case of High Treason by the Laws of this Realm Vide Stat. 1 Eliz. cap. 2. Sect. 3. 6. Stat. 1 Eliz. 2. And also that it may likewise please your Highness Stat. Sect. 9. Within what time an Offender shall be impeached That it may be enacted by the Authority aforesaid That no manner of person or persons shall be molested or impeached for any the Offences aforesaid committed or perpetrated only by Preaching teaching or words unless he or they be thereof lawfully indicted within the space of one whole year next after his or their Offences so committed And in Case any person or persons shall fortune to be imprisoned for any of the said Offences committed by Preaching Teaching or words only and be not thereof indicted within the space of one half year next after his or their such Offence so committed and done That then the said person so imprisoned shall be set at liberty and be no longer detained in prison for any such cause or offence Within the space of one whole year Indictment within what time If a man had done any Deed or Act or executed any thing which amounted to the holding standing with or maintaining the Spiritual or Ecclesiastical Jurisdiction of any Forreign Prelate c. he might before the Statute of 23 Eliz. cap. 1. Stat. 23 Eliz. 1. have been indicted for it after the year expired For the Restraint here in point of time extends to Offences committed by Preaching Teaching or words only and not to all cases within this Branch as Wingate tit Crown numb 10. mistakes the meaning of the Clause But now by the Statute of 23. it seems that the prosecution must be within a year and a day for all Offences whatsoever against this Act. Within the space of one half year The half year Half-year here mentioned is not to be understood of six months as Wingate again mistakes which is in Law to be accounted secundum numerum singulorum dierum allowing 28 days to every month and not according to the Solar month nor according to the Kalendar unless it be upon the Statute of W. 2. cap. 5. W. 2. 5. 2 3 E. 6. 13. For the account of the lapse in a Quare Impedit and 2 3 E. 6. 13. of proving a suggestion Co. 1. Inst 135. Cro. Trin. 5. Jac. 166. 167. Bishop of Peterborough versus Catesby Yelverton 100. Catesby versus Baker Hobart 179. Copley versus Collins But the half year here is to be understood according to the Kalendar Sir Edward Coke 4. Inst 331. in his construction of this Statute saith That no persons shall be impeached for any of the Offences by Preaching Teaching or words unless they be lawfully indicted within the space of half a year But yet it seems that the words of the Statute will not bear such a Construction neither if they did is it Law at this day nor was when those Institutes were written For 1. The Statute where it speaks of half a year refers only to the Case of Imprisonment That where the Offender by Preaching Teaching or words is imprisoned and is not indicted within half a year after the Offence committed he shall be set at liberty and be no longer detained in Prison for any such Cause or Offence and this was done in favour of liberty and to prevent a long Imprisonment upon a malicious and groundless Accusation But there is no colour to extend the words to the Offender who was never imprisoned although the Offence was by Preaching Teaching or words only 2. But the Case that an Offender by Preaching Teaching or words had been imprisoned within the half year yet it seems very questionable whether at the half years end when he was set at liberty as he ought to be by this Act if he be not in the mean time indicted he should have been clearly discharged by this Act from any prosecution Prosecution during the half year then next following For although it be said he shall be no longer detained in Prison for any such Cause or Offence yet that seems to refer only to his Imprisonment before Conviction and detained imports as much viz. That he should not be continued or remain in the same Imprisonment which he suffered within the first half year before any Indictment was found against him but not that he should not be indicted afterwards within the compass of the year and if found guilty suffer the Imprisonment and other penalties inflicted by this Act. And it might so have happened that an Offender by Preaching Teaching or words might have been accused taken and imprisoned a day or two before the half year next after the offence expired In which Case it cannot be thought to be the meaning of the makers of the Law that by his Imprisonment for a day or two he should escape the penalties of the Law and could not be afterwards indicted within the compass of the year And yet in that case he ought to be set at liberty by the express words of the Act which saith He shall be set at liberty if not indicted within half a year after the Offence and not half a year after his Imprisonment 3. It seems now to be out of doubt but that any Offender against this Act although by Preaching Teaching or words may be indicted at any time within