had never béen had nor made Any thing herein contained to the contrary thereof notwithstanding Stat. xxiii Eliz. cap. i. An Act to retain the Queens Majesties Subjects in their due Obedience WHere sithence the Statute made in the thirteénth year of the Reign of the Queén our Soveraign Lady Entituled Stat. Sect. 1. An Act against the bringing in and putting in Execution of Bulls Writings and Instruments and other Superstitious things from the See of Rome divers evil affected persons have practised contrary to the meaning of the said Statute by other means than by Bulls or Instruments Written or Printed to withdraw divers the Queéns Majesties Subjects from their natural Obedience to her Majesty and to obey the said usurped Authority of Rome and in respect of the same to perswade great numbers to withdraw their due Obedience to her Majesties Laws established for the due Service of Almighty God For Reformation whereof Stat. Sect. 2. Treason to withdraw any from the Religion Established to the Romish Religion and to declare the true meaning of the said Law Be it declared and enacted by the Authority of this present Parliament That all persons whatsoever which have or shall have or shall pretend to have power or shall by any ways or means put in practice to absolve perswade or withdraw any of the Queéns Majesties Subjects or any within her Highnesses Realms and Dominions from their natural Obedience to her Majesty or to withdraw them for that intent from the Religion now by her Highnesses Authority established within her Highnesses Dominions to the Romish Religion or to move them or any of them to promise any Obedience to any pretended Authority of the Seé of Rome or of any other Prince State or Potentate to be had or used within her Dominions or shall do any overt act to that intent or purpose and every of them shall be to all intents adjudged to be Traytors And being thereof lawfully convicted shall have Iudgment suffer and forfeit as in case of High Treason And if any person shall after the end of this Session of Parliament by any means be willingly absolved or withdrawn as aforesaid or willingly be reconciled It shall be Treason to be reconciled or withdrawn to the Romish Religion or shall promise any Obedience to any such pretended Authority Prince State or Potentate as is aforesaid that then every such person their Procurers and Counsellors thereunto being thereof lawfully convicted shall be taken tried and judged and shall suffer and forfeit as in Cases of High Treason Perswade or withdraw It was held in Lovett and Faulkners Case Mich. 12. Jac. B. R. That if a man were Indicted for endeavouring and practising voluntarie felonice proditorie to perswade and withdraw any of the Kings Subjects from his Obedience unto the Romish Religion and was afterwards debito modo acquietatus yet an Action upon the Case in nature of a Conspiracy would not lye against the party who procured him to be Indicted Cro. Mich. 12. Jac. 357 358. Rolls 1. 209. C. 49. Bulstrode 2. 271. and the main reason given was That forasmuch as every man is bound to discover Treason and 't is dangerous to conceal any thing which may tend to Treason therefore the procuring one to be Indicted concerning it was no Cause of Action And in that Case Coke Chief Justice said That such an Action was never before that time brought But later Resolutions have been to the contrary of this Opinion Action lies for indicting a man of High Treason And 't is held for Law at this day That if a man procures another to be Indicted of High Treason an Action upon the Case in nature of Conspiracy lies against him that procures it as well as if it were for Felony The first leading Case of this nature which was resolved upon any solemn argument or debate was that of Smith versus Cranshaw or Crashaw and others where it was adjudged upon great deliberation by all the Four Judges of the Court of Kings Bench Hill 1. Car. 1. That an Action in nature of a Conspiracy doth well lye in such Case and that not only in Case of Acquittal upon Trial but upon the exhibiting a Bill of Indictment for High Treason to the Court or Jury if the Jury bring in Ignoramus although in this last Case a Writ of Conspiracy lyeth not And Lovett and Faulkners Case was denied to be Law Addition to Bendloes 152. Latch 79 80. Jones 93 94 95. And Justice Dodderidge who concurred in Opinion with the other Judges in the Case of Lovett and Faulkner changed his Opinion in that of Smith and Cranshaw and held that the Action was maintainable Bulstrode 2. 271 272. so that whosoever of meer malice without probable cause causes any person to be Indicted upon this Statute Stat. 3. Jac. 4. or that of 3 Jac. cap. 4. for endeavouring or practising so to perswade or withdraw any Subject or prefers a Bill to the Court or Jury for that purpose is liable to an Action of the Case for so doing if the party be acquitted or the Jury bring in Ignoramus as in other Cases of Felony Any of the Queens Majesties Subjects Queens Subjects Stat. 3 Jac. 4. What is meant by the Queens Subjects Vide Stat. 3 Jac. cap. 4. Sect. 19. And be it likewise Enacted and declared Stat. Sect. 3. The penalty of aiders maintainers and concealers That all and every person and persons that shall wittingly be aiders or maintainers of such persons so offending as is above expressed or of any of them knowing the same or which shall conceal any offence aforesaid and shall not within twenty days at the furthest after such persons knowledge of such offence disclose the same to some Iustice of Peace or other higher Officer shall be taken tried and judged and shall suffer and forfeit as Offenders in misprision of Treason These words And shall not within twenty days Aiders or maintainers punishable though discoverers c. disclose the same have no reference to those who are aiders or maintainers of the Offender but only to those who have barely a knowledge of the Offence without aiding or maintaining the party And therefore if such as are aiders or maintainers of the person offending discover the offence within twenty days yet such discovery shall not free them from the guilt of misprision of Treason as Wingate mistakes in his Abridgment of this Clause tit Crown numb 42. but if they once aid or maintain the party knowing him to be an Offender they are guilty whether they disclose or conceal the offence and shall have no benefit of the twenty days And be it likewise Enacted Stat. Sect. 4. The forfeiture for saying or hearing of Mass That every person which shall say or sing Mass being thereof lawfully convicted shall forfeit the sum of Two hundred Marks and be commited to Prison in the next Goal there to remain by the space of
