistakes For it extends not to an Alien who is born out of the Kings Leigeance unless he be made Denizen And which are In the late Additions to Dalton cap. 81. tit Recusants Sect. 14. this Clause is restrained to such as are born in England but it is clear that it extends to all the Kings natural Subjects if they live in England although they were born in Ireland or any other of the late Queens Dominions besides England Denizen who By Denizen is here to be understood an Alien who owes to the King an acquired Subjection or Allegiance whether he be made Denizen by the Kings Letters Patents or be naturalized by Act of Parliament For Naturalization includes all the priviledges of a Denizen and something more and every one who is naturalized is thereby made a Denizen although he that is made a Denizen by the Kings Letters Patents is not thereby naturalized Which being then a Popish Recusant This is the first penal Statute which was made against Popish Recusants by that name and as distinguished from other Recusants In the late Additions to Dalton cap. 81. tit Recusants Sect. 7. What is Recusancy it 's said That the matter of Recusancy stands in two particulars First absenting from the Church Secondly refusing the Oaths prescribed by 1 Eliz. 1. and 3 Jac. 4. Stat. 1 Eliz 1. 3 Jac. 4. But this description of Recusancy is either too narrow or too large For if the word Recusancy be taken in a large sense then the refusing to receive the Sacrament contrary to the Statute of 3 Jac. 4. by him that conforms and comes to Church may be as fitly called a point of Recusancy as the refusing the Oaths of Supremacy or Allegiance But if Recusancy be taken in a strict and proper sense then it extends only to the point of not coming to Church and not to refusing the Oaths of Supremacy or Allegiance And in this last sense are all the Statutes to be understood which inflict any penalty or disability upon a Recusant or a Popish Recusant unless where the not receiving of the Sacrament is particularly mentioned And this appears by the explanation which the Statutes make every where of Conformity the opposite to Recusancy viz. repairing to Church What is Conformity and more particularly the said Statute of 3 Jac. 4. which saith That the Popish Recusant convicted which conforms himself and repairs to the Church shall receive the Sacrament which words and repairs to the Church are explanatory of the former viz. which conforms himself so that this Conformity is not intended of taking the Oaths of Supremacy or Allegiance but consists only in repairing to Church and consequently Recusancy its opposite properly so called consists in absenting from Church And this appears further by that Branch of the said Statute of 3 Jac. cap. 4. which relates to the Oath of Allegiance where 't is said That the Oath shall be required of him who confesseth or denieth not himself to be a Recusant or that he hath not received the Sacrament where Recusant cannot be understood in any other sense then of him who forbears to come to Church An Information or Indictment against a Popish Recusant Information or Indictment against a Popish Recusant for Recusancy is of the same form with that against any other Recusant viz. That he came not to his Parish Church or any other Church Chappel or usual place of Common Prayer but forbore the same by the space of c. Vide Co. lib. intr 569. Co. 11. 56. Dr. Fosters Case so that upon his Conviction for Recusancy it doth not appear of Record whether the Offender be a Popish or other Recusant And therefore where this or any of the subsequent Statutes commands or prohibits a Popish Recusant convict to do a thing and a person convicted of Recusancy who is a Popish Recusant be Indicted thereupon his Conviction must be set forth in the Indictment with this or the like confusion Per quod praedict A.B. devenit Papalis Recusans convictus so it is if a Popish Recusant Convict be incapacitated to take or to give or dispose of any thing and another person be substituted by the Statute in his stead as in the Case of a Presentation by force of the Statute of 3 Jac. cap. 5. Stat. 3 Jac. 5. in a Quare Impedit Quare Impedit brought by the Chancellor and Schollars of the University His Conviction must be be set forth with an averment that he is Papalis Recusans Vide Co. 10. 54. And if a Popish Recusant whether convicted or not convicted be so commanded prohibited or incapacitated in an Indictment or Information upon the Statute it must be averred that he is Papalis Recusans A person who hath a certain place of abode is convicted for not coming to Church What Popish Recusants are not within this Act. and afterwards becomes a Papist being none before It seems that he is not restrained
by this Act within the compass of five miles because he was not a Popish Recusant at the time of his Conviction For the Adverb then cannot have relation to the foregoing words viz. having any certain place of dwelling and abode within this Realm For then the sense would be That if he be a Popish Recusant at any time when he hath a certain place of dwelling and abode within this Realm and he were formerly convicted for not coming to Church he shall repair to his dwelling within forty days after his Conviction which may be a meer impossibility For perhaps the forty days after his Conviction expired before he became a Popish Recusant and therefore the word then must of necessity relate to the subsequent words touching his Conviction And being then a Popish Recusant is as much as to say being a Popish Recusant at the time of his Conviction so that if he be convicted as a Recusant yet if he be not then a Popish Recusant he is not restrained by this Act if he be within this branch of the Statute viz. one who hath a certain place of dwelling and abode within this Realm Above five miles When an Act of Parliament speaks of miles Miles they are not to be taken as a Bird or Arrow may fly but according to the nearest and most usual way Cro. Hill 33 Eliz. 212. Minge versus Earle The Miles here I take to be intended of English miles An English mile contains eight Furlongs each Furlong forty Perches or Poles and every Perch or Pole sixteen foot and a half Co. 4. Inst 274. Dalton V. cap. 65. tit Weights and Measures and so much was a mile explained to be by the Statute of 35 Eliz. cap. 6. Stat. 35 Eliz. 6. by the same Parliament which made this Act against Popish Recusants Rastall London 252. where 't is said eight Furlongs to a mile and not five Furlongs as 't is mistaken in Poulton And yet in that Case of Minge and Earle the Defendant in maintenance that locus in quo c. was four miles from Rye according to the Statute of 23 Eliz. cap. 5. of Woods pleaded 23 Eliz. 5. that it was four thousand paces from Rye reckoning five Foot to every Pace where is meant the Italian mile viz. 5000 Foot and not the English which is 5280 Foot and no exception was taken to it by the Plaintiff or the Court. Vide Dalton V. supra And be it also Enacted by the Authority aforesaid Stat. Sect. 4. What a Popish Recusant shall do having no place of abode That every person above the age of sixteén years born within any her Majesties Realms or Dominions not having any certain place of dwelling and abode within this Realm and being a Popish Recusant not usually repairing to some Church Chappel or usual place of Common Prayer but forbearing the same contrary to the same Laws and Statutes in that behalf made shall within forty days next after the end of this Session of Parliament if they be then within this Realm and not imprisoned restrained or stayed as aforesaid and in such case of absence out of the Realm imprisonment restraint or stay then within twenty days next after they shall return into the Realm and be enlarged of such imprisonment or restraint and shall be able to Travel repair to the place where such person was born or where the Father or Mother of such person shall then be dwelling and shall not at any time after remove or pass above five miles from thence The punishment of the Offender upon pain that every person and persons which shall offend against the tenor and intent of this Act in any thing before-mentioned shall lose and forfeit all his and their Goods and Chattels and shall also forfeit to the Quéens Majesty all the Lands Tenements and Hereditaments and all the Rents and Annuities of every such person so doing or offending during the life of the same person By comparing together this and the precedent Clause A Popish Recusant not convicted may be within this Act it will appear plainly that the Statute puts a great difference between the Popish Recusant who hath a certain place of abode in this Realm and him that hath none For to restrain a Popish Recusant who hath a certain place of abode within this Realm from travelling above five miles there are three Qualifications required by the Act. 1. That he be convicted of Recusancy 2. That he be a Popish Recusant at the time of his Conviction 3. That at the time of such Conviction he be within this Realm And if either of these fail he is not restrained by this Act. But if a Popish Recusant have no certain place of abode within this Realm but is ubiquitary there no such Qualifications are required but if he be a Papist and doth not usually repair to Church but forbears so to do he ought to repair to the place where he was born or where his Father or Mother dwelt and not to remove above five miles from thence and that whether he be convicted or not For the Statute when it comes to speak of him who hath no certain place of abode leaves out all the aforesaid Qualifications required in him who hath a certain place of abode and it clearly distinguishes between him who is convicted for not repairing to some Church c. which is required in those whose abode is certain and him who doth not usually repair to some Church c. which in those whose abode is uncertain is sufficient to bring them within the danger and penalty of this Law if they repair not to the place appointed them by the Act or remove above five miles from thence And 't is observable that in this Clause which speaks of the Popish Recusant who hath no certain place of abode there is no mention made of Forty days to be allowed him after his Conviction to repair to the place appointed him the reason whereof is because it takes in the whole kind of such Popish Recusants as well the not convicted as the convicted and makes no distinction between them if they have no certain place of abode Et ubi lex non distinguit nec nos distinguere debemus Nor was it without great reason that ubiquitary Popish Recusants should be confined whether they were convicted or not convicted As for the other who have a certain place of abode it is to be presumed that the most considerable of them would be prosecuted and convicted for their Recusancy in the respective places where they dwell and de mini mis non curat lex may in this Case be applied to persons as well as in other Cases to things But as for him who is fixed to no certain place as he is the more dangerous of the two so the more unlikely to be prosecuted to a Conviction being here one day and gone the next and therefore the less taken notice of And had the Statute
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
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
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
although he be there personally present and openly confess himself to be the same person who was Indicted and against whom the Proclamation issued yet if he deny to appear upon the Proclamation or to consent that his appearance be entred of Record it seems that his appearance cannot be Recorded but his default shall and he shall stand Convicted thereupon And this is no more an appearance then where a Prisoner is brought to the Common Pleas Bar by habeas Corpus to the intent to have him appear to an Original brought against him and he denies to appear to the Action in which Case his appearance cannot be Recorded as was resolved in Ascoughs Case 43 Eliz. Gouldsborough 118. Shall be as sufficient a conviction in Law That is a Recusant thus Convicted upon Proclamation and Default of appearance shall be in the same Condition as if he were convicted by Verdict but no Judgment is given Bridgman 122. Parker versus Webb But this Conviction upon Proclamation is no Judgment as was resolved in Doctor Fosters Case Co. 11.65 Conviction upon Proclamation no Judgment And although it shall make the Recusant liable to the several forfeitures penalties and incapacities inflicted on Recusants convict yet it shall not operate as a judgment as hath been already shewed in divers instances For this reason it hath been questioned whether if a Recusant be Convicted upon Indictment and Proclamation the King may not wave his advantage of this Conviction and bring his Action of Debt given him by the Statute of 35 Eliz. cap. 1. Stat. 35 Eliz. 1 For that such Conviction is no Judgment and consequently ought not to bind the King as a Judgment against the Recusant should have done Palmer 40.41 Sir John Webbs Case Worsley obtained a Patent to have all the Penalties of Recusants convict Although such a Patent was illegal for that the King cannot grant the penalty of a penal Law to a Subject for which Vide Rolles 1.10 C. 11. Roy versus Tollin Hobart 155. Colt Glover versus the Bishop of Coventry and Litchfield Ib. 183. Davison versus Barber yet admitting the Patent to be good The King cannot grant the forfeiture on a penal Law it was resolved that the penalties of Recusants convicted by Proclamation should not pass by those general words Rolles 1. 