a year and a day after the Offence committed and that by force of the Statute of 23 Eliz. cap. 1. which saith Stat. 23 Eliz. 1. that all Offences against the Acts of 1 Eliz. touching Acknowledgment of her Majesties supream government in Causes Ecclesiastical shall and may be inquirable within a year and a day after the Offence committed And the affirming or maintaining the Spiritual or Ecclesiastical Jurisdiction of a Forreigner was without question an Offence against her Majesties supream Government in Causes Ecclesiastical and against the acknowledgment thereof so that the year limited by this Statute is now extended to a day farther and whatever the meaning of it was as to the half year All Offences against it whether by Preaching Teaching or words or otherwise for that of 23. is general and reaches all Offences whatsoever against the Act of 1 0. touching the Supremacy Ecclesiastical may now be inquired of within a year and a day whether the party be in Prison or not Within what time But yet it seems that in Case of Imprisonment within the first half year this Provision here for the setting at liberty of the Prisoner at the end thereof if he be not before that time Indicted remains still in force and is not abrogated by 23. Provided always Stat. Sect. 10. All things touching the Praemunire in the Statute 1. 2. P. M. 8. do continue in force and be it enacted by the Authority aforesaid That this Act or any thing therein contained shall not in any wise extend to repeal any clause matter or sentence contained or specified in the said
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
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
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
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
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
Recusant was absent from Church from the 10 of September 15 Jac. unto the 9 of Sept. 16. Jac. and demanded Two hundred and twenty pounds for eleven monthes upon non culp pleaded it was found against the Defendant And it was resolved that although the Informer had demanded less then by his own shewing was due for the time mentioned in the Information was thirteen months compleat except one day yet the Information was well enough For the Recovery shall be intended to be for the eleven months when the Recusant was first absent and the addition of more time is not material Cro. Pasch 17 Jac. 529. 530. Rolles 2. 90. Parker versus Sir John Curson and his Wife And this is not like the Case of Bawderock versus Mackaller where the Informer Qui tam c. upon the Statute of Symony demanded less than the penalty and the Court seemed to be of Opinion that although it was good enough for the King notwithstanding that misprision yet it was not so for the Informer and compared it to the Case of Agard and Candish where an Information was brought upon the Statute of Liveries after the year and it was Adjudged to be good for the King but not for the Informer Cro. Mich. 9. Car. 331. For upon the Statute of Symony which gives one intire penalty for the offence if less be demanded the Statute is not pursued And there is a clear variance between that and the Information But in the Case of Recusancy when he demands Two hundred pound for eleven moneths the Statute is pursued and though it appears by the Information that the Recusant was absent for a longer time yet the Informer is at liberty whether he will demand the penalty for his absence during that supernumerary time The Informer demands for 13 months and the Jury find for 12. If it be shewed in the Information that the Recusant was absent from Church from a day certain to a day certain which in all makes 13 months and the penalty is demanded for that time and the Jury find the party guilty for 12 months It hath been held by some that the Verdict shall be good for 12 months But whether for the first 12 months is a question For in Sir J. Cursons Case supra the demand was but for 11 months And when the Jury finds the Defendant guilty it shall be intended to be for the 11 months for which the penalty is demanded and that shall be accounted from the 10 of September which was the first day of absence alledged in the Information and the rest of the time to the ninth of September following after the first eleven months is to be accounted as Surplusage But in this Case where the Jury abridges the time for which the penalty is demanded it may be questioned whether the Verdict shall be intended to be for the first twelve months of the thirteen And the Judges of the Kings Bench to salve a question of the like nature in an Information brought by Donner against Smith upon the Statute of Liveries seemed to be of Opinion That it is not material which were the twelve months wherein the party offended Cro. Trin. 43 Eliz. 835. But if that Opinion be Law it must follow that the party can never be punished for the thirteenth month but that must be remitted to him because it 's left uncertain which of the thirteen