Sunday be not dies Juridicus so as to award a Judicial Process or enter a Judgment of Record on that day yet an Information may be exhibited in Court on that day and good Jones 156. 157. Bedoe versus Alpe Information delivered In the Common-Pleas an Information may by the course of that Court be brought in and delivered to one of the Judges there out of Term No antedate Stat. 18 Eliz. 5. and shall be dated then For the Statute of 18 Eliz. cap. 5. forbids all antedates Rolls 2.33 Smith versus Carter Conviction on Indictment pending the Information An Information is brought by an Informer Qui tam c. upon this Statute for Recusancy and pending the Information the Recusant is convicted at the Kings Suit upon an Indictment for the same absence the Question is what remedy the Recusant hath in this Case that he may not Bis puniri pro uno delicto And to this it was Answered by Coke Chief Justice B. R. in the Case of Dr. Foster that he may plead this Conviction puis le darreine continuance to discharge himself of the Information Rolles 1. 95. C 41. But as the Reporter there well observes the Informer when he hath begun his popular Action hath appropriated the Action to himself And if it shall be admitted that the King can devest him of this Action when he pleases Action appropriated by Indictment at his own Suit this would prove very mischievous to Informers Quaere therefore how in this Case the Recusant shall defend himself from being doubly punished for one and the same Offence But if the Recusant be once convicted at the Kings Suit either by Indictment upon this Statute or according to the Statutes of 29 Eliz. cap. 6. Stat. 29 Eliz. 6 3 Jac. 4. or 3 Jac. cap. 4. upon Proclamation the Informer Qui tam c. cannot afterwards charge him but is barred for ever after Informer barred For the intention of this Statute is that the Informer may exhibit Informations against such only as are concealed or not charged at the Kings Suit so that the Informer is neque falcator neque messor but spicelegus a gleaner And that in such Cases only where the King doth not prosecute pardon or release before the Informers Action is commenced Co. 11. 65. Dr. Fosters Case Bridgman 121.122 Parker against Sir John Webb and his Wife Lane 60. But whether this Rule be general and will not admit of an exception in the Case of a Feme Covert Feme Covert is a Question for by some Opinions if a Feme Covert be Indicted and Convicted of Recusancy that shall not Bar the Informer of his popular Action upon this Statute against her and her Husband for the Recusancy of the Wife Because upon the Conviction by Indictment she cannot be compelled to pay the forfeiture of Twenty pounds per month while her Husband lives nor can it be levied of her goods and lands For that during the Coverture she hath nothing of her own to forfeit but all is her Husbands Vide Bridgman 122. 123. Parker versus Sir John Webb and his Wife Vide Stat. 3 Jac. cap. 4. Sect. 6. The Condemnation or Acquittal of the party at the Suit of the Informer is a good Barr against the King and all others Bar. Co. 11. 66. Before the Statute of 4 H. 7. cap. 20. Popular Action by Covin it seems that if a popular Action had been brought by Covin and with the consent of the Defendant and the Defendant was for want of Evidence or other Cause found not guilty and the Covin appeared to the Court yet Judgment should have been given thereupon against the King and it should have been a good Barr against all others 9 E. 4. 4. But now by that Statute of H. 7. Stat. 4 H. 7. 20 If any person sue with good Faith any Action popular and the Defendant plead a Recovery in an Action popular in Barr or that before that time he had barred the Plaintiff in such Action the Plaintiff may aver such Recovery or Bar was by Covin and upon such Covin found the Plaintiff shall have Judgment and the Defendant so attainted or condemned of Covin shall have Imprisonment for two years by process of Capias or Outlawry as well at the Kings suit as any other and the Release of the party shall not avail the Defendant which Covin may be averred generally Vide Wymbishe and Talbois Case Plowden 49 50 54 55. If a man bring upon a penal Statute an Action of Debt tam pro Domino Rege quam pro seipso Who is to reply in a popular Action of debt and the Defendant pleads thereunto the party Plaintiff may reply without the Kings Attorney And in Princes Case in an Action of Debt upon this Statute the Defendants demurred and the Plaintiff qui tam c. joined in Demurrer without the Kings Attorney and held to be good Cro. Trin. 1 Car. 10 11. Lionel Farringtons Case But in an Information tam c. quam And who in a popular Information c. the Kings Attorney ought to reply Rolles 2.33 Smith versus Carter And this difference between an Action of Debt and an Information was taken in the aforesaid Case of Farrington versus Arundell Hutton 82. But yet if in an Information the Defendant plead a special Plea and the Kings Attorney will not reply and prosecute for the Kings part the Informer shall be admitted to reply and prosecute for his part as was adjudged in the Case of Stretton and Taylor Co. 11.65 Dr. Fosters Case Co. 3. Inst 194. Where the King may pardon or release the penalty The King before any Information or other popular Suit commenced may pardon or release the whole penalty incurred and it shall be a good Bar against all men Co. 11.65 66. Dr. Fosters Case Co. 3. Inst. 194 195. 