94 95. C. 41. Doctor Fosters Case And be it further Enacted Stat. Sect. 6. The penalty of a convicted Recusant That every offender in not repairing to Divine Service but forbearing the same contrary to the Statutes in that behalf made and provided that hereafter shall fortune to be thereof once convicted shall in such of the Terms of Easter and Michaelmas as shall be next after such Conviction pay into the Receipt of the Exchequer after the rate of Twenty pounds for every month which shall be contained in the Indictment whereupon such conviction shall be And shall also for every month after such Conviction without any other Indictment or Conviction forfeit Twenty pounds and pay into the Receipt of the Excheqver aforesaid at two times in the year that is to say in every Easter and Michaelmas Term as much as then shall remain unpaid after the rate of Twenty pounds for every month after such Conviction except in such Cases where the King shall and may by force of this Act refuse the same and take two parts of the Lands Tenements Hereditaments Leases and Farms of such Offender till the said party being Indicted for not coming to Church contrary to former Laws shall conform himself and come to Church according to the meaning of the Statute in that behalf made and provided What Convictions are here meant Once Convicted This extends to all Convictions whatsoever upon Indictment whether by Verdict Confession c. whereupon Judgment is given as well as to Convictions upon Proclamation and default And the penalty of Twenty pounds per month shall in any of the said Cases run on forever after and be appropriated to the King Stat. 29 Eliz. 6 Vide Stat. 29 Eliz. cap. 6. Sect. 4. In what Term the forfeiture is to be paid In such of the Terms of Easter and Michaelmas as shall be next after such conviction Here Easter and Michaelmas is to be taken disjunctively for Easter or Michaelmas as it is in the Statute of 29 Eliz. cap. 6. Sect. 4. For the meaning is not that the Recusant shall have both of the Terms of Easter and Mithaelmas next after his Conviction wherein to pay the forfeiture of Twenty pounds for every month contained in the Indictment But he ought to pay the whole into the Exchequer the next Easter or Michaelmas Term which shall first happen after his Conviction And therefore if he be convicted in February he ought to pay the whole the next Easter Term unless where the King chooses to seize the two thirds of his Lands by force of this Statute as was admitted in the Case of Standen and the University of Oxford Hill 20 Jac. Jones 24. 25. And in the Lady Webbs Case who was convicted in March the pleading was that in the Easter Term then next following the said Katherine did not pay into the Exchequer according to the rate of 20 l. per month without any mention of Michaelmas Term Bridgman Pasch 16 Jac. 121. For every month after such Conviction By this Clause and that of 29 Eliz. cap. 6. Sect. 4. 29 Eliz. 6. Penalty appropriated to the King to the same purpose after the Recusant is once Convicted the penalty of Twenty pounds per month shall run on without any new Indictment or Conviction and shall be for ever afterwards appropriated to the King alone and paid into the Exchequer so that the Informer cannot bring any popular Action or Information for the Twenty pounds per month Informer barred for any time incurred after such Conviction but is utterly barred Co. 11.61 Doctor Fosters Case Rolles 1. 93. C. 41. the same Case Owen 37. Sulherd and Evererds Case The Lady Webb was Indicted and Convicted of Recusancy upon Proclamation and default of appearance Whether barred in the Case of a Feme Covert and afterwards an Informer Qui tam c. sued her and her Husband for a new offence of Recusancy in the Wife subsequent to such Conviction to which they both pleaded the said Conviction at the Kings Suit The question was whether the Informer should be barred by this Plea or whether the Information was maintainable notwithstanding such former Conviction of the Wife for that the Wife seems not to be such an Offender as is here intended because she can have no Goods or Lands during the Husbands life which may be seized for non-payment of the penalty But it was granted on all hands that if she had been a Feme sole this had been a good Plea in bar of the Informers popular Suit for then she had been bound to pay the Twenty pounds per month into the Exchequer and
but forbear the same contrary to the tenor of a Statute made in the first year of the Reign of the said late Quéen for Vniformity of Common Prayer and being thereof lawfully convicted should forfeit to the said Quéen for every month after the end of the said Session of Parliament which he or she should so forbear twenty pounds of lawful English money as in and by the said Act of Parliament more at large appeareth And whereas afterward by another Act of Parliament of the said Quéen It was further Enacted by the Authority of the said Parliament amongst other things how and when the said payments of the said 20 l. should be made and that if default should be made in any part of any payment of the said twenty pounds contrary to the form in the said last specified Statute limited that then and so often the said Quéen should and might by Process out of her Highness Exchequer take seize and enjoy all the Goods and two parts as well of all the Lands Tenements and Hereditaments Leases and Farms of such Offender as of all other the Lands Tenements and Hereditaments liable to such seizure or to the penalties aforesaid by the true meaning of the said Act of Parliament leaving the third part only of the same Lands Tenements and Hereditaments Leases and Farms to and for the maintenance and relief of the same Offender his Wife Children and Family as in and by the last specified Statute more at large also may appear Now forasmuch as the said penalty of twenty pounds monthly is a greater burden unto men of small living then unto such as are of better ability and do refuse to come unto Divine Service as aforesaid who rather then they will have two parts of their Lands to be seized will be ready always to pay the said twenty pounds according to the limitation of the said Statutes and yet retain the residue of their livings and Inheritance in their own hands being of great yearly value which they do for the most part imploy as experience hath taught to the maintenance of Superstition and Popish Religion and to the relief of Iesuits Seminaries Popish Priests and other dangerous persons to the State Therefore to the intent that hereafter the penalty for not repairing to Divine Service might be inflicted in better proportion upon men of great ability Be it Enacted by the Authority of this present Parliament The King may refuse 20 l. a month and take two parts of a Recusants Lands That the Kings Majesty his Heirs and Successors shall from and after the Feast of St. Michael the Archangel next coming after the end of this Session of Parliament have full power and liberty to refuse the penalty of twenty pounds a month though it be tendred ready to be paid according to the Law and thereupon to seize and take to his own use and the uses intents and purposes hereafter limited two parts in threé to be divided as well of all the Lands Tenements and Hereditaments Leases and Farms that at the time of such seizure shall be or afterward shall come to any the said Offenders in not coming to Church or any other to his or her use or in trust for him or her or at his or her disposition or whereby or wherewith or in consideration whereof such Offender or his Family or any of them shall be relieved maintained or kept as of all other Lands Tenements and Hereditaments in any wise or at any time liable to such seizure or to the penalties aforesaid and the same to retain to his own and other uses intents and purposes hereafter in this Act appointed till every such Offender shall conform him or her self respectively as aforesaid in lieu and full recompence of the twenty pounds monthly that during his such seizure and retainer shall incur any thing in the said Statutes or any of them or any other Statute to the contrary in any wise notwithstanding saving to our Soveraign Lord the Kings Majesty his Heirs and Successors and all and every person and persons Saving the Right of others bodies politick and corporate their Heirs and Successors other then the said Offender his or her Heirs and all claiming to his or their use or in trust for him or them or at his or their will or disposition all and all manner of Leases Rents Conditions and other Rights and Titles whatsoever had made and done bona fide and without fraud and covin before such seizure Though it be tendred or ready to be paid By this Branch of the Act a new advantage is given to the King against the Recusant For whereas by the Statute of 29 Eliz. cap. 6. Stat. 29 Eliz. 6. the convicted Recusant had his Election to pay the King twenty pounds per month and so prevent the seizure of the two third parts of his Lands now by this Statute that Election is taken away Election taken from the Recusant and given to the King and the choice is given to the King whether he will accept of the twenty pounds per month or refuse it and seize two third parts of the Recusants Lands in lieu thereof and if the King chooses the Lands the tender of the twenty pounds per month at the Exchequer will not save the seizure but the King shall enjoy the Lands notwithstanding Jones 24 25. Standen versus University of Oxford Hereditaments An Advowson is an Hereditament Hereditament Advowson and passes by that word 18 Eliz. Dyer 351. and is devisable by the Statute of 32 H. 8. cap. 1. of Wills as an Hereditament and if it be an Advowson in gross yet it may be seized by the King by force of this Act as part of his two parts of the Recusants Hereditaments Jones 23 24. Standen versus University of Oxford For 't is a thing valuable and shall be Assets and is extendable for the Kings Debt and upon a Writ of right of an Advowson there shall be a Recovery in value scil for every mark twelve pence Fitzh Recovery in value 9. 11. Hobart 304. London versus the Chapter of Southwell Co. 1. Inst 374. Britton 185. In the late Additions to Dalton cap. 81. tit Recusants Sect. 23. 't is said That the King may refuse the twenty pounds per month and take to two parts of the Recusants Lands and all the Goods c. And an Advowson is without that Clause and the said Case of Standen and the University of Oxon is there cited for Authority But this is a mistake as to the Clause it self and as to the point in Law and the Authority brought for it For in truth there is no such Clause in this Statute nor in any other that the King upon refusal of the twenty pounds per month should take the Recusants Goods For the seizure of the Goods is given where the Offender fails of payment of the twenty pounds per month Where a Recusants Goods cannot be seized but not
where the King discharges him of that payment by refusing it so that where the King refuses the twenty pounds per month the Recusants Goods cannot be seized but only two parts of his Lands The Law likewise is mistaken For if the King refuses the twenty pounds per month he may seize an Advowson as part of his two parts as hath been said so that an Advowson is within this Clause An Advowson is within this Clause and not without it And the Case of Standen and the University of Oxon is quite contrary to that Opinion in the late Additions to Dalton For Justice Jones held strongly that an Advowson was within this Clause And Hobart Chief Justice and Justice Winch declared themselves to be of the same mind and Justice Hutton denied not that an Advowson was within it only held that the force of it as to an Advowson in gross was taken away by the Statute of 3 Jac. cap. 5. Stat. 3 Jac. 5. University which gives the Presentation to the University But the three other Justices were against him and held That where the King had seized it as part of his two parts and the Incumbent died The King should present and not the University See of this matter more at large Stat. 3 Jac. car 5. Sect. 19. If the King seize by Inquisition two parts of a Mannor belonging to a Recusant Convict to which an Advowson is Appendant Two parts of an Advowson Appendant seized by seizure of two parts of the Mannor by such seizure two parts of the Advowson are likewise seized by consequence although it be not named in the Inquisition as was resolved in the Case of the Chancellor c. of Cambridge and Walgrave Hobart 126 127. Moore 872. C. 1214. The King shall present alone And there although the King hath Title but to two parts of the Advowson yet he shall present alone by his Prerogative as was resolved in that Case and so he should have done where there were three Coparceners of an Advowson two of full age and one under age and in Ward to the King the King only should by his Prerogative have presented during the Wardship 47 E. 3. 14. 38 H. 6. 9. But yet His two parts shall not pass from him by general words although two parts of an Advowson shall pass to the King by the word Hereditaments and the seizure of the Mannor shall draw with it the seizure of the Advowson yet the Kings two parts of the Advowson shall not pass from him by such general words And therefore if the King seizes two parts of a Mannor belonging to a Recusant Convict to which an Advowson is Appendant and grants over his two parts of the Mannor to a Subject with all Hereditaments Appurtenances c. yet two parts of the Advowson will not pass unless specially named or the grant be adeo plene integre in tam amplis modo forma prout c. the Recusant had the Mannor Hobart 126 127. Moore 872. C. 1214. All other Lands c. liable to such seizure or to the Penalties aforesaid Whether Copyhold Lands Copyhold Lands are seizable by force of these words Vide Stat. 29 Eliz. cap. 6. Sect. 4. Stat. 29 Eliz. 6. In lieu and full Recompence of the twenty pounds monthly So that if the King make his Election to seize the two parts the Recusant is no longer liable to pay the twenty pounds per month The twenty pounds per month discharged but the two parts of his Lands shall go in lieu and full Recompence thereof Jones 24. Standen versus University of Oxon. Provided always Stat. Sect. 9. A Recusants Mansion house shall be reserved to him and be it Enacted by the Authority aforesaid That the Kings Majesty his Heirs and Successors shall not take into his two parts but leave to such Offender his chief Mansion House as part of his third part and shall not Demise Lease or put over the said two parts nor any part thereof to any Recusant nor to or for the use of any Recusant The Kings two parts shall not be demised to a Recusant And that whosoever shall take the same in Lease or otherwise of his Majesty his Heirs and Successors shall give such security not to commit nor suffer wast to be committed in or upon any the said premises as by the Court of Exchequer shall be allowed sufficient His chief Mansion House Mansion House Mansion house is in Law most commonly taken for the chief Messuage or habitation of the Lord of a Mannor or the Mannor House where he most remains or continues Termes de la Ley 199. Mansion But it is to be taken here in a larger sence for any other House which is the Recusants chief dwelling House And for the better Tryal how his Majesties Subjects stand affected in point of their Loyalty and due Obedience Stat. Sect. 10. Who are compellable to take the Oath Be it also Enacted by the Authority aforesaid That from and after the end of this present Session of Parliament it shall be lawful to and for any Bishop in his Diocess or any two Iustices of Peace whereof one of them to be of the Quorum within the limits of their Iurisdiction out of the Sessions to require any person of the age of Eightéen years or above being or which shall be Convict or Indicted of or for any Recusancy other then Noblemen or Noblewomen for not repairing to Divine Service according to the Laws of this Realm or which shall not have received the said Sacrament twice within the year then next past Noblemen and Noblewomen excepted or any person passing in or through the County Shire or Liberty and unknown except as is last before excepted that being examined by them upon Oath shall confess or not deny himself or her self to be a Recusant or shall confess or not deny that he or she had not received the said Sacrament twice within the year then last past to take the Oath hereafter following upon the holy Evangelist Certificate of the name and place of abode of him which taketh the Oath Which said Bishop or two Iustices of the Peace shall certifie in writing subscribed with his or their Hands at the next General or Quarter Sessions for that Shire Limit Division or Liberty within which the said Oath shall be so taken the Christen Name Surname and place of aboad of every person which shall so take the said Oath which Certificate shall be there recorded by the Clerk of the Peace or Town-Clerk and kept amongst the Records of the said Sessions Where this Oath cannot be tendred Passing in or through the County Shire or Liberty and unknown These words passing and unknown being in the Conjunctive it seems that the Bishop or two Justices ought not to examine upon Oath or tender this Oath to any Passenger or Traveller quatenus such unless he be unknown viz. such an