shall be accounted the month not found by the Jury And it rather seems for this reason That the Verdict is void for the uncertainty which twelve months of the thirteen the party offended unless it shall be intended of the first twelve Mr. Shephard in his Sure Guide cap. 6. Sect. 5. raises this Question viz. Stat. 1 Eliz. 2. This Statute having reference to that of 1 Eliz. cap. 2. which saith every one shall come to Church every Sunday and Holy-day whether he that is not at Church every Holy-day doth not rigore juris forfeit 20 l. a month by force of this Statute of 23. But this Question seems altogether needless The forbearance from Church must be for a whole month or no forfeiture of 20 l. For 't is clear by the express words here that it must be a forbearance from Church contrary to 1 Eliz. for a whole month together that makes the party liable to the forfeiture of 20 l. and if he comes to Church on any Sunday or Holy-day within the month he is freed from the penalty of 20 l. although not from the twelve pence by 1 Eliz. for the days of his absence if he comes not every Sunday and Holy-day both Be bound Some have made a question Recusants where to be bound to the good behaviour and among them Mr. Shephard in his Sure Guide cap. 6. Sect. 5. by whom or in what Court the Recusant shall be bound to the good behaviour by force of this Statute For that the Court is not expresly mentioned And Wingate in his Abridgment of this Clause tit Crown numb 44. hath stumbled upon a Conceit That after Certificate made into the Kings Bench a Justice of Assize Goal delivery or Peace shall bind the party to the good behaviour and misrecites the Statute accordingly But it seems That the intention of the Law-makers was that he should be bound in the Kings Bench and of that Opinion is Dalton V. cap. 75. title Good Behaviour For where any proceedings are appointed to be upon or after a Certificate sent to any Court there by common Intendment the proceedings are to be in that Court to whom the Certificate is sent if no other Court be named And it cannot be presumed by any reasonable construction of this Act That the Certificate into the Kings Bench is to any other end than for the Justices there to proceed in such manner as the Act directs to be done after such Certificate as no question they may in this Case as well as upon Certificate of a Presentment or of refusal of the Oath of Supremacy against the Statute of 5 Eliz. cap. 1. Stat. 5 Eliz. 1. quod vide supra And 't is a rule in construction of Statutes that where the intention plainly appears the Law ought to be advanced according to its end though the words be short and imperfect especially Laws made for Religion as is held in Colt and Glovers Case Hobart 157. and Magdalen Colledge Case Co. 11. Vide Bulstrode 2. 155. the Case of Griffith and others Popish Recusants convict not sufficient sureties Sufficient sureties Popish Recusants convicted are not to be reputed sufficient sureties and therefore were refused by the Court of Kings Bench in the Case of Griffith and other Recusants who were brought thither to be bound to their good Behaviour Bulstrode 2. 155. And be it further Enacted That if any person or persons body Politick or Corporate Stat. Sect. 6. The forfeiture for keeping of a Schoolmaster not repairing to Church or allowed by the Ordinary after
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
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
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
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
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
apprehended The three months relate to the time of the Offenders being apprehended whereas by the Act he cannot be required to abjure until three months after his apprehension and he turns the three months after his apprehension into three months after his arrival All great mistakes and fit to be taken notice of by Justices of Peace whose part it is to require the submission and abjuration that they may not be misled in the Execution of this part of their Office by trusting to that Abridgment Required to submit within what time Being thereunto required by the Bishop c. If the Offender be not before the end of the three months next after his apprehension required by the Bishop a Justice of Peace or the Minister or Curate to make such submission he cannot be required afterwards nor be compelled to abjure by force of this Act. But if he be required within the three months to make submission and refuse he may be at any time afterwards warned or required to abjure Vide Stat. 35 Eliz. cap. 1. Sect. 2. Abjure this Realm of England c. The Oath of Abjuration may be in this form or to this effect Oath of Abjuration You shall swear that you shall depart out of this Realm of England and out of all other the Kings Majesties Dominions And that you shall not return hither or come again into any of his Majesties Dominions but by the Licence of our said Sovereign Lord the King or of his Heirs So help you God Stamford 119. 