37 H. 6. 4. 2 R. 3. 12. Termes de la Ley 102. Decies tantum 1 H. 7. 3. And if the Defendant in the Information do not take advantage of such pardon or release by his Plea but is condemned in the Suit and the Kings share of the penalty be put in the Pipe in magno rotulo yet he may then discharge himself thereof upon a Compertum fuit in magno rotulo by shewing forth the whole matter by way of Plea and shall not lose the effect of his pardon or release Vide Savile 23. C. 56. Tirringhams Case And where not But when once the Informer hath brought his popular Suit the King cannot discharge it and if he then pardon or release or his Attorney enter an ulterius non vult prosequi this is good for the Kings part only but is no Bar quoad the Informer who may proceed notwithstanding for his part of the penalty And therefore neither can the Kings Attorney discharge the Jury when they come to deliver their Verdict Hutton 82. Vaughan 343. Thomas versus
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
Marriage may also be lost by Marriage Eodem modo quo quid constituitur dissolvitur And in such Case she shall not be tried by Noblemen For they are no longer her Peers Co. 2. Inst 50. But if a Woman be Noble by birth By birth or descent whomsoever she marries yet she remaineth Noble For birthright is Character indelebilis vide Co. 4. 118. Actons Case Co. 6. 53. Countess of Rutlands Case Dyer 6 7 E. 6. 79. Bro. Nosme de Dignity 31. 69. Co. 1. Inst 69. And 't is observable that the Statute of 21 H. 8. cap. 13. Stat. 21 H. 8. 13 provides that a Dutchess Marquess Countess or Baroness Widows which take a second Husband under the Degree of a Baron may notwithstanding such second Marriage take such number of Chaplains as if she were a Widow which she could not have done if it had not been expresly provided for by the Statute and the reason is given in Actons Case because by such Marriage her Dignity is determined But here there being no such provisional Clause she shall not have the priviledge of Nobility but may be tendred the Oath of Allegiance by the Justice of Peace as in the Case of a Common person Shall stand and be Presented Indicted or Convicted Conviction not necessary These words being in the dis-junctive it is not necessary that the party be convicted But if he stand Presented or Indicted for not coming to Church or not receiving the Sacrament and be under the degree of a Baron the Justice of Peace ought to tender him this Oath And the said Iustice shall find Cause of suspition There must be cause of suspicion And not if the party be suspected as Wingate tit Crowne n. 150. mistakes for the bare suspition of the Justice of Peace or any other person is no sufficient ground to require the Oath or commit the party for refusal But there must be some good Cause for that suspition and the same must be alledged in the Justice of Peace his Plea or Justification if he be sued for committing him to Prison for such refusal So if a man be arrested on suspition of Felony and bring his Action for false Imprisonment the Defendant ought to shew some matter in fact to induce his suspition For in these and the like Cases a bare suspition is no sufficient Justification it being a matter secret and not traversable but the Cause of suspition is traversable Bulstrode 3. 284 285. Weale versus Wells 7 E. 4. 20. 17 E. 4. 5. 5 H. 7. 4. It shall be tried by the Justices And whether the suspition be just and lawful shall be tried and determined by the Justices Co. 2. Inst 52. 11 E. 4. 4. That then any one Iustice of Peace What was said by Coke Chief Justice B. R. in the Case of Griffith and others Bulstrode 2. 155. viz. that any one Justice of Peace One Justice of Peace may minister this Oath is to be understood of some Cases only Co. 12. 130. which are no other then those here mentioned as he explains his meaning in his said 12th Part p. 132. where he saith that one Justice of Peace cannot commit any for refusal of this Oath unless they be Prosecuted Indicted or Convicted c. according to this Statute Vide Stat. 3 Jac. cap. 4. Sect. 10. 11. Within whose Commission or Power such person or persons shall at any time hereafter be A person complained of and against whom cause of suspition is found by the Justice of Peace flies into another County A person complained of and justly suspected flies into another County Quaere whether a Justice of Peace of that other County can require the Oath of him and commit him upon refusal For he seems to be impowred thereunto by the express words of the Statute for that the party is fallen within his Commission or Power But yet I conceive that by these words any one Iustice of Peace within whose Commission or Power c. is designed or intended no other Justice then a Justice of that County where the party was complained of and suspected The Justices there cannot proceed thereupon And that if he flie into another County no proceedings can be there upon the complaint and suspition in the County whence he came nor any one Justice tender him the Oath or commit him for refusal without a new Complaint and cause of suspition in the County whither he flies For where the party cannot be Indicted of a Praemunire for refusing the Oath upon the second tender at the Assizes or Sessions there the Justice or Justices of Peace out of Sessions cannot tender the Oath or