invade or annoy him or his Countries or to discharge any of his Subjects of their Allegiance and Obedience to his Majesty or to give licence or leave to any of them to bear Arms raise Tumult or to offer any Violence or hurt to his Majesties Royal Person State or Government or to any of his Majesties Subjects within his Majesties Dominions Also I do swear from my Heart that notwithstanding any Declaration or sentence of Excommunication or deprivation made or granted or to be made or granted by the Pope or his Successors or by any Authority derived or pretended to be derived from him or his See against the said King his Heirs or Successors or any Absolution of the said Subjects from their Obedience I will bear Faith and true Allegiance to his Majesty his Heirs and Successors and him and them will defend to the uttermost of my power against all conspiracies and attempts whatsoever which shall be made against his or their Persons their Crown and Dignity by reason or colour of any such sentence or declaration or otherwise and will do my best indeavour to disclose and make known unto his Majesty his Heirs and Successors all Treasons and Traiterous Conspiracies which I shall know or hear of to be against him or any of them And I do further swear That I do from my Heart abhor detest and abjure as Impious and Heretical this damnable Doctrine and Position That Princes which be Excommunicated or Deprived by the Pope may be Deposed or Murthered by their Subjects or any other whatsoever And I do Believe and in Conscience am Resolved That neither the Pope nor any Person whatsoever hath Power to absolve me of this Oath or any part thereof which I acknowledge by good and full Authority to be lawfully Ministred unto me and do renounce all Pardons and Dispensations to the contrary And all these things I do plainly and sincerely acknowledge and swear according to these express words by me spoken and according to the plain and common sense and understanding of the same words without any Equivocation or mental Evasion or secret Reservation whatsoever And I do make this Recognition and Acknowledgment heartily willingly and truly upon the true Faith of a Christian So help me God Vnto which Oath so taken the said person shall subscribe his or her Name or Mark. If a man refuse to take any word of this Oath What is a refusal of the Oath 't is a refusal of the whole Bulstrode 1. 198. Lord Vaux his Case And be it further Enacted by the Authority aforesaid Stat. Sect. 13. No Indictment or other proceedings against a Recusant shall be discharged or reversed for default of form That no Indictment or Indictments had or found or hereafter to be had or found against any person or persons for not repairing to some Church or Chappel or usual place of Common Prayer but absenting him or her self by the space of one month contrary to the Laws and Statutes in that behalf provided or for not receiving the said Sacrament contrary to this present Law nor any Proclamation Vtlawry or other procéeding thereupon shall at any time hereafter be avoided discharged or reversed by reason of any default in form or lack of form or other defect whatsoever other then by direct traverse to the point of not coming to Church or not receiving the said Sacrament whereof such person or persons hath beén or shall be Indicted but the same Indictment shall stand in force and be procéeded upon Any such default of form or other defect whatsoever notwithstanding Vtlawry A term for years sold upon an Outlawry restored A termor for years was outlawed upon an Indictment of Recusancy The Term was sold by the Lord Treasurer and Barons of the Exchequer and afterwards the Outlawry was reversed The Question was whether upon Reversal of the Outlawry the Recusant should have restitution of his Term again And Periam Justice doubted thereof and observed that the Book of 11 H. 4. 65. which saith that the party outlawed shall upon reversal of the Outlawry have restitution speaks only of Goods seized but not of a term sold before But Anderson Chief Justice and Walmesly Justice held That the Termor in this Case should have his Term again in whose soever hands the Land came and upon whatsoever Consideration and not the money for which the Term was sold For the Outlawry being reversed it is as if there were no Record of it And the Queens Interest was but conditional scil if the Outlawry were good Nor is this like the Case where a Sheriff upon a Fieri facias Fieri facias and venditioni exponas sells a Term For there if the Judgment be reversed the party shall have the money for which the Term was sold but not restitution of the Term it self as was resolved 26 Eliz. Dyer 363. And the reason is because the Sheriff did no more then he was commanded For he was commanded to sell and therefore the Sale shall be good to all intents But in the Case of an Outlawry it is otherwise and there is no such Command which difference between a Fieri facias and Capias utlagatum was agreed in Dr. Drury's Case Co. 8. 143. And in the principal Case here Judgment was given for the Termor according to the Opinion of Anderson and Walmesly Cro. Pasch 34 Eliz. C. B. 278. Eyre versus Woodfine Where the Patron outlawed shall be restored to his presentment A man is seized of an Advowson in gross the Church becomes void and then the Patron is outlawed upon an Indictment of Recusancy whereupon the King presents the Presentee is instituted and inducted and afterwards the Outlawry is reversed In this Case the Patron shall be restored to his presentment So if the Patron of an Advowson in gross hath Judgment in a Quare Impedit and is afterwards outlawed for Recusancy and the King presents and the presentee is instituted and inducted In this Case the Patron shall have a Scire facias to execute the Judgment and shall oust the Presentee of the King And the reason in both these Cases is because upon the Reversal of an Outlawry the party shall be restored to all things which are principal and here the presentment was the principal thing forfeited by the Outlawry and therefore upon reversal the Patron shall be restored to it Vide Moore 269 270. C. 421. Beverleigh versus Cornwall Savile 89. C. 166. the same Case And where not But if the King upon an Outlawry seize a Mannor to which an Advowson is appendant and the Church becomes void whereupon the King presents and the presentee is inducted There 't is otherwise and the Kings presentee shall not be removed upon reversal of the Outlawry For the presentment in that Case is but as an accessary that follows the principal which is the Mannor the profits of which Mannor the King was to have during the Outlawry and consequently the
presentment as a profit of the Advowson which is parcel of the Mannor Moore ibid. The Recusant may plead collateral matter Or other defect whatsoever This is meant of defects within the Indictment or other proceedings and not of any collateral matter which the Recusant hath to discharge himself as a Pardon auterfoits convict c. For the Recusant is not hereby disabled to plead such collateral matter but may take advantage thereof Co. 11. 65. Dr. Fosters Case Nor yet is this meant of all defects whatsoever within the Indictment or other proceedings For if there be any defect Defects to the Kings prejudice which apparently tends to the Kings prejudice the Recusant may take advantage of it And therefore in the Case of the Marquess of Winchester who was Indicted and Convicted of Recusancy and had Judgment thereupon but ideo capiatur was omitted the Judgment was reversed for that omission Cro. Trin. 14 Car. 504 505. Provided always That if any person or persons Stat. Sect. 14. He that Conforms may avoid an Indictment or other proceedings so Indicted or to be Indicted shall at any time hereafter submit and conform him or her self and become Obedient to the Laws of the Church of England and repair to the Parish Church of his or her most abiding and if there be none such then to the Church next adjoyning to his or her such dwelling and there hear Divine Service according to the true meaning of the Statute in that behalf made and provided and there publickly receive the said Sacrament according to the Laws of this Realm of England now established That then every such person and persons so Indicted shall and may from thenceforth be admitted and allowed to avoid discharge reverse and undo the said Indictment and Indictments and all procéedings thereupon in such manner and form as if this present Act had not beén had nor made Any thing herein contained to the contrary in any wise notwithstanding And forasmuch as it is found by late experience Stat. Sect. 15. That such as go voluntarily out of this Realm of England to serve Forreign Princes States or Potentates are for the most part perverted in their Religion and Loyalty by Iesuits and Fugitives with whom they do there converse Be it therefore Enacted by the Authority aforesaid That every Subject of this Realm that after the Tenth day of June next coming shall go or pass out of this Realm to serve any Forreign Prince State or Potentate or shall after the said Tenth day of June pass over the Seas He shall take the Oath which goeth out of the Realm to serve another Prince and there shall voluntarily serve any such Forreign Prince State or Potentate not having before his or their going or passing as aforesaid taken the Oath aforesaid before the Officer hereafter appointed shall be a Felon And that if any Gentleman or person of higher degrée or any person or persons which hath born or shall bear any Office or place of Captain Lieutenant or any other place Certain persons to be bound to the King charge or Office in Camp Army or Company of Soldiers or Conducter of Soldiers shall after go or pass voluntarily out of this Realm to serve any such Forreign Prince State or Potentate or shall voluntarily serve any such Prince State or Potentate before that he and they shall become bound by Obligation with two such sureties as shall be allowed of by the Officers which are hereafter by this Act limited to take the same Bond unto our Soveraign Lord the Kings Majesty his Heirs or Successors in the sum of twenty pounds of currant English money at the least with Condition to the effect following shall be a Felon Subject of this Realm Every Subject of this Realm What is meant by a Subject of this Realm vide postea Sect. 23. Service Shall go or pass out of this Realm to serve The Service mentioned throughout this branch of the Statute is intended of civil or domestick Service as well as Military Co. 3. Inst. 80. and although the later part of it speaks of Officers and Soldiers yet it also speaks there of Gentlemen and persons of higher Degree without pointing at any particular sort of Service so that to serve or go to serve a Forreign Prince c. in any capacity whatsoever without first doing what is here required is Felony by this Act. Felony though the party serve not The passing or going out of this Realm to serve a Forreign Prince c. without taking the Oath or if of that quality entring into Bond is Felony by this Statute although the party be never received into actual Service For the words are in the disjunctive go or pass to serve or voluntarily serve Co. 3. Inst 80. Or intended not to serve Or shall c. pass over the Seas and there shall voluntarily serve So if he pass over the Seas upon some other occasion and not with an intent to serve a Forreign Prince c. yet if when he is there he voluntarily serve him and did not before his departing hence take the Oath and if of that quality enter into such Bond he shall incur the penalty of this Law and suffer as a Felon Co. 3. Inst 81. Bond must be Domino Regi Shall become bound by Obligation c. unto our Soveraign Lord the Kings Majesty An Obligation made to the Kings use is not sufficient nor will satisfie the intent of the Act but it must be made to the King himself For the Bond must be Domino Regi according to the Statute of 33 H. 8. cap. 39. Stat. 33 H. 8. 39 or the Officer who takes it is liable to Imprisonment for taking a Bond contrary to that Statute Wingate therefore tit Crown numb 112. lays a snare for the Officer of the Port when he directs him only to take this Bond to the Kings use And he might have informed himself out of that Statute of 33. and the Statute of 24 H. 8. cap. 8. of the difference between a Bond made to the King and a Bond made to the Kings use Vide Savile 13. C. 33. Shall be a Felon The Offender against any part of this branch of the Statute may have the benefit of his Clergy Clergy Co. 3. Inst 81. Vide postea Sect. 28. The tenor of which Condition followeth viz. Stat. Sect. 16. The Condition of the Bond. That if the within bounden c. shall not any time then after be reconciled to the Pope or See of Rome nor shall enter into or consent unto any practice Plot or Conspiracy whatsoever against the Kings Majesty his Heirs and Successors or any his and their Estate and Estates Realms or Dominions but shall within convenient time after knowledge thereof had reveal and disclose to the Kings Majesty his Heirs and Successors or some of the Lords of his or their Honourable Privy Council all such Practices Plots and