120. Co. 3. Inst 217. Wilkinson P. 66. hath set down another form upon this Statute much resembling that heretofore used at the Abjuration of a Felon mutatis mutandis in these words This hear you Sir Coronor that I J. M. of H. in the County of S. am a Popish Recusant and in Contempt of the Laws and Statutes of this Realm of England I have and do refuse to come to hear Divine Service there read and exercised I do therefore according to the intent and meaning of the Statute made in the 35th year of Queen Elizabeth late Queen of this Realm of England abjure the Land and Realm of King Charles now King of England Scotland France and Ireland and I shall hast me towards the Port of P. which you have given and assigned to me And that I shall not go out of the highway leading thither nor return back again and if I do I will that I be taken as a Felon of our said Lord the King And that at P. I will diligently seek for passage and I will tarry there but one Flood and Ebb if I can have passage and unless I can have it in such space I will go every day into the Sea up to my Knees assaying to pass over So God me help and his holy Judgment But in alluding to the old Oath in Case of abjuration for Felony which began with the Confession of the particular offence for which the Felon was abjured as Ego A. B. sum latro unius Equi vel homicida unius hominis or the like as the Case was Wilkinson is mistaken in the very offence for which the Popish Recusant is to abjure by force of this Statute for the offence is not his refusal to hear Divine Service for that is but only one of the precedent Qualifications of the person But the Offence it self is of another nature viz. his not repairing to the place the Statute appoints him or his removal from thence contrary to the Statute or his not presenting himself and delivering his true name as aforesaid Either of these if he be a Popish Recusant within the meaning of this Act is a crime for which he ought to abjure unless he prevents his Abjuration by a timely Submission Nor is the Popish Recusant bound to swear that he will not go out of the High way or return back or will tarry but one flood and ebb or go into the Sea up to his knees nor ought the Coroner or Justices of Peace to require any such Oath of him For this is a new offence made by a Statute Law which doth not require the strict form of Abjuration as in Case of Felony And although the Felon were tied to these circumstances yet the Recusant is not nor shall be a Felon for omitting them But 't is sufficient if he simply abjure as the Act directs and go from the appointed Port within the time limited and not return without Licence into any of the Kings Dominions He that thus abjures the Realm doth yet owe the King his Ligeance and remaineth within the Kings Protection He that abjures yet oweth the King his Ligeance Qui abjurat Regnum amittit regnum sed non Regem amittit Patriam sed non patrem patriae Co. 7. 9. Calvins Case And if any such Offender Stat. Sect. 7. The punishment for refusing to abjure not departing or returning without Licence which by the tenour and intent of this Act is to be abjured as is aforesaid shall refuse to make such Abjuration as is aforesaid or after such Abjuration made shall not go to such Haven and within such time as is before appointed and from thence depart out of this Realm according to this present Act or after such his departure shall return or come again into any her Majesties Realms or Dominions without her Majesties special Licence in that behalf first had and obtained That then in every such Case the person so offending shall be adjudged a Felon and shall suffer and lose as in Case of Felony without benefit of Clergy And within such time c. and from thence depart When and whence the Offender must depart The Offender is strictly tied to depart from the same Haven assigned him and within the time appointed him by the Justices of Peace or Coroner so that if he depart the Realm from any other Haven or Port or over stay his time and depart afterwards yet he is a Felon within this Act. Or return or come again into any her Majesties Realms or Dominions An Offender within this Act abjures in form aforesaid and departs this Realm and afterwards goes into Ireland without Licence Return and then returns into England with Licence such going into Ireland seems to be Felony by this Act. But quaere how the offence shall be tried How triable not in Ireland for this Statute binds not that Kingdom nor can be taken notice of there nor yet can it be tried in England for that the offence was done elsewhere So that this is casus omissus and cannot be punished for that no way of Trial is appointed Stat. Sect. 8. A Jesuit or Priest refusing to answer shall be imprisoned And be it further Enacted and Ordained by the Authority aforesaid That if any person which shall be suspected to be a Iesuit Seminary or Massing Priest being examined by any person having lawful Authority in that behalf to examine such