commit for refusal For the Commitment is in Order to a second tender and an Indictment of Praemunire thereupon But in this Case the party cannot be Indicted of a Praemunire in the County where he flies for refusing it upon the second tender For the offence for which the party must be Indicted is a complicated offence consisting of several particulars First In giving just cause of suspition without which the party complained of according to this Act cannot be tendred the Oath by one Justice of Peace then in refusing the Oath before the Justice of Peace who tendred it and lastly in refusing it upon the second tender at the Assizes or Sessions all which must be comprised in the Indictment so that the cause of suspition is pars criminis and that arising in the County where the party dwelt and was complained of cannot be punished in another County unless the Statute had expresly made it examinable there Vide Stat. 3 Jac. cap 4. Stat. 5 Jac. 4. Sect. 11. True it is that some Statutes do enable Justices of Peace to punish an offence done in another County but that is where they enable them likewise to examine the truth of the Fact and take proofs and evidence thereof so the Statutes of 1 Jac. cap. 27. and 7 Jac. cap. 11. 1 Jac. 27. 7 Jac. 11. impower the Justices of Peace where the party is apprehended to examine and punish the offence But in our Case the cause of suspition arising in one County is not made examinable and consequently not punishable in another County and if not punishable there no Justice of Peace of that other County can proceed upon that cause of suspition notwithstanding the party happen to be within his Commission or power But yet the party so flying into another County may without any new complaint or cause of suspition be tendred the Oath But yet he may be tendred the Oath there and proceeded against there by two Justices of Peace Quorum unus c. by vertue of the foregoing words of this Clause although he dwell in another County and that for the reason before given viz. because this Oath sequitur personam non locum But Wingate in abridging this Clause tit Crowne numb 150. saves us the labour of this Question for
from the last day of this Session of Parliament deemed and remain utterly repealed void and of none effect to all intents and purposes Any thing in the said several Acts or any of them contained or any other matter or cause to the contrary notwithstanding Stat. Sect. 4. The abolishing of Forreign Authority And to the intent that all usurped and Forreign Power and Authority Spiritual and Temporal may for ever be clearly extinguished and never to be used or obeyed within this Realm or any other your Majesties Dominions or Countries may it please your Highness That it may be further enacted by the Authority aforesaid That no Forreign Prince Person Prelate State or Potentate Spiritual or Temporal shall at any time after the last day of this Session of Parliament use enjoy or exercise any manner of Power Iurisdiction Superiority Authority Preheminence or Priviledge Spiritual or Ecclesiastical within this Realm or within any other your Majesties Dominions or Countries that now be or hereafter shall be but from thenceforth the same shall be clearly abolished out of this Realm and all other your Highnesses Dominions for ever Any Statute Ordinance Custom Constitutions or any other matter or cause whatsoever to the contrary in any wise notwithstanding By the abrogating the Jurisdiction of any Forreign Prelate Archbishop of Canterburies concurrent Jurisdiction abrogated all Jurisdiction derived from such Forreigner is abrogated likewise And therefore the concurrent Jurisdiction which the Archbishop of Canterbury is supposed to have in the inferiour Diocesses ought not now to be exercised by him but is utterly taken away by this Act For he had it not as Archbishop but as Legatus natus to the Pope and if continued to be exercised is a meer Usurpation Hobart 17. Dr. James's Case And that also it may likewise please your Highness Stat. Sect. 5. Ecclesiastical Jurisdiction annexed to the Crown that it may be established and enacted by the Authority aforesaid that such Iurisdictions Priviledges Superiorities and Preheminences Spiritual and Ecclesiastical as by any Spiritual or Ecclesiastical Power or Authority hath heretofore béen or may lawfully be exercised or used for the Visitation of the Ecclesiastical State and Persons and for Reformation Order and Correction of the same And of all manner of Errors Heresies Schisms Abuses Offences Contempts and Enormities shall for ever by Authority of this present Parliament be united and annexed to the Imperial Crown of this Realm Sir Edward Coke 4. Inst 325. calls this an Act of Restitution of the ancient Jurisdiction Ecclesiastical which always belonged of Right to the Crown of England That is a restitution of the exercise of it For in truth this Statute is not introductory of a new Law The Kings ancient Jurisdiction Ecclesiastical but declaratory of the old and annexes not any Jurisdiction to the Crown but that which was or of right ought to be by the ancient Laws of this Realm parcel of the Kings Jurisdiction By which Laws the King as supream Head hath full and intire Power in all causes Ecclesiastical as well as Temporal For the Ecclesiastical Laws are the Kings Laws as well as the Temporal And the Judges of either of those Laws derive their Authority from him alone Co. 5.8 9. Cawdries Case where are several instances of Ecclesiastical Jurisdiction exercised by the Kings of this Realm in several Ages Moore 755. b. 1043. The King is Persona mixta And in this respect the King is said to be Persona mixta and Persona mixta unita cum Sacerdotibus for that he hath both Ecclesiastical and Temporal Jurisdiction 10 H. 7.18 Co. 2.44 Bishop of Winchesters Case Coke 13.17 