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
Peace is sole Judge whether the excuse Excuse the party makes for his absence be sufficient and sufficiently proved And the same cannot be brought into question elsewhere by the party To levy twelve pence for every such default So that this Forfeiture of twelve pence may be levied weekly For it is due for every absence as soon as the Sunday is ended and hath no relation to the forfeiture of twenty pounds per month given by the Statute of 23 Eliz. cap. 1. Stat. 23 Eliz. 1 Recusants may forfeit the twelve pence and twenty pounds both But the Offender may be punished both by this Act for his weekly absence and by 23 Eliz. for his monthly absence By Coke Chief Justice B. R. Rolles 1. 94. Dr. Fosters Case And because in one Act of Parliament begun and holden at Westminster in the five and thirtieth year of the late Quéen Eliz. Stat. Sect. 24. A Repeal of two branches of the Statute of 35 Eliz. 1. Intituled An Act to retain the Quéens Majesties Subjects in their due Obedience there are two branches contained the first beginning thus And for that every person having House and Family is in duty bounden to have especial regard of the good government and ordering of the same and so forth to the next Clause beginning thus Provided nevertheless That this Act shall not in any wise extend to punish or impeach any persons for relieving c. ending with these words Any thing in this Act contained to the contrary notwithstanding Which said two Branches or Clauses are found defective Be it therefore Enacted That the said two Branches or Clauses of the said Act and no more shall be by Authority of this present Parliament utterly repealed and made void Vide Stat. 35 Eliz. cap. 1. Sect. 7. Stat. 35 Eliz. 1 And in lieu thereof Be it Enacted Stat. Sect. 25. Maintaining or keeping a Recusant in his house that every person and persons which after one month next after the end of this present Session of Parliament shall willingly maintain retain relieve kéep or harbour in his or their House any Servant Sojourner or Stranger who shall not go to or repair to some Church or Chappel or usual place of Common Prayer to hear Divine Service but shall forbear the same by the space of one month together not having a reasonable Excuse contrary to the Laws and Statutes of this Realm shall forfeit ten pounds for every month that he she or they shall so relieve maintain retain keép or harbour any such Servant Sojourner or Estranger in his or their House so forbearing as aforesaid And that every person Retaining a Recusant in his Service fee or livery which shall within the time aforesaid retain or kéep in his her or their service fée or livery any person or persons which shall not go to or repair to some Church Chappel or usual place of Common Prayer to hear Divine Service but shall forbear the same by the space of one month together shall forfeit for every month he she or they shall so retain kéep or continue in his or their service fée or livery any such person or persons so forbearing as aforesaid knowing the same ten pounds the same penalties to be recovered and employed in manner and form hereafter following Willingly c. kéep or harbour Master where not punishable A man freely and of his own accord takes an Apprentice or Covenant Servant for a certain time not knowing him or her to be a Recusant and such Apprentice or Servant forbears to come to Church It seems that the Master shall forfeit nothing although he keeps them in his House For he doth no more then what the Law will compel him to during the time agreed on and limited for such Apprentiship or Service and this cannot be said to be done willingly for 't is not in his choice to discharge them until the time is expired Where punishable But if the Master before he took such Apprentice or other Servant knew him or her to be a Recusant or after their forbearance to come to Church retains them for a longer time then was at first agreed on this is a keeping or harbouring them willingly and he shall be liable to this penalty In his her or their service Fée or Livery This extends to all Servants whatsoever although they dwell not in the Masters House nor are his menial Servants for if they are retained in his Service Fee or Livery as Bailiff Steward or in any other capacity and forbear to come to Church the Master shall be punished for their absence Penalty Ten pounds Note in the late additions to Dalton cap. 81. tit Recusants Sect. 27. The penalty upon this Branch of the Act is mistaken and said to be in some Cases Twenty pounds per month and in other Cases One hundred pounds per month The contrary whereof is evident Stat. Sect. 26. The Father Mother Ward and Person committed by Authority Provided nevertheless That this Act shall not in any wise extend to punish or impeach any person or persons for maintaining retaining relieving keeping or harbouring his her or their Father or Mother wanting without fraud or Covin other habitation or sufficient maintenance or the Ward of any such person or any person that shall be committed by Authority to the custody of any by whom they shall be so relieved maintained or kept Any thing in this Act contained to the contrary notwithstanding Child where punishable Wanting without fraud or Covin other habitation or sufficient maintenance A Father or Mother hath no setled habitation but yet hath sufficient maintenance The Child receives such parent into his House who forbears to come to Church in this Case the Child shall forfeit Ten pounds per month For although the Parent had no habitation yet this is not a wanting habitation within the meaning of this Act seeing he wanted not sufficient means to procure one Where not But if the Parent hath an habitation yet if he want sufficient maintenance to keep him in that habitation although he refuse to come to Church the Child shall forfeit nothing for receiving him into his House for the words here are in the disjunctive and if the Parent wants either other habitation in the sense of the Act or sufficient maintenance the Child may receive him That shall be committed by Authority to the custody c. Master where not punishable The former Case of an Apprentice was put only of such an one whom the Master takes of his own accord but if it be a Parish Child bound by the Churchwardens and Overseers with the assent of the Justices of Peace if the Master be duly required to take him such Apprentice as it seems is committed to the Masters custody within the meaning of this Proviso for he is punishable if he refuse him and if he were a Recusant or forbear to come to Church yet the Master
Vide Rolles abridg tit Temps 521. Counsel and Trial by Peers Praemunire In the aforesaid Case of the Lord Vaux who was Indicted of a Praemunire for refusing this Oath the Court of Kings Bench denied him Counsel or Trial by his Peers And it was there held that the Trial of a Nobleman by his Peers is at Common Law in four Cases only viz. Treason Felony Misprision of Treason and Misprision of Felony but not to be allowed in the Case of a Praemunire for that in effect it is no more then a Contempt Bulstrode 1. 197 198 199. Stat. Sect. 32. Who shall take the Oath in the Cinque Ports Provided also and be it Enacted by Authority of this Parliament That where any person or persons shall go or pass out of the Cinque Ports or any Member thereof to any parts beyond the Seas to serve any Forreign Prince State or Potentate that in every such Case the Lord Warden of the Cinque Ports for the time being or any person by him in that behalf appointed or to be appointed shall have full Power and Authority by virtue hereof to take the Bond and minister the Oath to such Passengers as is above mentioned If the Warden of the Cinque Ports Warden of the Cinque Ports do take such Bond and minister such Oath and do not certifie them into the Exchequer this seems to be Casus omissus and not provided for by the Act For he shall not be liable to the penalty inflicted on the Customer and Controller For that although it be within the same mischief there are no express words here to reach him And penal Statutes shall not be taken or construed by Equity Lee 77. Bishop of Chichester versus Freeland Rolles 2. 420. Jones versus Lord Sheffeild Ratcliffe Yelverton 22. Brode versus Owen Plowden 17. Fogassa's Case Et 86. Partridges Case Co. 1. Inst. 238. Keilwey 96. Stat. iii Jac. cap. v. An Act to prevent and avoid dangers which may grow by Popish Recusants Stat. Sect. 1. WHereas divers Iesuits Seminaries and Popish Priests dayly do withdraw many of his Majesties Subjects from the true Service of Almighty God and the Religion established within this Realm to the Romish Religion and from their Loyal Obedience to his Majesty and have of late secretly perswaded divers Recusants and Papists and encouraged and emboldened them to commit most damnable Treasons tending to the overthrow of Gods true Religion the destruction of his Majesty and his Royal Issue and the overthrow of the whole State and Commonwealth if God of his goodness and mercy had not within few hours before the intended time of the execution thereof revealed and disclosed the same wherefore to discover and prevent such secret damnable conspiracies and Treasons as hereafter may be put in ure by such evil disposed persons if remedy be not therefore provided Stat. Sect. 2. The reward of him which discovereth a Popish Priest or Mass Be it Enacted by the Kings most Excellent Majesty the Lords Spiritual and Temporal and the Commons in this present Parliament Assembled and by the Authority of the same That such person as shall first discover to any Iustice of Peace any Recusant or other person which shall entertain or relieve any Iesuite Seminary or Popish Priest or shall discover any Mass to have beén said and the persons that were present at such Mass and the Priest that said the same or any of them within threé days next after the offence committed and that by reason of such discovery any of the said Offenders be taken and Convicted or Attainted That then the person which hath made such discovery shall not only be fréed from the danger and penalty of any Law for such offence if he be an Offender therein but also shall have the third part of the forfeiture of all such sums of Money Goods Chattels and Debts which shall be forfeited by such offence so as the same total forfeiture exceéd not the sum of One hundred and fifty pounds and if it excéed the sum of One hundred and fifty pounds the said person so discovering the said offence shall have the sum of Fifty pounds only for every such discovery And such person so discovering the same after conviction of the offender shall have a Certificate from the Iudges or Iustices of Peace before whom such Conviction shall happen to be directed to the Sheriff or other Officer of the same County Limit or Place that shall seize the Goods or levy the said forfeiture commanding the said Sheriff or other Officer to pay the same accordingly to him that so discovered the same out of the monies to be levyed by vertue of the said forfeitures which Warrant and payment shall be effectual in the Law for that purpose and a sufficient discharge in that behalf for the Sheriff or other Officer upon his Accompt Within threé days next after the Offence committed Discovery within what time So that if three days next after the Offence committed elapse before the discovery is made the discoverer shall have no benefit by this Act. And therefore if the person discovering had no notice of the Offence till the three days expire although he discovers it presently upon such notice given him yet he comes too late much less shall he have three days after notice as Wingate tit Crowne numb 128. mistakes the meaning of this Clause Commanding the said Sheriff or other Officer to pay the same In the late additions to Dalton cap. 81. tit Recusants Who is to pay the discoverer Sect. 57. 't is said that the Sheriff is to grant his Warrant for the payment of the discoverer but that is a misrecital of the Statute for the Sheriff himself is to pay him And whereas the repair of such evil affected persons to the Court or to the City of London may be very dangerous to his Majesties person and may give them more liberty to méet Stat. Sect. 3. A Popish Recusant shall not come to Court consult and plot their Treasons and practices against the State then if they should be restrained and confined unto their private Houses in the Country For remedy hereof Be it Enacted by the Authority aforesaid That no Popish Recusant Convicted or to be Convicted shall come into the Court or House where the Kings Majesty or his Heir apparent to the Crown of England shall be unless he be commanded so to do by the Kings Majesty his Heirs and Successors or by Warrant in writing from the Lords and others of the most Honourable Privy Council of the Kings Majesty his Heirs and Successors or any of them upon pain to forfeit for every time so offending one hundred pounds the one moiety to the Kings Majesty his Heirs and Successors the other moiety to him that will discover and sue for the same by Action of Debt Bill Plaint or Information in any one of his Majesties Courts of Record wherein no Essoign protection or wager
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
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