or covin nor for convenient time taken for their return back again upon the same This extends to all Cases in general where the Popish Recusant ought to render his body to the Sheriff upon Proclamation Proclamation and is not restrained to a Proclamation upon an Indictment for Recusancy And therefore if a Popish Recusant confined by this Act had been proclaimed upon the Statute of Marlebridge in a Plea de Custodia as a Deforceor he might lawfully have gone out of the compass of five miles The like he may do at this day upon any other Proclamation commanding him to render his body to the Sheriff Vide Stat. 3 Jac. cap. 5. Sect. 7. And furthermore be it Enacted by the Authority of this present Parliament Stat. Sect 12. An Offender upon open submission shall be discharged That if any person or persons that shall at any time hereafter offend against this Act shall before he or they shall be thereof convicted come to some Parish Church on some Sunday or other Festival day and then and there hear Divine Service And at Service time before the Sermon or reading of the Gospel make publick and open Submission and Declaration of his and their Conformity to her Majesties Laws and Statutes as hereafter in this Act is declared and appointed That then the same Offender shall thereupon be clearly discharged of and from all and every pains and forfeitures inflicted or imposed by this Act for any of the said Offences in this Act contained Before he or they shall be thereof convicted Where submission will save abjuration A Popish Recusant confined by this Act whose Estate is under value is apprehended for offending against this Act and before the expiration of three months next after his apprehension is convicted of such Offence and then before the said three months expire conforms and makes such Submission and Declaration as is here and in the former branch appointed In this Case although he comes too late after Conviction to save the forfeiture of his Lands and Goods yet he shall not be compelled to abjure For the affirmative words here that upon such Conformity Submission and Declaration before Conviction he shall be discharged of all pains and forfeitures do not carry in them the force of a negative viz. That if it be after Conviction he shall not be discharged of any of them And by the former branch of the Statute he is not compellable to abjure if at any time within three months next after his apprehension he conforms confesses and submits as is there appointed To some Parish Church It must be in some Parish Church It seems clear that no Submission Confession or Declaration can discharge the Popish Recusant who is an Offender within this Act from any pain or forfeiture thereby inflicted unless it be performed in some Parish Church For there is a great difference between the penning of this Statute and that branch of 35 Eliz. cap. 1. Stat. 35 Eliz 1. where 't is said That the Offender shall be committed to Prison until he come to some Church Chappel or usual place of Common Prayer and hear Divine Service and make such open Submission and Declaration of his Conformity as in the Act is appointed For there there is an express designation of the place where such Submission and Declaration shall be viz. in any Church Chappel or usual place of Common Prayer whither the Offender comes and this shall free him from his Imprisonment Vide that Statute Sect. 4. supra But here where 't is said in the former part of this Act That he shall abjure unless he comes usually to Church and make such Confession and Submission as is therein afterwards appointed and expressed His coming usually to Church cannot be applied to his Confession and Submission for that is to be made but once and not usually and therefore there being there no place appointed where this Confession and Submission shall be made we must necessarily have recourse to this later branch of the Act where a place is appointed viz. some Parish Church so that the coming usually to Church without this formal Submission and Confession or Declaration in some Parish Church frees not the Offender here in any Case from abjuration although the coming to any Church Chappel or usual place of Common Prayer and hearing Divine Service and making open Submission and Declaration there shall free an Offender within the Statute of 35 Eliz. cap. 1. from Imprisonment Parish Church What is a Parish Church Vide Stat. 35 Eliz. cap. 1. Sect. 4. supra Two several Submissions Submission If a Popish Recusant Indicted upon this Statute makes his Submission and brings with him into the Court of Kings Bench a Testimonial thereof it s the course of that Court to cause him there to make his Submission again upon his knees which the Clerk of the Crown reads to him And so was it done in the Case of one Thoroughgood Pasch 2. Car. 1. But Justice Jones said there was no Statute to compell him to this second Submission And Thoroughgood complained that he was not therein dealt with according to Law Latch 