Case of Modus Decimandi Vid. Co. lib. 6. Praefac ' And supream Ordinary The King is the supream Ordinary and by the ancient Laws of this Realm may without any Act of Parliament make Ordinances and Institutions for the Government of the Clergy and may deprive them if they obey not Moore 755. C. 1043. Cro. Trin. 2. Jac. 37. And if there be a controversie between Spiritual Persons concerning their Jurisdiction the King is Arbitrator and 't is a right of his Crown to distribute to them and to declare their Bounds Hobart 17. Dr. James's Case Laws to be administred distinctly And yet although these Jurisdictions Ecclesiastical and Temporal are both in the King they are not to be confounded For although both Laws are the Kings Laws yet they are to be administred distinctly so that he who hath Ecclesiastical Jurisdiction derived from the King ought not to usurp upon the temporal Law And the Ecclesiastical Judge who meddles in Temporal Causes or Suits and draws the Interest or Cause of the Subject which ought to be determined by the Common Law ad aliud examen viz. to be decided by the Ecclesiastical Law offends contra Coronam dignitatem Regiam In confounding those Jurisdictions of the King which ought to be kept separate and distinct Prohibition And in such Cases not only a Prohibition lies but the Ecclesiastical Judge if the Cause originally belongs to the Common Law Pramunire and not to the Ecclesiastical Court incurs a Praemunire for depriving the Subject of the benefit of the Common Law which is his Birthright Co. 12.37 38 39 40. Co. 3. Inst 120. And therefore it was Resolved That if a man be excommunicated in the Bishops Court for a matter which belongs to the determination of the Common Law 't is no less than a Praemunire Praemunire And that by force of the word elsewhere in the Statute of 16 R. 2. cap. 5. Stat. 16 R. 2. 5. If any man pursue in the Court of Rome or elsewhere c. 5 E. 4.6 The King may do what the Pope might by the Canon Law By this and the former Clause which restores to the King the Title and Exercise of the Power of Supream Head of the Church of England and annexes to the Crown all Ecclesiastical Jurisdiction heretofore exercised by any Forreigner The King as supream Head may do whatever the Pope might formerly do within this Realm by the Canon Law And upon this ground it was resolved Trin. 39 Eliz. in Hollingworths Case in the Kings-Bench That notwithstanding the Statute of 25 H. 8. cap. 19. Stat. 25 H. 8. 19 which makes the sentence of the Delegates definitive and saith that no further Appeal shall be had yet the King after such definitive Sentence may grant a Commission of Review Commission ad revidendum For that after a definitive Sentence the Pope as supream Head by the Canon Law used to grant a Commission ad revidendum Co. 4. Inst 341. Upon this ground it was likewise resolved in the Case of Grendon versus the Bishop of Lincoln al' That the King with the consent of the Patron and without the Bishop may make an Appropriation Appropriation And in such Case the King doth it Authoritate sua regia
suprema Ecclesiastica qua fungitur for so are the words in the Charter there Plowden 497 498 500. Vide Co. 5. 10. Cawdries Case Co. 11. 10 11. Pridle and Nappers Case And where the King is Patron an Appropriation may be made by him alone Addition to Popham 145. And as he is supream Head and supream Ordinary a Resignation Resignation made to him of a Deanry is as good as if it were made to the Bishop Dyer 12 13 Eliz. 293. Pollard and Walronds Case Plowden 498. Palmer 493. Hayward and Fulchers Case And that your Highness your Heirs and Successors Stat. Sect. 6. The Queen may assign Commissioners to exercise Ecclesiastical Jurisdiction Kings or Queens of this Realm shall have full Power and Authority by vertue of this Act by Letters Patents under the Great Seal of England to assign name and authorize when and as often as your Highness your Heirs or Successors shall think meet and convenient And for such and so long time as shall please your Highness your Heirs or Successors such person or persons being natural born Subjects to your Highness your Heirs or Successors as your Majesty your Heirs or Successors shall think meet to exercise use occupy and execute under your Highness your Heirs and Successors all manner of Iurisdictions Priviledges and Preheminencies in any wise touching or concerning any Spiritual or Ecclesiastical Iurisdiction within these your Realms of England and Ireland or any other your Highnesses Dominions and Countries And to visit reform redress order correct and amend all such Errors Heresies Schisms Abuses Offences Contempts and Enormities whatsoever which by any manner of Spiritual or Ecclesiastical Power Authority or Iurisdiction can or may lawfully be reformed ordered redressed corrected restrained or amended to the pleasure of Almighty God the increase of Virtue and the conservation of the Peace and Vnity of this Realm And that such person or persons so to be named assigned authorized and appointed by your Highness your Heirs or Successors after the said Letters Patents to him or them made and delivered as is aforesaid shall have full Power and Authority by virtue of this Act and of the said Letters Patents under your Highness your Heirs or Successors to exercise use and execute all the premisses according to the tenor and effect of the said Letters Patents Any matter or cause to the contrary in any wise notwithstanding High Commission Court The Jurisdiction and Authority here by given to the late Court commonly called the High Commission Court are now taken away by Act of Parliament but the Power here given the Queen to constitute such Commissioners was no more than she had before by ancient Prerogative and the Laws of England For thereby she might have made such an Ecclesiastical