happen it is good reason not to strain the words farther then they reach but to say it is casus omissus and that the Law intended quae frequentius accidunt Vaughan 373. And yet there is no question but such Lands are a Joynture The extent of the word and if made with the Wives assent before marriage shall bar her Dower by the Statute of 27 H. 8. cap. 10. which speaks of an Estate or purchase made to the Wife for her Joynture generally not saying by whom Mr. Sheapard therefore in his Epitome p. 523. falls very short of the full description of a Joynture when he limits it only to be of the Franktenement of her Husband which restriction dayly experience confutes For that it is commonly made by the Ancestor of the Husband of Lands in which the Husband never had any Franktenement nor perhaps ever shall have Custom By vertue of any custom of any County City or Place And not of Cities only as 't is restrained in the late additions to Dalton cap. 85. tit Recusants Sect. 48. Where in force The Custom here mentioned viz. that the Wife shall have a certain portion of her Husbands goods after his decease is of force throughout the whole Province of York and in divers other places of England and if he gives them away from her by his Will the bequest is void Vide Swinburne Part 3. cap. 14. p. 151. 152. What goods are not within the Act. A Woman is an offender within this Branch and her Husband by his last will gives her all or part of his goods not claimable by custom she is not by this Act disabled to enjoy them after his death For the words here are plainly restrictive to such goods as she claims by custom Where not Tenant by Curtesie not One hundred pounds forfeited Whereof he may be intituled to be Tenant by the Curtesie A Popish Recusant convicted marries an Inheritrix in other form then is appointed by this Act The Wife dies without issue born alive of the marriage In this Case although the Husband is not intituled to be Tenant by the Courtesie yet the possibility which he once had to be so intituled seems to satisfie the intent of the Act and he shall not forfeit the hundred pounds So that here is another Casus omissus For it may so happen that a Popish Recusant Convict may have a great Portion in money with his Wife and but a small Estate in Lands with her perchance but a few Acres yet if he be an Offender within this branch the Lands for that he may be intituled to be Tenant of them by the Courtesie shall save his hundred pounds and if his Wife die having had no issue born alive he is wholly exempted out of the Act and cannot be punished either way Stat. Sect. 16. Baptism of Popish Recusants Children And that every Popish Recusant which shall hereafter have any Child born shall within one month next after the Birth thereof cause the same Child to be baptized by a lawful Minister according to the Laws of this Realm in the open Church of the same Parish where the Child shall be born or in some other Church near adjoyning or Chappel where Baptism is usually administred or if by infirmity of the Child it cannot be brought co such place then the same shall within the time aforesaid be baptized by the lawful Minister of any of the said Parishes or places aforesaid upon pain that the Father of such Child if he be living by the space of one month next after the Birth of such Child or if he be dead within the said month then the Mother of such Child shall for every such Offence forfeit one hundred pounds of lawful money of England one third part whereof to be to the Kings Majesty his Heirs and Successors one other third part to the Informer or him that will sue for the same and the other third part to the Poor of the said Parish to be recovered by Action of Debt Bill Plaint or Information in any of the Kings Majesties Courts of Record wherein no Essoign Protection or Wager of Law shall be admitted or allowed And if any Popish Recusant man or woman Stat. Sect. 17. Burial of Popish Recusants not excommunicate not being Excommunicate shall be buried in any place other than in the Church or Churchyard or not according to the Ecclesiastical Laws of this Realm That the Executors or Administrators of every such person so buried knowing the same or the party that causeth him to be so buried shall forfeit the sum of twenty pounds the one third part whereof shall be to our Soveraign Lord the King the other third part to the Informer or him or them that will sue for the same and the other third part to the Poor of the Parish where such person died to be recovered by Action of Debt Bill Plaint or Information in any of the Kings Majesties Courts of Record wherein no Essoign Protection or Wager of Law shall be admitted or allowed The Exception here of a Popish Recusant Excommunicate That is not actually Excommunicate is intended only of one actually Excommunicated and not of him who is a Popish Recusant convicted who shall not be reputed as a person Excommunicate to this intent but only as to the point of a disability as hath been said Sect. 12. So that if any Popish Recusant not actually Excommunicate be buried elsewhere or otherwise then is here mentioned although he were convicted yet 't is an Offence punishable by this Law And be it further Enacted by this present Parliament Stat. Sect. 18. Children departing the Realm That if the Children of any Subject within this Realm the said Children not being Soldiers Mariners Merchants or their Apprentices or Factors to prevent their good Education in England or for any other cause shall hereafter be sent or go beyond Seas without Licence of the Kings Majesty or six of his Honourable Privy Council whereof the principal Secretary to be one under their Hands and Seals The forfeiture of such as depart That then all and every such Child and Children so sent or which shall so go beyond the Seas shall take no benefit by any gift conveyance descent devise or otherwise of or to any Lands Tenements Hereditaments Leases Goods or Chattels until he or they being of the age of eighteén years or above take the Oath mentioned in an Act of Parliament made this present Session Intituled An Act for the better discovering and repressing of Popish Recusants before some Iustice of Peace of the County Liberty or Limit where such Parents of such Children as shall be so sent did or shall inherit and dwell And that in the mean time the next of his or her kin which shall be no Popish Recusant shall have and enjoy the said Lands Tenements Hereditaments Leases Goods and Chattels so given conveyed descended or devised until such time
as the person so sent or gone beyond the Seas shall conform him or her self and take the aforesaid Oath and receive the Sacrament of the Lords Supper And after such Oath taken and conforming of himself and receiving the Sacrament of the Supper of the Lord he or they which have so received the profits of the said Lands Tenements Hereditaments Goods and Chattels or any of them shall make account of the profits so received and in reasonable time make payment thereof and restore the value of the said Goods to such person as shall so conform him or her self as aforesaid And of him that sendeth them And that all such persons as shall send the said Child or Children over Seas without Licence as aforesaid unless the said Child or Children be Merchants or their Apprentices or Factors Marriners or Soldiers shall forfeit one hundred pounds to be divided had and recovered in thrée equal parts whereof the one third part shall be to the King his Heirs and Successors the other third part to such as shall sue for the same and the other third part to the Poor of such Parish where such Offender doth inhabit or remain by Action of Debt Bill Plaint or Information in any the Kings Majesties Courts of Record wherein no Essoign Protection or Wager of Law shall be admitted or allowed Next of kin who The next of his or her kin It hath been a great Question formerly whether the Mother can be said to be of kin to the Child and it hath been held in the negative as well by the Common Lawyers as Civilians as appears by the Case in 5 E. 6. called the Duke of Suffolks Case and that of Browne and Shelton Bro. tit Administr ' 47. But the Law is now held to be otherwise viz. That the Mother shall be taken to be of kin to the Child and that in a nearer degree then is the Brother or Sister And that she shall be preferred in the Case of an Administration upon the Statute of 21 H. 8. cap. 5. and of Guardianship by the Statute of Marlebridge where a man dies seized of Lands holden in Socage Which later Opinion agreeth with that of Littleton in his tenures fo 1. where he saith That the Parent is nearer of blood to the Child then the Uncle vide Co. 1. Inst 88. And in Ratcliffes Case Co. 3.40 the Duke of Suffolks Case is denied to be Law So that if any Child be sent or go beyond the Seas contrary to this Act his Mother shall be preferred before his Brother or Sister and as next of kin may have and enjoy his Lands c. unless she be a Popish Recusant For next of kin And who not or next of blood shall not be accounted here by course of descent but as in the Case of a purchase where a Remainder is limited to the next of blood or kin And therefore if a man hath issue three Sons A. B. and C. and dieth A. and B. have issue each of them a Son and die The Son of B. goeth beyond the Seas contrary to this Act In this Case C. the youngest Uncle shall by force of this Act have and enjoy the Lands of the Offender until his Conformity and not the Son of A. the elder Uncle For that C. hath in him jus propinquitatis as being the Uncle and so nearer of kin then the Cousin german And yet the Son of A. is heir at Law jure representationis as being the Son of the eldest Brother Vide Co. 1. Inst 10. Palmer 304 305. Periman versus Pierce Shall have and enjoy the said Lands c. What is forfeited It was held by Montague and Hobart Chief Justices Pasch 15 Jac. in Tredway's Case That if a person goes beyond the Seas contrary to this Act yet the State of the Land is not forfeited nor setled in the next of kin but vests in the heir himself who is the Offender For the Statute saith not that he shall not take by descent but only that he shall take no benefit by descent and that therefore this Statute differs from those of 5 R. 2. of consenting to Ravishment Stat. 5 R. 2. 11 H. 7. Sale by the heir and 11 H. 7. of discontinuances by Women And Hobart said That if the Heir beyond Sea bargain and sell the Land descended to him he shall prevent the next of kin if he hath not entred And if he hath entred the Land shall be taken from him Quaere of this for Tanfeild Chief Baron seemed to be of a contrary Opinion in the main point and held that the State of the Land is setled by this Act in the next of kin Ley 59. Note in the Report of this Case of Tredway it s said to be the meaning of this Act that the profits of the Land should be received by the next of kin during the Offenders Non-conformity But these words have and enjoy seem to imply some what more and that the next of kin shall have the Land it self All such persons as shall send the said Child or Children c. Here Wingate tit Crown numb 139. mistakes the person who shall forfeit the hundred pounds Forfeiture of 100 l. applying it to the Child who goes beyond Sea and not to the person who sends him Stat. Sect. 19. The forfeiture of those already gone beyond the Seas And for that many Subjects of this Realm being neither Merchants nor their Factors nor Apprentices Soldiers nor Marriners are of late gone beyond the Seas without Licence and are not as yet returned Be it further Enacted by the Authority of this present Parliament That if any of the said persons so gone beyond the Seas without Licence which are not yet returned shall not within six months next after their return into this Realm then being of the age of Eighteén years or more take the Oath above specified before some Iustice of Peace of the County Liberty or Limit where such person shall inhabit or remain that then every such Offender shall take no benefit by any gift conveyance descent devise or otherwise of or to any Lands Tenements Hereditaments Goods or Chattels until he or they being of the said age of Eightéen years or above take the said Oath and that likewise in the mean time the next of kin to the person so offending which shall be no Popish Recusant shall have and enjoy the said Lands Tenements Hereditaments Goods and Chattels so given conveyed descended or devised until such time as the person so offending shall conform himself and take the aforesaid Oath and receive the said Sacrament of the Lords Supper And after such conforming taking of the said Oath and receiving of the said Sacrament he or they that shall have so received the profits of the said Lands Tenements Hereditaments Goods and Chattels shall make account of the profits so received and in reasonable time make payment thereof and of the value of such Goods and Chattels to
resembles the Case of 9 10 Eliz. in the Court of Wards cited in the Case of the Chancellor c. of the University of Oxford Co. 10. 