16. Stat. Sect. 13. The same Submission to be as hereafter followeth that is to say The form of the Submission I A. B. do humbly confess and acknowledge that I have grievously offended God in contemning her Majesties godly and lawful Government and Authority by absenting my self from Church and from hearing Divine Service contrary to the Godly Laws and Statutes of this Realm and I am heartily sorry for the same and do acknowledge and testifie in my Conscience that the Bishop or See of Rome hath not nor ought to have any Power or Authority over her Majesty or within any her Majesties Realms or Dominions And I do promise and protest without any dissimulation or any colour or means of any Dispensation That from henceforth I will from time to time obey and perform her Majesties Laws and Statutes in repairing to the Church and hearing Divine Service and do my uttermost endeavour to maintain and defend the same Over her Majesty or within any her Majesties Realms or Dominions What Authority of the Pope is to be renounced And not over her Majesty within any her Dominions as Wingate tit Crown numb 85. grosly misrecites this Submission For that denies only the Popes or See of Romes Authority over her Majesty but not any other Authority which they might claim over her Subjects And 't is clear by the disjunctive or which Wingate omits that both these Authorities are intended to be denied by this Submission Or any colour or means of any Dispensation Dispensation These words which are a very material part of the Submission are likewise omitted by Wingate Her Majesties Laws and Statutes The Queens Laws Stat. 27 Eliz. 2. What is meant by her Majesties Laws Vide Stat. 27 Eliz. cap. 2. Sect. 7. And that every Minister or
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
which the King hath already done or in respect of what the Recusant after his conviction hath omitted to do And therefore if a man be convicted of recusancy upon a popular Suit or an Action of Debt at the Kings Suit alone in which Cases the penalty of Twenty pounds per month is not appropriated to the King for the time to come and he pays the penalty recovered or if he be Convicted upon Indictment and after such Conviction duly pays the Twenty pounds per month into the Exchequer and the King makes no Election to take the two third parts of his Estate in lieu thereof such Recusant may by this Proviso in either of those Cases Sue or Prosecute for any of his Lands Tenements Leases Rents Annuities or Hereditaments whatsoever notwithstanding his Conviction For when the penalty recovered is satisfied or the forfeiture appropriated to the King is duly paid into the Exchequer his Lands c. are not to be seized by force of any Law for Recusancy unless the King make his Election to have the two parts And until that Election they cannot in the sense of this Proviso be said to be Lands to be seized or taken into the Kings hands for that the King cannot have the two parts and the Twenty pounds per month both But if the King make no such Election and the Twenty pounds per month be duly paid into the Exchequer the Recusant is to hold and enjoy all his Lands Tenements c. as if he had never been convicted And during that time there can be no distinction made between the two parts and the Recusant's third part so that in this Case the Recusant must either be enabled to Sue and Prosecute for all his Lands c. or none and to think the latter of these were to render this Proviso nugatory and vain But when once the King hath seized the two thirds for recusancy either by way of Election or for nonpayment of the penalty then the Recusant is enabled to Sue only for the other third part whether in the hands of the King or of a common person Stat. Sect. 14. And for that Popish Recusants are not usually Married nor their Children Christned nor themselves Buried according to the Law of the Church of England but the same are done superstitiously by Popish Persons in secret whereby the days of their Marriages Births and Burials cannot be certainly known Stat. Sect. 15. Marriages of Popish Recusants Be it further Enacted by Authority of this present Parliament That every man being or which shall be a Popish Recusant convicted and who shall be hereafter Married otherwise then in some open Church or Chappel and otherwise then according to the Orders of the Church of England by a Minister lawfully Authorized shall be utterly disabled and excluded to have any Estate of Fréehold into any the Lands Tenements and Hereditaments of his Wife as Tenant by the Courtesie of England And that every Woman being or which shall be a Popish Recusant convicted and who shall be hereafter Married in other form then as aforesaid shall be utterly excluded and disabled not only to claim any Dower of the Inheritance of her Husband whereof she may be endowable or any Iointure of the Lands and Hereditaments of her Husband or any of his Ancestors but also of her Widows Estate and Frank-bank in any Customary Lands whereof her Husband