Commission if this Act of 1 Eliz. had never been made Co. 5.8 9. Cawdries Case Cro. Trin. 2. Jac. 37. Stat. Who are compellable to take the Oath Ecclesiastical Persons and Officers Judge Justice Mayor Temporal Officer He that hath the Queens Fee And for the better observation and maintenance of this Act may it please your Highness That it may be further enacted by the Authority aforesaid That all and every Archbishop Bishop and all and every other Ecclesiastical person and other Ecclesiastical Officer and Minister of what Estate Dignity Preheminence or Degree soever he or they be or shall be and all and every temporal Iudge Iustice Mayor and other Lay or Temporal Officer and Minister and every other person having your Highnesses Fees or Wages within this Realm or any your Highnesses Dominions shall make take and receive a corporal Oath upon the Evangelist before such person or persons as shall please your Highness your Heirs or Successors under the Great Seal of England to assign and name to accept and to take the same according to the tenor and effect hereafter following that is to say I A. B. do utterly testifie and declare in my Conscience The Oath for the Queens Supremacy That the Queens Highness is the only Supream Governour of this Realm and of all other Her Highness Dominions and Countries as well in all Spiritual or Ecclesiastical Things or Causes as Temporal And that no Forreign Prince Person Prelate State or Potentate hath or ought to have any Jurisdiction Power Superiority Preheminence or Authority Ecclesiastical or Spiritual within this Realm And therefore I do utterly renounce and forsake all Forreign Jurisdictions Powers Superiorities and Authorities and do promise that from henceforth I shall bear Faith and true Allegiance to the Queens Highness her Heirs and lawful Successors and to my Power shall assist and defend all Jurisdictions Priviledges Preheminences and Authorities granted or belonging to the Queens Highness her Heirs and Successors or united and annexed to the Imperial Crown of this Realm So help me God and by the Contents of this Book And that it may also be Enacted The penalty for refusing the Oath That if any such Archbishop Bishop or other Ecclesiastical Officer or Minister or any of the said Temporal Iudges Iusticiaries or other Lay-Officer or Minister shall peremptorily or obstinately refuse to take or receive the said Oath That then he so refusing shall forfeit and lose only during his life all and every Ecclesiastical and Spiritual Promotion Benefice and Office and every Temporal and Lay-Promotion and Office which he hath solely at the time of such refusal made And that the whole Title Interest and Incumdency in every such Promotion Benefice and other Office as against such person only so refusing during his life shall clearly cease and be void as though the party so refusing were dead And that also all and every such person and persons so refusing to take the said Oath shall immediately after such refusal be from thenceforth during his life disabled to retain or exercise any Office or other Promotion which he at the time of such refusal hath joyntly or in Common with any other person or persons And that all and every person and persons that at any time hereafter shall be preferred promoted or collated to any Archbishoprick or Bishoprick or to any other Spiritual or Ecclesiastical Benefice Promotion Dignity or Office or Ministry or that shall be by your Highness your Heirs or Successors preferred or promoted to any Temporal or Lay-Office Ministry or Service within this Realm or in any your Highness Dominions before he or they shall take upon him or them to receive use exercise supply or occupy any such Archbishoprick Bishoprick Promotion Dignity Office Ministry or Service shall likewise make take and receive the said Corporal Oath before mentioned upon the Evangelist before such persons as have or shall have Authority to admit any such person to any such Office Ministry or Service or else before such person or persons as by your Highness your Heirs or Successors by Commission under the Great Seal of England shall be named assigned or appointed to minister the
Act of Repeal made in the said first and second years of the Reigns of the said late King Philip and Quéen Mary as doth in any wise touch or concern any matter or cause of Praemunire or that doth make or ordain any matter or cause to be within the Case of Praemunire but that the same for so much only as toucheth or concerneth any Case or matter of Praemunire shall stand and remain in such force and effect as the same was before the making of this Act Any thing in this Act contained to the contrary in any wise notwithstanding Provided also and be it enacted by the Authority aforesaid Offences committed against Statutes revived That this Act or any thing therein contained shall not in any wise extend or be prejudicial to any person or persons for any Offence or Offences committed or done or hereafter to be committed or done contrary to the tenour and effect of any Act or Statute now revived by this Act before the end of thirty days next after the end of the Session of this present Parliament Any thing in this Act contained or any other matter or cause to the contrary notwithstanding Stat. Sect. 11. Trial of Peers And if it happen that any Peér of this Realm shall fortune to be indicted of and for any Offence that is revived or made Praemunire or Treason by this Act that then he so being indicted shall have his Trial by his Péers in such like manner and form as in other Cases of Treason hath been used Provision for Trial of Peers The provision made in this and other Acts of Parliament for the Trial of a Peer by his Peers in case of Treason where he was to be tried according to the course of the Common Law is Ex abundanti and he