57. Tenant in Capite makes a Feoffment to the intent to deceive his Creditors And this fraudulent intent was found quod nulla alia Causa aut Collusio viz. ad defraudandam Reginam c. de custodia haeredum vel terrarum c. There it was resolved That although in truth by the event the Queen was by the Feotfment defrauded of the Wardship of the Body and Lands of the Heir yet because the fraud was found only to one particular intent scil to deceive Creditors it should not be extended to another intent scil to defeat the Queen of her Wardship A man seized inter alia of an Advowson in gross Where the King shall Present becomes a Popish Recusant Convict The King seizes the Advowson as part of his two parts The Church becomes void In this Case it was held by Justice Hutton That the University and not the King shall Present But Justice Jones held strongly to the contrary and that notwithstanding this Act the King shall have the Presentation Stat. 3 Jac. 4. For the Statute of 3 Jac. cap. 4. saith That the King may take and seize two third parts of a Recusants Hereditaments under which word an Advowson is comprehended And although the power or liberty of Presenting is here given the University yet that is to be intended only in such Cases where a Popish Recusant Convict is Patron But when the King hath seized the Advowson as part of his two parts the King is Patron and not the Recusant nor shall the Title the King hath to the Advowson by the Act of 3 Jac. 4. be devested by another Act of Parliament unless it had been there given away from the King in express terms And Hobart Chief Justice and Winch Justice declared they were of the same Opinion with Jones in the main point Jones 17. c. Standen al' versus University d' Oxon Whitton Obj. To this it hath been objected That when this Statute disables the Recusant to grant any Avoidance it disables him to grant it to the King as well as to any other person But if the Recusant may forfeit the Advowson to the King he may forfeit the Avoidance to the King And every forfeiture being a Grant or Gift in Law as is held in Hales Case Plowden 260 263. the Recusant by consequence may grant the Avoidance contrary to the express Letter of this Act Answ But to pass by the questions whether by the Recusants being disabled to grant any Avoidance generally he is disabled to grant an Avoidance to the King or whether the forfeiture of the two thirds by the Recusant can be properly called a Grant or Gift from the Recusant and not rather from the Law which creates the forfeiture It s enough for our purpose here to distinguish between voluntary Acts and Acts by compulsion For this Statute which disables the Recusant to Present or to grant any Avoidance was intended only to restrain his voluntary Acts But when he forfeits the Avoidance to the King although the offence viz. his Recusancy be voluntary yet the Conviction and Forfeiture thereupon are involuntary And the Recusant is therein potius patiens quam agens Jones 21. A Popish Recusant Convict seized in fee of an Advowson in gross is attainted of Felony or Praemunire Felony Praemunire and the Church becomes void In this Case Hutton held That the Interest which accrued to the University upon the Conviction for Recusancy should not be devested by the Attainder And that if a man seized of such an Advowson Statute Merchant acknowledge a Statute Merchant and afterwards becomes a Popish Recusant Convict and then the Statute is extended the Interest of the University shall not be devested by the extent But Jones seemed to be of a contrary Opinion in the Case of Treason or Praemunire Jones 20.26 If the King seize two parts of a Mannor belonging to a Popish Recusant Convict Advowson follows the Mannor for non-payment of the forfeiture of twenty pounds per month to which Mannor an Advowson is appendant The two parts of the Advowson shall follow the two parts of the Mannor and the King shall Present and not the University notwithstanding this Act For after such seizure the King is Patron of the Advowson and not the Recusant and in this Case the King shall present alone Hobart 126 127. The King shall Present alone Chancellor c. of Cambridge versus Walgrave al' Moore 872. C. 1214. the same Case As shall then have any other Benefice with Cure of Souls And not as is already beneficed as Wingate tit Crown numb 140. mistakes For a sine Cura is a Benefice Sint Cura and yet the University may Present or Nominate him who hath a sine cura A Donative of the Kings may be cum cura animarum Donative cum cura And so is the Church of the Tower of London Cro. Mich. 9. Car. Mackaller versus Todderick And the University cannot Present or Nominate him that hath such a Donative Notwithstanding what is said by Sir Edward Coke 3. Inst 355. Deanry Archdeaconry Prebend c. It seems that a Deanry Archdeaconry Prebend c. are not Benefices with Cure of Souls nor had they been comprehended under the name of Benefices with Cure of Souls within the Statute of 21 H. 8. Pluralities Stat. 21 H. 8. of Pluralities Although the special Proviso in that Act had been omitted For that Proviso is ex abundanti and there is no such to except them out of the Statute of 13 Eliz. cap. 12. Stat. 13 El. 12. of reading the Articles and yet if a Dean Archdeacon or Prebendary read not the Articles within the time limited by 13 Eliz. his promotion is not void by that Statute And the reason is because 't is not a Benefice with Cure of Souls The Opinion of Justice Tirrell at Lincoln Assizes in Lent 1668 9. Who in the Case of Dr. Sanderson denied the Archdeacon of Lincoln to be lawful Archdeacon For that he had not read the Articles within the time so limited and affirmed an Archdeaconry to be a Benefice with Cure within 13 Eliz. being contrary to Law and to the received meaning of that Statute And as for a Prebend the reason given for the Opinion in Bland and Maddox Case B. R. Mich. 29 30 Eliz. is expresly against what is said by Sir Edward Coke For it was there agreed that a Layman may be presented to a Prebend quia non habet curam animarum Cro. Eliz. 79. And for the same reason a Dean Archdeacon Prebendary c. may be in this Case presented or nominated by the University for their promotion is not a Benefice with Cure of Souls Stat. Sect. 21. Moreover because Recusants Convict are not thought
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
Privy Council of your Highness your Heirs or Successors or by the Bishop of the Diocess if she be a Baroness or if she be under that Degrée by two Iustices of the Peace of the same County whereof one to be of the Quorum there to remain without Ball or Mainprize until she shall conform her self and come to Church and receive the Sacrament of the Lords Supper unless the Husband of such Wife shall pay to the Kings Majesty his Heirs or Successors for the Offence of his said Wife for every month ten pounds of lawful money of England or else the third part in thrée parts to be divided of all his Lands and Tenements at the choice of the Husband whose Wife is so convicted as aforesaid for and during so long time as she remaining a Recusant convicted shall continue out of Prison during which time and no longer she may be at liberty What Conviction is here meant Stat. 23 Eliz. 1. Being lawfully convicted as a Popish Recusant That is upon Indictment at the Kings Suit or a popular Action or Information on the Statute of 23 Eliz. 1. or an Action of Debt at the Kings Suit alone according to the Statute of 35 Eliz. 1. 35 Eliz. 1. In which two last Cases the former Laws are somewhat altered by this Statute For by the former Laws if a person had been convicted of Recusancy any other way then by Indictment no more could have been demanded either by the King or Informer then for the months mentioned in the Information or Count And the penalty should not have run on in such Case For that the Statutes of 29 Eliz. 6. and 3 Jac. 4. 29 Eliz. 6. 3 Jac. 4. which appropriate the penalty to the King after Conviction intend no other Conviction then by Indictment as hath been there said Baron and seme But by this Statute if a popular Action or Information or an Action of Debt c. at the Kings Suit alone be brought against the Husband and Wife for the Recusancy of the Wife and Judgment be had against them the Husband shall not only pay for the time contained in the Information or Count but the Wife shall be imprisoned ever afterwards unless she conform or the Husband pay ten pounds per month or yield the third part of his Lands to the King And yet this Statute doth not after such Conviction of the Wife in a popular Suit Suits upon former Statutes not taken away or Action of Debt c. at the Kings Suit take away the popular Action or Information from the Informer or the Action of Debt c. from the King for the time to come but that they may be brought against the Husband and Wife for the Recusancy of the Wife for any month or months wherein she is absent from Church after such Conviction For this Statute and 23 Eliz. 1. and 35 Eliz. 1. Stat. 23 Eliz. 1 35 Eliz. 1 are all affirmative Laws and may well stand together so that any of the three remedies given by these Statutes may be pursued This Statute not abrogating any former Law but only providing another way of punishment for the Wife after she is once convicted Howbeit she shall not be punished by any more then one of these three ways Co. 11. 63 64. Rolles 1. 94. Doctor Fosters Case Cro. Pasch 17 Jac. 529. Parker versus Curson And therefore if the King bring an Action of Debt c. upon 35 Eliz. against the Husband and Wife Where the Wife shall not be imprisoned or the Informer sue them upon 23 Eliz. for any absence of the Wife from Church after she is once convicted by either of those ways and recover the Privy Counsellor Bishop or Justices of Peace here mentioned cannot imprison her by force of this Act for the non-payment of the ten pounds per month by the Husband for those months for which the King or Informer hath recovered or for his not yielding the thirds of his Lands to the King And the reason is for that when the Husband stands charged with the penalty of twenty pounds per month for the absence of the Wife the intent of the Act is satisfied in respect of those months of her absence for which he stands so charged For if he pay not the twenty pounds per month so recovered the King or Informer hath the ordinary remedy after Judgment by Process of Capias against them both both And the intent of the Act was no more then that the Husband should pay for the Recusancy of his Wife or the Wife be imprisoned And if in this Case the Privy Counsellor Bishop or Justices of Peace should have power to imprison the Wife unless the Husband would pay ten pounds for the months for which the King or Informer hath recovered it would follow that the Husband hath his Election whether he will pay ten pounds per month to the King by force of this Act or the twenty pounds per month so recovered against him by the King or Informer For he shall not pay both the one and the other for that were bis puniri pro uno delicto And if he shall have his Election the King or Informer might by this device be eluded of the penalty of twenty pounds per month so recovered which could not be the intent of the makers of this Law The King and Informer barred by her Imprisonment But if the Wife be after such Conviction imprisoned by force of this Act neither the King or Informer can so sue the Husband and Wife for the Recusancy of the Wife For she is already punished by this Act and must remain in Prison until the Husband pay the ten pounds for every month or yield the thirds of his Lands to the King or the Wife conforms Or if the Husband yields the thirds So if the Husband yields the thirds of his Lands to save his Wives imprisonment he is already punished by this Act and shall not again be punished or Sued by the King or Informer either upon 23 Eliz. or 35 Eliz. Or pay Ten pounds per month And if after such conviction of the Wife he pay Ten pounds per month to save her imprisonment he cannot be sued with his Wife for the Twenty pounds per month upon either of those Statutes by the King or Informer for those months of her absence from Church incurred after her conviction for which he hath paid the Ten pounds monthly to the King for he shall not Bis puniri pro uno delicto Hitherto hath been spoken of the Conviction of the Wife at the Suit of the King alone by Action of Debt c. or by the Informer Qui tam c. which doth not appropriate the penalty to the King by 29 Eliz. 6. or 3 Jac. 4. Conviction upon Indictment If the Wife be convicted of Recusancy upon an Indictment it hath been much debated whether that doth not so appropriate the
or reside when he or they is or are so admitted or placed within the Cities of London or Westminster or within Thirty Miles of the same shall take the said Oaths aforesaid in the said respective Court or Courts aforesaid in the next Term after such his or their Admittance or Admittances into the Office or Offices Imployment or Imployments aforesaid betwéen the hours aforesaid and no other and the Procéedings to cease as aforesaid And that all and every such person or persons to be Admitted after the said First day of Easter Term as aforesaid not having taken the said Oaths in the Courts aforesaid shall at the Quarter Sessions for that County or Place where he or they shall reside next after such his admittance or admittances into any of the said respective Offices or Imployments aforesaid take the said several and respective Oaths as aforesaid and all and every such person and persons so to be admitted as aforesaid shall also receive the Sacrament of the Lords Supper according to the Vsage of the Church of England within Thrée Months after his or their admittances in or receiving their said Authority and Imployment in some publick Church upon some Lords-day commonly called Sunday immediately after Divine Service and Sermon And every of the said persons in the respective Court where he takes the said Oaths shall first deliver a Certificate of such his receiving the said Sacrament as aforesaid under the Hands of the respective Minister and Church-warden and shall then make proof of the truth thereof by two credible Witnesses at the least upon Oath All which shall be inquired of and put upon Record in the respective Courts And be it further Enacted by the Authority aforesaid That all and every the person or persons aforesaid that do or shall neglect or refuse to take the said Oaths and Sacrament in the said Courts and places and at the respective times aforesaid shall be ipso facto adjudged uncapable and disabled in Law to all intents and purposes whatsoever to have occupy or enjoy the said Office or Offices Imployment or Imployments or any part of them or any matter or thing aforesaid or any profit or advantage appertaining to them or any of them and every such Office and Place Imployment and Imployments shall be void and is hereby adjudged void And be it further Enacted That all and every such person or persons that shall neglect or refuse to take the said Oaths or the Sacrament as aforesaid within the times and in the places aforesaid and in the manner aforesaid and yet after such neglect and refusal shall execute any of the said Offices or Imployments after the said times expired wherein he or they ought to have taken the same and being thereupon lawfully Convicted in or upon any Information Presentment or Indictment in any of the Kings Courts at Westminster or at the Assizes every such person and persons shall be disabled from thenceforth to Sue or use any Action Bill Plaint or Information in Course of Law or to prosecute any Suit in any Court of Equity or to be Guardian of any Child or Executor or Administrator of any person or capable of any Legacy or Déed of Gift or to bear any Office within this Realm of England Dominion of Wales or Town of Berwick upon Tweed and shall forfeit the sum of Five hundred pounds to be recovered by him or them that shall Sue for the same to be prosecuted by any Action of Debt Suit Bill Plaint or Information in any of His Majesties Courts at Westminster wherein no Essoign Protection or Wager of Law shall lie And be it further Enacted by the Authority aforesaid That the names of all and singular such persons and Officers aforesaid that do or shall take the Oaths aforesaid shall be in the respective Courts of Chancery and Kings Bench and the Quarter Sessions Inrolled with the day and time of their taking the same in Rolls made and kept only for that intent and purpose and for no other The which Rolls as for the Court of Chancery