died seized and likewise be disabled and excluded to have or enjoy any part or portion of the goods of her said Husband by vertue of any custom of any County City or Place where the same shall lie or be And if any such man shall be Married with any Woman contrary to the intent and true meaning of this Act which Woman hath or shall have no Lands Tenements or Hereditaments whereof he may be intituled to be Tenant by the Curtesie Then such man so Marrying as aforesaid shall forfeit and lose One hundred pounds the one half thereof to be to the Kings Majesty his Heirs and Successors and the other moiety to such person or persons as shall Sue for the same by Action of Debt Bill Plaint or Information in any of the Kings Majesties Courts of Record wherein no Essoin Protection or Wager of Law shall be admitted or allowed Where the Husband is no offender Every man being or which shall be a Popish Recusant Convicted A Man who is no Popish Recusant Convicted marries a Woman who is a Popish Recusant Convicted in other form then is here appointed He shall not forfeit any thing or be disabled by this Act. By a Minister lawfully Authorized Minister lawfully Authorized In an Information upon this Statute for being married otherwise then is here appointed it is sufficient for the Defendant to say that he was married c. by a Minister lawfully Authorized without shewing in particular how or where or when but if a Traverse come of the other side then the Defendant is in his Rejoynder to shew the time and place Vide Bulstrode 2. 50. 52. Creswich against Rookesby Every Woman being or which shall be a Popish Recusant Convicted A Woman who is no Popish Recusant Convicted Where the Wife is no offender marries a Man who is a Popish Recusant Convicted in other form than is here appointed she shall not be disabled by this Branch of the Act For the forfeiture or disability extends only to the Popish Recusant Convicted and as in the Case before recited the Woman only shall be disabled so in this Case the Man only shall forfeit or be disabled Or any Ioynture of the Lands and Hereditaments of her Husband or any of his Ancestors Joynture A Feme who is a Popish Recusant Convicted and married otherwise then is appointed by this Act is not therefore disabled to have any sort of Joynture as Wingate tit Crowne n. 136. mistakes but only such Joynture as is of the Lands or Hereditaments of her Husband or some of his Ancestors and therefore if in consideration of some service done or for some other consideration and for the advancement of A. in marriage Lands are setled upon his intended Wife for her Joynture by some person besides A. who is not any of the Ancestors of A. such Joynture is not within this Act nor shall the Wife although a Popish Recusant Convicted and married otherwise c. be disabled by any strained construction of this Law to enjoy the Lands after her Husbands death For a penal Law shall be taken strictly and not by equity or intendment especially where the intent of the Lawmakers doth not appear to the contrary and the Case such as doth but rarely happen And 't is a good Rule in the construction of Statute Laws which the late Lord Chief Justice Vaughan hath laid down in his Argument of Bole and Hortons Case Mich. 25. Car. 2. viz. when the words of a Law extend not to an inconvenience rarely happening and do to those which often
happen it is good reason not to strain the words farther then they reach but to say it is casus omissus and that the Law intended quae frequentius accidunt Vaughan 373. And yet there is no question but such Lands are a Joynture The extent of the word and if made with the Wives assent before marriage shall bar her Dower by the Statute of 27 H. 8. cap. 10. which speaks of an Estate or purchase made to the Wife for her Joynture generally not saying by whom Mr. Sheapard therefore in his Epitome p. 523. falls very short of the full description of a Joynture when he limits it only to be of the Franktenement of her Husband which restriction dayly experience confutes For that it is commonly made by the Ancestor of the Husband of Lands in which the Husband never had any Franktenement nor perhaps ever shall have Custom By vertue of any custom of any County City or Place And not of Cities only as 't is restrained in the late additions to Dalton cap. 85. tit Recusants Sect. 48. Where in force The Custom here mentioned viz. that the Wife shall have a certain portion of her Husbands goods after his decease is of force throughout the whole Province of York and in divers other places of England and if he gives them away from her by his Will the bequest is void Vide Swinburne Part 3. cap. 14. p. 151. 