should have such Trial if no such Proviso were inserted the like in the Case of Felony Stamford Pl. Coron 153. Stat. Sect. 12. No matter of Religion c. made by this Parliament shall be adjudged Error Heresie or Schism Provided always and be it enacted as is aforesaid That no manner of Order Act or Determination for any matter of Religion or cause Ecclesiastical had or made by the Authority of this present Parliament shall be accepted deémed interpreted or adjudged at any time hereafter to be any Error Heresie Schism or schismatical Opinion Any Order Decreé Sentence Constitution or Law whatsoever the same be to the contrary notwithstanding What things the Commissiners may adjudge to be Heresie Provided always and be it enacted by the Authority aforesaid That such person or persons to whom your Highness your Heirs or Successors shall hereafter by Letters Patents under the Great Seal of England give Authority to have or execute any Iurisdiction Power or Authority Spiritual or to visit reform order or correct any Errors Heresies Schisms Abuses or Enormities by virtue of this Act shall not in any wise have Authority or Power to Order determine or adjudge any matter or cause to be Heresie but only such as heretofore have been determined ordered or adjudged to be Heresie by the Authority of the Canonical Scriptures The Scripture Four general Counsels or by the first four general Counsels or any of them or by any other general Counsel wherein the same was declared Heresie by the express and plain words of the said Canonical Scriptures or such as hereafter shall be ordered judged or determined to be Heresie by the high Court of Parliament of this Realm with the assent of the Clergy in their Convocation Any thing in this Act contained to the contrary notwithstanding None shall be indicted or arraigned but by Witnesses And be it further enacted by the Authority aforesaid That no person or persons shall be hereafter indicted or arraigned for any of the Offences made ordained revived or adjudged by this Act unless there be two sufficient Witnesses or more to testifie and declare the said Offences whereof he shall be indicted or arraigned And that the said Witnesses or so many of them as shall be living and within this Realm at the time of Arraignment of such person so indicted shall be brought forth in person face to face before the party so arraigned and there shall testifie and declare what they can say against the party so arraigned if he require the same Provided also A Proviso for them that give relief to Offenders and be it further enacted by the Authority aforesaid That if any person or persons shall hereafter happen to give any relief aid or comfort or in any wise be aiding helping or comforting to the person or persons of any that shall hereafter happen to be an Offender in any matter or case of Praemunire or Treason revived or made by this Act that then such relief aid or comfort given shall not be judged or taken to be any Offence unless there be two sufficient Witnesses at the least that can and will openly testifie and declare that the person or persons that so give such relief aid or comfort had notice and knowledge of such Offence committed and done by the said Offender at the time of such relief aid or comfort so to him given or ministred Any thing in this Act contained or any other matter or cause to the contrary in any wise notwithstanding And where one pretenced sentence hath heretofore béen given in the Consistory in Pauls before certain Iudges De Legate by the Authority Legantine of the late Cardinal Poole by reason of a Forreign usurped Power and Authority against Richard Chetwood Esq and Agnes his Wife Chetwoods Appeal to the Court of Rome by the name of Agnes Woodhull at the suit of Charles Tyrrel Gent. in a Cause of Matrimony solemnized betweén the said Richard and Agnes as by the same pretended Sentence more plainly doth appear from which Sentence the said Richard and Agnes have appealed to the Court of Rome which Appeal doth there remain and yet is not determined May it therefore please your Highness that it may be enacted by the Authority aforesaid That if Sentence in the said Appeal shall happen to be given at the said Court of Rome for and in the behalf of the said Richard and Agnes for the reversing of the said pretenced Sentence before the end of threéscore days next after the end of this Session of this present Parliament that then the same shall be judged and taken to be good and effectual in the Law and shall and may be used pleaded and allowed in any Court or Place within this Realm Any thing in this Act or in any other Act or Statute contained to the contrary notwithstanding And if no Sentence shall be given at the Court of Rome in the said Appeal for the reversing of the said pretenced Sentence before the end of the said thréescore days that then it shall and may be lawful for the said Richard and Agnes and either of them at any time hereafter to