shall be publickly hung up in the Office of the Pettybag and the Roll for the Kings Bench in the Crown Office of the said Court and in some publick place in every Quarter Sessions and there remain during the whole Term every Term and during the whole time of the said Sessions in every Quarter Sessions for every one to resort to and look upon without Fée or Reward and likewise none of the person or persons aforesaid shall give or pay as any Fée or Reward to any Officer or Officers belonging to any of the Courts as aforesaid above the sum of Twelve pence for his or their Entry of his or their taking of the said Oaths aforesaid And further That it shall and may be lawful to and for the respective Courts aforesaid to give and Administer the said Oaths aforesaid to the person or persons aforesaid in manner as aforesaid and upon the due tender of any such person or persons to take the said Oaths the said Courts are hereby required and enjoyned to Administer the same And be it further Enacted That if any person or persons not bred up by his or their Parent or Parents from their Infancy in the Popish Religion and professing themselves to be Popish Recusants shall Bréed up Instruct or Educate his or their Child or Children or suffer them to be Instructect or Educated in the Popish Religion every such person being thereof Convicted shall be from thenceforth disabled of hearing any Office or Place of Trust or Profit in Church or State And all such Children as shall be so brought up instructed or educated are and shall be hereby disabled of bearing any such Office or Place of Trust or Profit until he and they shall be perfectly Reconciled and Converted to the Church of England and shall take the Oaths of Supremacy and Allegiance aforesaid before the Iustices of the Peace in the open Quarter Sessions of the County or place where they shall inhabit and thereupon receive the Sacrament of the Lords Supper after the Vsage of the Church of England and obtain a Certificate thereof under the Hand of two or more of the said Iustices of the Peace And be it further Enacted by the Authority aforesaid That at the same time when the persons concerned in this Act shall take the aforesaid Oaths of Supremacy and Allegiance they shall likewise make and subscribe this Declaration following under the same Penalties and Forfeitures as by this Act is appointed I A. B. do Declare That I do believe that there is not any Transubstantiation in the Sacrament of the Lords Supper or in the Elements of Bread and Wine at or after the Consecration thereof by any person whatsoever Of which Subscription there shall be the like Register kept as of the taking the Oaths aforesaid Provided always That neither this Act nor any thing therein contained shall extend be judged or interpreted any ways to
hurt or prejudice the Péerage of any Péer of this Realm or to take away any Right Power Priviledge or Profit which any person being a Péer of this Realm hath or ought to enjoy by reason of his Péerage either in time of Parliament or otherwise or to take away creation-money or Bills of Impost nor to take away or make void any Pension or Salary granted by His Majesty to any person for valuable and sufficient Consideration for Life Lives or Years other then such as relate to any Office or to any Place of Trust under His Majesty and other then Pensions of bounty or voluntary Pensions nor to take away or make void any Estate of Inheritance granted by His Majesty or any His Predecessors to any person or persons of or in any Lands Rents Tithes or Hereditaments not being Offices nor to take away or make void any Pension or Salary already granted by His Majesty to any person who was Instrumental in the happy preservation of His Sacred Majesty after the Battel at Worcester in the year One thousand six hundred fifty one until His Majesties arrival beyond the Seas nor to take away or make void the Grant of any Office or Offices of Inheritance or any Fée Salary or Reward for executing such Office or Offices or thereto any way belonging granted by His Majesty or any his Predecessors to or enjoyed or which hereafter shall be enjoyed by any person or persons who shall refuse or neglect to take the said Oaths or either of them or to receive the Sacrament or to subscribe the Declaration mentioned in this Act in manner therein expressed Nevertheless so as such person or persons having or enjoying any such Office or Offices of Inheritance do or shall substitute and appoint his or their sufficient Deputy or Deputies which such Officer or Officers respectively are hereby impowred from time to time to make or change any former Law or Vsage to the contrary notwithstanding to exercise the said Office or Offices until such time as the person or persons having such Office or Offices shall voluntarily in the Court of Chancery before the Lord Chancellor or Lord Keeper for the time being or in the Court of Kings Bench take the said Oaths and receive the Sacrament according to Law and subscribe the said Declaration and so as all and every the Deputy and Deputies so as aforesaid to be appointed take the said Oaths receive the Sacrament and subscribe the said Declaration from time to time as they shall happen to be so appointed in manner as by this Act such Officers whose Deputies they be are appointed to do and so as such Deputies be from time to time approved of by the Kings Majesty under His Privy Signer But that all and every the Péers of this Realm shall have hold and enjoy what is provided for as aforesaid and all and every other person or persons before mentioned denoted or intended within this Proviso shall have hold and enjoy what is provided for as aforesaid notwithstanding any incapacity or disability mentioned in this Act. Provided also That the said Péers and every of them may take the said Oaths and make the said Subscription and deliver the said Certificates before the Péers sitting in Parliament if the Parliament be sitting within the time limited for doing thereof and in the intervals of Parliament in the High Court of Chancery in which respective Courts all the said proceédings are to be recorded in manner aforesaid Provided always That no married Woman or person under the age of Eightéen years or being beyond or upon the Seas or found by the lawful Oaths of Twelve men to be non compos mentis and so being and remaining at the end of Trinity Term in the year of our Lord One thousand six hundred seventy thrée having any Office shall by vertue of this Act loose or forfeit any such his or her Office other then such married Woman during the life of her Husband only for any neglect or refusal of taking the Oaths and doing the other things required by this Act to be done by persons having Offices so as such respective persons within Four months after the death of the Husband coming to the age of Eighteen years returning into this Kingdom and becoming of sound mind shall respectively take the said Oaths and perform all other things in manner as by this Act is appointed for persons to do who shall happen to have any Office or Offices to them given or fallen after the end of the said Trinity Term. Provided also That any person who by his or her neglect or refusal according to this Act shall lose or forfeit any Office may be capable by a new Grant of the said Office or of any other and to have and hold the same again such person taking the said Oaths and doing all other things required by this Act so as such Office be not granted to and actually enjoyed by some other person at the time of the regranting thereof Provided also That nothing in this Act contained shall extend to make any Forfeiture Disability or Incapacity in by or upon any non-Commission-Officer or Officers in His Majesties Navy if such Officer or Officers shall only subscribe the Declaration therein required in manner as the same is direted Provided also That nothing in this Act contained shall extend to prejudice George Earl of Bristol or Anne Countess of Bristol his Wife in the Pension or Pensions granted to them by Patent under the Great Seal of England hearing date the Sixtéenth day of July in the year of our Lord One thousand six hundred sixty and nine being in lieu of a just Debt due to the said Earl from His Majesty particularly expressed in the said Patent Provided also That this Act or any thing therein contained shall not extend to the Office of any High Constable Petty Constable Tithingman Headborough Overseer of the Poor Church-wardens Surveyor of the High-ways or any like inferior Civil Office or to any Office of Forester or Kéeper of any Park Chace Warren or Game or of Bailiff of any Manor or Lands or to any like private Offices or to any person or persons having only any the before mentioned or any the like Offices FINIS THE TABLE Abjuration See Baron Feme IN what cases the offender against 35 Eliz. 1. of Conventicles and the Popish Recusant confined by 35 Eliz. 2. are to abjure the Realm and in what cases not 115. 116. 123. 134 135 136 137 138. 143. Who may require such Abjuration 116. 135. Before whom it must be made 116. 135. Refusing to abjure or staying or returning without licence is Felony 116 117. 139 140. What he who abjures or refuses to abjure forfeits 124. The form of the Oath of Abjuration 138 139. He that abjures yet oweth to the King his ligeance 139. Absolution What Absolution is not within 13 Eliz. 2.50 Where absolving of the Kings Subjects or being absolved is High Treason 57 58. 184
32. Certificate See Bishop Certiorari Certificates in what cases how to be made and within what time 35. 37 38. 40 41. 60. 96 97. 100. 116. 119. 135. 145. 174. 183. 186. 201. 217. 249 250. 263. Certiorari What Courts may direct a Certiorari immediately to another Court and who must certifie 217. Where a Certiorari to certifie a Record shall be awarded de novo 217. Chattels Money secured upon a Mortgage is within the word Chattels 137. Children see Seas Church See Alien Ceremonies Conformity Ecclesiastical Iurisdiction Ornaments Recusants Where the repairing to Church must be to Morning and Evening Prayers both 190. How the party ought to behave himself there 27. He ought to continue there during Service and Sermon 27. The Penalty for not coming to Church 26. 59 60. 188 189. The party may be punished both for his monthly and weekly absence from Church 27. 190. The 12 d. for absence from Church is due and may be sued for as soon as the Sunday or Holy-day is over 27. 190. Not necessary to go to a mans Parish Church so he go to some other 27 28. Where the Ecclesiastical Court cannot judge what is a mans Parish Church 28. What is a Parish Church 118. The penalty for perswading others to forbear to come to Church 113 114. Church of England see King Cinque Ports The Warden of the Cinque Ports may take the Bond and minister the Oath of Allegiance to such as pass beyond Seas 198. He is not liable to the Penalties inflicted for not certifying them 198 199. Clerk of Assizes and Peace See Recusants Clergy See Ecclesiastical persons Clergy in what case to be allowed 183. Colledge see Seminaries Commission See Courts Ecclesiastical Iurisdiction King Where a Recusants Lands are upon his death to be discharged of the seizure a Commission shall issue to inquire 111. Common Prayer See Baron Feme Iudgment What form of Common Prayer is injoined by the Laws in force what not 21. 32. The penalty on the Minister who useth not or depraveth the Common Prayer or useth any other open Prayers 20 21 22 22 24. What Ministers are there meant 21. What open Prayers are excepted 21. The penalty for depraving the Common Prayer or hindering it to be said or procuring or maintaining any other open Prayers 24 25 26. Hearing of Mass is a maintaining within the Statute 24 25. Concealers Concealers of offenders and offences where punishable 51. 55 56. 59. Confirmation Whose confirmation of a Lease by the incumbent is necessary 228. 230. Conformity and Submission See Baron Feme Bishop Indictments Informations Relapse Sacrament Seminaries What is Conformity 129. Conformity where it discharges the penalties for Recusancy 28. 68 69. 147 148. Where Conformity for some part of the time shall not excuse the offender 61 62. Conformity will not help him upon 1 Eliz. 2.27 What is a Conformity and Submission before Judgment 69. Conformity before the Bishop how to be made and where pleadable 69. Conformity after Judgment will now discharge the Recusant of all penalties 148. The Recusants Remedies upon his Conformity as to the King and Informer 148. Conformity of the Husband of a Popish Recusant convict 212. In what cases Conformity is necessary before an Indictment Utlawry c. for Recusancy can be avoided or reversed and where not 179 180 181. Where the Recusants Conformity shall discharge the Arrears of the 20 l. per month and where not 108 109. The profits taken before Conformity not restorable 109. 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. Conformity and Submission by such as return from any Seminary c. 91 92. 154 155. 258 259. Submission by a Jesuit Popish Priest c. 94 95. Oaths and Submissions upon 27 El. 2. where to be certified 97. The penalty for not certifying 97. Submission by a person reconciled to the Pope or See of Rome 186. In what case submission is not available 187. What Conformity and Submission discharges the offender against 35 Eliz. 1. of Conventicles 115 116 117 118. Who may require it 115. And within what time 116. The penalty for refusing to make it 116 117. In what cases it must be made in some Parish Church 117 118. What is a Parish Church 118. The form of the Submission 118 119. It must be registred and certified to the Bishop 119. What Conformity and Submission discharges the offender against 35 Eliz. 2. of Popish Recusants confined 135. Who may require it 135. And within what time 135. 137 138. The penalty for refusing to make it 135. It must be made in some Parish Church 143 144. The form of the Submission 144 145. It must be registred and certified to the Bishop 145. Two several submissions required 144. Conventicles See Conformity Conviction The penalty for going to Conventicles or perswading others so to do 113 114. Conviction See Baron Feme Indictments Informations Recusants What is meant by Conviction 61. 216. 252. Conviction of Recusants c. before whom 65 66 67. 84 85. 100 101. 108. 162. Where to be certified 100. What is a sufficient conviction of the Recusant within 23 Eliz. 1.60 What is a good conviction of the Recusant upon Proclamation and default and what not 163. How to be convicted upon Proclamation c. 107. 162. Where by Recusants convict shall not be intended Recusants convict upon Proclamation c. 165. Conviction upon Proclamation c. is no Judgment nor shall operate as a Judgment 69. 108 109 110. 152 153. 165. What Conviction is sufficient upon 35 Eliz. 1. of Conventicles 115. Copulative Where a Copulative shall be taken for a Disjunctive 184. Copyholds Whether Copyhold Lands may be forfeited for Recusancy 106 107. Where they shall not pass by general words 106. To whom to be forfeited by 35 Eliz. 2. 133. Coroner Where the Coroner may give the Oath of Abjuration 135. 138 139. Corporations What offences Mayors and other Head Officers of Corporations may hear and determine and in what manner 29 30. Corruption of Blood Where there shall be no corruption of blood 42. 124. 194. Costs see Informers Covin See Informations Covin shall not bar the King 79. 105 106. A man becomes a Popish Recusant convict by Covin how it shall operate 228. Covinous grant of an Advowson by a Popish Recusant shall not bar the University of their presentment 231. Where the Covin must be averred and found by the Jury 228. 231. Imprisonment of the Feme by Covin shall not avoid the payment of the 10 l. per month during such imprisonment 255 256. Imprisonment by Covin shall not avoid an Utlawry 256. Councel see Praemunire Privy Councel What offences are to be disclosed or signified to the Privy Councel or some or one of them 51. 55 56. 96 97. What Privy Councellors may grant a Licence to go beyond the Seas 94. 155. 224. A Popish Recusant may