152. What goods are not within the Act. A Woman is an offender within this Branch and her Husband by his last will gives her all or part of his goods not claimable by custom she is not by this Act disabled to enjoy them after his death For the words here are plainly restrictive to such goods as she claims by custom Where not Tenant by Curtesie not One hundred pounds forfeited Whereof he may be intituled to be Tenant by the Curtesie A Popish Recusant convicted marries an Inheritrix in other form then is appointed by this Act The Wife dies without issue born alive of the marriage In this Case although the Husband is not intituled to be Tenant by the Courtesie yet the possibility which he once had to be so intituled seems to satisfie the intent of the Act and he shall not forfeit the hundred pounds So that here is another Casus omissus For it may so happen that a Popish Recusant Convict may have a great Portion in money with his Wife and but a small Estate in Lands with her perchance but a few Acres yet if he be an Offender within this branch the Lands for that he may be intituled to be Tenant of them by the Courtesie shall save his hundred pounds and if his Wife die having had no issue born alive he is wholly exempted out of the Act and cannot be punished either way Stat. Sect. 16. Baptism of Popish Recusants Children And that every Popish Recusant which shall hereafter have any Child born shall within one month next after the Birth thereof cause the same Child to be baptized by a lawful Minister according to the Laws of this Realm in the open Church of the same Parish where the Child shall be born or in some other Church near adjoyning or Chappel where Baptism is usually administred or if by infirmity of the Child it cannot be brought co such place then the same shall within the time aforesaid be baptized by the lawful Minister of any of the said Parishes or places aforesaid upon pain that the Father of such Child if he be living by the space of one month next after the Birth of such Child or if he be dead within the said month then the Mother of such Child shall for every such Offence forfeit one hundred pounds of lawful money of England one third part whereof to be to the Kings Majesty his Heirs and Successors one other third part to the Informer or him that will sue for the same and the other third part to the Poor of the said Parish to be recovered by Action of Debt Bill Plaint or Information in any of the Kings Majesties Courts of Record wherein no Essoign Protection or Wager of Law shall be admitted or allowed And if any Popish Recusant man or woman Stat. Sect. 17. Burial of Popish Recusants not excommunicate not being Excommunicate shall be buried in any place other than in the Church or Churchyard or not according to the Ecclesiastical Laws of this Realm That the Executors or Administrators of every such person so buried knowing the same or the party that causeth him to be so buried shall forfeit the sum of twenty pounds the one third part whereof shall be to our Soveraign Lord the King the other third part to the Informer or him or them that will sue for the same and the other third part to the Poor of the Parish where such person died to be recovered by Action of Debt Bill Plaint or Information in any of the Kings Majesties Courts of Record wherein no Essoign Protection or Wager of Law shall be admitted or allowed The Exception here of a Popish Recusant Excommunicate That is not actually Excommunicate is intended only of one actually Excommunicated and not of him who is a Popish Recusant convicted who shall not be reputed as a person Excommunicate to this intent but only as to the point of a disability as hath been said Sect. 12. So that if any Popish Recusant not actually Excommunicate be buried elsewhere or otherwise then is here mentioned although he were convicted yet 't is an Offence punishable by this Law And be it further Enacted by this present Parliament Stat. Sect. 18. Children departing the Realm That if the Children of any Subject within this Realm the said Children not being Soldiers Mariners Merchants or their Apprentices or Factors to prevent their good Education in England or for any other cause shall hereafter be sent or go beyond Seas without Licence of the Kings Majesty or six of his Honourable Privy Council whereof the principal Secretary to be one under their Hands and Seals The forfeiture of such as depart That then all and every such Child and Children so sent or which shall so go beyond the Seas shall take no benefit by any gift conveyance descent devise or otherwise of or to any Lands Tenements Hereditaments Leases Goods or Chattels until he or they being of the age of eighteén years or above take the Oath mentioned in an Act of Parliament made this present Session Intituled An Act for the better discovering and repressing of Popish Recusants before some Iustice of Peace of the County Liberty or Limit where such Parents of such Children as shall be so sent did or shall inherit and dwell And that in the mean time the next of his or her kin which shall be no Popish Recusant shall have and enjoy the said Lands Tenements Hereditaments Leases Goods and Chattels so given conveyed descended or devised until such time
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
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