commence take sue and prosecute their said Appeal from the said pretenced Sentence and for the reversing of the said pretenced Sentence within this Realm in such like manner and form as was used to be pursued or might have béen pursued within this Realm at any time since the xxiv year of the Reign of the said late King Henry the Eighth upon Sentences given in the Court or Courts of any Archbishop within this Realm And that such Appeal as so hereafter shall be taken or pursued by the said Richard Chetwood and Agnes or either of them and the Sentence that herein or thereupon shall hereafter be given shall be judged to be good and effectual in the Law to all intents and purposes any Law Custom Vsage Canon Constitution or any other matter or cause to the contrary notwithstanding An Appeal between Richard Harcourt and Anthony Fydell Provided also and be it enacted by the Authority aforesaid That where there is the like Appeal now depending in the said Court of Rome betweén one Richard Harcourt Merchant of the Staple and Elizabeth Harcourt otherwise called Elizabeth Robins of the one party and Anthony Fydell Merchant Stranger on the other party that the said Robert Elizabeth and Anthony and every of them shall and may for the prosecuting and trying of their said Appeal have and enjoy the like remedy benefit and advantage in like manner and form as the said Richard and Agnes or any of them hath may or ought to have and enjoy this Act or any thing therein contained to the contrary in any wise notwithstanding Stat. i Eliz. cap. ii An Act for the Vniformity of Common Prayer and Service in the Church and the Administration of the Sacraments WHere at the death of our late Soveraign Lord King Edward the Sixth Stat. Sect. 1. there remained one uniform Order of Common Service and Prayer and of the Administration of Sacraments Rites and Ceremonies in the Church of England which was set forth in one Book Intituled The Book of Common Prayer and Administration of Sacraments and other Rites and Ceremonies in the Church of England Authorized by Act of Parliament holden in the Fifth and Sixth years of our said late Sovereign Lord King Edward the Sixth Intituled An Act for the Vniformity of Common Prayer and Administration of the Sacraments the which was repealed and taken away by Act of Parliament in the First year of the Reign of our late Sovereign Lady Quéen Mary to the great decay of the due honour of God and discomfort to the Professors of the Truth of Christ's Religion Be it therefore Enacted by the Authority of this present Parliament That the said Estatute of Repeal A repeal of the Statute of 1 M. 2. And the Book of Common Prayer shall be in force and every thing therein contained only concerning the said Book and the Service Administration of the Sacraments Rites and Ceremonies contained or appointed in or by the said Book shall be void and of none effect from and after the Feast of the Nativity of Saint John Baptist next coming And that the said Book with the Order of Service and of the Administration of Sacraments Rites and Ceremonies with the alteration and additions therein added and appointed by this Estatute shall stand and be from and after the said Feast of the Nativity of Saint John Baptist in full force and effect according to the tenor and effect of this Estatute Any thing in the aforesaid Estatute of Repeal to the contrary notwithstanding Stat. Sect. 2. The Book of Common Prayer shall be used And further Be it Enacted by the Queens Highness with the assent of the Lords and Commons in this present Parliament assembled and by the Authority of the same That all and singular Ministers in any Cathedral or Parish Church or other place within this Realm of England Wales and the Marches of the same or other the Quéens Dominions shall from and after the Feast of the Nativity of Saint John Baptist next coming be bounden to say and use the Mattens Evensong Celebration of the Lords Supper and Administration of each of the Sacraments and all the Common and open Prayer The alteration of the Book set forth 5 6 Ed. 6. in such Order and Form as is mentioned in the said Book so Authorized by Parliament in the said Fifth and Sixth years of the Reign of King Edward the Sixth with one alteration or addition of certain Lessons to be used on every Sunday in the year and the Form of the Letany altered and corrected and two sentences only added in the delivery of the Sacrament to the Communicants and none other or otherwise The forfeiture of those which use any other Service then the Book of Common Prayer And that if any manner of Parson Vicar or other whatsoever Minister that ought or should sing or say Common Prayer mentioned in the said Book or Minister the Sacraments from and after the Feast of the Nativity of Saint John Baptist next coming refuse to use the said Common Prayers or to Administer the Sacraments in such Cathedral or Parish Church or other places as he should use to Minister the same in such Order and Form as they be mentioned and set forth in the said Book or shall wilfully or obstinately standing in the same use any other Rite Ceremony Order Form or Manner of celebrating the Lords Supper openly or privily or Mattens Evensong Administration of the Sacraments or other open Prayers then is mentioned and set forth in the said Book open Prayer in and throughout this Act is meant that Prayer which is for others to come unto or hear either in common Churches The Penalty for depraving the Book of Common Prayer or private Chappels or Oratories commonly called the Service of the Church or shall Preach Declare or Speak any thing in the Derogation or Depraving of the said Book or any thing therein contained or of any part thereof and shall be thereof lawfully convicted according to the Laws of this Realm by Verdict of twelve Men or by his own Confession or by the notorious Evidence of the Fact shall loose and forfeit to the Queens Highness her Heirs and Successors for his first offence the profit of all his Spiritual Benefices or Promotions coming or arising in one whole year next after his conviction And also that the person so convicted shall for the same Offence suffer Imprisonment for the space of Six months without Bail or Mainprize That ought or should sing or say Common Prayer c. What Minister is here meant Although the first part of this Clause viz. All and singular Ministers in any Cathedral or Parish Church or other place seems to intend a local Minister only and not one who is neither Parson Vicar or Stipendiary Chaplain yet the next words If any Parson Vicar or other Minister that ought to say Common Prayer or minister the Sacraments c. clearly comprehend all lawful