his Warrant to bring the party before him 246. But the house cannot be broken by virtue of such Warrant 246. To whom one Justice of Peace may tender or give the Oath of Allegiance 224. 245 246. 247 248 249. Where he may commit the party refusing it 250. To what Justice of Peace the person offering an Agnus Dei c. must be brought or his name disclosed 53 54. The Justice of Peace not declaring the same incurs a Praemunire 55 56. Next Justice of Peace who meant 54. Certificate of Recusancy to be made by a Justice of Peace 60. One Justice of Peace may take the submission of a Jesuite or Popish Priest 95. He may examine a person suspected to be such and commit him if he refuse to answer 140 141. Discovery of a Jesuite or Popish Priest to a Justice of Peace 96. What the Justice of Peace is to do thereupon 96. The penalty if he neglects so to do 96. What Certificate he shall have for his discharge 96 97. Discovery of the entertainer or reliever of a Jesuite or Popish Priest or of Masse said must be to a Justice of Peace 200. One Justice of Peace may require the submission on 35 Eliz. 1. of Conventicles 115. And may require the offender to abjure 115 116. One Justice of Peace may require the submission on 35 Eliz. 2. of Popish Recusants confined 135. One Justice of Peace may cause the 12 d. per Sunday to be levied for absence from Church 188 189. Within what time the party must be called into question 189. Where the Justice of Peace is sole Judge of the parties excuse 190. One Justice of Peace may give the Oath to a Popish Recusant confined by 35 Eliz. 2. 210 211. Any two Justices of Peace may take the submission of a person returning from a Seminary 91 92. And of a person reconciled to the Pope or See of Rome 186. And minister to him the Oaths of Supremacy and Allegiance 186. Where they must certifie the Oaths so taken 186. To what other persons any two Justices of Peace may give the Oath of Allegiance 243. They may require the offender against 35 Eliz. 2. of Popish Recusants to abjure and may give him the Oath of Abjuration 135. Where they may imprison him who keeps the Arms of a Popish Recusant Convict or hinders their delivery and where not 237 238 239. To whom two Justices of Peace Quorum unus c. may tender and give the Oath of Allegiance 174. 196 197 198. 245 246. 249 250. Where they must certifie the taking of it to the Sessions 174. 249 250. And commit such as refuse to take it 174 175. 250. They have their Election to commit the party to the Assizes or Sessions 175. Where they may imprison a married woman convicted as a Popish Recusant and where not 252 253 254. Four Justices of Peace may grant a Licence to a Popish Recusant to travel beyond five miles 206 207 208 209 210 211. And no less then four 208. Where four Justices of Peace by warrant at their Sessions may seize a Popish Recusants Arms and where not 237 238. What arms they may allow Popish Recusants to have 237. The power of the Justices of Peace in their Sessions revived in the case of Recusancy 66 67. 101. 162. They may now proceed there to convict the Recusant upon Proclamation and default 108. 162. At what Sessions they may hear and determine Recusancy 67. In what case they are to discharge the Recusant 68 69. They may at their Sessions give the Oath of Abjuration on 35 Eliz. 1. of Conventicles 116. And must record and certifie it 116. Where upon Conviction before them they are to give a Certificate to the discoverer of the offender 201. Popish Recusants are to be presented at the Sessions of the Peace 160 161. The Presentments are to be entred and recorded there 161. To whom the Justices of Peace in their Sessions are to minister the Oath of Supremacy 262. 264. 266 267. And the Oath of Allegiance 262. 264. 266 267. They are to tender the said Oath at their Sessions to such as have before refused it 175. 250. And are to commit Women Covert till they take it 175. 250. They may there tender it to any of competent age and under the degree of Nobility 175 176. 196. Kin. In what case and how long the next of Kin shall have the Lands and Goods of him who goes beyond Seas without Licence 224 225. Whether he shall have the Lands or only the profits 225. In whom the state of the Land vests 225. The Mother of Kin to the Child and shall be preferred before the Brother or Sister 224 225. Next of Kin or Blood shall be accounted as in the case of a purchase 225. Jus Propinquitatis Jus Representationis 225. Where the next of Kin shall be Guardian and where not 234 235. King See Advowson Baron Feme Courts Forfeiture Informations Pardon The King is the supream Head of the Church of England 2. 5 6 7. Ecclesiastical Jurisdiction restored to the Crown 5. The Kings ancient Ecclesiastical Jurisdiction 5 6. The King is Persona mixta unita cum Sacerdotibus 6. He is the supream Ordinary 6 7. He is Arbitrator between spiritual Persons touching their Jurisdiction 6. He may do what the Pope might by the Canon Law 6 7. He may grant a Commission of Review notwithstanding 25 H. 8. 19. 7. He may make an Appropriation without the Bishop 7. A resignation made to him of a Deanry good 7. The Penalty for perswading others to impugne his power in cases Ecclesiastical 113 114. He cannot be nonsuited 80. Covin shall not bar him 79. 105 106. An Audita Querela lies not against him 148. King where it includes his Successors 95. Who is a mans natural King 185. Within what time the King is to prosecute upon poenal Laws 74 75. 121 122. Where he is barred of the Forfeiture and where not 79. 81 82. 253 254 255. The Recusants remedy upon his Conformity as to the King 148. Where the King may pardon release c. the Forfeiture upon a poenal Law and where not 80. How he may grant a Recognisance or Obligation forfeited 106. He cannot grant the Penalty on a poenal Law to a Subject 165. Action of Debt c. given to the King 120. In what Courts the King may sue for the Penalties given him by 23 El. 1. 122. Where the Penalty for Recusancy shall run on and be appropriated to the King and where not 102 103 104. 166 167 168. 219. 252. 254. The King may seize two thirds of a Recusants Lands presently after Conviction 168. Election given to the King to take the 20 l. per month or two thirds of a Recusants Lands 170 171. 173. 219. But he shall not have the two parts and the 20 l. per month both 219. Where the King having seized an Advowson as part of his two parts shall present and not the
be granted to a Popish Recusant convict 234. The penalty on a Popish Recusant convict who comes to Court 201 202. Or departs not out of London and ten miles compass 202 203. Tradesmen and dwellers in and about London not excepted at this day 203 204. The penalties on a married woman who is a Popish Recusant convict and conforms not in her Husbands life time 86. 212 213 214. 252 253. Refusal See Abjuration Conformity Oaths Relapse Makes the submission void 119. 145. Where to be certified 145 Relation See Indictments Recusants Release see King Relief See Aide Seminary Relieving of offenders where not punishable 17. 44. Religion see Rome Rent see Recusants Repeal See Statutes Of two branches of 35 Eliz. 1. 191. Of a branch of 35 Eliz. 2. 205. Replication see Plea Resignation see King Reversal see Vtlawry Review see King Reviver see Statutes Reward See Discovery Recusants Rites see Ceremonies Rome Pope Popish Religion c. See Books Bulls Great Exactions by the See of Rome 1. Maintaining or Extolling the Bishop or See of Romes Authority where a Praemunire and where Treason 34. 41 42. What is a maintaining or extolling within 5 Eliz. 1. 34. 42. Withdrawing the Kings Subjects from the Religion Established to the Romish Religion or being so withdrawn is High Treason 57 58. 184 185 186. Reconciled to the Pope or See of Rome what meant 187. Reconciling or being reconciled to the Pope or See of Rome is High Treason 49 50. 57 58. 184 185 186. A person so reconciled and submitting afterwards 186. What reconciliation to Rome is not within 13 Eliz. 2. 50. Sacrament See Baptism Informations Offices The penalty on the Popish Recusant who after Conformity receives not the Sacrament of the Lords Supper yearly 157 158. Where a married woman may be punished for not receiving the said Sacrament during her Marriage and where not 195. 212 213. 252. Persons to be restored in Blood or to be naturalized must receive the said Sacrament and when 240. What other persons are to receive it 211 212. 215. 263 264. 266. Saving See Power Péers Pensions Schisme see Heresie Schoolmaster The penalty for keeping or being a Schoolmaster contrary to 23 Eliz. 1. or 1 Jac. 4. 64. 155. By whom a Schoolmaster is to be licenced 64 65. 155. What may be taken for such Licence 65. Conformity or allowance by the Bishop or Ordinary either of them sufficient 64. What a Schoolmaster must do by Stat. 14. Car. 2. 64 65. An Usher is within the word Schoolmaster 64. Scire facias see Informations Scotland See Alien Laws Seas See Councel Kin. Seminary The penalties for suffering Women or Children to go beyond Seas without Licence and on such as go or send them 94. 155. 223 224. 226. Seizure See Advowson Commission King Office Where a Recusants Lands may be seized or the seizure continued after his death and where not 100. 102. 104. 106 107. 109 110 111 112. 150 151 152 153. 168 169. 170 171. Where his Goods may be seized and where not 100 102. 105. 168. 172. Seminary Popish Colledge c. Iesuite Popish Priest c. See Conformity Discovery Iustices of Peace It s High Treason for a Jesuit Seminary Priest c. to be within this Realm 90. Not necessary to shew in what particular place he was born 90. Nor where ordained 90. Relieving or maintaining such is Felony at this day 90 91. The penalty for not discovering a Jesuit or Popish Priest 96. Or for not giving Information of such discovery 96. A person suspected to be a Jesuit or Seminary Priest examined and refusing to answer 140. To whom examinable 140. By what questions he is bound by 35 Eliz. 2. to answer 141. Submission by a Jesuit Popish Priest c. 94 95. He must continue in Obedience to the Laws 95. They which are in Seminaries c. shall return upon Proclamation made in that behalf 91 92. If they return and submit not 't is High Treason 92. They ought not to come into any other of the late Queens Dominions before they have submitted here 92. Where the benefit of submission was lost if the party submitting came within ten miles of the Court 98. The penalty for sending Children to a Popish Colledge Seminary or Family beyond the Seas 153. 257 258. And on such who go thither 153 154. 257 258. Or relieve any there or any Popish Colledge Seminary c. 93 94. 257 258. Sentence see Deprivation Service See Trial. Divine Service see Recusants Where serving or going to serve a forraign Prince c. without first taking the Oath of Allegiance and entring into Bond is Felony 181 182. see Oaths What kind of service is meant 182. The form of such Bond 183. It must be Domino Regi 182. Who shall take it 183. 198. Who shall certifie it and the penalty for not certifying 183 184. Where a man may keep a Recusant in his Service and where not and the penalty 191 192 193. Sessions See Iustices of Peace At what Sessions a Recusant may be indicted 67. General Quarter Sessions and General or Quarter Sessions what Sessions meant 67. Sheriff See Excommengement Sheriffs shall take the Oath of Supremacy 38. Sheriff of the County where the Kings Bench is 40. Where a Recusant proclaimed ought to render his body to the Sheriff 107. 162 163. Where a Popish Recusant may travel above five miles if required to tender his body to the Sheriff 142. The Sheriff is to pay him who discovers certain offenders 201. Statutes See Baron Feme Ieofailes Informations Notice Recital Repeal Reviver of several Statutes of H. 8. and E. 6. 2 3 4. Stat. 5 Eliz. 1. when and where to be published 43. The Statutes of 23 Eliz. 1. 29 Eliz. 6. 35 Eliz. 1. and 7 Jac. 6. against Recusants are all affirmative Laws and do not abrogate one the other 120 121. 162 163. 253. Who are within the Act of 35 Eliz. 1. of Conventicles and who not 114. Rules in construction of poenal Statutes 21 22. 64. 221. Where they shall not be construed by Equity 199. 221. 229. Where they may be construed by the intent of the makers besides or beyond the letter 21. 229. What is given by an Act of Parliament shall not be devested by a subsequent Act without express words 23◠Where a later Act of Parliament shall be guided by a former 85. A private clause in a general Act of Parliament 230. The difference between a Statute discontinued and revived and a Statute never discontinued 125 126. All men are bound to take notice of an Act of Parliament 23. Statutes of West 2. c. 1. De donis conditionalibus 46. 152 153. West 2. c. 5. of Advowsons 13. 2 E. 3. c. 3. of Armour 97. 25 E. 3. c. 22. of Provisors of Abbeys 46. 25 E. 3. of Provisors of Benefices 229. 50 E. 3. c. 6. of Fraudulent deeds 87. 16 R. 2. c. 5. of Praemunire 6. 46. 152. 2 H. 5. c. 3. of Jurors 136